Bennett_abortion and Judicial Review

Citation: 75 Nw. U. L. Rev. 978 1980-1981

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Copyright 1981 by Northwestern University School of Law Printed in U.S.A.Northwestern University Law Review Vol. 75, No. 6

ABORTION AND JUDICIAL REVIEW: OFBURDENS AND BENEFITS, HARDCASES AND SOME BAD LAW*

Robert W Bennett**

I was pleased when the editors of this Review asked me to com-ment upon the United States Supreme .Court's five-to-four 1980 deci-sions in Harris v. McRaeI and Williams v. Zbaraz,2 holding that neitherfederal nor state governments are constitutionally required to fundmedically necessary abortions in otherwise general3 programs of medi-cal assistance for the poor.4 I was pleased not because, as an attorney

* These remarks are part of a twofold discussion of the abortion funding controversy.

Professor Bennett, the author of this article, argued for the plaintiffs in Williams v. Zbaraz, 100 S.Ct. 2694 (1980). Other aspects of this topic will be discussed in a forthcoming issue of the Reviewby Professor Victor Rosenblum, also a member of the faculty of the Northwestern UniversitySchool of Law. As an attorney for intervening defendants Americans United for Life, ProfessorRosenblum argued in Zbaraz and Harris v. McRae, 100 S. Ct. 2671 (1980). The School of Lawwas thus in the unique position of having two of its professors appearing on opposite sides of thesame Supreme Court case.-Ed.

** Professor of Law, Northwestern University. B.A., Harvard College, 1962; LL.B., HarvardLaw School, 1965. I was greatly aided by a faculty seminar at Northwestern on an earlier versionof this article. For helpful comments outside of that context I am grateful to various students,colleagues, and friends, Alton Harris, Leonard Rubinowitz, Robert Burns, Ian Macneil, MarshallShapo, James Weill, Robert Lehrer, and Cynthia Shoenberger.

1 100 S. Ct. 2671 (1980).2 100 S. Ct. 2694 (1980).3 A state adopting a Medicaid program has the option under the federal act of providing

medicaid to certain non-public-assistance recipients (known as "medically needy"), 42 U.S.C.§ 1396a(a)(10)(C) (1976), and, if it does so, its Medicaid obligations towards those recipients differsomewhat from its obligations towards public assistance recipients (known as "categoricallyneedy"). See 42 U.S.C. § 1396a(a)(13)(B)-(C) (1976). For both groups, however, the state mustprovide a core of services, although it need not provide some services (eg., dental services) thatmight be considered "medically necessary." In addition, a state may not obtain federal Medicaidreimbursement for care of certain recipients defined by age who are patients in psychiatric institu-tions and in institutions for treatment of tuberculosis. See 42 U.S.C. § 1396d(a)(16), 17(B) (1976).State programs usually exclude fringe or experimental services such as acupuncture, but are gen-erally quite broad, and the Illinois program (the one involved in Zbaraz) was virtually compre-hensive. See Illinois Medicaid Rules and Regulations, 3 MEDICARE AND MEDICAID GUIDE(CCH) 1 15,582 (1980). In this article, I will assume a general program from which all limitationsother than abortion services are at least justifiable in terms of a tradeoff between cost and medicalservice concerns.

4 Zbaraz raised the issue of whether the state could refuse such funding, while McRae con-cerned federal refusal to subsidize state inclusion of the service. The Couft discussed substantiveissues in Mc.Rae alone and treated the equal protection and due process questions in the two cases

HeinOnline -- 75 Nw. U. L. Rev. 978 1980-1981

Abortion and Judicial Review

on the losing side in Zbaraz, I sought an opportunity to argue my causeanew. Usually there would be substantial satisfaction in convincing thereadership of this journal, but even if my pleading here on the abortionfunding issue were convincing, the triumph would be hollow after hav-ing failed to win over the body that authoritatively gets to decide.

Nor am I interested in carping about the details of the Court'sopinions. I believe that the McRae opinion, where the Court's substan-tive discussion appears,5 is inadequately rationalized in terms of prece-dents and principles to which the Court continues to express adherence.Although I shall unavoidably refer here to some of the problems in theMcRae opinion, I am aware that the readers of the Northwestern Uni-versity Law Review are used to fine wine, not sour grapes. Others willprobe the weaknesses of the Court's opinions,6 and the effort will prob-ably come with more persuasiveness-and certainly with more grace-from them than it could come from me.

I was pleased by the invitation because, while writing briefs inZbaraz over the past three years has been stimulating, it has also beenan unaccustomedly confining environment in which to address the is-sues that the abortion funding question raises. The world of legalacademia is currently experiencing an extraordinary outpouring ofscholarship addressing the tension between the basic assumptions of

as essentially equivalent, presumably relying on the long line of cases holding that the "equalprotection" component of fifth amendment due process restricts the federal government in mostmatters in a manner identical to the equal protection restriction on state governments. See, e.g.,Mathews v. Diaz, 426 U.S. 67 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Boiling v.Sharpe, 347 U.S. 497 (1954). But see Hampton v. Mow Sun Wong, 426 U.S. 88 (1976). TheCourt's premise of equivalence, however, is questionable. The state action denied benefits formedically necessary abortions. The federal action, in contrast, directly deprived states of federalmoney and left the states with the discretion to fund abortions if they chose. Harris v. McRae, 100S. Ct. at 2685 n.16. The impact of the federal restriction on individuals was thus indirect at bestand arguably nonexistent. The fifth amendment protects "persons," not states, and hence any fifthamendment restriction on federal funding decisions for state Medicaid programs might have beenthought to be quite different from the fourteenth amendment restriction on the state funding deci-sions themselves. See Graham v. Richardson, 403 U.S. 365, 382 (1971); Shapiro v. Thompson,394 U.S. 618, 633 (1969). But see Califano v. Westcott, 443 U.S. 76 (1979). The Court, however,denied a petition for rehearing in Zbaraz that relied on this distinction between the two cases. 49U.S.L.W. 3173 (U.S. Sept. 17, 1980).

In this article my concern will be with funding decisions that operate directly on individuals.I will assume, as the Court indicated, Williams v. Zbaraz, 100 S. Ct. at 2701, that its due processand equal protection discussions in McRae were intended to be fully applicable to the questionpresented in Zbaraz. Textual references will, however, be to Mc.Rae, since that is where theCourt's substantive discussion appears.

5 Besides the due process and equal protection discussions, McRae deals with first amend-ment religion issues that were not raised in Zbaraz and will not be dealt with in this article. SeeHarris v. McRae, 100 S. Ct. at 2689-90.

6 Indeed, others already have. See Perry, Why the Supreme Court Was Plainly Wrong in theHydeAmendment Case: .4 Brie/Comment on Harris v. McRae, 32 STAN. L. REV. 1075 (1980); TheSupreme Court, 1979 Term, 94 HARV. L. REv. 96 (1980) [hereinafter cited as HARVARD Note].This is not to say that I fully agree with the analyses in these criticisms. See, e.g., note 71 in/ra.

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NORTHWESTERN UNIVERSITY LAW REVIEW

our majoritarian democracy and the role of our courts in constitutionalreview of legislation.7 I have previously attempted a contribution tothe current generation of literature on that gnawing problem of ourpolitical and legal system. 8 Freed now from the constraints of the styleof argumentation suited to brief writing, the abortion funding problemprovides me with a good opportunity to revisit and probe more deeplyinto fundamental issues concerning the place of judicial review in ourdemocracy.

INTRODUCTION

The abortion funding cases join two separate and difficultproblems of contemporary constitutional law. The first is the courts'appropriate role in judging legislative differentiations in public assist-ance programs. The Supreme Court has been presented with suchquestions in volume only since the late 1960s, 9 but they now appear tobe an enduring part of the Court's workload. Harris v. McRae is atleast the fifth major decision since 1970 to suggest that constitutionalreview for such legislative determinations-which has typically beenunder the equal protection clause-will be particularly relaxed.' 0 Overthe same period, however, the Court has held a large number of suchlegislative determinations unconstitutional. " The prospects seem good

7 Two recent books are J. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PRO-CESS (1980), and J. ELY, DEMOCRACY AND DISTRUST (1980).

8 See Bennett, "Mere"Rationality in ConstitutionalLaw: JudicialReview and Democratic The-

ory, 67 CALIF. L. REV. 1049 (1979).9 The Aid to Families of Dependent Children (AFDC) program, for instance, was included

in the original Social Security Act of 1935. No case arose under the AFDC provisions, however,until 1968. King v. Smith, 392 U.S. 309 (1968). Since that time, I count 18 major Supreme CourtAFDC opinions: Califano v. Westcott, 443 U.S. 76 (1979); Miller v. Youakim, 440 U.S. 125(1979); Quern v. Mandley, 436 U.S. 725 (1978); Batterton v. Francis, 432 U.S. 416 (1977); Phil-brook v. Glodgett, 421 U.S. 707 (1975); Van Lare v. Hurley, 421 U.S. 338 (1975); Burns v. Alcala,420 U.S. 575 (1975); Shea v. Vialpando, 416 U.S. 251 (1974); New York State Dep't of SocialServs. v. Dublino, 413 U.S. 405 (1973); Carleson v. Remillard, 406 U.S. 598 (1972); Jefferson v.Hackney, 406 U.S. 535 (1972); Townsend v. Swank, 404 U.S. 282 (1971); Wyman v. James, 400U.S. 309 (1971); Lewis v. Martin, 397 U.S. 552 (1970); Dandridge v. Williams, 397 U.S. 471(1970); Rosado v. Wyman, 397 U.S. 397 (1970); Goldberg v. Kelly, 397 U.S. 254 (1970); Shapiro v.Thompson, 394 U.S. 618 (1969).

10 The suggestion is explicit in Dandridge v. Williams, 397 U.S. 471, 485 (1970), and particu-

larly in Geduldig v. Aiello, 417 U.S. 484, 495 (1974). See United States R.R. Retirement Bd. v.Fritz, 101 S. Ct. 453 (1980); Maher v. Roe, 432 U.S. 464 (1977). See also Califano v. Aznavorian,439 U.S. 170 (1978); Jefferson v. Hackney, 406 U.S. 535 (1972).

11 Full opinions are provided in Califano v. Westcott, 443 U.S. 76 (1979); Califano v. Gold-farb, 430 U.S. 199 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Jimenez v. Weinberger,417 U.S. 628 (1974); Memorial Hosp. v. Maricopa County, 415 U.S. 250 (1974); United StatesDep't of Agriculture v. Moreno, 413 U.S. 528 (1973); United States Dep't of Agriculture v. Murry,413 U.S. 508 (1973); New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973); Graham v.Richardson, 403 U.S. 365 (1971); Shapiro v. Thompson, 394 U.S. 618 (1969). See Frontiero v.Richardson, 411 U.S. 677 (1973); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972); Goldbergv. Kelly, 397 U.S. 254 (1970).



for its continuing to do so, though how the apparent tension will beresolved between what the Supreme Court sometimes says about fund-ing cases and what it regularly does is not at all clear.12

The second, and seemingly more acute constitutional problem, isabortion. Roe v. Wade 13 has few rivals as the most controversial consti-tutional decision of the Burger Court years. 14 Since Wade, theSupreme Court has handed down at least ten major decisions dealingwith the subject of abortion,' 5 but the controversy has not been stilled.The abortion funding cases were widely cited as among the most im-portant cases of last Term,16 but no such notoriety would have attendedthe cases if they had involved funding for a purpose other than abor-tion. Publicly prominent issues often test constitutional theory in criti-cal ways.

Previously I have examined the constitutional requirement thatlegislation be a rational means to pursue a legitimate purpose. 17 Thisrationality test is thought to provide the minimum constitutional stan-dard that any piece of legislation must satisfy. In examining the re-quirement, I searched for guidance on the appropriate constitutionalrole of courts by focusing initially on what elected majoritarian legisla-tures could be thought to do inadequately. Legislatures are the centrallawmaking institutions in our society, and we have reposed enormousfaith in them. At the same time distrust of majoritarian rule is a majortheme of our political heritage. The major formal embodiment of thisdistrust in the American political system is, of course, the Constitutionitself.

If the constitutional role of the courts is to be both appreciated andperfected, the reasons for such distrust must be more closely examined.It is my view that this can usefully be done by focusing on the circum-stances in which elected legislatures are most likely to "fail" in recon-ciling divergent interests in the society. When legislatures are likely to

12 The most recent Supreme Court decision on such benefits is United States R.R. Retirement

Bd. v. Fritz, 101 S. Ct. 453 (1980). The various opinions in Fritz very much reveal the tension.'3 410 U.S. 113 (1973).14 Within a year after the decision almost 30 constitutional amendments had been introduced

in Congress to overturn Wade in whole or in part. [1974] REP. ON HUMAN REPRODUCTION ANDTHE LAW (LEGAL-MEDICAL STUDIES) at I-A-3. A recent student Comment lists 19 states as hav-ing called for a constitutional convention to overturn Wade. See Comment, The EstablishmentClause and Religious Influences on Legislation, 75 Nw. U.L. REv. 944, 944 n.5 (1980) [hereinaftercited as NORTHWESTERN Comment].

