dissenting.*
“The federal sovereign, like the States, must govern impartially. The concept of equal justice under law is served by the Fifth Amendment’s guarantee of due process, as well as by the Equal Protection Clause of the Fourteenth Amendment.” Hampton v. Mow Sun Wong, 426 U. S. 88, 100. When the sovereign provides a special benefit or a special protection for a class of persons, it must define the membership in the class by neutral criteria; it may not make special exceptions for reasons that are constitutionally insufficient.
These cases involve the pool of benefits that Congress created by enacting Title XIX of the Social Security Act in 1965. Individuals who satisfy two neutral statutory criteria — financial need and medical need — are entitled to equal access to that pool. The question is whether certain persons who satisfy those criteria may be denied access to benefits solely because they must exercise the constitutional right to have an abortion in order to obtain the medical care they need. Our prior cases plainly dictate the answer to that question.
A fundamentally different question was decided in Maher v. Roe, 432 U. S. 464. Unlike these plaintiffs, the plaintiffs in Maher did not satisfy the neutral criterion of medical need; they sought a subsidy for nontherapeutic abortions— medical procedures which by definition they did not need. In rejecting that claim, the Court held that their constitutional right to choose that procedure did not impose a duty on *350the State to subsidize the exercise of that right. Nor did the fact that the State had undertaken to pay for the necessary medical care associated with childbirth require the State also to pay for abortions that were not necessary; for only necessary medical procedures satisfied the neutral statutory criteria. Nontherapeutic abortions were simply outside the ambit of the medical benefits program. Thus, in Maher, the plaintiffs’ desire to exercise a constitutional right gave rise to neither special access nor special exclusion from the pool of benefits created by Title XIX.
These cases involve a special exclusion of women who, by definition, are confronted with a choice between two serious harms: serious health damage to themselves on the one hand and abortion on the other. The competing interests are the interest in maternal health and the interest in protecting potential human life. It is now part of our law that the pregnant woman’s decision as to which of these conflicting interests shall prevail is entitled to constitutional protection.1
In Roe v. Wade, 410 U. S. 113, and Doe v. Bolton, 410 U. S. 179, the Court recognized that the States have a legitimate and protectible interest in potential human life. 410 U. S., at 162. But the Court explicitly held that prior to fetal viability that interest may not justify any governmental burden on the woman’s choice to have an abortion2 nor even any *351regulation of abortion except in furtherance of the State’s interest in the woman’s health. In effect, the Court held that a woman’s freedom to elect to have an abortion prior to viability has absolute constitutional protection, subject only to valid health regulations. Indeed, in Roe v. Wade the Court held that even after fetal viability, a State may “regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Id., at 165 (emphasis added). We have a duty to respect that holding. The Court simply shirks that duty in this case.
If a woman has a constitutional right to place a higher value on avoiding either, serious harm to her own health or perhaps an abnormal childbirth3 than on protecting potential life, the exercise of that right cannot provide the basis for the denial of a benefit to which she would otherwise be entitled. The Court’s sterile equal protection analysis evades this critical though simple point. The Court focuses exclusively on the “legitimate interest in protecting the potential life of the fetus.” Ante, at 324. It concludes that since the Hyde Amendments further that interest, the exclusion they create is rational and therefore constitutional. But it is mis*352leading to speak of the Government’s legitimate interest in the fetus without reference to the context in which that interest was held to be legitimate. For Roe v. Wade squarely-held that the States may not protect that interest when a conflict with the interest in a pregnant woman’s health exists. It is thus perfectly clear that neither the Federal Government nor the States may exclude a woman from medical benefits to which she would otherwise be entitled solely to further an interest in potential life when a physician, “in appropriate medical judgment,” certifies that an abortion is necessary “for the preservation of the life or health of the mother.” Roe v. Wade, supra, at 165. The Court totally fails to explain why this reasoning is not dispositive here.4
*353It cannot be denied that the harm inflicted upon women in the excluded class is grievous.5 As the Court’s comparison of the differing forms of the Hyde Amendment that have *354been enacted since 1976 demonstrates, the Court expressly approves the exclusion of benefits in “instances where severe and long-lasting physical health damage to the mother” is the predictable consequence of carrying the pregnancy to term. Indeed, as the Solicitor General acknowledged with commendable candor, the logic of the Court’s position would justify a holding that it would be constitutional to deny funding to a medically and financially needy person even if abortion were the only lifesaving medical procedure available.6 Because a denial of benefits for medically necessary abortions inevitably causes serious harm to the excluded women, it is tantamount to severe punishment.7 In my judgment, that denial cannot be justified unless government may, in effect, punish women who want abortions. But as the Court unequivocally held in Roe v. Wade, this the government may not do.
