WILLIAMS v. ZBARAZ

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Argument of William A. Wenzel Iii

Chief Justice Warren E. Burger: The case is submitted.

We'll hear arguments next in Williams against Zbaraz and the two consolidated cases.

Mr. Wenzel, you may proceed whenever you're ready.

Mr. William A. Wenzel Iii: Mr. Chief Justice and may it please the Court.

I'm appearing here today on behalf of Jeffrey C. Miller, the acting Director of the Illinois Department of Public Aid.

Director Miller, the defendant below, appeals the ruling of the District Court which invalidated Illinois Public Act 80-1091 as violative of the equal protection of the laws for women who are seeking medically necessary abortions, but not abortions which were necessary to preserve their lives.

The issue today before the Court is two-fold.

First, there is the equal protection issue, whether or not the State may validly limit abortion funding under its medical assistance programs to instances where the mother's life would be preserved taking into account the State's interest in fetal life and also taking into account the State's willingness to fund alternative treatments to abortion.

The second issue really should be discussed first, because it certainly shapes and clarifies equal protection issue, that issue is, what is the State's obligations under Title XIX of the Social Security Act?

A short background would be appropriate to bring these issues into focus.

The Illinois Generally Assembly in December of 1977 enacted on a Public Act P80-1091 in response to two federal initiatives.

Earlier that year, this Court had issued it's rulings in the cases of Maher versus Roe, Beal versus Doe and Poelker versus Doe.

Those cases stand for the proposition that indigent pregnant women have no constitutional right, nor statutory entitlement to a nontherapeutic abortion.

Earlier, United States Congress, as was explored in a case that just preceded us, had enacted the first version of the Federal Hyde Amendment.

The Federal Hyde Amendment limited abortion funding under the Medicaid Act, except where an abortion was necessary to avoid the endangerment of the woman's life.

Justice Potter Stewart: Mr. Wenzel, just a -- let me see if I understand the appropriate statutory context to this case.

When Title XIX was originally enacted, the criminal laws of many, if not most States, made the performance of an abortion a serious offense.

And I suppose that nobody could have argued back in those days in 1965 when Title XIX was enacted by the Congress that Title XIX authorized or directed the States, let alone authorized them to pay for therapeutic abortions.

Is that it?

Mr. William A. Wenzel Iii: That -- that is correct.

Justice Potter Stewart: And then came along this decision -- this Court's decisions in Roe and Doe, Bolton and thereafter, I suppose it was clear that Title XIX, this is prior to any Hyde Amendment, authorized and directed the States to cooperatively finance such therapeutic abortion.

Mr. William A. Wenzel Iii: We do not take that position of --

Justice Potter Stewart: You do not.

Mr. William A. Wenzel Iii: -- interpretation of Title XIX.

Justice Potter Stewart: But then clearly, you do take the position that after the Hyde Amendment, a State is not required to.

Mr. William A. Wenzel Iii: That is correct.

Our view of Title --

Justice Potter Stewart: Now, which -- which of your position in that intermediate period?

After -- after this Court's decisions in Doe and before the Hyde Amendment.

Mr. William A. Wenzel Iii: After Roe versus Wade.

Justice Potter Stewart: Yes, Roe against Wade and Doe against --

Mr. William A. Wenzel Iii: The States were operating under a discretionary authority to fund abortions whether they'd be medically necessary or elective abortions or not fund such abortions.

According to the primary test under Title XIX, that is whether there was a reasonable standard for establishing eligibility or the scope of medical assistance under the Act.

Justice Potter Stewart: Your position is at Title XIX itself, prior to the Hyde Amendment didn't put any requirement on the States with respect to therapeutic abortions.

Is that right?

Mr. William A. Wenzel Iii: That is correct Your Honor.

Now, what the Hyde Amendment did --

Chief Justice Warren E. Burger: How about the -- how about the abortions relating to the -- that would involve the health of the mother?

Mr. William A. Wenzel Iii: What I was going to say I guess is a followup to Mr. Justice Stewart's question --

Chief Justice Warren E. Burger: That's what I meant, when I talked about therapeutic abortions.

Mr. William A. Wenzel Iii: If it means what -- it depends on what we mean by a therapeutic abortion.

I would take the -- we're taking the position here today that if by therapeutic abortion we mean simply health impairing, but not necessary to preserve life --

Chief Justice Warren E. Burger: And that's what I meant.

Mr. William A. Wenzel Iii: -- that the State would have been free to exclude funding for such abortions because that is in our -- in our view of things, consistent with Section 1396a (a) (17), the reasonable standards language.

But if by a therapeutic abortion, we mean an abortion which is necessary to preserve life or to avoid a threat of death, then I would say that any State that had such a total prohibition on the funding of abortions in 1974 for example, would not be able to meet the statutory tests set out in Section 1396a (a) (17).

The Hyde Amendment effectively strips dates of the discretion to fund non-Hyde Amendment abortions.

Unknown Speaker: You mean --

Unknown Speaker: No, they can -- they can do it and pay it for themselves.

Mr. William A. Wenzel Iii: It strips days of the discretion to fund them within the context of the Medicaid program.

It lets them totally free.

Unknown Speaker: Congress -- Congress couldn't take that power away from a State, could it constitutionally?

Mr. William A. Wenzel Iii: I'd -- making a distinction between stripping States of the discretion of doing something or funding something within the context of the medical assistance program, that is the joint cooperative program and what States do outside of that cooperative program within their own State-authorized and State-funded programs.

Illinois in addition to the Medicaid program has two wholly State-authorized and State-funded programs, a program for general assistance, for -- program for aid to the medical indigent.

Justice William H. Rehnquist: When you say joint assistance, you mean then partial reimbursement from the Federal Government?

Mr. William A. Wenzel Iii: That is -- that is correct Mr. Justice Rehnquist.

Unknown Speaker: Just to be perfectly clear, Illinois is perfectly free to fund to abortions if it wants to, isn't it?

Mr. William A. Wenzel Iii: Under its own programs, with its State, with its own funds, correct.

Unknown Speaker: They're going to pay for it.

Mr. William A. Wenzel Iii: If it's willing to pay for them.

Justice Potter Stewart: But -- but your position is that it's prohibited from doing so under the federal program.

Mr. William A. Wenzel Iii: That is correct.

Unknown Speaker: Well, what in (Voice Overlap) --

Mr. William A. Wenzel Iii: Which does not affect, though it's --

Unknown Speaker: What -- what in the Hyde Amendment prohibits that?

All it does is the Government won't put any money on them, isn't that all (Inaudible)?

Mr. William A. Wenzel Iii: Well, our -- our position rests with the analysis of the impact to the Hyde Amendment on -- on Title XIX itself as -- as the First Circuit in Preterm versus Dukakis and the Second -- Seventh Circuit.

Unknown Speaker: All that would any requirement of the State doing -- but it didn't say the State wasn't perfectly (Voice Overlap) --

Mr. William A. Wenzel Iii: I -- I think the -- the argument has to be made that the Hyde Amendment has a substantive impact on Title XIX.

There's a substantive impact on Title XIX by modifying the State's discretion to fund or not fund abortions.

If it didn't have any substantive impact, then what it would be doing is altering impliedly the State's right to receive federal reimbursement, but there's no -- no evidence of that either in the language of the Hyde Amendment or in any of the debates in Congress -- that it would -- Congress intended to require States as a condition of participation in Title XIX, to fund non-Hyde Amendment abortions.

Unknown Speaker: I understand that but the Hyde Amendment itself is merely a refusal to -- to have any part of a particular annual appropriation of any part of that money be spent to reimburse the State for -- for its funding of abortion isn't that right?

Mr. William A. Wenzel Iii: We -- we view the debates of Congress as having use an appropriation vehicle, but that they were clear -- the intent was clear that what they were doing is engaging in substantive legislation.

Unknown Speaker: Well, would you think that substantive legislation would survive this during the following year?

There were no such writer to the appropriation bill?

Mr. William A. Wenzel Iii: No, Your Honor.

They would -- they would either --

Unknown Speaker: Or either one year --

Mr. William A. Wenzel Iii: -- they have to come up but they --

Unknown Speaker: One year piece of a legislation issue.

Mr. William A. Wenzel Iii: But in this particular case, this Court in prior decisions, has looked to see whether Congress has successively admit that the same sort of writer and when that sort of pattern of Congress's intent is -- is present then, it strengthens the conclusion that they intended to engage in substantive legislation.

