The city of St. Louis, in electing, as a policy choice, to
provide publicly financed hospital services for childbirth but not
for nontherapeutic abortions, held not to violate any
constitutional rights. Maher v. Roe, ante
p. 432 U. S. 464
515 F.2d 541, reversed and remanded.
Respondent Jane Doe, an indigent, sought unsuccessfully to
obtain a nontherapeutic abortion at Starkloff Hospital, one of two
city-owned public hospitals in St. Louis, Mo. She subsequently
brought this class action under 42 U.S.C. § 1983 against the Mayor
of St. Louis and the Director of Health and Hospitals, alleging
that the refusal by Starkloff Hospital to provide the desired
abortion violated her constitutional rights. Although the District
Court ruled against Doe following a trial, the Court of Appeals for
the Eighth Circuit reversed in
Page 432 U. S. 520
an opinion that accepted both her factual and legal arguments.
515 F.2d 541 (1975). [Footnote
The Court of Appeals concluded that Doe's inability to obtain an
abortion resulted from a combination of a policy directive by the
Mayor and a longstanding staffing practice at Starkloff Hospital.
The directive, communicated to the Director of Health and Hospitals
by the Mayor, prohibited the performance of abortions in the city
hospitals except when there was a threat of grave physiological
injury or death to the mother. Under the staffing practice, the
doctors and medical students at the obstetrics-gynecology clinic at
the hospital are drawn from the faculty and students at the St.
Louis University School of Medicine, a Jesuit-operated institution
opposed to abortion. Relying on our decisions in Roe v.
Wade, 410 U. S. 113
(1973), and Doe v. Bolton, 410 U.
(1973), the Court of Appeals held that the city's
policy and the hospital's staffing practice denied the
"constitutional rights of indigent pregnant women . . . long after
those rights had been clearly enunciated" in Roe
515 F.2d at 547. The court cast the issue in an equal
protection mold, finding that the provision of publicly financed
hospital services for childbirth but not for elective abortions
constituted invidious discrimination. In support of its equal
protection analysis, the court also emphasized the contrast between
nonindigent women who can afford to obtain abortions in private
hospitals and indigent women who cannot. Particular reliance was
placed upon the previous decision in Wulff v. Singleton,
508 F.2d 1211 (CA8 1974), reversed on other grounds,
428 U. S. 428
106 (1976), in which the Court of Appeals
Page 432 U. S. 521
had held unconstitutional a state Medicaid statute that provided
benefits for women who carried their pregnancies to term but denied
them for women who sought elective abortions. The court stated that
"[t]here is no practical distinction between that case and this
one." 515 F.2d at 545.
We agree that the constitutional question presented here is
identical in principle with that presented by a State's refusal to
provide Medicaid benefits for abortions while providing them for
childbirth. This was the issue before us in Maher v. Roe,
p. 432 U. S. 464
the reasons set forth in our opinion in that case, we find no
constitutional violation by the city of St. Louis in electing, as a
policy choice, to provide publicly financed hospital services for
childbirth without providing corresponding services for
In the decision of the Court of Appeals and in the briefs
supporting that decision, emphasis is placed on Mayor Poelker's
personal opposition to abortion, characterized as "a wanton,
callous disregard" for the constitutional rights of indigent women.
515 F.2d at 547. Although the Mayor's personal position on abortion
is irrelevant to our decision, we note that he is an elected
official responsible to the people of St. Louis. His policy of
denying city funds for abortions such as that desired by Doe is
subject to public debate and approval or disapproval at the polls.
We merely hold, for the reasons stated in Maher,
Constitution does not forbid a State or city, pursuant to
democratic processes, from expressing a preference for normal
childbirth as St. Louis has done. [Footnote 2
The judgment of the Court of Appeals for the Eighth Circuit
Page 432 U. S. 522
is reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
[For dissenting opinion of MR. JUSTICE MARSHALL, see
p. 432 U. S.
[For dissenting opinion of MR. JUSTICE BLACKMUN, see
p. 432 U.S.
The facts concerning Doe's visit to the hospital and the reason
for her inability to obtain an abortion are hotly disputed. Our
view that the Court of Appeals erred in the application of the law
to the facts as stated in its opinion makes it unnecessary to
describe or resolve this conflict.
The Court of Appeals awarded attorney's fees to respondent under
the "bad faith" exception to the traditional American Rule
disfavoring allowance of such fees to the prevailing party. See
Alyeska Pipeline Co. v. Wilderness Society, 421 U.
(1975). I t follows from our decision on the
constitutional merits that it was an error to award attorney's fees
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR.
JUSTICE BLACKMUN join, dissenting.
