Beal v. Doe (1977)
A Pennsylvania regulation prohibited the use of state Medicaid
funds to pay for abortions for indigent women unless a physician
certified in writing that the procedure was "medically
necessary." A group of Medicaid-eligible pregnant women who
desired abortions for nontherapeutic (elective) reasons brought a
lawsuit in federal district court challenging the regulation.
The plaintiffs sued the Secretary of the Pennsylvania Department of
Welfare and other state officials responsible for administering the
state Medicaid program.
The lawsuit raised both statutory and constitutional
claims. Plaintiffs alleged that Title XIX of the Social
Security Act (commonly known as the Medicaid Act) required
Pennsylvania to provide coverage in its Medicaid plan for all
abortions, not just those that were "medically necessary." In
the alternative, plaintiffs alleged that public funding of other
medical services, but not abortions, violated the Equal Protection
Clause of the Fourteenth Amendment.
The federal district court resolved the statutory issue
adversely to the plaintiffs, but upheld their equal protection
challenge to the funding restriction. On appeal, the court of
appeals reversed the district court on the statutory issue, holding
that Title XIX "prohibits participating States from requiring a
physician's certificate of medical necessity as a condition for
funding during both the first and second trimester of
pregnancy." Beal v. Doe, 432 U.S. at 443
(summarizing lower court judgments). Accordingly, the court
of appeals did not reach the constitutional issue decided by the
district court. The Supreme Court granted review to resolve a
conflict among the courts of appeals as to the obligations of the
States under the Medicaid program.
The Statutes And Regulation Under Review
Title XIX establishes the Medicaid program under which
participating States may provide federally funded medical
assistance to needy persons. The statute requires
participating States to provide qualified individuals with
financial assistance in five general categories of medical
treatment, including inpatient and outpatient hospital services and
physicians' services. 42 U.S.C. §§ 1396a(a)(13)(B) (1970 ed.,
Supp. V), 1396d(a)(1)-(5) 91970 ed. and Supp. V). Although
Title XIX does not require States to provide funding for all
medical treatment falling within the five general categories, it
does require that state Medicaid plans establish "reasonable
standards . . . for determining . . . the extent of medical
assistance under the plan which . . . are consistent with the
objectives of [Title XIX]." 42 U.S.C. § 1396a(a)(17) (1970
ed., Supp. V).
Under a state regulation that was in effect at the time, an
abortion was deemed "medically necessary," and therefore
compensable under the state Medicaid program, if:
(1) There is
documented medical evidence that continuance of the pregnancy may
threaten the health of the mother;
(2) There is
documented medical evidence that an infant may be born with
incapacitating physical deformity or mental deficiency; or
(3) There is
documented medical evidence that continuance of a pregnancy
resulting from legally established statutory or forcible rape or
incest, may constitute a threat to the mental or physical health of
a patient; and
(4) Two other
physicians chosen because of their recognized professional
competency have examined the patient and have concurred in writing;
procedure is performed in a hospital . . . .
3 Penn. Bulletin 2207, 2209 (Sep. 29, 1973).
The Court's Holding
By a vote of six-to-three, the Court held that Title XIX does
not require States participating in the Medicaid program to pay for
the cost of all abortions that are permissible under state
law. Accordingly, the challenged regulation was upheld.
The Court's Reasoning
In his majority opinion for the Court, Justice Powell noted that
Title XIX "makes no reference to abortions or, for that matter, to
any other particular medical procedure." Beal v.
Doe, 432 U.S. at 444. Instead, "the statute is cast in
terms that require participating States to provide financial
assistance with respect to five broad categories of medical
treatment [citing statute]. But nothing in the statute
suggests that participating States are required to fund every
medical procedure that falls within the delineated categories of
medical care." Id. The statute merely requires that
a participating State establish a plan that includes "reasonable
standards . . . for determining eligibility for and the extent of
medical assistance under the plan which . . . are consistent with
the objectives of [Title XIX]." 42 U.S.C. § 1396a(a)(17)
(1970 ed., Supp. V). "This language," Justice Powell wrote,
"confers broad discretion on the States to adopt standards for
determining the extent of medical assistance, requiring only that
such standards be 'reasonable" and 'consistent with the objectives'
of the Act." Beal, 432 U.S. at 444.
The Court determined that the regulation restricting coverage
for abortion services under the state Medicaid plan "comports fully
with Title XIX's broadly stated primary objective to enable each
State, as far as practicable, to furnish medical assistance to
individuals whose income and resources are insufficient to meet the
costs of necessary medical services." Beal, 432 U.S. at
444. "Although serious statutory questions might be presented
if a state Medicaid plan excluded necessary medical treatment from
its coverage," the Court stated that "it is hardly inconsistent
with the objectives of the Act for a State to refuse to fund
unnecessary-though perhaps desirable-medical
services." Id. at 444-45 (emphasis in original).
It is important to note, in this regard, the very limited scope
of the regulation challenged in Beal. At oral argument,
counsel for the defendants advised the Court that the definition of
"medical necessity" in the state regulation was broad enough to
encompass all of the factors identified in Doe v. Bolton,
410 U.S. 179 (1973), that could relate to a woman's health.
Beal, 432 U.S. at 446 n. 3. According to
Doe, "all factors-physical, emotional, psychological,
familial, and the woman's age-[are] relevant to the well-being of
the patient" and "may relate to health." 410 U.S. at
192. Further, under the Pennsylvania Medicaid plan that was
in effect at the time, "[t]he decision whether to fund the cost of
[an] abortion . . . depends solely on the physician's determination
of medical necessity." Beal, 432 U.S. at 445 n.