Justice Thurgood Marshall: Well, you can get any money for tuberculosis or mental health, right?

Mr. William A. Wenzel Iii: That is --

Justice Thurgood Marshall: And let you do have facilities, but that in –- in Illinois, don't you?

Mr. William A. Wenzel Iii: Yes, we do Your Honor.

Justice Thurgood Marshall: Well, could you setup a facility for abortion, for the same way?

Mr. William A. Wenzel Iii: Yes, we could.

Justice Thurgood Marshall: And pay for it yourself?

Mr. William A. Wenzel Iii: Yes, we could do that Mr. Justice Marshall.

Chief Justice Warren E. Burger: Well, just to be -- be sure.

I'm not sure what this page about or discussion about State's rights, sir.

Prior to 1973, the State of Illinois through its legislature could have amended the law so as to achieve the same status for abortions as the opinion of this Court did, could they not?

Mr. William A. Wenzel Iii: Yes, sir.

Chief Justice Warren E. Burger: And they could have either paid for all of them or paid for none of them, could they not, the State legislature?

Mr. William A. Wenzel Iii: The State could have independent from its State Medicaid program, either paid for all or paid for none.

But if the law for example had been amended in 1970, at that point in time, Illinois is participating in Title XIX.

And as I answered the question of Mr. Justice White, I do not believe it would've been reasonable or consistent with the mandates under Title XIX for Illinois to exclude life preserving or life threatening abortions.

Essentially, this dispute is a result of a footnote in the Court's ruling in Beal versus Doe, it said that serious questions would be raised if the Court – if the States intended to exclude medically necessary care and the Court in that opinion also made reference to the definition of medical necessity in Doe versus Bolton which said that an abortion is necessary when a physician exercising his professional judgment in light of all factors whether they'd be physical, emotional, psychological, economic, familial age, all of those factors.

If they're relevant to health, the doctor should be giving that leeway.

That is an appropriate standard within the context of litigation dealing with criminal sanctions.

We feel that it is wholly inappropriate to impose that the District Court did below the Doe versus Bolton definition with medical necessity.

What that does in effect is to transform the Medicaid program into a program run and controlled by providers as opposed to being run and controlled by the State.

The State under Medicaid has discretion as we pointed out.

Illinois has exercised that discretion, has made exclusions beyond merely abortions.

We do not pay for several services of categories in particular procedures.

We do not pay for infertility and sterility procedures.

We do not pay for transsexual surgery.

We -- imposed durational limitation requirements on inpatient care.

Illinois view this -- participation in Medicaid as providing adequate, non-comprehensive care to the indigent and I think that that is crucial in helping to frame the constitutional question.

Congress by repealing in 1972, the requirement that the States achieve a goal of comprehensive medical care by 1975, left intact the original intent, which was merely to provide adequate care.

When Illinois excludes medically necessary abortions and will only fund abortions necessary for preservation of life, it is exercising the discretion that Congress vested in it to make these sort of choices.

Justice Byron R. White: Even though -- even though some – even in a great many cases absent in abortion, there would be a serious health risk to the potential mother.

Mr. William A. Wenzel Iii: The reasonableness of Illinois's exclusion here, I think hinges and part upon the availability of alternative forms of treatment under one hand, and that the type of abortions under, using the Doe versus Bolton standard, that plaintiffs are seeking to have funded is -- are so -- the -- the definition are so elastic that basically sweeps into its compass, all elective abortions.

There is nothing to prevent physician from utilizing the Doe versus Bolton definition of medical necessity.

In singling out the factor for example of age and saying that that is relevant to health and for then authorizing what would be an abortion that this Court said was not required to be funded under Maher or under Beal or Poelker.

Justice Thurgood Marshall: Which was –- I understand you that without the Hyde Amendment, Illinois wouldn't do that.

It wouldn't find that's abortion, are you saying that?

Mr. William A. Wenzel Iii: No.

No, Your Honor.

I don't – I'm afraid I don't understand the question.

We --

Justice Thurgood Marshall: I mean to understand --

Mr. William A. Wenzel Iii: -- would --

Justice Thurgood Marshall: -- you on that (Inaudible)

Mr. William A. Wenzel Iii: Without regard to the Hyde Amendment --

Justice Thurgood Marshall: Right.

Mr. William A. Wenzel Iii: I would – I have described what Illinois's obligations would be, not with Illinois has actually chosen, but what Illinois's obligations would be under Title XIX alone, without the Hyde Amendment in it.

Justice Potter Stewart: And -- and your position is that just as a matter of statutory of federal law and preemptive federal law, that Illinois would have been quite free to enact this legislation in the absence of any Hyde Amendment?

Mr. William A. Wenzel Iii: That is correct.

Justice Potter Stewart: That's your position.

Mr. William A. Wenzel Iii: As long as we didn't take that final step and unreasonably exclude funding for all abortions because I don't believe the State or any State could justify allowing maternal deaths.

The --

Justice John Paul Stevens: Mr. Wenzel, I wonder if – I just like to test that for a moment.

If there is a choice that has to be made, when it's terribly difficult situation or either the fetus or the mother has to die, would you say it was irrational for the State to say the choice should be made in favor of the fetus?

Mr. William A. Wenzel Iii: That's a very hard case and I'm not sure that it ever would actually come down to that --

Justice John Paul Stevens: Is that the issue in the -- in the case as just been argued?

Mr. William A. Wenzel Iii: The physician always has two patients that he's looking out for in pregnancy.

I suppose there had been instances where in the third trimester, where there is a crisis situation, the physician must make a choice between saving the life of the woman or saving the fetus.

But with --

Justice John Paul Stevens: But let's say the State makes a choice.

The State passed a law and says that in all those cases, the choice shall be made in favor of the fetus.

Would that be irrational?

Mr. William A. Wenzel Iii: I believe that maybe, Your Honor.

Yes.

Justice John Paul Stevens: Well, maybe or would be.

Anything -- maybe.

Mr. William A. Wenzel Iii: It -- it would be irrational, Your Honor.

But what we have here --

Justice John Paul Stevens: I think that's precisely the State interest on which the United States relies in the previous case.

Justice Potter Stewart: Do you mean irrational and my Brother Rehnquist's sense of a – if you thought the other way, you belong to an insane asylum?

Mr. William A. Wenzel Iii: If there – I'm sure that the numbers of the Illinois general assembly were aware that there were hard choices, but I think that we would never come down to that either-or situation because of the State's willingness to fund alternatives, number one.

And that the State's interest in fetal life does not -- does not thereby necessarily denigrate the State's interest in maternal health.

The State hopes by its policy to promote both of those interests.

If I -- if there were no other questions, I would like to reserve some time for rebuttal.

Chief Justice Warren E. Burger: Very well, Mr. Wenzel.

Mr. Rosenblum.

Argument of Victor G. Rosenblum

Mr. Victor G. Rosenblum: Mr. Chief Justice and may it please the Court.

I represent the intervenors in both cases, but I am addressing myself to the Zbaraz case this morning and in the course of the limited time that I have, I hope to be able to address the nature of the right to privacy within the context of the Constitution and whether the Hyde Amendment infringes on that right especially through penalty analysis and I hope also to be able to address the appropriations issue which raises another theory of constitutional issue for this Court, that at a minimum would counsel restraint.

With regard to the nature of the right to privacy, may I point out that the Court's use of the term, “a child birth” in the Maher decision was used interchangeably with the language of normal childbirth.

So for example, at -- at page 474 of the U.S. Reports in -- in Maher, the Court had said that it implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion and to implement that judgment by the allocation of public funds.

It is our position that the – that at least to that time that the use of childbirth and normal childbirth when used by the Court interchangeably and that in any event the -- the Court's ruling was with regard to their being no limitation on the authority of the State to make a value judgment favoring childbirth.

Similarly, with regard to the -- the Maher test of the – the Maher test is – as we understand, was a test that used three words as the standard.

The words of unduly, burdensome, interference, an adverb, an adjective and a noun and we would take the position that with all respect that the adverb is not violated, that the adjective is not violated and that the noun standing alone is not violated either, that there is indeed, no interference by the State or by Congress here with the defined right to privacy.

Justice William H. Rehnquist: Mr. Rosenblum, let me post here the same question as I asked one of the earlier counsel about the Stanley versus Georgia and Reidel cases, which were decided within two or three years of each other.

One held that there was a right to – and read in your own living room obscene material, anything else that you could get a hold of.

Two or three years later, the same Court held that although you have that right, the Government could prevent shipment for that purpose and prevent you in effect, from getting a hold of some types of that literature.

