Beal v. Doe, 432 U.S. 438 (1977)

MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting.*

The Court today, by its decisions in these cases, allows the States, and such municipalities as choose to do so, to accomplish indirectly what the Court in Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973) -- by a substantial majority and with some emphasis, I had thought -- said they could not do directly. The Court concedes the existence of a constitutional right, but denies the realization and enjoyment of that right on the ground that existence and realization are separate and distinct. For the individual woman concerned, indigent and financially helpless, as the Court’s opinions in the three cases concede her to be, the result is punitive and tragic. Implicit in the Court’s holdings is the condescension that she may go elsewhere for her abortion. I find that disingenuous and alarming, almost reminiscent of: "Let them eat cake."

The result the Court reaches is particularly distressing in Poelker v. Doe, post, p. 519, where a presumed majority, in electing as mayor one whom the record shows campaigned on the issue of closing public hospitals to nontherapeutic abortions, punitively impresses upon a needy minority its own concepts of the socially desirable, the publicly acceptable, and the morally sound, with a touch of the "devil take the hindmost." This is not the kind of thing for which our Constitution stands.

The Court’s financial argument, of course, is specious. To be sure, welfare funds are limited, and welfare must be spread perhaps as best meets the community’s concept of its needs. But the cost of a nontherapeutic abortion is far less than the cost of maternity care and delivery, and holds no comparison whatsoever with the welfare costs that will burden the State for the new indigents and their support in the long, long years ahead.

Neither is it an acceptable answer, as the Court well knows, to say that the Congress and the States are free to authorize the use of funds for nontherapeutic abortions. Why should any politician incur the demonstrated wrath and noise of the abortion opponents when mere silence and nonactivity accomplish the results the opponents want?

There is another world "out there," the existence of which the Court, I suspect, either chooses to ignore or fears to recognize. And so the cancer of poverty will continue to grow. This is a sad day for those who regard the Constitution as a force that would serve justice to all evenhandedly and, in so doing, would better the lot of the poorest among us.

* [This opinion applies also to No. 75-1440, Maher, Commissioner of Social Services of Connecticut v. Roe et al., post, p. 464, and No. 75 442, Poelker, Mayor of St. Louis, et al. v. Doe, post, p. 519.]