Frank S. BEAL, etc., et al., Petitioners, v. Ann DOE et al.

The issue in this case is whether Title XIX of the Social Security Act, as added, 79 Stat. 343, and amended, 42 U.S.C. § 1396 et seq. (1970 ed. and Supp. V), requires States that participate in the Medical Assistance (Medicaid) program to fund the cost of nontherapeutic abortions.

* Title XIX establishes the Medicaid program under which participating States may provide federally funded medical assistance to needy persons.1 The statute requires participating States to provide qualified individuals with financial assistance in five general categories of medical treatment.2 42 U.S.C. §§ 1396a(a)(13)(B) (1970 ed., Supp. V), 1396d(a)(1)-(5) (1970 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).

Respondents, who are eligible for medical assistance under Pennsylvania's federally approved Medicaid plan, were denied financial assistance for desired abortions pursuant to Pennsylvania regulations limiting such assistance to those abortions that are certified by physicians as medically necessary.3 When respondents' applications for Medicaid assistance were denied because of their failure to furnish the required certificates, they filed this action in the United States District Court for the Western District of Pennsylvania seeking declaratory and injunctive relief. Their complaint alleged that Pennsylvania's requirement of a certificate of medical necessity contravened relevant provisions of Title XIX and denied them equal protection of the laws in violation of the Fourteenth Amendment.

(1) A three-judge District Court was convened pursuant to 28 U.S.C. § 2281. After resolving the statutory issue against respondents, the District Court held that Pennsylvania's medical-necessity restriction denied respondents equal protection of the laws. Doe v. Wohlgemuth, 376 F.Supp. 173 (1974).4 Accordingly, the court granted a declaratory judgment that the Pennsylvania requirement was unconstitutional as applied during the first trimester. The United States Court of Appeals for the Third Circuit, sitting en banc, reversed 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 trimesters of pregnancy.5 523 F.2d 611 (1975). The Court of Appeals therefore did not reach the constitutional issue.6

We granted certiorari to resolve a conflict among the federal courts as to the requirements of Title XIX.7 428 U.S. 909, 96 S.Ct. 3220, 49 L.Ed.2d 1216 (1976).

(2) The only question before us is one of statutory construction: whether Title XIX requires Pennsylvania to fund under its Medicaid program the cost of all abortions that are permissible under state law. "The starting point in every case involving construction of a statute is the language itself." Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (Powell, J., concurring). Title XIX makes no reference to abortions, or, for that matter, to any other particular medical procedure. Instead, the statute is cast in terms that require participating States to provide financial assistance with respect to five broad categories of medical treatment. See n. 2, supra. 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. Indeed, the statute expressly provides:

"A State plan for medical assistance must . . . include reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan which . . . are consistent with the objectives of this (Title) . . . ." 42 U.S.C. § 1396a(a)(17) (1970 ed., Supp. V).

This language 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.8

Pennsylvania's regulation 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. See 42 U.S.C. §§ 1396, 1396a(10)(C) (1970 ed., Supp. V). Although serious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage, it is hardly inconsistent with the objectives of the Act for a State to refuse to fund unnecessary though perhaps desirable medical services.

(3) The thrust of respondents' argument is that the exclusion of nontherapeutic abortions from Medicaid coverage is unreasonable on both economic and health grounds.9 The economic argument is grounded 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 associated with childbirth. The corresponding health argument is based on the view that an early abortion poses less of a risk to the woman's health than childbirth. Consequently, respondents argue, the economic and health considerations that ordinarily support the reasonableness of state limitations on financing of unnecessary medical services are not applicable to pregnancy.

Accepting respondents' assumptions as accurate, we do not agree that the exclusion of nontherapeutic abortions from Medicaid coverage is unreasonable under Title XIX. As we acknowledged in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the State has a valid and important interest in encouraging childbirth. We expressly recognized in Roe the "important and legitimate interest (of the State) . . . in protecting the potentiality of human life." Id., at 162, 93 S.Ct., at 731. That interest alone does not, at least until approximately the third trimester, become sufficiently compelling to justify unduly burdensome state interference with the woman's constitutionally protected privacy interest. But it is a significant state interest existing throughout the course of the woman's pregnancy. Respondents point to nothing in either the language or the legislative history of Title XIX that suggests that it is unreasonable for a participating State to further this unquestionably strong and legitimate interest in encouraging normal childbirth.10 Absent such a showing, we will 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.11

Our interpretation of the statute is reinforced by two other relevant considerations. First, when Congress passed Title XIX in 1965, nontherapeutic abortions were unlawful in most States.12 In view of the then-prevailing state law, the contention that Congress intended to require rather than permit participating States to fund nontherapeutic abortions requires far more convincing proof than respondents have offered. Second, the Department of Health, Education, and Welfare, the agency charged with the administration of this complicated statute,13 takes the position that Title XIX allows but does not mandate funding for such abortions. "(W)e must be mindful that 'the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong . . .' " New York Department of Social Services v. Dublino, 413 U.S. 405, 421, 93 S.Ct. 2507, 2516-2517, 37 L.Ed.2d 688 (1973), quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969). Here, such indications are completely absent.