Mr. Victor G. Rosenblum: We'd like the position, Mr. Justice Rehnquist, that that is the very essence of the difference between the Court's ruling in Roe and the Court's ruling in Maher and that – but it is --

Justice William H. Rehnquist: But wasn't the Court's ruling in Roe based on privacy?

Mr. Victor G. Rosenblum: Yes -- no, the Court's -- the Court's ruling in Roe was indeed based upon privacy and that ruling in -- in Maher was based upon entitlement and there is a vast sea of difference between the issue of -- of privacy in Roe as it bears upon the exercise of a prohibition on the part of the State and the privacy issue as it bears upon the matter of entitlement, for there was indeed an impingement upon privacy as the Court found in Roe because there was prohibition in the case of Maher and in the present case.

There is no prohibition upon the woman's right.

There is no denial of a benefit on a basis that infringes the right to privacy in any way.

There's no pledge of allegiance or statement of beliefs that's required to keep a job.

There's no switching of political party or legions that is required in this instance.

There is no fining, there is no retaliation.

The woman is completely free to procure an abortion without recrimination of any kind and free to advocate abortion to the fullest that she may wish.

And finally, there is no coercion in any sense of belief.

There is in the fullest sense in the legislation involved here, the recognition on the part of the legislatures of that basic right to privacy in the classical Brandeis notion.

The woman is indeed being left alone.

She is in no different a position after the legislation than she was before the legislation with regard to the exercise of that right.

Justice Potter Stewart: That indeed is her complaint.

She's being left alone.

She's not being --

Mr. Victor G. Rosenblum: Well, that –-

Justice Potter Stewart: -- given any help.

Mr. Victor G. Rosenblum: -- but -- but that will be a 100% correlation with the original conception of the right to privacy, that is, it is the right to be left alone.

Justice Potter Stewart: Because the original conception was – it was the tort and not -- not a constitutional invasion in the original seminal Brandeis article.

Mr. Victor G. Rosenblum: But even – even preceding, Mr. Justice Stewart to the constitutional determination.

The test that was established by this Court for interference is that test of an unduly burdensome interference.

So presumably, the Court would still allow even an interference and we would assert that in this instance, there is not even that.

That there is the full regard and the full preservation of the woman's right to privacy in this instance, that penalty analysis consequently is peculiarly inappropriate in the type of a situation in which there is full respect of the exercise of that interest.

Now, if the position that is advocated by the plaintiffs were to prevail here, the legislature would be reduced to the position of implementing a notion of neutral principles.

There would be no purpose served in having election or there would be no purpose served in stimulating people to participate in those elections, quite to the contrary.

The consequence would be that it would make no difference because anytime a legislature wished to exercise the initiative or make the value judgment to fund A, it would be required at the same time to fund non-A or anti-A and consequently to reduce the legislature to engaging in mere empty rituals.

Now, I would like for a moment also to be able to address the question of the special problem involved in the appropriations issue.

Now, this is really an appropriation's question, that with all due respect, our intervenor's view as significantly different from what the Court faced in the Califano against Westcott case.

This is indeed a case in which Congress' appropriations power under --

Justice Harry A. Blackmun: Mr. Rosenblum, it might take that the – the Solicitor General does not join you in this argument.

Mr. Victor G. Rosenblum: That is our understanding, Mr. Justice Blackmun.

That the Solicitor General is – is representing the Secretary of -- of the HEW and our intervening clients have a -- an additional view on this subject.

Chief Justice Warren E. Burger: Before you – before we leave this, I -- did I understand you to say that the legislatures have the constitutional authority to make value judgments?

Mr. Victor G. Rosenblum: Yes, Mr. -- Mr. Chief Justice.

Chief Justice Warren E. Burger: And – and would you say that includes the -- the right or power?

The power to make value judgments that are erroneous judgments in the minds of after receiving --

Mr. Victor G. Rosenblum: Yes, yes.

I would --

Chief Justice Warren E. Burger: -- the authority of the people.

Mr. Victor G. Rosenblum: -- Mr. Chief Justice.

And I believe furthermore, that this was a -- a subject that this Court assisted significantly the legislature with in the –- in its decision in Baker against Carr in its progeny.

That it is to say that the -- that the Court helped the integrity of the legislative process by assuring the fairness of apportionment, a decision which has been effectively implemented and counsels the additional recognition that value judgments are essentially for the legislature to make, rather than for this Court to make with regard to crucial and often divisive issues of national policy.

Chief Justice Warren E. Burger: Who is supposed to correct the -- the wrong, the erroneous value judgment of the legislature?

Mr. Victor G. Rosenblum: The people through the elective process.

A process which was significantly improved as I say, through the decisions following this Court's action in Baker against Carr, when of course there's is constitutional violation, then under the separation of power system, this Court must assert its authority.

But we submit that under the circumstances of this case, that there is no such occasion which calls for the entered position of the Court's authority.

Justice Byron R. White: Mr. Rosenblum, what was the case or controversy between your clients and the plaintiffs? Are you intervened -- these defendants?

Mr. Victor G. Rosenblum: We intervened as -- as defendants in the action, yes.

Justice Byron R. White: And why should you have been allowed to intervene at all?

Mr. Victor G. Rosenblum: Well, sir, the – the intervention was granted by the –-

Justice Byron R. White: I -- I understand --

Mr. Victor G. Rosenblum: -- the District Courts --

Justice Byron R. White: -- it was granted, but i wondered --

Mr. Victor G. Rosenblum: Well, on the grounds in the cases of Dr. Williams and Dr. Diamond that they had an economic interest as physicians and as taxpayers in the case.

Justice Byron R. White: As taxpayers?

Mr. Victor G. Rosenblum: And that –- well --

Justice Byron R. White: You think that would have given him a standing in the case?

Mr. Victor G. Rosenblum: Well, they did – the emphasis, there was no -- there was no specification on the part of the Court as we recall of the precise reason --

Justice Byron R. White: I know -- I know, but that's a question.

It's always been around.

Mr. Victor G. Rosenblum: But the economic interest argument was the – was similar to, perhaps the mirror image of the economic interest argument that was made on behalf of the plaintiffs.

Justice Byron R. White: Well, I just – maybe the mirror image, but you mean as just the –- just the opposite.

What do you mean as I didn't have an economic interest.

Mr. Victor G. Rosenblum: No, that they did have an economic interest because as -- as the application (Voice Overlap) and they – and the pediatrician that they had a – they had an economic interest in the continuity of -- of childbirth.

Justice Byron R. White: Right.

Mr. Victor G. Rosenblum: And the continuity of clients, who would be the product of such childbirth.

Justice Byron R. White: And is that –- that was the approach in the District Court?

Mr. Victor G. Rosenblum: That's indeed our understanding.

Justice Potter Stewart: And the abortion takes business on them.

Mr. Victor G. Rosenblum: Now, with regard to the -- the appropriation's question.

The difference between this situation and the situation in Westcott is emphatically that in the Westcott case, there was agreement on the part of all the parties, that it was appropriate to reach the decision that was reached there.

In this case (Voice Overlap) --

Justice Potter Stewart: Mr. Rosenblum, two -- two questions are you talking.

And let me ask them both, first of all, are you talking about the Congress or are you talking about the Illinois legislature?

And secondly, are talking about remedy or are you talking about the constitutional (Voice Overlap) --

Mr. Victor G. Rosenblum: I'm talking here especially about the issue of remedy and I'm talking here especially about the issue of Congress.

Justice Potter Stewart: Congress?

Mr. Victor G. Rosenblum: That in this respect --

Justice Potter Stewart: And better remedy.

Mr. Victor G. Rosenblum: -- we're dealing -- yes.

Justice Potter Stewart: Right.

Mr. Victor G. Rosenblum: That in this respect we are dealing with the appropriations power of the Congress and that while this Court does of course, as it showed in the Levitt case that it does has the power to declare an Appropriation Act unconstitutional.

But nonetheless, even in the Levitt case, the Court did not order funding.

The Court left that matter for determination by the Congress and the difference between the Westcott case and the present case is that in Westcott, there was agreement on part of all of the parties with regard to the funding issue and in this case there is clearly not such agreement and this would counsel additional restraint on the part of the Court in invoking its constitutional power.

Chief Justice Warren E. Burger: Wasn't there's something in the Levitt case to the effect such as the money were not otherwise provided, Levitt and his colleague could go to the Court to Claims and sue the Government.

