Harris v. McRae

Mr. Justice White,

concurring.

I join the Court’s opinion and judgment with these additional remarks.

Roe v. Wade, 410 U. S. 113 (1973), held that prior to viability of the fetus, the governmental interest in potential life was insufficient to justify overriding the due process right of a pregnant woman to terminate her pregnancy by abortion. In the last trimester, however, the State’s interest in fetal life was deemed sufficiently strong to warrant a ban on abortions, but only if continuing the pregnancy did not threaten the life or health of the mother. In the latter event, the State was required to respect the choice of the mother to terminate the pregnancy and protect her health.

Drawing upon Roe v. Wade and the cases that followed it, Mr. Justice Stevens’ dissent extrapolates the general proposition that the governmental interest in potential life may in no event be pursued at the expense of the mother’s health. It then notes that under the Hyde Amendment, Medicaid refuses to fund abortions where carrying to term threatens maternal health but finances other medically indicated procedures, including childbirth. The dissent submits that the Hyde Amendment therefore fails the first requirement imposed by the Fifth Amendment and recognized by the Court’s opinion today — that the challenged official action must serve a legitimate governmental goal, ante, at 324.

The argument has a certain internal logic, but it is not legally sound. The constitutional right recognized in Roe v. Wade was the right to choose to undergo an abortion without coercive interference by the government. As the Court *328points out, Roe v. Wade did not purport to adjudicate a right to have abortions funded by the government, but only to be free from unreasonable official interference with private choice. At an appropriate stage in a pregnancy, for example, abortions could be prohibited to implement the governmental interest in potential life, but in no case to the damage of the health of the mother, whose choice to suffer an abortion rather than risk her health the government was forced to respect.

Roe v. Wade thus dealt with the circumstances in which the governmental interest in potential life would justify official interference with the abortion choices of pregnant women. There is no such calculus involved here. The Government does not seek to interfere with or to impose any coercive restraint on the choice of any woman to have an abortion. The woman’s choice remains unfettered, the Government is not attempting to use its interest in life to justify a coercive restraint, and hence in disbursing its Medicaid funds it is free to implement rationally what Roe v. Wade recognized to be its legitimate interest in a potential life by covering the medical costs of childbirth but denying funds for abortions. Neither Roe v. Wade nor any of the cases decided in its wake invalidates this legislative preference. We decided as much in Maher v. Roe, 432 U. S. 464 (1977), when we rejected the claims that refusing funds for non-therapeutic abortions while defraying the medical costs of childbirth, although not an outright prohibition, nevertheless infringed the fundamental right to choose to terminate a pregnancy by abortion and also violated the equal protection component of the Fifth Amendment. I would not abandon Maher and extend Roe v. Wade to forbid the legislative policy expressed in the Hyde Amendment.

Nor can Maher be successfully distinguished on the ground that it involved only nontherapeutic abortions that the Government was free to place outside the ambit of its Medicaid program. That is not the ground on which Maher pro*329ceeded. Maher held that the government need not fund elective abortions because withholding funds rationally furthered the State’s legitimate interest in normal childbirth. We sustained this policy even though under Roe v. Wade, the government’s interest in fetal life is an 'inadequate justification for coercive interference with the pregnant woman’s right to choose an abortion, whether or not such a procedure is medically indicated. We have already held, therefore, that the interest balancing involved in Roe v. Wade is not controlling in resolving the present constitutional issue. Accordingly, I am satisfied that the straightforward analysis followed in Mr. Justice Stewart’s opinion for the Court is sound.