9. The plaintiffs could point to nothing in the state program
"that indicates state interference with the physician's initial
determination [of medical necessity]." Id.
Plaintiffs objected to the exclusion of nontherapeutic abortions
from the state Medicaid program on both economic and health
grounds. The former objection was based on the view that
"abortion is generally a less expensive medical procedure than
childbirth. Since a pregnant woman normally will either have
an abortion or carry her child full term, a State that elects not
to fund nontherapeutic abortions will eventually be confronted with
the greater expenses of childbirth." Beal, 432 U.S.
at 445. The latter objection was based on the view that
"an early abortion poses less of a risk to the woman's health than
childbirth." Id. As a consequence, "the economic and
health considerations that ordinarily support the reasonableness of
state limitations on financing of unnecessary medical services are
not applicable to pregnancy." Id. (summarizing
Without determining whether plaintiffs' economic and
health-related objections were accurate, the Court did not agree
that the exclusion of nontherapeutic abortions from Medicaid
coverage was unreasonable under Title XIX. Plaintiffs failed
to take into account the State's "valid and important interest in
encouraging childbirth." Beal, 432 U.S. at
445. Although, under Roe, that interest does not
"become sufficiently compelling to justify unduly burdensome state
interference with the woman's constitutionally protected privacy
interest" until viability, "it is a significant state interest
existing throughout the course of the woman's pregnancy."
Id. at 446. Nothing in either the language or
legislative history of Title XIX suggested that "it is unreasonable
for a participating State to further this unquestionably strong and
legitimate interest in encouraging normal childbirth."
Id. In the absence of such a showing, the Court
would not presume "that Congress intended to condition a State's
participation in the Medicaid program on its willingness to
undercut this important interest by subsidizing the costs of
nontherapeutic abortions." Id.
The Court supported its interpretation of Title XIX by two other
considerations. First, when Title XIX was passed in 1965,
"nontherapeutic abortions were unlawful in most States."
Beal, 432 U.S. at 447. Given the state of the law at
the time, it was implausible to suggest that "Congress intended to
require-rather than permit-participating States to fund
nontherapeutic abortions." Id. Second, the
agency responsible for administering Title XIX-the Department of
Health, Education and Welfare-took the position that "Title XIX
allows-but does not mandate-funding for such abortions."
Id. The Department's interpretation was entitled to
deference in the absence of compelling indications to the
contrary. Id. Such indications, however, were
entirely absent. The Court held that Pennsylvania's refusal
to extend Medicaid coverage to nontherapeutic abortions was not
inconsistent with Title XIX. Id. It
emphasized, however, that Title XIX allows a State to provide such
coverage if it so desires. Id.
In the final section of his opinion for the Court, Justice
Powell noted one feature of the Pennsylvania Medicaid plan that
might conflict with Title XIX, to wit, the requirement that two
physicians in addition to the attending physician examine the
patient and concur in writing that the abortion is medically
necessary. Beal, 432 U.S. at 448. On the basis
of the record presented, the Court was unable "to determine the
precise role played by these two additional physicians," and
consequently was unable "to ascertain whether this requirement
interferes with the attending physician's medical judgment in a
manner not contemplated by Congress." Id.
Accordingly, the judgment of the court of appeals was reversed and
the case was remanded for consideration of that requirement.
The Dissenting Opinions
Justices Brennan, Marshall and Blackmun each filed separate
Justice Brennan, joined by Justices Marshall and Blackmun,
argued that pregnancy is "a condition requiring medical services,"
and that "[t]reatment for the condition may involve medical
procedures for its termination or medical procedures to bring the
pregnancy to term, resulting in a live birth." Beal,
432 U.S. at 449 (Brennan, J., dissenting). Which course of
treatment is selected is a matter that should be left up to the
"complete freedom" of the patient and her physician.
Id. at 450. "Once medical treatment of some kind is
necessary, Title XIX does not dictate what that treatment should
be." Id. at 450-51. It is apparent from his dissent
that Justice Brennan was of the opinion that Title XIX requires
States participating in the Medicaid program to pay not only for
health related abortions, no matter how broadly the term "health"
is understood, but also any desired abortion, regardless of the
reason. Id. at 450-51 & n. *.
In his dissent, Justice Brennan also stressed that the State's
policy of not paying for the cost of nontherapeutic abortions could
not be justified by either cost considerations (because the medical
costs associated with childbirth are higher than those associated
with abortion) or by an interest in maternal health (because
abortions early in pregnancy are safer than carrying the child to
term). Beal at 453-54 (Brennan, J.,
dissenting). Justice Brennan did not address the interest the
States have in promoting childbirth over abortion, upon which the
majority relied in determining that the State's policy regarding
nontherapeutic abortions was reasonable.
Justice Marshall dissented, principally on the grounds that the
State's policy of not funding nontherapeutic abortions was intended
to coerce poor women into continuing their
pregnancies.Beal, 432 U.S. at 454-62 (Marshall,
dissenting). Justice Marshall's dissent also applied to the
holdings in the companion cases of Maher v. Roe, 432 U.S.
464 (1977), and Poelker v. Doe, 432 U.S. 519 (1977), which
are discussed in the summaries for those cases.
Justice Blackum, joined by Justices Brennan and Marshall, argued
that the statutes, regulations and policies at issue in
Beal, Maher and Poelker were all
designed to do indirectly what the State and municipalities could
not do directly, to wit, interfere with a pregnant woman's decision
to obtain an abortion. Beal, 432 U.S. at 462-63
(Blackmun, J., dissenting).