In other words there's no suggestion that in the Levitt case that Congress could be compelled to see that they were paid.

Mr. Victor G. Rosenblum: That's quite correct, Mr. Chief Justice.

There was -- there was I believe scrupulous regard for the constitutional separation of powers on this issue and for the fact that Article 1, clause 9, subparagraph 7, reserves the funding power to the Congress of the United States.

Unknown Speaker: I understand a little Mr. , you said counsel restrained not that as in Westcott, extension could not be directed by this Court.

Mr. Victor G. Rosenblum: Well, we are saying that with that -- that the Court itself, does not have a funding power the restraint --

Unknown Speaker: It may not.

I'm asking you, may we do what we did Westcott, in this case?

Mr. Victor G. Rosenblum: In this case --

Unknown Speaker: If we'll find the Hyde Amendment.

Mr. Victor G. Rosenblum: -- we would -- we would submit, no.

That is you may find the -- the Hyde Amendment unconstitutional.

But if the Hyde Amendment is found unconstitutionally effective, that is that there is -- there are no funds for abortion unless and until Congress appropriates those funds.

Unknown Speaker: That was a true in a Westcott situation, too.

What I'm trying to get that is do you say constitutionally you may not do it? Or that -- I thought you said --

Mr. Victor G. Rosenblum: I'm saying, a --

Unknown Speaker: Were ought to exercise restraint and not do it.

Mr. Victor G. Rosenblum: I'm saying that in -- that in general restrain should be counseled here with regard to the finding of unconstitutionality on the part of Congress' action, but that even if there were to be a finding of unconstitutionality that the Court does indeed, not have the power to order the funding.

Unknown Speaker: Constitutionally, we do not have a power?

Mr. Victor G. Rosenblum: That would be position of the intervenors, Mr. Justice.

That this -- that the matter of funding is reserved under the Constitution and our separation of power system to Congress.

Justice Byron R. White: How about the -- how about a State?

How about -- how about directing in state legislature?

Mr. Victor G. Rosenblum: Well, the -- the directing of the state legislature involves another -- another issue Mr. Justice White.

Justice Byron R. White: Was that involved here?

Mr. Victor G. Rosenblum: That is well.

It -- it could conceivably be involved here.

Justice Byron R. White: Well, are you involving it?

What was it?

Mr. Victor G. Rosenblum: No, because the -- the question here would come back to the -- the question that is more like the question the Steward Machine, about whether the State wishes to participate or not in the Social Security program.

And if the State wishes to participate, it was indeed the -- the finding by the Court in Steward Machine, that there is no coercion upon the State and there's a vast difference of course, between coercion and motivation.

Justice Byron R. White: Well, what if -- what if there's a declaration that the Illinois statute was unconstitutional?

Mr. Victor G. Rosenblum: If there were declaration that the Illinois statute was unconstitutional --

Justice Byron R. White: What do we do then?

Mr. Victor G. Rosenblum: It would then be up to Illinois to decide whether it wished to continue in the Social Security program --

Justice Byron R. White: Could we --

Mr. Victor G. Rosenblum: -- or not.

Justice Byron R. White: -- could we attempt to -- could -- would we have the power to direct them or not?

Mr. Victor G. Rosenblum: Well, I think you reserve that question in the Usery case that -- that at that time you -- I believe in Footnote 17 --

Justice Byron R. White: That may be, but --

Mr. Victor G. Rosenblum: -- reserved the question of whether --

Justice Byron R. White: -- what's your position -- what's your submission on that question?

Would -- would we have the power or not?

Mr. Victor G. Rosenblum: My -- my submission on the question, sir, would be that -- that it would be inappropriate to order the State to do so in that situation, because that would place in jeopardy the federal system.

Unknown Speaker: Well, it might be inappropriate, but do we have the power?

Mr. Victor G. Rosenblum: Well, I believe --

Unknown Speaker: (Voice Overlap) --

Mr. Victor G. Rosenblum: -- that you do have the power --

Unknown Speaker: All right.

Mr. Victor G. Rosenblum: -- with regard to the State.

It is not a separation of powers issue as specifically spelled out under -- of the -- the first article dealing with the legislative power.

Chief Justice Warren E. Burger: Then, let me pursue that if the State having that order asserted on them, that command and the State does what President Jackson did many, many years ago.

What can be done about it?

How does a court force the state legislature to appropriate money?

Mr. Victor G. Rosenblum: Well, that -- that is of course the very essence of both the problem and the strength of our separation of power system.

That the -- that the uses of -- of restraint within that system are expected to work out political compromises and that the uses of coercion have been rare within that system precisely because coercion itself, is alien to the success of the political system.

And this is one more reason for the counseling of restraint even while the calling in the question of this Court's power to deal with the issue would be inappropriate.

Chief Justice Warren E. Burger: You view the constitutional issues in the State case and the prior case as the same or different assumption?

Mr. Victor G. Rosenblum: I view the -- the constitutional issues in the State case and in the prior case as having great similarities, Mr. Chief Justice.

But as having some differences by virtue of the difference between the nature of the system of separation of powers and the system of federalism, these were problems that were alluded to in the Usery case and I believe the Court reserved judgment on the issue of the impact of funding on the application of Usery.

Chief Justice Warren E. Burger: Very well.

Justice William H. Rehnquist: Mr. Rosenblum, how about the language in Article 1 of the Constitution that no money shall be drawn from the public treasury, save in exercise of the act -- execution of an act of Congress.

I'm -- I'm --

Mr. Victor G. Rosenblum: Well -- well, that's what I was relying on, Mr. Justice Rehnquist, for the -- for the -- the special point about the sanctity of the appropriations power of Congress and the inappropriateness in response to my -- in response to the question of Mr. Justice Brennan, the inappropriateness constitutionally of the Court's making a funding decision in this matter.

Justice John Paul Stevens: Mr. Rosenblum, before you sit down there is one -- one point of clarification, you have argued that the unduly burdens of interference test is not met that there's no interference whatsoever here.

Are you therefore arguing that there really is no call for any equal protection analysis when one differentiates between different kinds medically necessary service that there's does even have to be in irrational basis?

Mr. Victor G. Rosenblum: No, there is a call for equal protection analysis and there is a call for the application of the rational basis test.

But as this Court pointed out in the (Inaudible) case and it's per curiam decision, the rational basis test is a -- is a more relaxed test.

And under that relaxed test of rationality, what is looked for first is the -- the rational decision which the Court found in Roe to -- to be a -- at least a rational matter for concern for the life of the fetus.

Consequently, if there is a rational relationship between that and the legitimate state interest that the State has in the preservation of the life of the fetus, that that should be sufficient to meet the rational relationship test under the (Inaudible) standard.

Thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Solicitor General.

Argument of Mccree

Mr. Mccree: Mr. Chief Justice and may it please the Court.

The -- the position of the United States on this matter is a limited one at this point, because historical events have caught up with us.

We appear principally here because on remand from the Court of Appeals, the District Court was instructed to consider the constitutionality of the Hyde Amendments which had not been drawn in the controversy before.

The plaintiffs did not claim that they were harmed at all by reason of the Hyde Amendment and the District Court obedient to the mandate, considered it.

But nobody was contending that it impinged on any right of his.

And it's been our position in this matter that there is no case or controversy of -- within the meaning of Article III and because of that reason, we think that the appropriate step for this Court today, is to vacate the judgment of the District Court to the extent that it declares a Hyde Amendment unconstitutional.

And we would respectfully ask the Court to do that, if the Court agrees with us that there is no case or controversy and then I would like to reserve the rest of the time that's been allotted to the Government, in case some other interest appears in the course of the argument.

Thank you.

Justice Potter Stewart: You don't -- Mr. Solicitor General, make any argument that the Court does not have jurisdiction by reason of --

Mr. Mccree: We do not make that argument.

No, we do not.

That --

Justice Byron R. White: And --

Mr. Mccree: -- this Court has jurisdiction.

Justice Byron R. White: And if you suggest I take it in your brief that we would still entertain and reach the question about the state statute.

Mr. Mccree: We thought that the Court certainly can and we suggested that it might in the discretion do so.

Thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Bennett.

Argument of Robert W. Bennett

Mr. Robert W. Bennett: Mr. Chief Justice and may it please the Court.

Unlike the Solicitor General, appellant, Miller, and the intervening appellants, crossover the central fact established by the record, both appellant, Miller, and the intervenors suggest in there brief that -- nothing much is at stake here.