15 Williams v. Zbaraz, 100 S. Ct. 2694 (1980); Harris v. McRae, 100 S. Ct. 2671 (1980); Bellottiv. Baird, 443 U.S. 622 (1979); Colautti v. Franklin, 439 U.S. 379 (1979); Poelker v. Doe, 432 U.S.519 (1977); Maher v. Roe, 432 U.S. 464 (1977); Beal v. Doe, 432 U.S. 438 (1977); Bellotti v. Baird,428 U.S. 132 (1976); Singleton v. Wulff, 428 U.S. 106 (1976); Planned Parenthood v. Danforth, 428U.S. 52 (1976). Doe v. Bolton, 410 U.S. 179 (1973), of course, was a companion case to Wade.See text accompanying note 124 infra.

16 See, eg., N.Y. Times, July 6, 1980, § 4, at 1, col. 1.17 See Bennett, note 8 supra.

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produce "satisfactory" results, there is little call for judicial interven-tion, at least in the absence of a reasonably explicit constitutional direc-tive.18 When legislatures are most likely to produce "unsatisfactory"results, the case for judicial intervention is enhanced, as long as consti-tutional language provides a generally stated authority, even if little inthe way of specific guidance.19 Any such approach to constitutionallaw requires some concept of the ends of democracy, so that the notionof legislative "failure" can be made meaningful.

This approach to constitutional law encounters great resistance be-cause of its deemphasis of constitutional language and the circum-stances surrounding its passage. We cling to a positivist view of law asa set of commands issued by those in authority. The appeal of legalpositivism may even be reinforced by the powerful strain of individual-ism running through American and Western culture more generally.An individual may more comfortably submit to external commandswhen he can at least appreciate the source of their authority. In anycase, although there is much that is fictional in the endeavor, we ma-nipulate our legal doctrines and fashions to trace exertions of govern-mental authority to decisions of elected legislatures or to even moresupreme authority. The actions of administrative agencies, for exam-ple, are regularly said to be justified only when in furtherance of legis-lative direction. And in the heyday of common law development,judges "found" the law that had always been there rather than makingit. In the constitutional context, the document itself apparently pro-vides a comfortable substitute for these authoritative sources of law.Value judgments by unelected judges, it seems clear, do not.

Despite the perceived need to anchor law to more authoritativemoorings, judicial value choices in the name of the generally expressedclauses of the fifth and fourteenth amendments are manifest. If theycan be justified in terms of aspirations of our political and legal systemmore basic than majoritarian legislative decisionmaking, the tensioncreated by a discretion-laden judicial review in a democracy is mucheased.

My exploration of the rationality requirement attempted to exposethe necessity of judicial value choices even for that minimal constitu-tional limitation on legislatures. Irrationality of means to a legitimateend, I argued, most plausibly means that the burdens imposed by themeans adopted clearly outweigh the benefits obtained, or that there ex-ists an alternative and clearly less costly means to the same end. Bythis understanding, an individual could be rational in demolishing his

18 But see Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 290-97 (1978) (opinion of

Powell, J.).19 For a discussion of the limits of constitutional literalism, including reliance on what was in

the minds of those responsible for initiating constitutional language, see Bennett, supra note 8, at1089-94.



house to provide a site for a new one, but irrational if he had no otherdwelling and if his only purpose were to clear the ground for a flowergarden. The latter conclusion could be reached even if no alternativegarden spot were available, but the irrationality of the demolition be-comes more patent if flowers would thrive on land he owned adjacentto the house. In similar fashion, it might be irrational public action tobuild a modem jet airport in an unpopulated desert, no matter howinexpensive the available site. If the airport were needed adjacent to alarge city, however, it might be irrational public action to build it onland from which 2,000 families would have to be evicted rather than onan available and equally desirable (including no more expensive) sitethat stood empty. It would indeed seem to be irrational public actionto proceed with the evictions if the otherwise equivalent site housed aswimming pool used by a single family.

The rationality judgment for the substance of any public decisiondepends first on a balance of the gains and losses from the action antic-ipated. If the balance is not irrational in this absolute sense, it couldstill be judged irrational comparatively, if less weighty burdens wereclearly to be anticipated from alternative means to the same end.20

Since there usually is no mechanism by which such balances and com-parisons can be undertaken objectively by courts, this understanding ofthe rationality requirement brings into relief the necessity of judgment,the element of judicial choice.

Far from being an aberration, legislative irrationality of either theabsolute or the comparative variety is to be expected occasionally, inpart because legislators are not perfectly responsive to constituentdesires,21 but also because majoritarian decisionmaking provides an in-centive for irrationality. When votes are only counted and notweighed, 22 it is quite plausible to expect that a mildly interested major-ity23 may sometimes impose costs upon an intensely concerned minor-

20 As a practical matter a feasible alternative means will seldom achieve the same goal or set

of goals to the same degree. The alternative airport site may be closer or farther from town; haveless or more capacity for long runways; pose less or more severe air pollution problems. Anyjudicial calculus by which the net benefit of one action is compared with that of an alternative willbe sufficiently imprecise and start from a position of such deference to the initial legislative deter-mination that the fact that the benefits as well as the burdens change should not seriously compro-mise the usefulness of the comparison. For ease of exposition, I will continue to refer toalternative means to the same end.

In the context of statutory interpretation, it should be noted that the Supreme Court hasspecifically denied its own capacity "to make... fine utilitarian calculations." Tennessee ValleyAuth. v. Hill, 437 U.S. 153, 187 (1978).

21 See Bennett, supra note 8, at 1068-69.

22 See Kendall & Carey, The "Intensity" Problem and Democratic Theory, 62 AM. POL. Sci.REV. 5, 7 (1968).

23 Unless the context indicates otherwise, I will use the term "majority" to refer to a legisla-

tively prevailing majority, even though it may be the product of a coalition, some of whose mem-bers do not independently care about the precise issue in question. Such a majority could actually

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ity that are not worth the benefits they produce from a societalperspective that counts as significant the intensities of satisfaction anddissatisfaction of all its members. Given this "intensity problem" 24 ofmajoritarianism, we may also expect that majority vote will sometimespass up less costly alternatives to some desired goal, because the meanschosen burden a smaller, or otherwise less powerful, minority. Theswimming pool site, for instance, might serve the swimming needs oftwenty persons, while the alternative site housed only ten. Majoritariandecisionmaking affords the twenty greater decisionmaking authority,even though all involved might acknowledge that the ten have more atstake.

The rationality requirement is a check on the ability ofmajoritarian legislatures to ignore intense preferences of minorities. Ithas alternatively been depicted over the years as emanating from thedue process and from the equal protection guarantees. In recent yearsthe equal protection form has been most prominent. One importantreason, I suspect, is that equal protection doctrine provides better cam-ouflage for the reality of judicial value judgments.

The interested reader should consult my more extended discussionof the rationality requirement, but an important device by which theequal protection form of the requirement masks the element of judicialchoice deserves mention in this introduction. This device, associatedwith the classic article of Tussman and tenBroek,25 compares the groupburdened or benefited by a legislative action with the target group thatwould be affected if the legislation were "perfectly" designed to burdenor benefit those and only those necessary to achieve its objective. Per-fect "classificatory" fit is the pinnacle of rational legislative action inthis scheme. Conversely, under- or over-inclusiveness of classificationtends toward irrationality and hence toward unconstitutionality. TheTussman and tenBroek emphasis on classificatory fit has an air of geo-metrical objectivity that may account for much of its appeal. Theyeven illustrated under- and over-inclusiveness with Venn diagrams.2 6

Classificatory fit analysis has seemed ever since-perhaps to judges aswell as to their audiences-to provide a route to judicial decisions that

represent a societal minority. I will use the term "minority" to refer to that segment of society thatfailed to prevail legislatively, even though it could conceivably represent a societal majority. Iadopt this asymmetry only to allow for the case of a "minority" that found literally no support inthe legislature.

24 1 have borrowed more than the phrase from Kendall & Carey, note 22 supra. Much of the

present discussion, particularly in the next section, see text accompanying notes 69-84 infra, isinformed by their incisive analysis of the ways that majoritarian democracy handles the problemof varying intensities of feelings of its citizens over the range of issues that are publicly addressed.

25 Tussman & tenBroek, The Equal Protection ofthe Laws, 37 CALIF. L. REV. 341 (1949).

26 Where T represents the target group and B the one burdened by legislation,



is independent, at least to a substantial degree, of value judgments. 27

Such a mechanistic understanding of the rationality requirementwill hardly do in the real world, however, in part because it ignoresdegrees of cost and benefit.2 8 "Imperfect" classification in the Tussmanand tenBroek sense may be irrational if it needlessly imposes costs onmany or few, simply because a clearly less costly alternative means tothe same end would then be apparent. But "imperfect" classificationwill often be justified as cost-saving and thus cannot sensibly be labeledsocietally irrational, even if it is highly "imperfect." Consider, for in-stance, a requirement that prescription medicine bottles be difficult toopen so that children under five cannot get into them and be injured byingesting their contents. 29 This flat requirement would burden allmedicine users through added cost for medicines and inconvenience intheir use. Those burdens would be more "perfectly" imposed if phar-macists were required to make individual inquiry of their customersabout children in the house and use childproof bottles only for thosecustomers having young children. Variations in the difficulty of open-ing the bottles could even be required for families with children of dif-ferent ages and physical capabilities. The more targeted the responseto the problem, however, the greater the administrative costs. The fiatrequirement thus might be a perfectly rational response, even though itwould overinclusively inflict burdens on a much larger group than is

T B

can be used to depict respectively underinclusiveness, overinclusiveness and simultaneous under-and over-inclusiveness. See id. at 347, reprinted in G. GUNTHER, CONSTITUTIONAL LAW, CASESAND MATERIALS 679 (10th ed. 1980).

27 The under- and over-inclusiveness approach is recurrently employed by the SupremeCourt. See, e.g., Cailfano v. Westcott, 443 U.S. 76, 89-90 (1979); Jimenez v. Weinberger, 417 U.S.628,637 (1974); United States Dep't of Agriculture v. Moreno, 413 U.S. 528, 537-38 (1973); Eisen-stadt v. Baird, 405 U.S. 438, 454 (1972); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415(1920). Commentators have embraced it with near unanimity. See, e.g., J. ELY, supra note 7, at146; J. NOWAK, R. ROTUNDA & J. YOUNG, CONSTITUTIONAL LAW 521-22 (1978); L. TRIBE,AMERICAN CONSTITUTIONAL LAW 997-99 (1978); Developments In The Lawx-EqualProtection, 82HARV. L. REv. 1065, 1076, 1082, 1084-87 (1969).

28 Some of my criticism of the Tussman and tenBroek emphasis on classificatory fit was antici-

pated by an excellent student Note I have only recently discovered. Note, Equal Protection: ACloser Look at Closer Scrutiny, 76 MICH. L. REV. 771 (1978) [hereinafter cited as MICHIGANNote].

29 See 15 U.S.C. § 1471 (1976); 16 C.F.R. § 1700.14(a)(10) (1980). The actual requirement isless sweeping than that used in the text, but the point is not seriously compromised by the excep-tions, and the more sweeping example is used for ease of exposition.

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"necessary." 30

Examples of "imperfect" classification abound in the law, from theJapanese exclusion orders of World War I13 to exhaust emission stan-dards for new but not older cars.32 The constitutionality of many suchrequirements is never litigated because their reasonableness is so pat-ent, despite the theoretical possibility of more "finely tuned" imposi-tion of burdens. The reasonableness of such "imperfect"classifications, of course, is a function of the administrative savings thatthe imperfection allows.

Tussman and tenBroek did recognize that administrative consider-ations might justify imperfect classifications, but even this concessionwas advanced by them grudgingly and without recognition that admin-istrative costs can be meaningfully compared in terms of societal ra-tionality only with societal aggregates of benefits and burdens, notmerely with the number of people experiencing them. By focusing soheavily on classificatory fit, their analysis obscured the fact that "per-fect" classifications can be quite irrational and that highly "imperfect"ones can be rational, if only it is recognized that the rationality of aprogram or action depends on the magnitude of the interests servedand disserved as well as the number of people affected.33

One possible testament to the effectiveness of the camouflage pro-vided by classificatory fit analysis is the extreme and negative reactionto Roe v. Wade (where the analysis is absent) on the ground that itrepresented a return to some long-abandoned regime of judicialchoice.34 Wade was decided as a due process case, but it could readilyhave been approached in equal protection terms. The Texas statute

30 The target group for childproof caps could be defined as families with children who other-

wise will open medicine bottles and hurt themselves. In more realistic terms, however, the targetgroup is all children under five, on the assumption that the purpose of the requirement is toforestall the particularly great risk of harm to such children from ingesting medicines. Whetherthe target group for childproof bottle caps is defined in terms of exposure to risk or realized harm,however, the requirement is one overinclusively imposed in the Tussman and tenBroek typology.Frequently target groups for legislative action will be sensibly defined in terms of release from orexposure to risks. See Bennett, supra note 8, at 1064 n.70.