We therefore hold that Pennsylvania's refusal to extend Medicaid coverage to nontherapeutic abortions is not inconsistent with Title XIX.14 We made clear, however, that the federal statute leaves a State free to provide such coverage if it so desires.15

(4) There is one feature of the Pennsylvania Medicaid program, not addressed by the Court of Appeals, that may conflict with Title XIX. Under the Pennsylvania program, 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 that the abortion is medically necessary. See n. 3, supra. On this record, we are unable to determine the precise role played by these two additional physicians, and consequently we are unable to ascertain whether this requirement interferes with the attending physician's medical judgment in a manner not contemplated by the Congress. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for consideration of this requirement.

It is so ordered.

Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL and Mr. Justice BLACKMUN join, dissenting.

The Court holds that the "necessary medical services" which Pennsylvania must fund for individuals eligible for Medicaid do not include services connected with elective abortions. I dissent.

Though the question presented by this case is one of statutory interpretation, a difficult constitutional question would be raised where Title XIX of the Social Security Act, as amended, 42 U.S.C. § 1396 et seq. (1970 ed. and Supp. V), is read not to require funding of elective abortions. Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Since the Court should "first ascertain whether a construction of the statute is fairly possible by which the (constitutional) question may be avoided," Ashwander v. TVA, 297 U.S. 288, 341, 348, 56 S.Ct. 466, 480, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); see Westby v. Doe, 420 U.S. 968, 95 S.Ct. 1385, 43 L.Ed.2d 648 (1975), Title XIX, in my view, read fairly in light of the principle of avoidance of unnecessary constitutional decisions, requires agreement with the Court of Appeals that the legislative history of Title XIX and our abortion cases compel the conclusion that elective abortions constitute medically necessary treatment for the condition of pregnancy. I would therefore find that Title XIX requires that Pennsylvania pay the costs of elective abortions for women who are eligible participants in the Medicaid program.

Pregnancy is unquestionably a condition requiring medical services. See Roe v. Norton, 380 F.Supp. 726, 729 (D.C.Conn.1974); Klein v. Nassau County Medical Center, 347 F.Supp. 496, 500 (DC EDNY 1972), vacated for further consideration (in light of Roe v. Wade and Doe v. Bolton), 412 U.S. 925, 93 S.Ct. 2747, 37 L.Ed.2d 152 (1973). Treatment for the condition may involve medical procedures for its termination, or medical procedures to bring the pregnancy to term, resulting in a live birth. "(A)bortion and childbirth, when stripped of the sensitive moral arguments surrounding the abortion controversy, are simply two alternative medical methods of dealing with pregnancy . . . ." Roe v. Norton, 408 F.Supp. 660, 663 n. 3 (Conn.1975). The Medicaid statutes leave the decision as to choice among pregnancy procedures exclusively with the doctor and his patient, and make no provision whatever for intervention by the State in that decision. Section 1396a(a)(19) expressly imposes the obligation upon participating States to incorporate safeguards in their programs that assure medical "care and services will be provided, in a manner consistent with . . . the best interests of the recipients." And, significantly, the Senate Finance Committee Report on the Medicaid bill expressly stated that the "physician is to be the key figure in determining utilization of health services." S.Rep. No. 404, 89th Cong., 1st Sess., 46 (1965). Thus the very heart of the congressional scheme is that the physician and patient should have complete freedom to choose those medical procedures for a given condition which are best suited to the needs of the patient.

The Court's original abortion decisions dovetail precisely with the congressional purpose under Medicaid to avoid interference with the decision of the woman and her physician. Roe v. Wade, supra, 410 U.S., at 163, 93 S.Ct., at 732, held that "(t)he attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated." And Doe v. Bolton, supra, 410 U.S., at 192, 93 S.Ct., at 747, held that "the medical judgment may be exercised in the light of all factors physical, emotional, psychological, familial, and the woman's age relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman."* Once medical treatment of some sort is necessary, Title XIX does not dictate what that treatment should be. In the face of Title XIX's emphasis upon the joint autonomy of the physician and his patient in the decision of how to treat the condition of pregnancy, it is beyond comprehension how treatment for therapeutic abortions and live births constitutes "necessary medical services" under Title XIX, but that for elective abortions does not.