To read their briefs and those of their amici and to listen to their arguments, one would conclude that pregnancy for the diabetic, the cancer sufferer, for women with hypertension, with sickle cell decease, with severe varicosities poses no unusual problem.

All we are dealing with here to listen to them is with women who desire an abortion for convenience and with doctors who simply like to abort.

The record reveals a very different picture, one of multiple diseases and conditions posing very serious, but not immanently life-threatening health problems for the pregnant woman, where the option of an early abortion is medically essential.

Delay in abortion rapidly increases risk.

The record reveals that withdrawing the medical option of abortion will hit poor women and indigent teenagers especially hard.

Justice William H. Rehnquist: Mr. Bennett, when you say the record, I take it, you mean the record before the District Court?

Mr. Robert W. Bennett: That is correct, Your Honor.

Justice William H. Rehnquist: Supposing that the -- either the Congress or the Illinois legislature had -- had legislative hearings on this and found conflicting evidence, some of it supporting of evidence found in the District Court in the Northern District of Illinois.

Some of it exactly contrary and the Committee report a bill of -- which was -- was the Hyde Amendment.

Do you think that the Northern District of Illinois could then hold its own hearing, hear these same witnesses and come to a different conclusion as to whether or not, the bill was rational or whether or not, one witness was to believe, to be believed and the other, not?

Mr. Robert W. Bennett: Under the constitutional test, I would assume that the legislature would be given the benefit of serious factual doubts and that that would be the duty of the District Court.

Under the statutory standard, the federal statute entrusts those judgments to professional standard review organizations.

But I would point out that we have no such question here.

There is absolutely no indication that the legislature had any health concern, what were health question in mind, when it pass the statute, it did.

Justice William H. Rehnquist: Well, does it have to appear on the face of some sort of piece of paper that they have a health concern in mind in order to say that did?

Mr. Robert W. Bennett: No, it doesn't have to appear on the face, but then, evidence about whether there was a plausible argument for such a health interest would be admissible in the District Court.

In this case, we do have paper and the State is very clear about the interest it was serving, it was attempting to stop abortions and it cared not about health or life of pregnant women.

Justice William H. Rehnquist: Well, supposing that the legislators have gone back to there various constituencies and talked to the people who voted for or against the person who represent that district and acquired information in that manner, would you say that was totally irrelevant?

Mr. Robert W. Bennett: No, it was not, Your Honor, but the very process of constitutional adjudication unless facts are to be entirely relevant -- irrelevant to constitutional adjudication must rely upon the adducing of factual evidence in a court.

As I said, it -- if there is a debatable issue, the legislature would clearly have the benefit of the doubt.

Here, there is no debatable issue.

Chief Justice Warren E. Burger: Do you suggest that there is a monolith -- a monolithic basic set of reasons by all the members of the legislature, who -- who voted this law?

Mr. Robert W. Bennett: Well, I --

Chief Justice Warren E. Burger: They are doing it for the same reasons?

Mr. Robert W. Bennett: I would -- I would never make such -- such sort of cosmic judgment.

But here we do have a statement by the legislature itself.

In legislation passed 1975 and again in 1979, still on the books, embraced by the attorney for the State in his brief as a statement of the State's interest in as he puts it, fetal life.

And that is in the legislation, it is quoted in his brief and in ours.

The legislature makes it clear that what it was doing was trying to effectuate the judgment that life begins at -- at conception and that the fetus has the right to life from the moment of conception.

On the merits, appellees rely on a federal statutory and the federal constitutional argument that Illinois's withdrawal of Medicaid funding for medically necessary abortions, is illegal.

The statutory argument has two aspects, first, the State's obligation under Title XIX, the medicate provisions of the Social Security Act.

And if -- and second, the effect if any, of the annual appropriations measures that have been referred to here as the Hyde Amendments, Smith and Jones amendments, occasionally.

On the Title XIX question, the Court of Appeals concluded that Illinois was required to provide funding for all medically necessary abortions under its medical assistance programs.

A dozen other lower courts have reached essentially the same conclusion.

A State Medicaid plan is required by Title XIX, to provide for the inclusion of at least the first five services included in Section 1396d (a).

Justice Byron R. White: Are -- are you -- you're -- you're addressing yourself to the -- the decision of the Court Appeals on -- or when it -- ordered a remand?

Mr. Robert W. Bennett: Your Honors, we urge that a statutory ground here is available to the Court as an alternative ground for decision.

I will simply characterize each --

Justice Byron R. White: Right.

Mr. Robert W. Bennett: -- where is that statutory ground came from.

Justice Byron R. White: Yes, yes.

But it -- it isn't something that we've granted certiorari on it.

Something -- you're -- you're just urging that as an appellee to support the judgment.

Mr. Robert W. Bennett: That is correct.

As I was -- as I was saying, the State Medicaid plan used it or the -- the federal Medicaid statute uses mandatory language to express a minimal State obligation.

That to provide at least the first five services listed in Section 1396d (a).

Those mandatory services include physician services, inpatient and outpatient hospital services and early and periodic screening for children.

All the services that is necessary to provide medically necessary abortions.

Justice William H. Rehnquist: Well, how did -- but isn't the Hyde Amendment a much more specific statutory enactment than the one you've referred to?

Mr. Robert W. Bennett: The Hyde Amendment is a very specific statutory amendment.

Our argument with regard to it is that it does precisely what its words specifically say, that is to say, restrict the use of federal funds and say nothing about the State's obligation under Title XIX.

Justice William H. Rehnquist: Well, does that really make sense?

Mr. Robert W. Bennett: Well, I think it makes a lot of sense.

Of course there are multiple opinions from this Court and others that the duty of a court is to follow the plain meaning of statutory language.

There is an exception stated to that and that is when there would be absurd result produced by following that language, but I don't think there's any absurd result here.

Congress was acting in a particular context.

The context of appropriations and it took a particular action and its words are very clear about what it intended to bring about by that action.

In -- in those circumstances, we argue that there really is no need to look to legislative history at all in order to determine what affect the Hyde Amendment has on the State's Title XIX obligation.

Justice Potter Stewart: Your position, Mr. Bennett, then is that Title XIX, in the absence of any Hyde Amendment, clearly requires the State to participate in the funding of therapeutic abortions --

Mr. Robert W. Bennett: Yes, that is our position, Your Honor.

Justice Potter Stewart: -- and -- and that even the after the Hyde Amendment which by its terms, simply limited the appropriation of federal funds, Title XIX continued to impose such a requirement.

Mr. Robert W. Bennett: That is correct, Your Honor.

Justice William H. Rehnquist: What do you do --

Justice William J. Brennan: (Voice Overlap) court (Inaudible) with you on that?

Justice Potter Stewart: Yes.

Mr. Robert W. Bennett: Yes, there have been --

Justice William H. Rehnquist: What do you do with --

Mr. Robert W. Bennett: -- a couple of lower courts that have.

Justice William H. Rehnquist: Well, what do you do with Dickerson case in 310 U.S.?

Mr. Robert W. Bennett: Oh -- oh, yes, I do recall the Dickerson case.

Actually, Your Honor, it seems to me that there, the intent to repeal was a manifest, the intent to impliedly amend a statute.

Here we have examples.

We have cited a number in our brief.

The Solicitor General has offered some others, in which there is not the assumed congruence between the funding formula under this cooperative federal state programs and underlying substantive obligations.

Congressman Hyde himself, in the course of the debates, bemoaned on occasion, the fact that he couldn't get the substantive questions constitutional amendments, the Social Security Act, before Congress.

And so, the Congress was acting in a particular context that of appropriations.

It's -- if -- it is appropriate to look at the legislative history in order to determine what Congress accomplished by passing words that are quite clear, that legislative history really reinforces the conclusion we are urging.

What members of Congress most frequently said was that they are restrict -- restricting the use of federal funds.

Congress knows how to amend the Social Security Act if it wants to.

The Bowman Amendment which has recently passed the House and is now in the Senate, an amendment to the Child Health Assurance Act, says and I quote, “Nothing in Title XIX shall be construed to require any State to -- funds to be used to pay for any abortion.”

The Hyde Amendment could have said that, but it did not and this Court's quite recent decision in TVA against Hill.

Counsel strongly against finding an implied amendment of an underlying substantive statute brought about by an appropriations act.

The Equal Protection Clause commands the same result.

Our claim here is depicted by the appellants as a claim for affirmative subsidy of the exercise of a fundamental right.

But the appellees, the plaintiffs here are making no claim for an affirmative subsidy for the exercise of a fundamental right.