31 See Korematsu v. United States, 323 U.S. 214 (1944).32 See 42 U.S.C. § 7521(a)(3)(A)(i) (Supp. III 1979).33 The only case in which the Tussman and tenBroek typology works in rationality terms is

the perfectly "irrational" classification, where the target group and that actually affected have no

common members, as in ( ( See Tussman & tenBroek, supra note 25, at 347.34 See Dixon,.The "New" Substantive Due Process and the Democratic Ethic: A Prologomenon,

1976 B.Y.U. L. Rnv. 43; Loewy, Abortive Reasons and Obscene Standards: A Comment on theAbortion and Obscenity Cases, 52 N.C. L. REv. 223 (1973); Viera, Roe and Doe: Substantive DueProcess and the Right of Abortion, 25 HAsTINGS L.J. 867 (1974); Wellington, Common Law Rulesand Constitutional Double Standards: Some Notes on Adjudication, 83 YALE L.J. 221, 297-311(1973); Note, Roe v. Wade and Doe v. Bolton: The Compelling State Interest Test in SubstantiveDue Process, 30 WASH. & LEE L. REv. 628 (1973). See also Ely, The Wages of Crying Wolf- A



involved in Wade differentiated between abortions necessary to savethe mother's life, which were permissible, and other abortions, whichwere not.35 It could have been tested in terms of the perfection of theclassification between women requiring abortions to save their livesand those desiring them for any other reason. The Court may wellhave avoided the equal protection route because, in classificatory fitterms, the statute seems to pass the test of the clause with flying colors.Those voting for the statute saw the human fetus as a human life.Criminal abortion statutes were viewed as a simple complement tomurder laws, forbidding abortion except where the danger to the preg-nant woman was of equal severity to that posed by abortion for thefetus. The classification is "perfectly" fitted to its purpose.

Cracks had, of course, appeared well before Roe v. Wade in theequal protection facade of geometrical objectivity. The Court, for in-stance, purported to require more than mere rationality when state ac-tion impinged upon what the Court termed "fundamental" rights.3 6

When such weighty private interests were affected, the state's reason forimposing a burden had to be commensurately more weighty-"com-pelling" in the formulation the Court usually employed. Shapiro v.Thompson,37 for example, found such "strict scrutiny" required whenthe state burdened the "fundamental" right of interstate travel. In fun-damental rights cases, the Court also more frequently became explicitabout the relevance of alternative means to the same end.38 Startingwith Skinner v. Oklahoma,39 a series of personal interests in childbear-ing and childrearing was said to be "fundamental," 40 and Roe v. Wadebuilt on those and other cases41 treating such interests with special re-spect.

But the Court's fundamental rights doctrine-like classificatoryfit-is insensitive to degrees of interests involved. Personal rights are

Comment on Roe v. Wade, 82 YALE L.J. 920 (1973); Epstein, Substantive Due Process By AnyOther Name: The Abortion Cases, 1973 Sup. CT. REV. 159.

35 See Roe v. Wade, 410 U.S. 113, 117 n.1 (1973).36 See generally Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79

COLUM. L. REV. 1023, 1074-83 (1979).37 394 U.S. 618 (1969).38 Id. at 629-33, 634-38.39 316 U.S. 535 (1942).40 See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Loving v. Virginia, 388 U.S. 1, 12 (1967).

It is not clear that any of the cases used the term in the sense later attributed to it by the Court, seeSan Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 29-34 (1973), rather than as away of expressing the importance of the interest. See text accompanying notes 97-100 infra. Bythe time of Rodriguez, the Court was insisting that the importance of an interest "does not deter-mine whether it must be regarded as fundamental for purposes of examination under the EqualProtection Clause." 411 U.S. at 30.

41 See Griswold v. Connecticut, 381 U.S. 479 (1965); Prince v. Massachusetts, 321 U.S. 158

(1944); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).See also Zablocki v. Redhail, 434 U.S. 374 (1978). See generally Heymann & Barzelay, The Forestand the Trees: Roe v. Wade and its Critics, 53 B.U. L. REV. 765 (1973).

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either fundamental or not, and state interests either compelling or not,both judgments being made by the Court without any explicit concernfor interests of slightly less strength or for the degree to which the stateaction in question jeopardizes the fundamental personal right or servesthe compelling state interest. Thus, for example, in Shapiro, where itappeared that the private inclination to travel interstate was essentiallyunaffected by the state action, such action was nevertheless held to bean unconstitutional discrimination against exercise of the right.42

Probably in reaction to the rigidity of the dichotomous equal pro-tection test, the Court over the last decade has introduced formulationsof the due process and equal protection standards of review that avoidterms such as "compelling" state interests and "fundamental" privaterights, and also avoid the suggestion of virtually complete deference tolegislative determinations sometimes associated with the rationality re-quirement. 43 Many commentators have seen this line of cases as indi-cating an intermediate or middle tier of review to test certain stateactions.44 Actions affecting women and illegitimate children in particu-lar appear to call forth judicial review more stringent than minimal butless stringent than "strict. '45

In both rationality cases and those employing more stringent stan-dards of review, however, terms suggesting the weightiness of the inter-ests affected and the relevance of alternatives repeatedly intrude.46

Thus, through one vehicle or another it appears that the Court regu-larly, if unobtrusively, makes judgments drawing on the importance ofthe interests involved, both public and private, the degree to which theyare affected, and the necessity for the action in question as a means tothe desired end. These, of course, are obvious terms in which social

42 394 U.S. at 629-33.43 See Bennett, supra note 8, at 1054, 1056-59.44 See, e.g., Bice, Standards of Judicial Review Under the Equal Protection and Due Process

Clauses, 50 S. CAL. L. REV. 689, 705 (1977). See generally Gunther, The Supreme Court, 1971Term-Foreword" In Search of Evolving Doctrine on a Changing Court: A Modelfor a NewerEqualProtection, 86 HARV. L. REv. 1 (1972). But see Craig v. Boren, 429 U.S. 190, 210 n.* (1976)(Powell, J., concurring); id. at 211-12 (Stevens, J., concurring).

45 See, e.g., Califano v. Westcott, 443 U.S. 76 (1979); Trimble v. Gordon, 430 U.S. 762 (1977).46 See, e.g., Califano v. Westcott, 443 U.S. 76, 85 (1979) ("subsistence payments made avail-

able as a last resort to families that would otherwise lack basic necessities"); Zablocki v. Redhail,434 U.S. 374, 388 (1978) ("sufficiently important state interests and ... closely tailored to effectu-ate only those interests"); Turner v. Department of Employment Security, 423 U.S. 44, 46 (1975)(requirement of "more individualized means when basic human liberties are at stake"); ClevelandBd. of Educ. v. LaFleur, 414 U.S. 632, 640 (1974) ("heavy burden on the exercise of. . .protectedfreedoms ... needlessly impinge upon this vital area"); United States Dep't of Agriculture v.Moreno, 413 U.S. 528, 538 (1973) ("those persons. . . so desperately in need of aid"); Vlandis v.Kline, 412 U.S. 441, 452 (1973) ("the State has reasonable alternative means of making the crucialdeterminations"); Rosario v. Rockefeller, 410 U.S. 752, 760 (1973) ("important state goal");Gomez v. Perez, 409 U.S. 535, 538 (1973) ("substantial benefits"); Police Dep't v. Mosley, 408 U.S.92, 95 (1972) ("appropriate governmental interest suitably furthered"); Stanley v. Illinois, 405 U.S.645, 657 (1972) ("important [private] interests").



policy judgments are evaluated, and such evaluations inevitably call onvalue choices of those reviewing the judgments. Roe v. Wade em-ployed the terminology of "fundamental" rights, and that should havesuggested that it broke no new ground insofar as it rested on judicialvalue choices.

If the fact of judicial choice was nothing new in Roe v. Wade, thatdoes not mean that the decision must be regarded as justifiable. For wehave not yet examined the problem of criminal abortion laws in legisla-tive terms, nor addressed the particular balance required in Wade. Theabortion funding question, moreover, is not necessarily identical to theprohibition question even in terms of legislative capacity to reconciledivergent interests.47

As a practical matter, the abortion funding question becomes sig-nificant only after Roe v. Wade has been decided. It seems clear thatneither the state nor federal government need fund the performance ofa procedure it has made criminal, no matter what else it does fund. Asimilar conclusion might, however, be less obvious for a state that hadnot in fact made the procedure a crime. Even for such a state, however,Wade worked a radical change in the background against which theabortion funding problem was to be judged. For that reason and be-cause in many ways the abortion prohibition problem is the more diffi-cult, I will explore the judicial problem of reviewing criminal abortionlaws in the next section. That discussion will provide the context andbackground for discussion of the abortion funding question in the finalsection.

OF BURDENS: CRIMINAL ABORTION LAWS

The Texas statute involved in Roe v. Wade imposed criminal pen-alties on a doctor or other person for administering or knowingly pro-curing the administration of an abortion except "for the purpose ofsaving the life of the mother. 48 Similar statutes were on the books in amajority of the states.49 The Supreme Court held that such criminalabortion laws unconstitutionally invaded a pregnant woman's right tomake the abortion decision. The Court did so by finding the woman'sinterest in the abortion decision to be a part of her "right of privacy...founded in the Fourteenth Amendment's concept of personal lib-erty,"50 and, as we have seen, the Court characterized this "right of

47 Even in the presence of legislative failure, judicial review would not be justifiable if that"cure' were worse, or no better, than the disease. While I am not particularly sanguine about raw

judicial ability sensitively to weigh interests, I conclude that judicial review finds much of its

justification in its symbolic value as a counterweight to legislative majoritarianism. See Bennett,supra note 8, at 1102-03. Having dealt briefly with this subject elsewhere, see id., I do not intend

to treat it further here.48 Roe v. Wade, 410 U.S. 113, 118 n.1 (1973).49 Id. at 118 n.2.50 Id. at 153.

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privacy" as "fundamental."Wade, however, rejected a claim of an unlimited right of a woman

to decide whether or not she should have an abortion. Rather it di-vided the pregnancy into three periods and evaluated the woman'sright against two different state interests that grew in importance ineach successive period. The state interests were in the health of thepregnant woman and in "potential life." The former is an interest thestate can assert paternalistically to benefit the pregnant woman. It isthe latter interest, which the state asserts in opposition to the woman'sinterest, that will principally concern us here.

The Court characterized both these state interests as "importantand legitimate, ' 51 but it drew on earlier cases such as Shapiro to indi-cate that where "'fundamental rights'" like the woman's privacy rightare at stake, "regulation limiting these rights may be justified only by a'compelling state interest.' "52 For each of the state interests, the "com-pelling" point came only after the pregnancy had progressed well be-yond conception. The state's interest in the health of the motherbecomes compelling "at approximately the end of the first trimester,"53

because then, as a statistical matter, maternal mortality from abortionis less frequent than from childbirth. Invoking this compelling interest,the state may, after the first trimester, undertake "regulation reasonablyrelate[d] to the preservation and protection of maternal health. 54

The state's interest in potential life becomes compelling later in thepregnancy, when the fetus is viable--capable of "meaningful lifeoutside the mother's womb."' 5 With this compelling interest in protect-ing potential life, after viability the state may even prohibit abortion,except-the Court added and then reiterated-when an abortion "isnecessary to preserve the life or health of the mother. '56

Many sorts of criticisms have been levelled at Wade, and some aresurely well-founded.5 7 I will initally focus, however, upon whether

51 Id. at 162.

52 Id. at 155 (citations omitted).53 Id. at 163.54 Id.55 Id.56 Id. at 164.57 One puzzle that caused the plaintiff-appellees some trouble in Zbaraz is presented by the

combination of Wade and its companion, Doe v. Bolton, 410 U.S. 179 (1973). Wade put someemphasis on a doctor's involvement in the woman's decision to have an abortion, but the clearimplication of the decision is that before viability a woman can decide to have an abortion for anyreason at all. The only basis on which the state could even regulate the procedure during thatperiod (and then only after the first trimester) was concern for the woman's health, but the deci-sion nowhere suggests any requirement that the abortion be affirmatively justified by a healthconcern. Bolton, on the other hand, struck down portions of a Georgia criminal abortion statutebut apparently left intact criminal penalties for a physician performing an abortion unless heconcluded "based upon his best clinical judgment that an abortion is necessary." 410 U.S. at 191-92. "Necessary" to a physician is most naturally read as meaning "medically" necessary, and

990



there is a justifiable basis for a judicial veto of the legislative determi-nation embodied in the Texas statute.58 That inquiry begins with anexamination of criminal abortion statutes in rationality terms.

On the state's side of the rationality balance, the Court's referenceto "potential life" does not fairly capture the seriousness of the interestpursued by "right-to-life" 59 advocates; and it is their interests that thestate has made its own. The life at stake, in the right-to-life view, is not"potential," but actual. The fetus is seen as equivalent in its human-ness to infants and children and adults, since human life for them be-gins at conception. 60 The interests the state pursues in criminalabortion laws are thus the same interests it pursues in murder laws:interests in asserting the sanctity of human life and in deterring attacksupon it. In the case of murder laws, the assumption of the victims'humanity is shared with near unanimity in our society. That the samecannot be said of the assumption that human life begins at conception 6'does not diminish the importance of the interest served by criminalabortion laws to those who hold to the assumption.