*355Nor can it be argued that the exclusion of this type of medically necessary treatment of the indigent can be justified on fiscal grounds. There are some especially costly forms of treatment that may reasonably be excluded from the program in order to preserve the assets in the pool and extend its benefits to the maximum number of needy persons. Fiscal considerations may compel certain difficult choices in order to improve the protection afforded to the entire benefited class.8 But, ironically, the exclusion of medically necessary abortions harms the entire class as well as its specific victims. For the records in both McRae and Zbaraz demonstrate that the cost of an abortion is only a small fraction of the costs associated with childbirth.9 Thus, the decision to tolerate harm to indi*356gent persons who need an abortion in order to avoid “serious and long-lasting health damage” is one that is financed by-draining money out of the pool that is used to fund all other necessary medical procedures. Unlike most invidious classifications, this discrimination harms not only its direct victims but also the remainder of the class of needy persons that the pool was designed to benefit.
In Maher the Court stated:
“The Constitution imposes no obligation on the States to pay the pregnancy-related medical expenses of indigent women, or indeed to pay any of the medical expenses of indigents. But when a State decides to alleviate some of the hardships of poverty by providing medical care, the manner in which it dispenses benefits is subject to constitutional limitations.” 432 U. S., at 469-470 (footnote omitted).
Having decided to alleviate some of the hardships of poverty by providing necessary medical care, the government must use neutral criteria in distributing benefits. It may not deny benefits to a financially and medically needy person simply because he is a Republican, a Catholic, or an Oriental— or because he has spoken against a program the government has a legitimate interest in furthering. In sum, it may not create exceptions for the sole purpose of furthering a governmental interest that is constitutionally subordinate to the individual interest that the entire program was designed to protect. The Hyde Amendments not only exclude financially and medically needy persons from the pool of benefits for a constitutionally insufficient reason; they also require the expenditure of millions and millions of dollars in order to thwart the exercise of a constitutional right, thereby effectively inflicting serious and long-lasting harm on impoverished women who want and need abortions for valid medical reasons. In my judgment, these Amendments constitute an unjustifiable, *357and indeed blatant, violation of the sovereign’s duty to govern impartially.10
I respectfully dissent.
[This opinion applies also to No. 79-4, Williams et al. v. Zbaraz et al., No. 79-5, Miller, Acting Director, Illinois Department of Public Aid, et al. v. Zbaraz et al., and No. 79-491, United States v. Zbaraz et al., post, p. 358.]
“In Roe v. Wade, 410 U. S. 113, the Court held that a woman’s right to decide whether to abort a pregnancy is entitled to constitutional protection. That decision ... is now part of our law. . . .” Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 101 (Stevens, J., concurring in part and dissenting in part).
Roe v. Wade involved Texas statutes making it a crime to “procure an abortion,” except when attempted to save the pregnant woman’s life. 410 U. S., at 117-118. Doe v. Bolton involved the somewhat less onerous Georgia statutes making abortion a crime in most circumstances, the exceptions being abortions to save the pregnant woman from life or permanent health endangerment, cases in which there was a very likely irremediable birth defect in the child, and cases in which the pregnancy was *351the result of rape. Those exceptions were subject to burdensome prior medical approvals, which were held to be unconstitutional. Subsequent cases have invalidated other burdens on the pregnant woman’s free choice to abort. See Planned Parenthood of Central Missouri v. Danforth, supra (consent required of husband or, for an unmarried woman under 18, of a parent); Bellotti v. Baird, 443 U. S. 622 (consent required of either parent or superior court judge for an unmarried woman under 18).
The Court rests heavily on the premise — recognized in both Roe and Maher — that the State’s legitimate interest in preserving potential life provides a sufficient justification for funding medical services that are necessarily associated with normal childbirth without also funding abortions that are not medically necessary. The Maher opinion repeatedly referred to the policy of favoring "normal childbirth.”' See 432 U. S., at 477, 478, 479. But this case involves a refusal to fund abortions which are medically necessary to avoid abnormal childbirth.
These eases thus illustrate the flaw in the method of equal protection analysis by which one chooses among alternative “levels of scrutiny” and then determines whether the extent to which a particular legislative measure furthers a given governmental objective transcends the predetermined threshold. See Craig v. Boren, 429 U. S. 190, 211-212 (Stevens, J., concurring). That method may simply bypass the real issue. The relevant question in these cases is whether the Court must attach greater weight to the individual’s interest in being included in the class than to the governmental interest in keeping the individual out. Since Roe v. Wade squarely held that the individual interest in the freedom to elect an abortion and the state interest in protecting maternal health both outweigh the State’s interest in protecting potential life prior to viability, the Court’s “equal protection analysis” is doubly erroneous.
In responding to my analysis of this case, Mr. Justice White has described the constitutional right recognized in Roe v. Wade as “the right to choose to undergo an abortion without coercive interference by the government” or a right “only to be free from unreasonable official interference with private choice.” Ante, at 327, 328. No such language is found in the Roe opinion itself. Rather, that case squarely held that state interference is unreasonable if it attaches a greater importance to the interest in potential life than to the interest in protecting the mother’s health. One could with equal justification describe the right protected by the First Amendment as the right to make speeches without coercive interference by the government and then sustain a government subsidy for all medically needy persons except those who publicly advocate a change of administration.
