Friday, June 11, 2010

The Abortion Cases Part Four

The parental consent issue reared its head again in Bellotti v. Baird. Massachusetts enacted a parental notification statute requiring consent from the parents be given prior to the procedure. If one or both of the parents refuse consent, then consent can be granted by an order of a judge of the superior court.

Justice Blackmun delivered the Court's opinion. Citing Planned Parenthood of Central Missouri v, Danforth he said the State may not impose a blanket provision . . . requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy."

Although such deference to parents may be permissible with respect to other choices facing a minor, the unique nature and consequences of the abortion decision make it inappropriate to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent..

We therefore conclude that if the State decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained.

Massachusetts law was constitutionally infirm in two respects: First, it permits judicial authorization for an abortion to be withheld from a minor who is found by the superior court to be mature and fully competent to make this decision independently. Second, it requires parental consultation or notification in every instance, without affording the pregnant minor an opportunity to receive an independent judicial determination that she is mature enough to consent or that an abortion would be in her best interests.

Bellotti v. Baird was decided in 1979.

Maher v. Roe, Beal v, Doe, Poelker v. Doe are companion cases. Maher v. Roe and Poelker v. Doe each deal with statutes that limited the use of public funds in paying for abortions. These two cases each ask the question if Connecticut, in the Maher case, and the city of Saint Louis, Missouri, in the Poelker case, violated the Equal Protection Clause of the Fourteenth Amendment.

In Maher the Court held that Connecticut placed no obstacles in the pregnant woman's path to an abortion. The statute did not impinge upon the fundamental right recognized in Roe v Wade. Associate Justice Lewis F. Powell delivered the opinions for the Court in these 6 to 3 decisions.
Associate Justice Lewis F. Powell

Powell said The Equal Protection Clause does not require a State participating in the Medicaid program to pay the expenses incident to nontherapeutic abortions for indigent women simply because it has made a policy choice to pay expenses incident to childbirth. Financial need alone does not identify a suspect class for purposes of equal protection analysis.

The extent of the fundamental right recognized in Roe was distinguished. That right implies no limitation on a State's authority to make a value judgment favoring childbirth over abortion and to implement that judgment by the allocation of public funds. An indigent woman desiring an abortion is not disadvantaged by Connecticut's decision to fund childbirth; she continues as before to be dependent on private abortion services.

A State is not required to show a compelling interest for its policy choice to favor normal childbirth. Connecticut's regulation is rationally related to and furthers its "strong and legitimate interest in encouraging normal childbirth," citing Beal v. Doe. Subsidizing costs incident to childbirth is a rational means of encouraging childbirth. States, moreover, have a wide latitude in choosing among competing demands for limited public funds.

Since the Court found no fundamental right being affected it used the rational means test rather than the heightened compelling state interest test, with its restrictive component requiring the statute to be narrowly tailored.

Here, a prior written request for the abortion procedure was upheld. Since it is not unreasonable for a State to insist upon a prior showing of medical necessity to insure that its money is being spent only for authorized purposes, the District Court erred in invalidating the requirements of prior written request by the pregnant woman and prior authorization by the Department of Social Services for abortions. Although similar requirements are not imposed for other medical procedures, such procedures do not involve the termination of a potential human life.

The Poelker case came next. Justice Powell relied on the Maher decision when discussing Saint Louis' policy. The policy of denying city funds for abortions such as that desired by Doe is subject to public debate and approval or disapproval at the polls. We merely hold, for the reasons stated in Maher, that the Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth as St. Louis has done.

The issue in Beal v, Doe focuses on whether Title XIX of the Social Security Act require states that participate in the Medicaid program to fund the cost of nontherapeutic abortions. This case originated in Pennsylvania.

Powell's opinion for the 6 to 3 court said nothing in the language of Title XIX requires a participating State to fund every medical procedure falling within the delineated categories of medical care. Each State is given broad discretion to determine the extent of medical assistance that is "reasonable" and "consistent with the objectives" of Title XIX

The State, Powell said, has a strong interest in encouraging normal childbirth that exists throughout the course of a woman's pregnancy, and nothing in Title XIX suggests that it is unreasonable for a State to further that interest. It therefore will not be presumed that Congress intended to condition a State's participation in Medicaid on its willingness to undercut that interest by subsidizing the costs of nontherapeutic abortions.

Powell said that when Congress passed Title XIX, nontherapeutic abortions were unlawful in most States, a fact that undermines the contention that Congress intended to require -- rather than permit -- participating States to fund such abortions. Moreover, the Department of Health, Education, and Welfare, the agency that administers Title XIX, takes the position that the Title allows, but does not mandate, funding for such abortions

The Court did not reach the issue of whether Pennsylvania's program under which financial assistance is not provided for medically necessary abortions unless two physicians in addition to the attending physician have examined the patient and have concurred in writing as to the medical necessity of the abortion interferes with the attending physician's medical judgment in a manner not contemplated by Congress should be considered on remand.

Maher v. Roe, Beal v, Doe, and Poelker v. Doe were decided in 1977.

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