On the other side of the balance are the interests of pregnant wo-men in obtaining abortions if they desire them, interests that are moreobscured than illuminated by the Court's privacy language. These in-terests include protecting the woman's health, avoiding births of possi-bly abnormal or simply unwanted children, and, of course, avoidingthe life-long responsibility and cost of raising unwanted children. That

hence, read in isolation from Wade, Bolton would seem to allow criminal penalties for abortionsperformed without any health justification. This tension between the two cases became significantinMcRae and Zbaraz, because the 1977 decisions in Maher v. Roe, 432 U.S. 464 (1977), and Bealv. Doe, 432 U.S. 438 (1977), allowed a state to refuse Medicaid funding for "elective" abortions,but distinguished them from "therapeutic" or "medically necessary" abortions. Maher v. Roe, 432U.S. at 479-80; Beal v. Doe, 432 U.S. at 444-47. When the "medically necessary" issue came up inMcRae and Zbaraz, the plaintiff-appellees were met with a claim that there was no real distinc-tion between elective and medically necessary abortions, so that Maher should be taken as havingresolved the medically necessary issue. It was urged that the only way that Wade and Boltoncould be reconciled is to assume that both "elective" abortions and "medically necessary" ones arethose a doctor finds "necessary" though not required to save the woman's life.

58 The Georgia statute involved in Doe v. Bolton, 410 U.S. 179 (1973) might well be thoughtto have raised a different question. See text accompanying note 124 infra.

59 I will refer to the contending factions in the abortion controversy-and to the interests theyassert-with the positive terms, "right-to-life" and "prochoice," that each group apparently pre-fers.

60 There are undoubtedly many shades of opinion on abortion questions, as on most issues.My characterization seems accurate, however, for the dominant sentiment within the right-to-lifemovement. The Illinois Legislature, for instance, dominated by right-to-life advocates, has pro-claimed that "the unborn child is a human being from the time of conception and is, therefore, alegal person for purposes of the unborn child's right to life and is entitled to the right to life fromconception under the laws and the Constitution of this State." ILL. ANN. STAT. ch. 38, § 81-21(Smith-Hurd Supp. 1980).

61 Cf. N.Y. Times, Apr. 22, 1979, § I, at 49, col. 1 (Gallup Poll on abortion attitudes); N.Y.Times, Jan. 19, 1980, at 11, col. 3 (Dresner and Tortorello Poll); N.Y. Times, Aug. 18, 1980, § A, at15, col. I (N.Y. Times/CBS News poll).

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these burdens are substantial is shown graphically by the extent towhich pregnant women would suffer personal risk and pain to obtainabortions prior to Roe v. Wade.62 Forbidding abortions also bringscosts to fathers of children who will be born, to doctors who violate thelaws, and to taxpayers more generally in caring for abandoned and im-poverished children whose parents cannot or will not bear any or allthe burdens of raising them. For the most part, however, it is the wo-men desiring abortions who bear the very great costs of criminal abor-tion laws. 63

Judicial interest balancing, as I have noted, almost always calls forjudgment rather than measurement, since there will be no common di-mension into which the respective interests can be readily turned forcomparison. It may be obvious to many that the few children's livessaved by "childproof' medicine bottles is worth the slight inconve-nience (and cost) to the many childless medicine users, or that one per-son's home is more important than another's swimming pool, but thatobviousness nonetheless represents a judgment about human values forwhich no objective standard of measurement is available. Still, the re-spective interests in the abortion balance seem more difficult to com-pare than more typical interests judges are called upon to weigh. Eventhe tradeoff between incidental risk to life and convenience is one withwhich each of us has some acquaintance from driving automobiles,crossing streets, and other everyday activities. If the abortion issuetruly involved a similar tradeoff of lives for various forms of humansuffering or inconvenience, it would be a relatively manageable judg-ment to make. Abortion is different, however, as right-to-life advocatesview the matter, because it represents the intentional taking of innocenthuman life and hence an affront to the sanctity of human life itself.The interests on the respective sides of the abortion question, that is,are so difficult to compare precisely because they appeal to such differ-ent aspects of the human spirit and invoke different moral values. TheTexas Legislature, and later the Supreme Court, were faced with acomparison between tangible human burdens and controversial spiri-tual ones.

The presence of cognizable6" interests on both sides of a balanceposes the question of the rationality of the legislative choice, but it does

62 See ALAN GUT'TMACHER INSTITUTE, SAFE AND LEGAL: 10 YEARS' EXPERIENCE WITH LE-

GAL ABORTION IN NEW YORK STATE 17, 22, 23 (1980). In 1972, when legal abortions were avail-able in New York State but not in most states, 172,000 out-of-state women traveled to New Yorkto obtain abortions. Id. at 9. See also Leavy & Krummer, CriminalAborlion: .4 Failure of Law,50 A.B.A.J. 52 (1964).

63 1 have not included--on either side of the balance-interests of those who would eventuallybe born if abortions were prevented. See note 71 infra.

64 It is often difficult to ascertain the goals to which legislation is directed, because of inade-quate evidence, and division of opinion, ambivalence, or even indifference, among the legislators.But there is no real problem of this sort with regard to abortion funding restrictions or prohibi-



not answer that question. A "rationality" standard suggests that onlyextreme imbalances will be upset, and the divergent nature of the re-spective interests in the abortion prohibition case makes a judgment ofany imbalance particularly difficult to reach. In the face of even thenormal precariousness of interest balancing, the Court's usual and ap-propriate response is deference, so that some actual judgments of irra-tionality are likely withheld because they cannot be reached withcomfortable certitude. But the choice is not one of extreme deferenceon all occasions or no deference at all. If some sorts of problems can beidentified as unusually likely to yield irrational legislative action, theCourt can appropriately review such actions with less hesitation toreach a judgment of irrationality.

In the hypothetical case of an airport that would displace eitherhomes or swimming facilities, a raw count of the persons adversely af-fected by each alternative would probably not dominate the decision,even if it were made by majority vote. The intensity problem of formalmajoritarianism is substantially ameliorated in practice in legislativedemocracies by informal mechanisms through which intensity of pref-erences is usually taken into account in reaching public decisions. I donot refer in the main to the multiple devices-formal and informal-bywhich minorities can block legislative action in the American politicalsystem. These devices-bicameral legislatures, executive vetoes, pow-erful committee systems within legislatures, seniority bases for commit-tee assignments, rules of debate that allow delay, and the like65-maypermit some intense minorities to increase their say beyond what for-mal political equality would suggest. But these devices are not neces-sarily available to all, or even many, intense minorities, and the powerthey bring is not obviously correlated with the intensity of feeling of theminorities that can employ them.

In contrast, there are informal mechanisms at work in legislative

tions at either the state or federal level. The goal is clear: prevention of as many abortions aspossible. See note 60 supra and text accompanying note 79 infra.

In cases where the interest a state pursues is constitutionally forbidden to it, any burdensimposed produce no cognizable benefits, and a judgment of irrationality is obviously required.See Bennett, supra note 8, at 1070. The Court was unwilling in Wade to find the legislativelypredominant value constitutionally impermissible, and I can find no appealing ground on whichto question that judgment. The Court did say that the state could not "by adopting one theory oflife ... override the rights of the pregnant woman that are at stake." 410 U.S. at 162. This seemsan expression of weightiness, however, not of legitimacy, and, in fact, the Court said that thestate's interest in protecting "potential life" was "important and legitimate." Id.

It is sometimes suggested that "benefits" to be counted in determining legislation's constitu-tionality need not be those sought by the legislature either at the time of passage or any later time,but this suggestion seems justified only by the evidentiary problem of ascertaining legislative moti-vation. See Bennett, supra note 8, at 1072. In any case, for purposes of the present discussion Iam assuming that the only benefits that need concern us are those plausibly assumed to be pur-sued by the respective legislatures.

65 See J. CHOPER, supra note 7, at 16-29.

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democracy that seem likely to be roughly responsive to the intensity ofmost minority preferences. In my earlier article on the rationality re-quirement, I put primary emphasis on legislative bargaining as an in-formal device by which legislator preferences could be weighed as wellas counted.66 To the extent that votes are traded freely in the legislativeprocess, an approximation of a market mechanism allows expression ofintensity of preference on one issue by a willingness to sacrifice onothers. The effectiveness of legislative, bargaining for expressing citi-zens' preference intensities is, however, quite limited. The legislativebargaining process is suppressed both by ethical norms and practicallimitations. 67 And, more importantly in the total picture of democraticdecisionmaking, legislative bargaining comes only after election of leg-islators. The electoral process leaves little room for bargaining amongvoters, with the result that bargaining at that level cannot be expectedto produce legislators whose views at the outset both count and weighelector preferences. 68

There is a second, more important, informal mechanism by whichthe legislative process takes account of intensity of preferences-human empathy operating at the political level. "Empathy" is definedas "the capacity for participating in another's feelings," 69 and it is safeto assume that democratic politics, like human society more generally,would be intolerable save for that capacity and the sympathetic re-sponses it usually engenders. To the extent that there is "mutualknowledge and understanding" 70 among the members of a voting body,majorities will appreciate that deference to intense preferences of mi-norities is often advisable for the smooth functioning of the whole. In-deed, members of a majority may take the interests of a minority intoaccount without any conscious attention to the question. The swim-ming pool may be foregone, or the inconvenience of childproof capsfavored without question, because the interests of others so obviously

66 Bennett, supra note 8, at 1067-69. Kendall & Carey, supra note 22, at 19, discuss the role of

trading or "logrolling" in the legislative process. For an influential early treatment of the role ofbargaining in political decisionmaking, see J. BUCHANAN & G. TULLOCK, THE CALCULUS OFCONSENT (1962).

67 See Bennett, supra note 8, at 1068.68 Id. at 1096-97. Legislators undoubtedly adjust their policy positions after election in re-

sponse to their perceptions of elector preferences, including the intensity of those preferences. Butafter elections, the ability of legislators to obtain information about preferences of electors-per-haps particularly about the intensity of those preferences-is limited. See id. at 1097.

69 WEBSTER'S THIRD NEw INTERNATIONAL DICTIONARY 796 (1976).

70 Kendall & Carey, supra note 22, at 17. Kendall and Carey do not use the word "empathy"

to express such understanding response, but I am indebted to them for the idea if not the word.Other have employed similar concepts in attempting to understand how societies function. Rous-seau, for example, writes of "pity" as "a natural sentiment, which, by moderating in every individ-ual the activity of self-love, contributes to the mutual preservation of the whole species." J.-J.ROUSSEAU, DISCOURSE ON THE ORIGIN AND FOUNDATION OF INEQUALITY AMONG MANKIND

204 (L. Crocker ed. 1967).



call for it. Unlike vote trading, empathy can plausibly be thought tooperate at both the electoral and the legislative stages of democraticdecisionmaking. The important role of empathy provides powerful jus-tification for the emphasis in our Constitution on the free flow of infor-mation, so that "mutual knowledge and understanding" will befostered.

Vote trading and empathy will often operate in complementaryfashion, at least at the legislative level. A trade of votes that has al-ready given something to one legislative faction removes the reason forempathetic response to what that faction has given up. Conversely, de-feat of an intense minority faction on an important issue may enhancemajority empathy for that minority and incline the majority legislatorsto give the minority more generous treatment in some future legislativeclash, particularly if the opportunity for compensation comes relativelysoon after the defeat while the legislative recollection is fresh. Indeed,through the operation of empathy some of the other mechanisms toenhance minority power noted above may be put to greatest service inthe interests of particularly intense minorities. An executive veto, forinstance, can be made more palatable to those interests that prevailedlegislatively if an appeal is made to their empathy for those intensely infavor of the veto.

For some issues, however, empathy is unlikely to be at workthrough any mechanism. The classic formulation is Justice Stone'sCarolene Products footnote suggesting that "prejudice against discreteand insular minorities may be a special condition, which tends seri-ously to curtail the operation of those political processes ordinarily tobe relied upon to protect minorities . . . . ,71 It is Justice Stone's

71 United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938). One prominent attemptto challenge the appropriateness of judicial intervention in Roe v. Wade, Ely, note 34 supra, isarticulated in the terms of Justice Stone's insight about limitations of normal political processes:

Compared with men, very few women sit in our legislatures. . . .But no fetuses sit in ourlegislatures. Of course they have their champions, but so have women. The two interestshave clashed repeatedly in the political arena, and had continued to do so up to the date ofthe opinion, generating quite a wide variety of accomodations. . . .On some occasions...it is at least arguable that, constitutional directive or not, the Court should throw its weight onthe side of a minority demanding in court more than it was able to achieve politically. Buteven assuming this suggestion can be given principled content, it. . .should be reserved forthose interests which, as compared with the interests to which they have been subordinated,constitute minorities usually incapable of protecting themselves.