Their claim is not to be discriminated against in violation of the Equal Protection Clause and the Equal Protection Clause applies to state medical care statutes just as much as it applies to any other statute.

Justice Potter Stewart: And now you're talking not about the federal statute but about the state statute?

Mr. Robert W. Bennett: That is correct, Your Honor.

Chief Justice Warren E. Burger: We'll resume there at 1 o'clock, counsel.

Print this transcript Transcript: 

Argument of Robert W. Bennett

Chief Justice Warren E. Burger: Mr. Bennett.

Mr. Robert W. Bennett: Mr. Chief Justice and may it please the Court.

Appellant's constitutional arguments are premised on an attempt to identify this case with the situation presented in Maher against Roe.

But this case is not like Maher against Roe and it differs in ways that are central to the constitutional analysis that is appropriate.

In Maher, the plaintiff complained that the State favored normal childbirth over abortion and this Court held that it was permissible to express a value judgment in favor of childbirth.

The value judgment was expressed by use of a medical assistance program in which refusal to fund elective abortions did no violence whatsoever to the medical assistance goals on which that program was grounded.

If a woman desiring an abortion could not obtain one, she could go through normal childbirth with all medically necessary expenses paid and neither her life nor her health will be put in jeopardy.

Justice Byron R. White: What if we disagree with you on what the medical goals as the fact are?

What if -- what if we decided like the District Courts did that it's not inconsistent with -- with the Act?

Mr. Robert W. Bennett: I guess I'm -- I'm (Voice Overlap) --

Justice Byron R. White: Well, with the Hyde Amendment it's -- it's not inconsistent, according to District Court.

Mr. Robert W. Bennett: Well, if the Hyde --

Justice Byron R. White: That is --

Mr. Robert W. Bennett: -- if the Hyde Amendment, Your Honor, modified the State's obligations under Title XIX, then I would agree that the totality of the State judgment and the federal judgment was one which excluded those procedures.

That's clear, but that would be true of any state discriminatory action.

That does not prevent the application of the Equal Protection Clause, the equal protection analysis.

Indeed, the Constitution commands the application of the Equal Protection Clause.

Justice Byron R. White: Yes, but one of the reasons for saying it violated the Equal Protection Clause wouldn't be that it was inconsistent with the statute, which is what you were just arguing.

Mr. Robert W. Bennett: No, I'm -- I'm sorry.

I was trying to distinguish this case from the situation in Maher.

Justice Byron R. White: I know you were.

Yes.

Mr. Robert W. Bennett: In -- in Maher, the State could express a value judgment, but do no violence to any health goals, do no violence to the general area of activity in which it itself had decided that it would undertake a very substantial program.

Chief Justice Warren E. Burger: Did Congress express a value judgment in the Hyde Amendment, do you think?

Mr. Robert W. Bennett: I'm sure that in some sense, Congress expressed a value judgment.

Indeed, I think Congress expressed a pure sort of value judgment that abortions were evil and hence, federal money was not to be associated with that.

Justice William H. Rehnquist: Mr. Bennett, I am a little bit confused in the same way my Brother White is.

Is this a --

Mr. Robert W. Bennett: Mr. Justice White.

Justice William H. Rehnquist: Mr. Justice White [Laughs].

Is this a -- is this a statutory as opposed to a constitutional argument that you're making now --

Mr. Robert W. Bennett: With both.

Justice William H. Rehnquist: -- or is it a constitutional argument, but somewhat different than the other parties have made?

Mr. Robert W. Bennett: I take it that all constitutional arguments about discrimination must define the area in which the discrimination takes place and against which the discriminatory denial of a benefit must be judged.

Justice William H. Rehnquist: I would think my question could be answered yes or no.

I mean whether this is a constitutional argument you are now advancing or whether it's a statutory argument that really there isn't any constitutional question here for us to decide because the Hyde Amendment didn't change the requirements of the Medicaid Act.

Mr. Robert W. Bennett: I advance both those arguments, Your Honor --

Justice William H. Rehnquist: You mean, you --

Mr. Robert W. Bennett: -- which the alternative.

Justice William H. Rehnquist: Which were you advancing at the time Mr. Justice White asked?

Mr. Robert W. Bennett: The constitutional argument.

The State obviously has wide discretion to choose its spending and regulatory activity, but when it does make a choice, that choice defines the area of discrimination for equal protection purposes.

And regardless of the equal protection standard that is to be applied here, what Illinois has done cannot stand.

The abortion decision centrally touches the health of indigent pregnant women.

That theme has been reiterated time and again in this Court's decisions.

And indeed the two or three provisions in abortion regulations that have been upheld, have all been, I would submit, carefully sculpted so as to avoid any serious jeopardy to the pregnant woman's health.

Here, Illinois refuses to fund medically necessary abortions in pursuit, I would submit, of no legitimate interest at all.

This Court has found that the State has a legitimate interest in protecting potential life.But Illinois was not attempting to protect potential life.

What Illinois was doing was trying to prevent abortions with the view that a fetus was a human life in same sense that a two-year-old was and in the same sense that a 22 and a 44-year-old was.

If Roe against Wade stands for any proposition, it must stand for the proposition that a State cannot proceed on that assumption, when proceeding on that assumption will do substantial harm to the interest of others involved.

Justice Potter Stewart: Your constitutional argument, Mr. Bennett, is exclusively an Equal Protection Clause argument, is it?

Mr. Robert W. Bennett: Your Honor, the equal protection standards and the due process standards are obviously closely related.

Justice Potter Stewart: Well, is it any part of your argument as indeed it seemed to me logically to be part of the -- your brother's argument in the preceding case that a State is under a constitutional duty to finance abortions quite a part from whether or not, it finances anything else?

Mr. Robert W. Bennett: No, Your Honor.

We make no such claim.

Justice Potter Stewart: So, it is basically an Equal Protection Clause.

Mr. Robert W. Bennett: It is a claim of discriminatory denial --

Justice Potter Stewart: Right.

Mr. Robert W. Bennett: -- of public benefits.

Justice Potter Stewart: That that were granted to others for similar things.

Mr. Robert W. Bennett: That is correct, for all medically necessary procedures.

Justice Potter Stewart: It's -- it's not your claim that there's any duty on the State to finance abortions or indeed to finance anything for health?

Mr. Robert W. Bennett: That is correct, Your Honor.

But this is not just any discrimination that the State has undertaken here.

Justice Potter Stewart: It's -- according to you, it's unconstitutional discrimination.

Mr. Robert W. Bennett: Yes, but it's not even an ordinary unconstitutional discrimination.

Because the discrimination here is against exercise of a fundamental right, a right that this Court has repeatedly recognized to be fundamental.That is the woman's interest in making the abortion decision for herself.

Illinois --

Justice Byron R. White: But Maher -- it's Maher --

Mr. Robert W. Bennett: Maher --

Justice Byron R. White: Yes, said that -- said that Congress could do that or a State could do it in the first trimester, anyway.

Mr. Robert W. Bennett: No.

Justice Byron R. White: I mean none of that -- it - it said as a -- Congress needn't -- needn't fund elective abortion.

Mr. Robert W. Bennett: That is correct.

And we are not claiming --

Justice Byron R. White: Even though it can't -- even though it trespasses on the results and the inability, practical inability of a woman to make her own decision.

Mr. Robert W. Bennett: That is correct, Your Honor.

But in Maher there was no discrimination in a -- in the sense that the Equal Protection Clause makes relevant, because there was no jeopardy to the healthcare interest that the State had defined for itself, whereas here, there is disastrous significance.

The State will fund all other medically necessary procedures, but these, it will not.

And that is precisely a discrimination based on the woman's exercise of a fundamental right.

Chief Justice Warren E. Burger: Could the Illinois legislature provide an -- comprehensive program for drug addiction and not provide a comprehensive program for alcohol addiction or vise versa?

Mr. Robert W. Bennett: It might well, Your Honor, if it had a rational basis.

Chief Justice Warren E. Burger: Well, that's arranged.

Just -- just take it as is.

Mr. Robert W. Bennett: Well, I would have to no know more about both drug addiction and --

Chief Justice Warren E. Burger: Most -- most of the time -- most of the time, state legislatures don't go to any great extent to telling us why.

Mr. Robert W. Bennett: I understand.

Most state decisions to fund or not to fund, are justifiable by a value judgment in choosing between two goals.

Chief Justice Warren E. Burger: Or could they -- could they make the choice of one and not include the other?

That's my question to you.