The record is replete with examples of serious physical harm. See, e. g., Judge Dooling’s opinion in McRae v. Califano, 491 F. Supp. 630, 670:
“Women, particularly young women, suffering from diabetes are likely to experience high risks of health damage to themselves and their fetuses; the woman may become blind through the worsening during pregnancy of a diabetic retinopathy; in the case, particularly, of the juvenile diabetic, Dr. Eliot testified there is evidence that a series of pregnancies advances the diabetes faster; given an aggravated diabetic condition, other risks increased through pregnancy are kidney problems, and vascular problems of the extremities.”
.See also the affidavit of Jane Doe in No. 79-1268:
“3. I am 25 years old. I am married with the birth of my third child in November of 1976, I developed a case of phlebitis from which I have not completely recovered. Carrying another pregnancy to term would greatly aggravate this condi- and increase the risk of blood clots to the lung.
“4. On July 29, 1977, I went to the Fertility Control Clinic at St. Paul-Ramsey Hospital, St. Paul, Minnesota to request an abortion. They informed me that a new law prohibits any federal reimbursement for abortions except those necessary to save the life of the mother and that they cannot afford to do this operation free for me.
“5. I cannot afford to pay for an abortion myself, and without Medicaid reimbursement, I cannot obtain a safe, legal abortion. According to the doctor, Dr. Jane E. .Hodgson, without an abortion I might suffer serious and permanent health problems.” App. in No. 79-1268, pp. 109-110.
And see the case of the Jane Doe in Nos. 79-4, 79-5, and 79-491, as recounted in Dr. Zbaraz’ affidavit:
“Jane Doe is 38 years old and has had nine previous pregnancies. She has. a history of varicose veins and thrombophlebitis (blood clots) of the left leg. The varicose veins can be, and in her case were, caused by multiple pregnancies: the weight of the uterus on her pelvic veins increased the blood pressure in the veins of her lower extremities; those veins dilated and her circulation was impaired, resulting in thrombophlebitis of her left leg. The varicosities of her lower extremities became so severe that they required partial surgical removal in 1973.
“2. Given this medical history, Jane Doe’s varicose veins are almost *354certain to- recur if she continues her pregnancy. Such a recurrence would require a second operative procedure for their removal. Given her medical history, there is also about a 30% risk that her thrombophlebitis will recur during the pregnancy in the form of 'deep vein’ thrombophlebitis (the surface veins of her left leg having previously been partially removed). This condition would impair circulation and might require prolonged hospitalization with bed rest.
“3. Considering Jane Doe’s medical history of varicose veins and throm-bophlebitis, particularly against the background of her age and multiple pregnancies, it is my view that an abortion is medically necessary for her, though not necessary to preserve her life.” App. in Nos. 79-4, 79-5, and 79-491, p. 92.
“QUESTION: Mr. Solicitor General, would you make the same rational basis argument if the Hyde amendment did not contain the exception for endangering the life of the mother, if it was her death rather than adverse impact on her health that was involved?
“Mr McCREE: I think I would.” Tr. of Oral Arg. in 79-1268, p. 10.
In this respect, these cases are entirely different from Maher, in which the Court repeatedly noted that the refusal to subsidize nontherapeutie abortions would merely result in normal childbirth. Surely the government may properly presume that no harm will ensue from normal childbirth.
This rationale may satisfactorily explain the exclusions from the Medicaid program noted by the Court. Ante, at 325, n. 28. In all events, it is safe to assume that those exclusions would conserve the assets of the pool.
In the Zbaraz case, Judge Grady found that the average cost to the State of Illinois of an abortion was less than $150 as compared with the cost of a childbirth which exceeded $1,350. App. to Juris. Statement in No. 79-491, p. 14a, n. 8.
Indeed, based on an estimated cost of providing support to children of indigent parents together with their estimate of the number of medically necessary abortions that would be funded but for the Hyde Amendment, appellees in the Zbaraz case contend that in the State of Illinois alone the effect of the Hyde Amendment is to impose a cost of about $20,000,000 per year on the public fisc. Brief for Appellees in Nos. 79-4, 79-5, and 79-491, p. 60, n.
See also Judge Dooling’s conclusion:
“While the debate [on the Hyde Amendment] in both years was on a rider to the departmental appropriations bill, it was quickly established that the restriction on abortion funding was not an economy measure; it was recognized that if an abortion was not performed for a medicaid eligible woman, the medicaid and other costs of childbearing and nurture would greatly exceed the cost of abortion. Opponents of funding restriction were equally at pains, however, to make clear that they did not favor funding abortion as a means of reducing the Government’s social welfare costs.” 491 F. Supp., at 644.
My conclusion that the Hyde Amendments violate the Federal Government’s duty of impartiality applies equally to the Illinois statute at issue in Zbaraz.