Id. at 933-34 (emphasis in original).Ely's challenge is misguided, however, because it assumes that fetuses are political actors-

indeed a political minority-whose "powerlessness" is relevant to assessing the Court's appropri-ate role in the abortion controversy. Each political system must define, explicitly or implicitly, theuniverse of relevant political actors. There may be ambiguity about some, as there was aboutslaves at the time the Constitution was adopted. There may be degrees of political involvement, asin the case of children, aliens, residents of Puerto Rico and of the District of Columbia at present,and women before passage of the nineteenth amendment. But outside the abortion context thereare no indications that fetuses are considered relevant political actors. They do not have even theminimal ability of the very young and the very infirm to express views about their own welfare,

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phrase "discrete and insular minorities" that has commanded most at-tention in the footnote, but his rationale is one of political failure. Andthe political failure he had in mind was obviously not failure to employthe formal mechanism of majority rule. He was apparently not con-cemed, for instance, with the political fate of children as a class (as inlaws that prohibit their driving automobiles), even though childrenhave never been allowed to vote in our public elections or serve in ourlegislatures. Their interests are served reasonably well by our politicalinstitutions through "virtual representation. ' 72 Rather, Stone's concernmust have been with failure of the informal mechanisms that I haveidentified, particularly vote trading and empathy, which could be ex-pected to be less serviceable on behalf of minorities that are victims ofpopular prejudice.

The phrase "discrete and insular minorities" seems an unhappychoice to capture the political powerlessness that concerned Stone. Ifinsularity connotes physical isolation, it may be that insular minoritieshave more opportunity for effective political action than do dispersedones.73 But whether this is so or not, it is ignorance and misunder-standing on the part of others that causes objectionable political handi-caps of some minorities, not discreteness or insularity. It is hard, forexample, to describe illegitimate children, towards whom the Court hasrecently been particularly solicitous, 74 as a "discrete and insular" mi-nority, but they have certainly been the victims of popular prejudiceresulting in harsh discrimination against them in the political arena.The empathy that lubricates the political process, in other words, can

The right-to-life view about that welfare is by no means obviously correct. And it seems particu-larly telling that population distribution for purposes of legislative apportionment has nevercounted fetuses on a state or federal level, as it has regularly counted even disenfranchised personsresiding in the jurisdiction. Thus while controversy currently rages about use of the 1980 censusdata for apportionment purposes because of its inclusion of illegal aliens, see N.Y. Times, Feb. 27,1980, § A, at 19, col. 1, 1 know of no suggestion that pregnant women be counted twice. See Roev. Wade, 410 U.S. 113, 157 n.53 (1973). And even within the context of abortion-related issues,the suggestion that fetuses are a part of the larger political community appears, as in Ely's formu-lation, only incidentally and as part of the abortion discussion.

It is, of course, possible for a legislature to take into account interests outside its own politicalcommunity. We do so when we aid foreign refugees or contribute foreign aid. Interests of ani-mals, see Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978), of trees, and even of inanimateobjects are also considered in the legislative process, if one likes to think about it that way. Inter-ests of fetuses are surely considered in the abortion context and others. But with fetuses, as withother interests outside the relevant universe of political actors, the legislative process can only takethem into account insofar as relevant political actors subsume those interests into their own.

Professor Ely's error is, however, easily repeated. See HARVARD Note, supra note 6, at 103n.42.

72 See J. ELY, supra note 7, at 82-87.

73 See United Jewish Orgs. of Williamsburgh, Inc., v. Carey, 430 U.S. 144 (1977).74 See generally Kellett, The Burger Decade: More than Toothless Scrutiny For Laws Affecting

Illegitimates, 57 U. DET. J. URB. L. 791 (1980).



easily fail those who are widely distributed geographically and identi-fied only by some abstract characteristic they share.

The Court has not recently embraced Justice Stone's notion of dis-crete and insular minorities, but it has employed a surrogate concept ofthe "suspectness" of certain classes as a justification for judicial scru-tiny of legislative action disadvantaging those classes, akin to the "strictscrutiny" held appropriate where "fundamental" rights are burdened.75

Racial and religious minorities and those defined by national originare, in the Court's decisions, the purest of suspect classes. Justice Pow-ell, speaking for the Court, described "the traditional indicia of sus-pectness: the class is. . .saddled with such disabilities, or subjected tosuch a history of purposeful unequal treatment, or relegated to such aposition of political powerlessness as to command extraordinary pro-tection from the majoritarian political process. '76

Whether or not the women who bear the brunt of right-to-life leg-islation are appropriately termed a "discrete and insular minority" or a"suspect class," 77 the subject of abortion is one in which the operationof both vote trading and empathy is particularly stifled. The reason isnot that few women (or pregnant women, or pregnant women desiringabortions) are legislators. It cannot be expected that the groups bearingthe burdens of legislation will be represented in the person of any legis-lators, let alone in proportion to their numbers in the population ortheir interest in legislative issues measured more realistically. The elec-toral process and human empathy provide sufficient assurance thatmost interests are represented in legislative deliberations, even if legis-lators do not embody those interests in their persons.

Nor can one confidently conclude that pregnant women requiringabortions are disproportionately unable to exert effective political influ-ence through normal lobbying techniques. To be sure, their life cir-cumstances are likely to be so varied in other respects that politicalorganization and fundraising may be more difficult (and hence less ef-fective) than for other groups heavily burdened by potential legislation.Indeed, such women seem unlikely to have identified themselves asmembers of the class burdened by right-to-life legislation until theprospect of bearing the burden is imminent. But while these reasonssuggest that women with interests in the availability of abortion mightbe relatively ineffective in the political arena, it is clear that organizedadvocates for their cause such as Planned Parenthood and the NationalOrganization for Women are politically active. Prior to Roe v. Wade,

75 See text accompanying notes 36-41 supra.76 San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).77 In 1973 four members of the Court were prepared to hold "that classifications based upon

sex, like classifications based upon race, alienage, or national orgin, are inherently suspect, andmust therefore be subjected to strict judicial scrutiny." Frontiero v. Richardson, 411 U.S. 677, 688(1973) (plurality opinion).

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indeed, there was a gradual process of "liberalization" of state criminalabortion laws underway. The Georgia statute held unconstitutional inWade's companion case, Doe v. Bolton,78 was an example of a criminal

abortion statute that made some concessions to the interests of womenmost severely burdened by extreme laws of the Texas variety. In theface of that information, it would be difficult for a court to act upon anassumption of disproportionate political influence in any sense that didnot simply mean that the prochoice position had lost in the legislativearena.

The most important reason that majoritarian legislative processesseem particularly unlikely to capture the extent of burdens imposed byright-to-life legislation is the nature of the interests involved. The in-terest that right-to-life legislation is thought to serve apparently is sofundamental to the right-to-life advocate's sense of self that normalhuman concern for suffering of others is effectively stifled. Judge Dool-ing, who presided at the district court hearings in McRae, for example,provided the following characterization of the congressional debates onthe funding issue:

The pro-choice legislator's every argument was met with the assertionthat. . . there is nothing to discuss. The language of the debate is repletewith reference to "unborn children"; ... the 800,000 or 1,000,000 abor-tions a year are repeatedly equated with the Holocaust; the fetus abortedis an "inconvenient human being," sacrificed to parental convenience;those having abortions are said to "terminate the lives of their poster-ity."

7 9

It is mostly because the benefits and burdens caught up in criminalabortion laws exist at two such different levels of human concern thatthe empathy that usually allows the democratic process roughly to bal-ance benefits and burdens cannot be expected to do so when abortion isthe subject under consideration.

Legislative activity both before and since Wade shows that right-to-life legislators display little legislative empathy for the pregnant wo-men who will bear most of the burdens of right-to-life laws. The right-to-life legislative agenda does not very prominently include programsfor maternal health, adoption assistance, or child welfare more gener-ally.80 The Illinois legislature, which has so resolutely pursued theright-to-life position through the Medicaid and other issues,81 has atthe same time allowed the real value of welfare payments for poor chil-

78 410 U.S. 179 (1973).

79 McRae v. Califano, 491 F. Supp. 630, 725 (E.D.N.Y.), rev'dsub norL Harris v. McRae, 100S. Ct. 2671 (1980). See N.Y. Times, Oct. 2, 1980, § A, at 18, col. 1.

80 See, e.g., ILL. ANN. STAT. ch. 38, § 8 1-21 (Smith-Hurd Supp. 1980). But see N.Y. Times,

Feb. 24, 1981, § A, at 1, col. 3, reporting that the New York Senate had voted to increase familywelfare benefits with the vocal support of some right-to-life advocates.

81 See, e.g., Wynn v. Scott, 449 F. Supp. 1302 (N.D. IU. 1978), af'd sub norL Wynn v. Carey,

599 F.2d 193 (7th Cir. 1979).



dren to decline precipitously.82 While victims of forcible rape andpregnant teenagers were permitted in some jurisdictions to obtain abor-tions without subjecting their doctors to criminal liability in the pre-Wade era, more often, as in Texas, the innocence of the woman wasirrelevant. 83 Occasionally in fact, right-to-life-minded legislaturesseem more vindictive than they do empathetic toward pregnant womenwho desire abortions. A number, for instance, have passed laws termi-nating parental rights of women who choose abortion late in pregnancyif the procedure results in a live birth.84

Criminal abortion laws are not unique as legislation that imposessevere burdens. Most criminal laws can be characterized in the sameway; it is even fair to say that legislators generally evidence little empa-thy for most of the persons who commit acts legislatively defined ascriminal. Abortion prohibition laws differ from other criminal statutesin important ways to which I will turn shortly,85 but it is important toappreciate that, outside the context of ordinary criminal laws, publicaction imposing particularly large burdens on a minority is usually ac-companied or followed in due course by compensatory measures thatshow an empathetic appreciation of the sacrifices exacted. Forced con-scription into the armed services, for example, imposes great burdenson those drafted, perhaps roughly comparable to the burdens imposedby criminal abortion laws. When our country has in modem times im-posed such requirements, however,- they have been accompanied or fol-lowed by substantial "voluntary" benefits for those burdened.86 Thesebenefits have the obvious effect of compensating for perceived burdens.

If there is reason to believe that the abortion issue disables theelectoral and legislative processes from empathetically considering theburdens entailed by making abortion unavailable, that does not meanthat the burdens outweigh the benefits in the sense that makes legisla-tion irrational. Right-to-life legislation is of undoubted importance tothose who champion it. The Supreme Court in Wade was apparentlyunwilling to characterize the legislative balance as "irrational," 87 and

82 See COMMISSION To REVISE AND REWRITE THE PUBLIC AID CODE, REPORT TO THE ILLI-

NOIS GENERAL ASSEMBLY ON CODE REVISION 87 (1980).83 See Roe v. Wade, 410 U.S. 113, 117 n.1 (1973).84 See, e.g., Mo. ANN. STAT. § 188.040 (1974); UTAH CODE ANN. § 76-7-311 (1953), heldun-

constitutionalin Doe v. Rampton, 366 F. Supp. 189 (D. Utah 1973). See also MINN. STAT. ANN.§ 145.415 (West Supp. 1979); S.D. CODIFIED LAWS ANN. § 34-23A-18 (1977).

Whatever the merits of the debate over the religious foundation of criminal abortion laws, seegenerally NORTHWESTERN Comment, note 14 supra, many religious views are so fundamental tothe religionistfs sense of self that allowing religious issues into the political domain might be ex-pected similarly to suppress normal human concern for others. The first amendment, of course,attempts to withdraw religious issues from majoritarian political processes.

85 See text following note 123 infra.86 See, e.g., Servicemen's Readjustment AcVof 1944, ch. 268, 58 Stat. 284.87 In his dissent, however, Justice Rehnquist did say that "[i]f the Texas statute were to pro-

hibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute

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the very incommensurability of the interests involved that helps makejudicial involvement appealing also makes a judgment of irrationalitydifficult to reach with any confidence. But an insistence on "rational"legislative decisions is not the only general limitation that can appro-priately be imposed on majoritarian legislatures.

A requirement that legislation be a rational means to its ends-inthe sense of bringing greater benefits than the costs it imposes--ema-nates from a utilitarian conception of the societal enterprise. The utili-tarian strain in our political and philosophical heritage is sufficientlygreat that it is not surprising to find it in our constitutional law as well.But the constitutional requirement of rationality operates only in a neg-ative sense. Clear examples of public waste are in general forbidden,because public processes were not intended, unless predominant con-cerns intercede, to be used by majorities to require sacrifices of minori-ties that are not worth the benefits they bring. The Constitution hasnever been understood, however, to require affirmative legislative effortto maximize total human satisfaction in the society.88 There are per-haps multiple reasons for this, but one surely is an individualistic strainmore basic in our philosophical, political, and constitutional heritagethan utilitarianism.8 9 The conviction that the individual is an end inhimself, whose interests must not be disfavored unfairly by official ac-tion, is one we often take into account legislatively even if the utilita-rian ideal must yield; even, that is, if the state by burdening some couldincrease the welfare of others in greater measure than the loss to thoseburdened. A concern with fairness to the individual affects not onlylegislative activity, but constitutional law as well.90

In writing about the rationality requirement, I attempted to incor-porate the constitutional emphasis on individualism into the concept ofrationality as a general limitation on legislative action. 9' It is now clear

would lack a rational relation to a valid state objective. ... 410 U.S. at 173. This conclusion ishardly self-evident. It might be possible, for instance, to argue that a fetus has a longer potentiallife than the mother and hence is more "worth" saving, or that a fetus is more "innocent" than themother. Justice Rehnquist's judgment here, like many sensible rationality judgments, requires abalance of incommensurable human values.