Mr. Robert W. Bennett: I would think they might well be able to.

I -- without knowing more about the particulars of alcoholism and narcotics addiction, I -- I hesitate to make an unequivocal judgment, but my hunch would be that a State could make such a distinction.

And it would be justifiable by the value judgment that alcoholism is a more significant problem or less, depending on how the judgment came out, in our society than was drug addiction.

But, the State here is acting on the assumption that this Court has held to be impermissible, namely, that abortion is to be stopped and yet the -- and the people who's desired abortion, the State has chosen to stop and discriminate against are those of a helpless group of indigent citizens, those that the legislative process most easily can ignore when it decides to launch upon a discrimination.

Justice Rehnquist asked this morning, whether one had to assume that legislators were irrational in order to decide that they had adopted an irrational means to the pursuit of a legitimate objective.

I would point out first of all that there is no legitimate objective here, but even if there were a legitimate objective that the Illinois legislature had in mind, it is not at all necessary to assume that legislators may or did have acted irrationally as individuals, in order to conclude that the constitutional test of irrationality is met.

Ever since James Madison and probably a long time before, our constitutional theorists recognized that a legislative majority would often be tempted to ignore utterly the interest of a legislative minority.

And the judgment on a legislative level that the costs that have been exacted from a minority are too great is what justifies the conclusion that what the legislature has done isn't an irrational means to pursuit, even of legitimate objectives.

Justice William H. Rehnquist: Well that's the easiest --

Justice Harry A. Blackmun: May I -- may I ask --

Mr. Robert W. Bennett: After you, sir.

Justice William H. Rehnquist: That's easy to see in the case of the Bill of Rights where you can't say that because appointed counsel costs so much, the -- the State legislatures are going to get together and say, “We're not going to point it in the State and therefore, we're not irrational and therefore, this is okay.”

Obviously, that would be the wrong result because that is specifically proscribed in the Sixth Amendment.

But when you come to the Equal Protection Clause, this in -- and the standard is the so-called rational basis, then to say that the legislature has in mind a -- a goal which is perfectly acceptable, but was totally irrational in pursuing it, to -- to my mind, it does mean that -- that they belong in a bughouse.

Mr. Robert W. Bennett: Forgive me, Your Honor.

I read your dissent in Weinberger against -- or your concurrence in Weinberger against Wiesenfeld to reach exactly that conclusion about the discrimination there.

I don't understand how a State could ever have a legitimate objective and there could be any content to the requirement that they pursue a rational means unless this Court at some level was willing to make a judgment that the State had simply gone too far in exacting cost from a helpless political minority.

I take it that that is precisely what the rational basis test both under the Equal Protection Clause and under the Due Process Clause means.

But I would repeat that we are not here dealing with an ordinary -- even an ordinary unconstitutional discrimination, but rather a discrimination against a woman's exercise of her fundamental rights.

Justice Harry A. Blackmun: May I come to the question I was about to ask.

You are arguing as I understand it, that there is no legitimate state interest.

Mr. Robert W. Bennett: That's correct, Your Honor.

Justice Harry A. Blackmun: Did -- did the District Court in your case, agree with that?

Mr. Robert W. Bennett: Yes, the District Court -- well --

Justice Harry A. Blackmun: I -- I understood the District Court recognized a legitimate state interest, I -- I understood the District Court recognized a legitimate state interest, but weighed it against the interest of -- for which you're advocating.

Mr. Robert W. Bennett: I think that the District Court's language sort of straddled the -- the two conclusions.

Justice Harry A. Blackmun: But you can't point any language in the District Court that goes as far as you have gone, can you?

Mr. Robert W. Bennett: Well, the District Court did characterize what the State had done as illegitimate.

It said it had no legitimate interest in favoring potential life at the expense of --

Justice Harry A. Blackmun: But no legitimate interest in -- in -- no legitimate -- none of the legitimate interest identified by the Solicitor General?

He identified two primarily that is a --

Mr. Robert W. Bennett: Yes.

Justice Harry A. Blackmun: -- the State interest in -- in bringing a -- a fetus to a normal type birth and the State interest in not expending public funds to further a cause which a large segment of population perceives to be an immoral one.

I'm not passing out my judgment on those interests.

I'm just asking whether or not, the District Court below in this case, found no such state interest.

Mr. Robert W. Bennett: Well, all I can say, Your Honor, is that the District Court did not articulate its conclusion in those terms.

It subsumed its conclusion of illegitimacy -- within its conclusion of illegitimacy, it has subsumed an articulation of the interest that the State was ignoring here.

Chief Justice Warren E. Burger: Did the 1973 opinion say something -- have something to say about the interest of the State in encouraging natural birth and normal term birth.

Mr. Robert W. Bennett: The Roe against Wade and Doe against Bolton did recognize a legitimate state interest in furthering potential life, but the -- those opinions also addressed the balance that a State was permitted to make.

And even in the third trimester, when the State's interest was held there to be compelling and concluded that even in that third trimester, a State could not forbid abortion when that would post jeopardy to the pregnant woman's life or health.

That I think is essentially equivalent to the exact rationality balance that we're asking this Court to make even on the assumption that Illinois' interest here was to further potential life, which it was not.

Illinois wanted to stop abortions and it was willing to adopt a healthcare funding program to do that, because that was the only means that it saw available to it.

And the victims of that desire are precisely the most helpless of Illinois' citizens.

Maher against Roe --

Justice Lewis F. Powell: May I ask this question?

What was the State interest involved in Maher, you call it Maher against Roe?

We found a legitimate state interest in that case.

Mr. Robert W. Bennett: That is correct.

You found a legitimate state interest in furthering potential life --

Justice Lewis F. Powell: That's right.

Mr. Robert W. Bennett: -- and in expressing a value judgment in favor of childbirth.

The --

Justice Lewis F. Powell: But that, you -- you --

Mr. Robert W. Bennett: -- potential life, I'm -- I'm suggesting, is not involved here because Illinois was not actually pursuing that interest.

Justice Lewis F. Powell: Does Illinois -- a record of -- the legislative record, supports your view as what to his purposes were?

Mr. Robert W. Bennett: Yes, Your Honor.

The Illinois legislative records supports that view, but you don't even have to resort to that.Illinois in 1975 and again in 1979 adopted legislation which articulates that view, of when life begins and of the interest that it is furthering and the State in its brief embraces that as a Statement of what they refer to as the State's interest in fetal life.

Maher against Roe as you just indicated spoke of a State favoring normal childbirth and appellants would like to expand that language to include all childbirth and then claim that Illinois is serving that interest, but Illinois has no actual interest in increasing the number of unwanted births.

Illinois' Medicaid program even funds nontherapeutic sterilizations.

What Illinois is doing is effectively coercing indigent women to have abnormal childbirths, sometimes resulting in death.

The United States argument is that death is okay too.

The United States says that it would be perfectly rational for a State to decide for the Congress or for the State -- for a State to decide not to fund any abortions under its medical assistance program.

Justice Potter Stewart: But you -- I thought you agreed that it would be perfectly constitutional for a State to decide not to fund any healthcare of any kind?

Mr. Robert W. Bennett: I do agree.

Justice Potter Stewart: Well, then death's involved there, isn't it?

Mr. Robert W. Bennett: Death is involved there, but death is involved in all sorts of things and states --

Justice Potter Stewart: (Voice Overlap) --

Mr. Robert W. Bennett: That's correct.

But -- but also, all sorts of judgments to fund or not to fund that a State makes, may have implications for the longevity of the population.

But the Equal Protection Clause insists that we look at the context in which the State discrimination takes place.

For then, the State has itself, told us of great deal about the things that it values and here the State has said, “For everyone else, health is of surpassing significance, but not for this one group that we will disfavor.”

That is a classic, I would submit, a classic case of discrimination where the Equal Protection Clause test comes into play.

Justice William H. Rehnquist: What if -- what if the Illinois legislature had said that, “We will fund all treatments medical -- medically necessary, except for rabies and that we have come to the conclusion from evidence that the chances of survival of rabies are 1 in 100, once a person gets it.

And we just don't want to spend our money there, money can be -- a lot of money can be spent that way and it just isn't worth it, even though what we realized that people will -- might recover, if they -- if they were treated of, but it would only 1 out of 100.”

Mr. Robert W. Bennett: There being no fundamental right involved, I take it that only the rational basis test would then be properly applied and that state interest in conserving the fund, so as to maximize the healthcare benefit in its program, would be a rational basis.