The Court holds that St. Louis may constitutionally refuse to
permit the performance of elective abortions in its city-owned
hospitals while providing hospital services to women who carry
their pregnancies to term. As stated by the Court of Appeals:
"Stripped of all rhetoric, the city here, through its policy and
staffing procedure, is simply telling indigent women, like Doe,
that, if they choose to carry their pregnancies to term, the city
will provide physicians and medical facilities for full maternity
care; but if they choose to exercise their constitutionally
protected right to determine that they wish to terminate the
pregnancy, the city will not provide physicians and facilities for
the abortion procedure, even though it is probably safer than going
through a full pregnancy and childbirth."
515 F.2d 541, 544 (1975) The Court of Appeals held that St.
Louis could not in this way "interfer[e] in her decision of whether
to bear a child or have an abortion simply because she is indigent
and unable to afford private treatment," ibid.,
was constitutionally impermissible that indigent women be
"subjected to State coercion to bear children which they do not
wish to bear [while] no other women similarly situated are so
coerced,'" id. at 545.
Page 432 U. S. 523
For the reasons set forth in my dissent in Maher v. Roe,
p. 432 U. S. 482
I would affirm the Court of Appeals. Here the fundamental right of
a woman freely to choose to terminate her pregnancy has been
infringed by the city of St. Louis through a deliberate policy
based on opposition to elective abortions on moral grounds by city
officials. While it may still be possible for some indigent women
to obtain abortions in clinics or private hospitals, it is clear
that the city policy is a significant, and in some cases
insurmountable, obstacle to indigent pregnant women who cannot pay
for abortions in those private facilities. Nor is the closing of
St. Louis' public hospitals an isolated instance with little
practical significance. The importance of today's decision is
greatly magnified by the fact that, during 1975 and the first
quarter of 1976, only about 18% of all public hospitals in the
country provided abortion services, and, in 10 States, there were
no public hospitals providing such services. [Footnote 2/1
A number of difficulties lie beneath the surface of the Court's
holding. Public hospitals that do not permit the performance of
elective abortions will frequently have physicians on their staffs
who would willingly perform them. This may operate in some
communities significantly to reduce the number of physicians who
are both willing and able to perform abortions in a hospital
setting. It is not a complete answer that many abortions may safely
be performed in clinics, for some physicians will not be affiliated
with those clinics, and some abortions may pose unacceptable risks
if performed outside a hospital. Indeed, such an answer would be
ironic, for if the result is to force some abortions to be
performed in a clinic that properly should be performed in a
hospital, the city policy will have operated to increase, rather
than reduce, health risks associated with abortions; and in Roe
Page 432 U. S. 524
410 U. S. 113
410 U. S. 163
(1973), the Court permitted regulation by the State solely to
protect maternal health.
The Court's holding will also pose difficulties in small
communities where the public hospital is the only nearby health
care facility. If such a public hospital is closed to abortions,
any woman -- rich or poor -- will be seriously inconvenienced; and
for some women -- particularly poor women -- the unavailability of
abortions in the public hospital will be an insuperable obstacle.
Indeed, a recent survey suggests that the decision in this case
will be felt most strongly in rural areas, where the public
hospital will, in all likelihood, be closed to elective abortions,
and where there will not be sufficient demand to support a separate
abortion clinic. [Footnote 2/2
Because the city policy constitutes "coercion [of women] to bear
children which they do not wish to bear," Roe v. Wade
the cases following it require that the city show a compelling
state interest that justifies this infringement upon the
fundamental right to choose to have an abortion. "[E]xpressing a
preference for normal childbirth," ante
at 432 U. S. 521
does not satisfy that standard. Roe
explicitly held that,
during the first trimester, no state interest in regulating
abortions was compelling, and that, during the second trimester,
the State's interest was compelling only insofar as it protected
maternal health. 410 U.S. at 410 U. S.
-164. Under Roe,
the State's "important and
legitimate interest in potential life," id.
Page 432 U. S. 525
410 U. S. 163
-- which I take to be another way of referring to a State's
"preference for normal childbirth" -- becomes compelling only at
the end of the second trimester. Thus, it is clear that St. Louis'
policy preference is insufficient to justify its infringement on
the right of women to choose to have abortions during the first two
trimesters of pregnancy without interference by the State on the
ground of moral opposition to abortions. St. Louis' policy
therefore "unduly burdens the right to seek an abortion,"
Bellotti v. Baird, 428 U. S. 132
428 U. S. 147
(1976). I would affirm the Court of Appeals.
Sullivan, Tietze, & Dryfoos, Legal Abortion in the United
States, 1975-1976, 9 Family Planning Perspective 116, 121, 128
"The concentration of services among relatively few providers --
mostly clinics -- in the nation's larger cities is clearly
associated with the failure of hospitals -- especially the smaller
hospitals that are the major health institutions in small cities
and nonmetropolitan areas -- to offer abortions along with their
other health services. Since public hospitals are even less likely
than private hospitals to provide abortions, it is poor, rural and
very young women who are most likely to be denied abortions as a
result of the need to travel outside their own communities to
obtain terminations. It is these women who are least likely to have
the funds, the time, or the familiarity with the medical system
that they need to be able to cope with the problems associated with