88 But cf. Michelman, The Supreme Court, 1968 Term-Foreword- On Protecting The PoorThrough the Fourteenth Amendment, 83 HARV. L. REv. 7 (1969) (arguing for constitutional protec-tion of "minimum welfare").

89 See H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 17-24 (1968); J. RAwLS, A THEORY

OF JUSTICE 27-28 (1971). Another reason perhaps is that "judgments as complex and subtle asthose required for globally efficient law reform quite plainly surpass the reliable capacity ofhuman reason." Michelman, Constitutions, Statutes, and the Theory of Efficient Adjudication, 9 J.LEGAL STUD. 431, 436 (1980).

90 There is also an egalitarian strain that has had a substantial impact legislatively, but hasthus far had little impact on constitutional law. But see Michelman, note 88 supra. The constitu-tional doctrine that we will be examining in the remainder of this article is one that counsels "fair"treatment of individuals, not a levelling of command over material resources.

91 Bennett, supra note 8, at 1064-65. I am grateful to Louis Cohen for helping me appreciatethe usefulness of a distinction between legislative irrationality and legislative unfairness in the

1000



to me that the limitations are conceptually quite separate. While, as weshall see, both rationality and fairness draw on the extent of burdensand benefits, the questions they ask about the balance are different.The sole focus of the rationality inquiry is the polity as a whole, whilethe primary focus of the fairness inquiry is the individual. In our con-stitutional law, for example, the individual's life, liberty, property, reli-gious practices, speech, and home are all explicitly protected againstmajoritarian incursion without regard to any possible societal justifica-tion in utilitarian terms. The right to vote nowhere achieves the consti-tutional explicitness given to these personal interests of the individual.

The operations of government are in perpetual tension with indi-vidual prerogatives in an individualistic society. Any governmental ac-tion of consequence imposes burdens for which no direct compensationis usually given or feasible. Indeed, when the state redistributes wealthfrom the more to the less well-to-do (as modern states regularly do), theseparation of those burdened and those benefited is essentially com-plete. Any system of "compensatory" burdening and benefiting woulddefeat the redistributive purpose. The potential for unfairness to theindividual in the distribution of burdens is, however, ever-presentunder majoritarian rule and perhaps particularly when that unfairnesscan be seen as "worth it" in societal utilitarian terms.

The concern that public action not unduly impose on the individ-ual is, however, usually handled decently enough by the political pro-cess. For redistributive measures or others where the direct burdens arefiscal, the distribution of burdens is defined by the tax structure, with itsprima facie "fair" allocation of fiscal burdens.92 When the burdens ofpublic action are not fiscal, it is generally assumed that the give andtake of political decisionmaking will distribute both burdens and bene-fits broadly and fairly over time. Political bargaining, empathy, andthe laws of chance all operate at least to inhibit extreme concentrationsof the nontax burdens of public action. No system of even rough pub-lic accounting is feasible, and the only constitutional requirement

distribution of burdens. See Note, City Government in the State Courts, 78 HARv. L. REv. 1596,1608 (1965). While I now see the attempt to conjoin the two as misconceived, they are such closecousins that the courts also frequently fail to distinguish them. See text accompanying notes 116-18 infra.

92 The relationship between tax and nontax burdens raises a host of intriguing questions forconstitutional theory and practice. Why, for example, are the federal courts especially deferentialtoward the distribution of burdens in tax legislation? See, e.g., Commissioner v. Kowalski, 434U.S. 77 (1977). The answer may lie in part in the substantiality and near universality of, andhence the ease of comparing, at least federal tax burdens. In combination these may justify a largedegree of confidence in the capacity of political processes to provide adequate assurance of taxequity. Professor Ackerman, however, suggests that the answer may have something to do withthe explicit attention that is given to the distributional effects of tax laws. B. ACKERMAN, PRiVATEPROPERTY AND THE CoNsTrruTloN 59 (1977). If he is correct, does the explicit attention to redis-tribution in welfare laws similarly justify a deferential judicial stance? See note 10 and accompa-nying text supra. Unfortunately, the present article can only scratch the surface of such questions.

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deemed necessary is that irrationally high total costs not be paid for thebenefits obtained.

But the concern that public action not demand too much of someis not always so readily satisfied. The same temptations that occasion-ally lead majoritarian decisionmaking to irrational actions may lead tounfair ones. And the possibility of unfairness is similarly heightenedwhen human empathy is absent or muffled. The specific constitutionalprohibitions referred to above-and numerous others--express in partconcerns about such political failure for particular types of impositions,and the due process and equal protection clauses can be seen to serve asvehicles for the expression of such concern more generally.

Only a political theory more complete than I am prepared to offercould pretend to specify all the considerations bearing on an optimaldistribution of publicly required burdens. The Court's task, of course,is more modest, since it only exercises a veto on actions of the otherbranches of government. It need only declare action "unfair," and thenonly in cases that are clear, without implying a complete theory aboutthe way society should ideally distribute the burdens necessitated bysome publicly determined action. With this limited task in mind, it ispossible to specify at least some of the elements that enable the courtsto judge whether a publicly imposed burden is unfair.93

First, the tax system can serve as something of a benchmark forthe fair allocation of the burdens of public action. This benchmark, tobe sure, is imperfect, even as an expression of a legislative judgment offairness, because distributional concerns have never been the exclusivefocus of the tax laws. The tax system is often used to provide incentivesfor one type of conduct or another. And some taxes are imposed inpreference to others in part because of administrative convenience.Still, in imposing taxes the legislature comes as close as it ever does toconfronting directly the question of fairness in the allocation of theburdens of public action. 94 For this reason, if a choice is presentedbetween distributing burdens through the tax system or in some otherway and other considerations do not overwhelm the choice, the tax al-location should usually be preferred. Some such insight may inspirethe Supreme Court's frequent insistence-in the name of procedural

93 The recent literature on the "taking clause" of the fifth amendment ("nor shall private

property be taken for public use without just compensation") traverses many issues with regard to"property" that my analysis addresses for private interests more generally. See, e.g., B. ACKER-MAN, note 92 supra; Michelman, Property, Utility, and Fairness: Comments on the Ethical Founda-tions of "gust Copensation"Law, 80 HARV. L. REv. 1165 (1967). Even the degree of specificity inthe taking clause is bound, as Professor Ackerman's intriguing treatment demonstrates, to have asubstantial influence on the shape of court decisions. In any case, while Professor Michelmandeals with "fairness," he uses the concept in a very particular sense. See id. at 1218-20. ProfessorAckerman intentionally leaves the concept ill-defined, much as I do. See B. ACKERMAN, supranote 92, at 71-73.

94 See B. ACKERMAN, supra note 92, at 59.

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7Abortion and Judicial Review

due process, equal protection, or the short-lived "conclusive presump-tion" doctrine-that individualized decisions be made through publicprocesses before certain serious consequences are imposed on per-sons.95

Second, the greater the net nontax burden upon particular individ-uals, the more ready the Court should be to find it unfair, for the sim-ple reason that large impositions 96 are difficult to compensate for afterthey have moved from center stage of the political process. And largenontax impositions diverge more substantially than do small ones fromthe consciously chosen distributional scheme of the tax system.

A great deal in the Court's decisions reflects a concern with themagnitude of publicly imposed burdens in individual, rather than ag-gregate societal, terms. The Court has recently insisted that constitu-tionally "fundamental" rights are only those the Constitution explicitlyor implicitly protects.97 The insistence, however, is fictional and proba-bly advanced disingenuously, unless "implicit" constitutional protec-tion is made into an evolving and judgmental determination ratherthan a positive command derived from the document. Fundamentalrights analysis clearly served, at least for a time, to identify some par-ticulary important private interests. Most notably, by ascribing funda-mentality to them, the Court has been able to impede stateencroachments on the ability to procreate,98 to marry,99 and to avoidhaving children.100 The Court may insist that its response to these pri-vate interests is really obedience to constitutional command, but thefundamentality of those interests that is clear is in human terms andnot those of the words, or even the implications of the words, of thedocument.

Fundamental rights analysis, moreover, is not the only tool theCourt has used to rein in particularly onerous impositions. The ration-ality requirement has always seemed most readily put to service in thename of what the Court deemed important private interests. Evenbefore the advent of fundamental rights terminology, for instance, theSupreme Court struck down as "unreasonable" certain impositions onparental childrearing prerogatives.10 1 More recently, the conclusive

95 See, eg., Stanley v. Illinois, 405 U.S. 645 (1972); Reed v. Reed, 404 U.S. 71 (1971);Goldberg v. Kelly, 397 U.S. 254 (1970).

96 In the occasional instance where it will make a difference, the size of a burden should be

conceived of in relation to the individual, not in absolute terms. This is what the Court does inwelfare cases. See text accompanying note 160 infra; United States v. Kras, 409 U.S. 434, 460(1973) (Marshall, J., dissenting).

97 San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 33-34 (1973).98 Skinner v. Oklahoma, 316 U.S. 535 (1942).99 Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967).

100 Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972).101 Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, 262 U.S. 390, 403

(1923). One part of the Meyer opinion refers generally to "fundamental rights [of the individual]which must be respected." Id. at 401.

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presumption doctrine was used to protect interests akin to thechildbearing and childrearing interests otherwise protected by funda-mental rights analysis. 02 In the "middle tier" cases of the BurgerCourt, 0 3 there is repeated reference to the importance of the privateinterests at stake.104 And despite protestations of deference to legisla-tive determinations about distribution of welfare benefits, the Court re-currently refers to the human importance of those benefits in thosedecisions holding legislative welfare determinations unconstitu-tional. 05

Third, the fairness of a particular imposition will usually vary withthe importance of the cause said to justify it. Some impositions may besuch an affront to human dignity that they are unfair no matter howgreat the public justification. Physicial torture, for example, may beimpermissible public action in this absolute sense.' 0 6 For most publiclyimposed burdens, however, the greater the justification, the larger theburden that will be tolerable, since minority members, like those ofmajorities, will generally be empathetic. A militiary draft, for instance,is surely accepted more readily the more imminent and substantial thethreat that occasions it. 107

Again, the Court's decisions reflect the sensitivity of a fairnessjudgment to the substantiality of the justification proffered for a par-ticular burden. Even legislative action subjected to "strict" scrutiny, itwill be recalled, 0 8 will survive if there is a "compelling" state interestin the action. And "middle tier" review of legislation is explicitly maderesponsive to the importance of the state interest that prompts it. 109

Fourth, like legislative irrationality, legislative unfairness willoften be apparent only by comparing the chosen scheme for distribu-tion of burdens to available alternatives. No matter how compellingthe public purpose, large individual burdens will not seem fair if there

102 See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974); Stanley v. Illinois, 405 U.S. 645

(1972).103 See text accompanying notes 43-45 supra.104 See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977); Turner v. Department

of Employment Security, 423 U.S. 44, 46 (1975); Gomez v. Perez, 409 U.S. 535, 538 (1973); Stanleyv. Illinois, 405 U.S. 645, 657 (1972). This middle tier view encompasses the conclusive presump-tion approach from which the Court now seems to shy away.

105 See, e.g., Califano v. Westcott, 443 U.S. 76, 85-86 (1979); Memorial Hosp. v. MaricopaCounty, 415 U.S. 250, 257, 259-60 (1974); Graham v. Richardson 403 U.S. 365, 379-80 (1971);Shapiro v. Thompson, 394 U.S. 618, 627 (1969). See also United States Dep't of Agriculture v.Moreno, 413 U.S. 528, 538 (1973).

106 I do not mean to join issue here on whether the protection of speech or religion or any otherconstitutional protection is absolute or must be balanced against the justification. Compare Kon-igsberg v. State Bar, 366 U.S. 36 (1961) (per Harlan, J.) with id. at 60-71 (Black, J., dissenting). Inany case, the presence of a specific constitutional provision inevitably affects the Court's approachto a particular type of problem. See note 93 supra.

107 See United States v. Central Eureka Mining Co., 357 U.S. 155, 168 (1958).108 See text accompanying notes 36 & 37 supra.109 See, e.g., Craig v. Boren, 429 U.S. 190, 197 (1976).