I take it that the -- this Court's decision in Geduldig, rested on an analysis similar to that.

But here, of course, what Illinois does cause the stray -- State's substantial funds thus, not only exacerbating the health problems of pregnant women when they cannot obtain a medically necessary abortion, but of the health problems of others as well, because the State -- the program actually cost more, because of the refusal to fund medically-necessary abortions.

So that justification, even if it had motivated the State, is not available here and of course, it did not motivate the State, Illinois.

Justice Potter Stewart: Is your -- is your equal protection argument confined to the what you submit as unconstitutional discriminatory classifications of -- in the -- of all other healthcare and of not giving healthcare to -- in the case of abortions or is it -- do you refine it as between men and women and between teenagers and adults and so on?

Mr. Robert W. Bennett: No, Your Honor.

We make no claim that there is sex discrimination here, for instance.

Though, I -- I would argue that --

Justice Potter Stewart: You could --

Mr. Robert W. Bennett: -- actual real life impact of the discrimination is relevant to the analysis.

Justice Potter Stewart: Well then, but do you -- but you don't.

Mr. Robert W. Bennett: I don't claim any special constitutional scrutiny is involved here, because of a discrimination on the basis of sex.

I do not think that there was any --

Justice Potter Stewart: So, it's purely a discrimination as between all other healthcare and -- and healthcare and -- and -- which will be implicated in financing abortions --

Mr. Robert W. Bennett: That is correct.

Justice Potter Stewart: -- the therapeutic abortions.

Mr. Robert W. Bennett: That is correct, Your Honor.

Justice Potter Stewart: Thus, you can find your equal protection case to that.

Mr. Robert W. Bennett: That's correct.

Justice John Paul Stevens: Mr. Bennett, I understood you to say that the program was a holocaust for money, because they deny funding for abortions.

Is the -- does the record establish that because it's entirely possible that there would be fewer than the number of unfunded abortions, doesn't necessarily mean all those went to full term.

There could be abortions that were obtained by the means.

Mr. Robert W. Bennett: That the record quite conclusively establishes it.

The State doesn't dispute it.

The United States doesn't dispute it.

The intervenors do dispute it.

Justice John Paul Stevens: I mean not just the comparison between abortion and -- and childbirth, but the total program is more expensive because of this exception.

Mr. Robert W. Bennett: That is correct, Your Honor.

Justice Potter Stewart: Well, that's assuming the same number of pregnancies?

Mr. Robert W. Bennett: No, I don't think it's necessary to assume it.

Justice Potter Stewart: And when just arguably, if -- if this statute is upheld, there will be fewer pregnancies.

Mr. Robert W. Bennett: Yes.

Well, I -- I understand the argument.

Now, Mr. Hardy, made that argument in an Arizona law journal article that the intervenors have repeatedly relied upon although I think that in their most recent submissions, they have somewhat backed away from it and perhaps that's a sign of the weakness of the argument.

Justice Potter Stewart: In request, we don't know, but at least arguably this might inhibit carelessness, might it not?

Mr. Robert W. Bennett: Well, it arguably might, but the amount of carelessness that it would have to inhibit --

Justice Potter Stewart: Who knows?

Mr. Robert W. Bennett: Well -- but it would have to be enormous in order to make this action not costly for the State.

Mr. Hardy's argument is based on some studies done in Japan and in Eastern Europe where abortions were made available freely, not in response to medical necessity.

And even there, the mathematics that he employs comes out a little strain.

We addressed this argument at more length in some of our briefs in the lower court and our brief in this Court does refer to those submissions which are in the record.

Chief Justice Warren E. Burger: Let me go back again with the hypothetical about program for care and for -- drug addicts.

Would you think it's reasonable from general knowledge available to everybody that there is a higher incidence of drug addiction among the youth and the poor on this country, than other categories?

Mr. Robert W. Bennett: It could be.

Chief Justice Warren E. Burger: Well, it's been widely stated by many experts.

Assume that to be true then, assume it.

Then does not the denial of -- of drug addiction program that have the same or similar equal protection flaws that you argue here?

Mr. Robert W. Bennett: No, I don't think so, Your Honor.

The State has to make judgements about some activities it will undertake and others that it will not.

Here, the State has made that judgment and it is within the context -- within a state-defined context that the discrimination takes place.

If drug addiction problem were part of a larger hole in which it made sense to view it as an integral part of that larger hole and the State discriminated it against drug addiction, then we would have the classical equal protection questions presented.

Justice William H. Rehnquist: Will you say that although the State has adopted both the affirmative and the negative part, the negative part simply is inconsistent with the affirmative part?

Mr. Robert W. Bennett: When the State discriminates --

Justice William H. Rehnquist: That's where it amounts to, isn't it?

Mr. Robert W. Bennett: No.

Here, the negative part, I – I repeat, is in the service of an illegitimate interest.

But if we were to assume that it was in pursuit of a legitimate interest, then the State would be permitted under the Equal Protection Clause to call upon that interest in order to provide the justification for the discrimination, but that is – but the judgment of whether you have a sufficiently rational relationship to the pursuit of a legitimate interest is one of the Equal Protection Clause commands this -- this Court to make.

The United States' understanding of the Equal Protection Clause in the context of a funding program such as this, I submit, drains that clause of all human content.

But legislation serves human ends and its rationality must be judged in terms of human cause.

If there are no more questions, Your Honor, with the reasons stated, I would ask that the judgment of the court below be affirmed.

Chief Justice Warren E. Burger: You have about three minutes remaining, Mr. Wenzel.

Argument of William A. Wenzel Iii

Mr. William A. Wenzel Iii: Mr. Chief Justice and may it please the Court.

We would like to reply to three points.

The first point, regards the record in the case below involving the effectiveness of alternative treatment.

The record does contain the affidavit of Dr. Jasper Williams at the Appendix 97.

And Dr. Williams did state in his affidavit that alternatives to abortion were available, which were effective and as effective, the State submits that no purposeful discrimination is intended by the Illinois General Assembly to harm the State's interest or the interest in maternal health.

This is also supported in the Appendix 138 by a survey put together by the Center for Disease Control.

That survey concluded that there was no increase in abortion-related complications, observed after the implementation of the Hyde Amendment in the project.

It is the willingness of the State of Illinois to fund alternatives to abortion which we believe satisfies within the context of a non-comprehensive medical assistance program for the indigent, the standard of reasonableness.

Justice Potter Stewart: According to one of a – at least one of the amicus briefs, that's precisely the constitutional vice of what Illinois has done, when it finances sterilization for example.

Mr. William A. Wenzel Iii: The equal protection discrimination that I understand the plaintiffs were making is that Illinois has selected out of all the necessary medical categories of care, solely medically necessary abortions.

We have argued --

Justice Potter Stewart: And find – and does finance alternatives?

Mr. William A. Wenzel Iii: And does finance alternatives, but that is not an accurate statement of Illinois' practice, nor is an inaccurate statement of Illinois' obligations under the Medicaid Act.

Illinois can, as this Court recognized in Beal, select which procedures to fund.

The Court expressly stated that the State need not fund each and every kind of care or each of every procedure available.

It is that discretion within the Medicaid program, coupled with Illinois' reasonable -- reasonable efforts to fund alternatives to complications of pregnancy, which satisfies the rational basis test for equal protection purposes.

The second point we want to make is that contrary to the suggestions of the Solicitor General, the Hyde Amendment is at issue in this case.

It's logically and we feel inextricably interrelated with plaintiff's statutory claims.

It was placed in issue by all of the defendants and emotions for summary judgment.

And finally, it is before this Court insofar as the final judgment order on review, incorporated the statutory rulings.

Thank you.

Chief Justice Warren E. Burger: Mr. Solicitor General, you have about eight minutes remaining.

Argument of Mccree

Mr. Mccree: Mr. Chief Justice and may it please the Court.

There are two points I'd like to make because I do not wish to permit two assertions to go unanswered.

One assertion that was made was that the United States says that death is -- is okay.

And I think this was the contention that I heard.

This, of course, is not so.

The other related contention was that the United States places fetal life above maternal life and that explicitly is not so, because the first exception in the Hyde Amendment provides that funding is available when the life of the mother would be endangered, if the fetus were brought to term.

The second point I wish to make is that, since the entire Medicaid Act was passed to help indigents drawing a line within the program, then doesn't punish any of them.

With those two comments, we will rest on our brief.

Chief Justice Warren E. Burger: Thank you, counsel.

The case is submitted.

We'll hear arguments next in Dawson –-