If Pennsylvania is not obligated to fund medical services rendered in performing elective abortions because they are not "necessary" within the meaning of 42 U.S.C. § 1396 (1970 ed., Supp. V), it must follow that Pennsylvania also would not violate the statute if it refused to fund medical services for "therapeutic" abortions or live births. For if the availability of therapeutic abortions and live births makes elective abortions "unnecessary," the converse must also be true. This highlights the violence done the congressional mandate by today's decision. If the State must pay the costs of therapeutic abortions and of live birth as constituting medically necessary responses to the condition of pregnancy, it must, under the command of § 1396, also pay the costs of elective abortions; the procedures in each case constitute necessary medical treatment for the condition of pregnancy.

The 1972 family-planning amendment to the Act, 42 U.S.C. § 1396d(a)(4)(C) (1970 ed., Supp. V), buttresses my conclusion that the Court's construction frustrates the objectives of the Medicaid program. Section 1396(2) states that an explicit purpose of Medicaid is to assist eligible indigent recipients to "attain or retain capability for independence or self-care." The 1972 amendment furthered this objective by assisting those who "desire to control family size in order to enhance their capacity and ability to seek employment and better meet family needs." S.Rep.No. 92-1230, p. 297 (1972). Though far less than an ideal family-planning mechanism, elective abortions are one method for limiting family size and avoiding the financial and emotional problems that are the daily lot of the impoverished. See Special Subcommittee on Human Resources of the Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess., Report of the Secretary of Health, Education, and Welfare Submitting Five-Year Plan for Family Planning Services and Population Research Programs 319 (Comm. Print 1971).

It is no answer that abortions were illegal in 1965 when Medicaid was enacted, and in 1972 when the family-planning amendment was adopted. Medicaid deals with general categories of medical services, not with specific procedures, and nothing in the statute even suggests that Medicaid is designed to assist in payment for only those medical services that were legally permissible in 1965 and 1972. I fully agree with the Court of Appeals statement:

"It is impossible to believe that in enacting Title XIX Congress intended to freeze the medical services available to recipients at those which were legal in 1965. Congress surely intended Medicaid to pay for drugs not legally marketable under the FDA's regulations in 1965 which are subsequently found to be marketable. We can see no reason why the same analysis should not apply to the Supreme Court's legalization of elective abortion in 1973." 523 F.2d 611, 622-623 (1975).

Nor is the administrative interpretation of the Department of Health, Education, and Welfare that funding of elective abortions is permissible but not mandatory dispositive of the construction of "necessary medical services." The principle of according weight to agency interpretation is inapplicable when a departmental interpretation, as here, is patently inconsistent with the controlling statute. Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 505, 30 L.Ed.2d 448 (1971).

Finally, there is certainly no affirmative policy justification of the State that aids the Court's construction of "necessary medical services" as not including medical services rendered in performing elective abortions. The State cannot contend that it protects its fiscal interests in not funding elective abortions when it incurs far greater expense in paying for the more costly medical services performed in carrying pregnancies to term, and, after birth, paying the increased welfare bill incurred to support the mother and child. Nor can the State contend that it protects the mother's health by discouraging an abortion, for not only may Pennsylvania's exclusion force the pregnant woman to use of measures dangerous to her life and health but, as Roe v. Wade, 410 U.S., at 149, 93 S.Ct., at 725, concluded, elective abortions by competent licensed physicians are now "relatively safe" and the risks to women undergoing abortions by such means "appear to be as low as or lower than . . . for normal childbirth."

The Court's construction can only result as a practical matter in forcing penniless pregnant women to have children they would not have borne if the State had not weighted the scales to make their choice to have abortions substantially more onerous. Indeed, as the Court said only last Term: "For a doctor who cannot afford to work for nothing, and a woman who cannot afford to pay him, the State's refusal to fund an abortion is as effective an 'interdiction' of it as would ever be necessary." Singleton v. Wulff, 428 U.S. 106, 118-119, n. 7, 96 S.Ct. 2868, 2876, n. 7, 49 L.Ed.2d 826 (1976). The Court's construction thus makes a mockery of the congressional mandate that States provide "care and services . . . in a manner consistent with . . . the best interests of the recipients." We should respect the congressional plan by construing § 1396 as requiring States to pay the costs of the "necessary medical services" rendered in performing elective abortions, chosen by physicians and their women patients who participate in Medicaid as the appropriate treatment for their pregnancies.

The Court does not address the question whether the provision requiring the concurrence in writing of two physicians in addition to the attending physician conflicts with Title XIX. I would hold that the provision is invalid as clearly in conflict with Title XIX under my view of the paramount role played by the attending physician in the abortion decision, and in any event is constitutionally invalid under Doe v. Bolton, 410 U.S., at 198-200, 93 S.Ct., at 750-751.

I would affirm the judgment of the Court of Appeals.