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54bortion and Judicial Review

is a clearly more fair way that they could be distributed. The tax sys-tem will sometimes be a preferred alternative, but often there will bemultiple nontax possibilities for distributing the costs of some publiclydesired goal. Thus, even in rationality requirement cases, the Courtoccasionally disapproves of some public action on the ground that itsgoals could be accomplished less restrictively. 110

The equal protection emphasis on classificatory fit may derive partof its appeal from this concern with fairer alternatives for distributingthe costs of public action. "Overinclusive" imposition of burdens may,as we have seen,111 be quite rational, because the administrative costsof targeting the burdens more perfectly exceed the burdens overinclu-sively imposed. But if the incremental administrative costs are not toogreat and can be absorbed publicly through the tax system, that altern-tive may be "fairer," even though "irrational" in societal utilitarianterms. And even when the administrative costs of a more perfect classi-fication are borne privately, they will typically be spread more diffuselythrough the populace and hence diverge less obviously from the distri-butional scheme of the tax system.112

There is also a fairness case against "underinclusive" imposition ofburdens. Even if the added cost of more broadly imposed burdens isgreater than the resultant benefit, at least those bearing the burdens areless isolated in their plight when the burdens are imposed morebroadly. Under majoritarian rule, of course, a selfish majority is mosttempted to impose large burdens on small minorities, at least when agood deal of fluidity characterizes the process of majority formation.113

A number of additional considerations inform the SupremeCourt's sense of the fairness of publicly imposed burdens. Of most im-portance for present purposes,114 the Court has frequently found spe-cial unfairness when burdens are visited upon those helpless to avoidthem. Particularly in the illegitimacy cases, the Court has emphasizedthe innocence of the burdened children and relied upon a "basic con-cept of our system that legal burdens should bear some relationship toindividual responsibility or wrongdoing."' 1 5

110 See, e.g., Lubin v. Panish, 415 U.S. 709, 718-19 (1974); Cleveland Bd. of Educ. v. LaFleur,

414 U.S. 632, 642-46 (1974).111 See text accompanying notes 28-30 supra.112 See Fullilove v. Klutznick, 100 S. Ct. 2758,2793 (1980) (Powell, J., concurring) ("effect...

so widely dispersed that its use is consistent with fundamental fairness").113 See Railway Express Agency v. New York, 336 U.S. 106, 112-13 (1949) (Jackson, J., con-

curring). A stable majority coalition, on the other hand, has an incentive to burden the largestpossible minority.

114 I leave aside the controversial judgments by a number of members of the Court that there isan element of unfairness inherent in differentiations on the basis of race and perhaps sex, regard-less of the political position of those disfavored. See Fullilove v. Klutznick, 100 S. Ct. 2758, 2805-06 (1980) (Stevens, J., dissenting); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 287-91(1978) (opinion of Powell, J.); Craig v. Boren, 429 U.S. 190, 197-99, 204 (1976).

115 Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972). This also formed part of Justice

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Though conceptually separate phenomena, irrational and unfairlegislative actions will be difficult to sort out in practice. There is sub-stantial majoritarian temptation to impose burdens that are both largeand borne by a politically powerless and relatively small minority.Such actions raise questions of rationality and of fairness. Particularlysince no very precise measure of either is available, it can be expectedthat the one judgment will occasionally be mistaken for the other.Early cases dealt with childrearing interests under a rationality rubric,while later decisions treated closely related interests as "fundamen-tal." 116 In addition, the Court first used the rationality requirement todisallow certain laws that discriminated against women and illegiti-mate children,' 1 7 while more recent discussions in each area have sug-gested that a more stringent, middle tier standard of review isappropriate.1 8 It seems most likely that, in each instance, the change isless one of the values at work than of the Court's evolving perceptionthat "irrationality" may not be the right way to characterize the infir-mity in the legislative action.

Against this background, Roe v. Wade can be seen as a particu-larly difficult case on fairness as well as rationality grounds. The publicpurpose behind criminal abortion laws like that of Texas was, by anymeasure, weighty, and substantiality of public purpose is an importantcomponent in most judgments of the fairness of a measure. Further-more, Texas burdened exactly the right group to accomplish its pur-pose. 19 On the other hand, a judgment that criminal abortion statutesof the Texas variety imposed unfair burdens on women desiring abor-tions is certainly plausible. The burdens are very great for the affectedindividuals. No compensation to those burdened is usually evident, al-though compensatory action financed with public funds is conceivable.Generous public subsidization of adoption for pregnant women not de-siring to bear children, for instance, would go a long way toward allevi-ating certain of the burdens that criminalizing abortion imposes.120 Inaddition, the forcible rape victims among those burdened are totallyinnocent while the large number of pregnant teenagers desiring abor-

Powelrs rationale in Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 298-99 (1978) (opinionof Powell, J.). See Fullilove v. Klutznick, 100 S. Ct. 2758, 2793 (1980) (Powell, J., concurring).

116 See text accompanying note 101 supra. Meyer v. Nebraska, 262 U.S. 390 (1923), used lan-

guage of both fundamentality and reasonableness. See id. at 401, 403.117 See, e.g., Reed v. Reed, 404 U.S. 71, 75-77 (1971); Glona v. American Guar. & Liab. Ins.

Co., 391 U.S. 73, 75-76 (1968); Levy v. Louisiana, 391 U.S. 68, 71-72 (1968).118 See, e.g., Caban v. Mohammed, 441 U.S. 380, 389 (1979); Orr v. Orr, 440 U.S. 268, 279

(1979); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175-76 (1972).119 See text accompanying notes 34 & 35 supra.120 Such subsidization might not make an irrational action rational, because the subsidization

would be costly. But it could make an unfair imposition fair, by imposing some of the costs offorbidding abortions on taxpayers generally. While the Court seems unlikely to suggest such ac-tions on its own, if a state had attempted to compensate those burdened in some such way, thatfact would inevitably affect the Court's sense of the "fairness" of the burden.

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tions121 are regularly treated by the law in other contexts as less respon-sible for their acts than adults. 122 Even women desiring abortions whocannot be exculpated are at least no more culpable in bringing the bur-dens upon themselves than are their sexual partners, who will regularlyescape the greatest share of the burdens. The societal benefit fromcriminal abortion laws, moreover, must be qualified by the sharp socie-tal division about it. While lack of societal consensus on the worthinessor strength of a goal does not disqualify a legislative majority frompursuing it, in our zeal to weigh individual preferences, we must notforget to count them as well. The identification of abortion with mur-der is a distinctly minority sentiment in the United States. 123

This combination of factors serves to distinguish criminal abortionlaws from other criminal statutes that burden a criminal minority butare clearly not unfair, even though there is no reason to believe thatempathy, vote trading, or other devices have operated to compensatethose bearing the burdens. First, criminal statutes often reflect valuesthat are held with near unanimity in the society. Even most murdererslikely do not think they are being treated unfairly if they are severelypunished for their crimes. In contrast, doctors and women and othersinvolved in abortions usually feel little culpability, because the societyis sharply divided about whether substantial culpability attends anabortion. Second, outside the abortion context criminal statutes seldomburden innocent individuals, except perhaps incidentally. The burdensof most criminal statutes fall upon those defined as criminals. Undercriminal abortion statutes like that in Texas, however, the greatest bur-dens fell upon women desiring abortions, whose own conduct in ob-taining abortions was apparently not defined as criminal. And even ifthe woman's conduct were to be defined as criminal, many of thosewomen would be victims of forcible or statutory rape, providing sub-stantial extenuating circumstances. Third, and probably most impor-tant, even relatively unpopular criminal laws usually impose little inthe way of burdens on those capable of obedience, beyond loss of thepleasure of some indulgence. For those pregnant women reluctantlyconstrained by criminal abortion laws, the frequent result is firstmonths of travail and then years.

It is instructive to look more closely at the Court's reason for notfinding the weightiness of the public goal determinative of the fairnessquestion in Wade. The Court did not view bearing and raising an un-wanted child as one of those burdens so offensive that it cannot be pub-licly imposed regardless of the strength of the asserted justification. Byrejecting the plaintiffs' claim of an unlimited right to decide to have anabortion and allowing the state to forbid at least some abortions after

1007

121 See ALAN GUTTMACHER INSTITUTE, supra note 62, at 12-13.122 See generall, H. CLARK, LAW OF DOMESTIC RELATIONS 230-34 (1968).123 See polls cited in note 61 supra.

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viability, the Court reveals its judgment that criminal abortion laws arenot unfair in the absolute sense that physical torture would likely be.Nor is it plausible to read Wade as resting upon alternatives open tothe state, despite their theoretical availability. The opinion contains nomention of the adoption subsidy idea nor of any other alternative wayin which the burdens of the public action could be distributed moreequitably-through the tax system or otherwise. Instead, Roe v. Waderests on a judgment that the burdens on pregnant women are unfairbecause they are very great and, until after viability, the state's interestis not weighty enough to justify the burdens. A major weakness of theCourt's opinion, however, is insufficient attention to variations in thestrength of the woman's interest.

The Court was obviously aware that women have varying degreesof interest in obtaining abortions. The Court's opinion permits abor-tion after viability (despite the presence of a "compelling" state interestin forbidding it) when the woman's interest is particularly strong be-cause her life or health is in danger. In the earlier periods of the preg-nancy, however, the Court seems trapped by its privacy rationale intoviewing the weight of the interests of all women in obtaining abortionsas equivalent. Thus, the Court rotely applied its tripartite scheme inWade's companion case, Doe v. Bolton, 124 although the Georgia statuteinvolved in Bolton allowed abortions when the woman's health wasseriously jeopardized, when a seriously defective child was in prospect,or when the pregnancy resulted from forcible or statutory rape. Theseare clearly the most compelling cases for abortion and might have beenthought to require additional explanation of why a statute forbiddingabortions only in less urgent cases still imposed unfair burdens.

I am not suggesting that Wade and Bolton are irreconcilable.They jointly stand for the proposition that even a woman's interest innot bearing and not having responsibility for a child is sufficientlyweighty to make it unfair to forbid abortion before viability. Such ajudgment is plausible enough. But if the justification for Court inter-vention is the danger of insufficient legislative deference to intense mi-nority interests, then those interests should be openly balanced in thesame human terms that justify the Court involvement.

OF BENEFITS: DISCRIMINATORY REFUSAL TO FUND

While Roe v. Wade was a difficult decision, the Court showed littleinclination to repudiate either its result or its interest balancing ration-ale until the question of funding under Medicaid arose. As recently as1979, a six-man majority of the Supreme Court employed the Wadebalance in Colautti v. Franklin 125 to strike down a New Jersey attempt

124 410 U.S. 179 (1973).125 439 U.S. 379 (1979).

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to require physicians to be solicitous for the survivial of the fetus inpostviability abortions. Such solicitude, the Court concluded, couldnot be required where its effect might be to endanger the life or healthof the pregnant woman. Colautti is the most recent of a line of casesholding one or another state restriction on abortion to be unconstitu-tional in light of Roe v. Wade. 126

The line, however, was not unbroken. In 1977 the Court decidedMaher v. Roe, 127 rejecting a claim that a state with a Medicaid programwas constitutionally required to provide funding under the program fornontherapeutic abortions. Maher contained language suggesting thatfunding questions were quite different from the abortion restrictionsthe Court had previously evaluated, in terms of the interests that it wasappropriate to consider. 128 Maher set the stage for the clearer questionof discriminatory refusal to fund in Harris v. McRae where the fundingclaim was for medically necessary abortions.

Harris v. McRae, like Maher before it, professed fidelity to Wade,but clearly gone by the time of McRae was any inclination to attachconstitutional significance to the magnitude of the interests realisticallyat stake. The McRae Court divided the relevant 129 constitutional dis-cussion into due process and equal protection issues. The due processclaim was rejected because there is no governmental obligation to sub-sidize even "protected" activity: "[allthough the liberty protected bythe Due Process Clause affords protection against unwarranted govern-ment interference with freedom of choice in the context of certain per-sonal decisions, it does not confer an entitlement to such funds as maybe necessary to realize all the advantages of that freedom."'130 The dueprocess claim, in other words, was likened to an affirmative claim forfunding of abortions that might be made in the absence of any medicalcare subsidy program at all. The Court characterized such a claim asworking "a drastic change in our understanding of the Constitu-tion." 131 In the absence of any such entitlement by a pregnant woman,"[t]he financial constraints that restrict an indigent woman's ability toenjoy the full range of constitutionally protected freedom of choice arethe product not of governmental restrictions on access to abortions, butrather of her indigency."' 132

The rub comes in the Court's equal protection discussion where itaddresses the question whether the state differentiation between medi-

126 Aside from Wade, Bolton, and Colaufti, see Bellotti v. Baird, 443 U.S. 622 (1979); Planned

Parenthood v. Danforth, 428 U.S. 52 (1976).127 432 U.S. 464 (1977). See Poelker v. Doe, 432 U.S. 519 (1977).128 432 U.S. at 473-75.129 McRae also deals with several first amendment challenges to the restriction, 100 S. Ct. at

2689-90, that are irrelevant to the present discussion.130 Id. at 2688.131 Id.132 Id.

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cally necessary abortions and other medically necessary procedures ispermissible once the state has established a general program of medicalassistance for the poor. But here any judgment of rationality 33 or fair-ness is avoided by summary incorporation of the earlier due processdiscussion:

It is well-settled that where a statutory classification does not itself im-pinge on a right or liberty protected by the Constitution, the validity ofclassification must be sustained unless "the classification rests on groundswholly irrelevant to the achievement of [any legitimate governmental] ob-jective."

For the reasons stated above, we have already concluded that theHyde Amendment violates no constitutionally protected substantiverights.134

The Court makes the leap from its due process to its equal protec-tion conclusion without blinking, but the leap is more than questiona-ble. If taken seriously, it leaves the equal protection guarantee withoutcoherent content as applied to state action conferring benefits. In dis-cussing Roe v. Wade, I dealt with constitutional constraints as they ap-plied to state action burdening individuals. To appreciate the senseand the non-sense in the Court's truncated due process-equal protec-tion discussion in McRae, it is necessary to probe more deeply into theuse of equal protection 135 as a vehicle for testing the substance of gov-ernmental action conferring benefits.' 36

133 The Court does apply a vacuous form of the rationality requirement, but not a meaningful

variant. See Bennett supra note 8, at 1056-57. Compare the Court's rationality treatment in Mc-Rae with Planned Parenthood v. Danforth, 428 U.S. 52, 71, 74-76, 79 (1976) and Doe v. Bolton,410 U.S. 179, 194-95 (1973).

134 Harris v. McRae, 100 S. Ct. at 2691. After its summary fundamental rights discussion, the

Court turns to the question of whether the statutory classification is "predicated on criteria thatare, in a constitutional sense, 'suspect.'" Id. No suspect class claim had been advanced energeti-cally in McRae or Zbaraz, largely because recent decisions had indicated no willingness to extendsuspect class status to new groups. In any case, once the fundamental rights claim that was verysubstantial as a matter of precedent had been summarily dismissed, the suspect class question waseasily dealt with by quotation from Maher.

135 Challenges to the underinclusiveness of benefit schemes have typically proceeded as equalprotection cases. I will not attempt to deal here with the differences between due process andequal protection, nor with the question of whether a due process challenge to a benefit scheme ispossible. See MICHIGAN Note, supra note 28, at 848-49.

136 Roe v. Wade treated the woman's interest in choosing an abortion as "fundamental" and

the Court has insisted that such fundamentality derives from special constitutional concern for theinterest. I have urged that the latter step is fictional, see text accompanying notes 97-100 supra,but it is instructive to take it seriously for a moment. Clearly the first amendment would nottolerate a law forbidding the use of kosher foods, but nothing in the Constitution requires govern-ment subsidization of kosher purchases. The Court's McRae approach thus suggests that the foodstamp program could exclude benefits for kosher purchases, at least as long as a plausible non-repressive motivation for doing so were advanced. See United States R.R. Retirement Bd. v.Fritz, 101 S. Ct. 453 (1980); Bennett, supra note 8, at 1086-87. Such a reason is easily found, sincekosher food is generally more expensive than nonkosher food and hence excluding such purchases

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With government such a pervasive force in American society to-day, the line between governmentally imposed "burdens" and govern-mentally accorded "benefits" will often be unclear. Private relianceand various sources of government "obligation" often intrude to blurthe distinction.13 7 Nonetheless, there are many governmental actions,including most redistributional transfers like Medicaid, that can com-fortably be said to fall on the benefit side of the line. It might oncehave been maintained that the equal protection guarantee was inappli-cable to governmental benefits, that the clause applied only when thestate action consisted of imposing a burden. A similar distinction be-tween "rights" and "privileges" held at least partial sway for a periodover the law of unconstitutional conditions. A "right" could not beconditioned to achieve ends that were constitutionally forbidden, but a"privilege" could be. 138

The Court has repeatedly repudiated the right-privilege distinc-tion, 139 and the equal protection guarantee is regularly extended to in-terests that would clearly fall on the "privilege" or "benefit" side of anydivision. Thus, discriminatory denial of public employment, 140 admis-sion to a state medical school,' 4' and use of a public facility for theatri-cal production 142 have all been found unconstitutional under thefourteenth amendment. Sometimes the Court refers to denial of such a"benefit" as a "burden." '4 Indeed, there would have been great strainhad the modern law of equal protection developed otherwise, with an

buys more nutritional bang for the food stamp buck. The exclusion would obviously be imper-missible, however, because any analysis of the impact of the exclusion on the constitutionallyprotected interest in practicing one's religious beliefs would assess that impact against the assump-tion of a subsidy, not against the assumption of no food stamp program at all. See Sherbert v.Verner, 374 U.S. 398 (1963). My argument in the text is that the same would be true even if theinterest discriminatorily disfavored is realistically viewed as especially important in human termsrather than in more text-bound constitutional ones. This conclusion would be tested if, for exam-ple, dietetic foods could not be purchased with food stamps-despite their vital importance todiabetics and others-because, like kosher foods, they buy less nutrition for the same amount ofmoney.

137 See Bennett, supra note 8, at 1064 n.70. On which side of the line, for instance, does denialof a driver's license belong? See Bell v. Burson, 402 U.S. 535 (1971).

138 See generally O'Neil, Unconstitutional Conditions: Welfare Benefxts With Strings Attached,54 CALIF. L. REV. 443 (1966).139 See, e.g., Califano v. Westcott, 443 U.S. 76, 85 (1979); Graham v. Richardson, 403 U.S. 365,

374 (1971); Goldberg v. Kelly, 397 U.S. 254, 262 (1970); Shapiro v. Thompson, 394 U.S. 618, 627n.6 (1969).140 See, eg., Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974).141 See Regents of the Univ. ofCal. v. Bakke, 438 U.S. 265 (1978). See also Brown v. Board of

Educ., 347 U.S. 483 (1954).142 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975). The Court did not specify in

Conrad upon which part of the fourteenth amendment it was relying.143 See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 256, 320 (1978) (opinion of Pow-

ell, J.). Chief Justice Burger's recent opinion for himself and Justices Powell and White in Fulli-love v. Klutanick, 100 S. Ct. 2758 (1980), speaks of exclusion from government contractualbusiness as a burden. Id. at 2778.

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ever increasing part of governmental activity consisting of the dispen-sation of "benefits." The psychological hurt from underinclusive dis-pensation of benefits is real, as is the potential for majoritarian abusethat the power to tax and then spend presents. Governmental benefitschemes can clearly be irrational, and they can be unfair.

There are intimations in some Supreme Court decisions that judi-cial balancing is peculiarly inappropriate in review of the dispensationof welfare benefits, rather than of all public benefits. This suggestion isalso inconsistent with a very substantial number of recent SupremeCourt decisions, 144 but it would be perverse if taken to mean that equalprotection review of discriminatory dispensation of welfare benefits isavailable only in some unusually diluted form. The beneficiaries ofthese funding programs are the most impecunious of our citizens.Other things being equal, the impoverished among us are dispropor-tionately ineffective in legislatures, and that strengthens rather thanweakens the case for serious judicial review of actions disadvantagingthem.

The McRae Court does not suggest, of course, that equal protec-tion is inapplicable to the denial of the Medicaid benefit for abortion,only that the importance of the woman's interest loses significancewhen the issue is posed as discriminatory denial of a benefit rather thanimposition of an "absolute" burden. But just as the constitutional lawgoverning imposition of burdens takes on coherent meaning only witha willingness to examine the degree of those burdens and their justifica-tion, so the law of discriminatory denial of benefits is essentially mean-ingless without consideration of the opportunity costs-the foregonebenefits-of that denial.

Opportunity costs of simple failure to accord a benefit are given noconstitutional weight because such failure is not constitutionally action-able, not because the opportunity costs of failure to give a benefit areirrelevant in a constitutionally appropriate case. With few excep-tions, 145 the Constitution has consistently been understood to forbidonly state actions, not inactions. When a state without any benefit pro-gram at all is met with a claim that it must fund some or all abortions,its sufficient response is that, having taken no action, no constitutionalquestion is raised. Specific state action accompanied by refusal to takeanother that would be similar to the first in a way that bespeaks dis-crimination, however, has long been understood, under equal protec-

144 See note 11 and accompanying text supra.145 Aside from the clear constitutional right not to be enslaved by private persons, U.S. CONST.

amend. XIII, violation of constitutional rights generally requires state action that "causes" thedeprivation. But cf. United States v. Guest, 383 U.S. 745, 755-57 (1966) and id. at 770-74 (Harlan,J., concurring in part and dissenting in part) (discussing exceptional cases where state action is notrequired). Just what degree of state involvement in the action causing the deprivation suffices as"state action" is, of course, a controversial subject in constitutional law. See generaly L. TRiB,supra note 27, at 1147-74.

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tion analysis, to supply the state action necessary for a court to comparethe action taken with that not taken.146 The irrelevance of opportunitycosts in the case of simple refusal to fund thus has no bearing on thequestion of their relevance in the case of discriminatory refusal to fund.

An important but conceptually difficult limitation is inherent inthe necessity of finding "discrimination." Not every imposition of aburden or refusal to extend a benefit is discriminatory just becausethere is some benefit or refusal to burden with which it could be com-pared. Subsidizing symphony orchestras but not marathon races is not"discriminatory," nor is sterilizing felons while refusing to ban trucksfrom superhighways. If these comparisons were a sufficient predicatefor an equal protection case, the Court's reluctance to consider the op-portunity cost of benefits withheld would be understandable. For oncethe state had extended a benefit of any sort, the opportunity cost of notextending another would pose an equal protection question. Sincestates regularly extend some "benefits," the opportunity cost of anybenefit not given would be relevant and the state action limitation ef-fectively eliminated. It would then be unclear just where the Court'stask would stop, short of a "globally efficient" and fair "law reform"'147

quite beyond its competence. 148 But discrimination in human andequal protection terms means more than one random action and onerandom inaction. There must be some dimension understandable interms of important human values along which the action taken andthat not taken are similar. And this is true whether the equal, protec-tion complaint is one of discrimination with regard to benefits or bur-dens.

There may sometimes be close questions of whether a given stateaction is discriminatory and hence raises an equal protection question.The issue in Maher, for instance, was whether state refusal to fundelective abortions in Medicaid programs violated the equal protectionclause.149 The Court treated the question as one of discrimination, butelective abortions are, by definition, not responsive to health problems,

146 The equal protection clause need not have been interpreted to reach discrimination this

generally. Professor Fiss, for instance, has urged that it be understood not as generally reachingdiscrimination, but as applicable to state actions disadvantaging certain groups identifiable in thesociety apart from the particular state action under review. Fiss, Groups and the Equal ProtectionClause, 5 PHILOSOPHY & PuH. AFF. 107 (1976). For most of the history of the clause, however, theCourt has consistently found that it protects individuals, and it has applied an antidiscriminationprinciple quite generally.

147 See Michelman, supra note 89, at 436.148 See Bennett, supra note 8, at 1102-03.149 In Maher Connecticut had apparently withdrawn its previous willingness to fund even elec-

tive abortions under Medicaid. It is possible to analyze such state withdrawal of a benefit differ-ently from initial state refusal to extend the same benefit. See, e.g., Reitman v. Mulkey, 387 U.S.369 (1967). But there is a danger of inhibiting state experimentation if withdrawal of a benefitgenerally were subject to constitutional limitation, while initial refusal to extend the same benefitwere not.

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and the Medicaid program more generally does not provide medicalservice in response to nonhealth problems. The refusal to fund electiveabortions might thus have been treated as nondiscriminatory and henceas raising only a question of failure to fund outside the purview of theConstitution.

In general, however, the Court has little difficulty identifying thosestate inactions that are "discriminatory" in light of other state actions.It might have been thought that only discrimination under a single gov-ernment program would be actionable under the equal protectionclause, but such an approach would have invited evasion, and theSupreme Court has understandably avoided any such flat rule. Thus aserious equal protection claim is presented when the federal govern-ment, through separate statutes, imposes a mandatory retirement ageon foreign service but not on civil service personnel' 50 or when a stategives more generous welfare benefits in programs for the adult poorthan it provides in a separate program for children. 51 In any case,McRae was a clear case of discriminatory refusal to fund within thecontext of a single program, and the Court's opinion treats it as at leastraising an equal protection question. Once this is acknowledged, how-ever, there is no plausible escape from the necessity of making judg-ments concerning rationality and fairness of governmental action inlight of the opportunity costs of the benefits discriminatorily withheld.

Only very rarely will the courts entertain a constitutional challengeto a benefit program from one who challenges the propriety of the en-tire program. Such challenges are thought to raise "standing"problems and need not detain us here.' 52 The more typical challenge toa benefit program will be by one who complains of exclusion from enti-tlement to a specific benefit. If brought under the general guarantees ofdue process or equal protection, this constitutional claim by its verynature is one of comparative irrationality or unfaimess-that the pro-gram's failure to include the claimant is irrational or unfair, given thealternative of a program including that person and others like him. Tobe meaningful, any such comparison requires consideration of the fore-gone benefits of the exclusion of the claimant and others in similar cir-cumstances-its opportunity costs-as well, of course, as considerationof any loss in public goals (and any other extra costs) from ending theexclusion. Until McRae, the law of discriminatory denial of benefitsunder the equal protection clause seemed to depend in just this way ona comparison of the situation with and without the discrimination thatwas the object of complaint.

150 See Vance v. Bradley, 440 U.S. 93 (1979).

151 See Jefferson v. Hackney, 406 U.S. 535 (1972).152 See Flast v. Cohen, 392 U.S. 83 (1968). If the burdens fall on individuals rather than on all

taxpayers through the public fisc, then there is no problem finding a plaintiff with standing to sue.See Gulf, Colo. & Santa Fe Ry. v. Ellis, 165 U.S. 150 (1897).

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In Shapiro v. Thompson,153 for instance, the Court concluded thatwithholding subsistence cash assistance from new arrivals for their firstyear in a state was an "unreasonable" way to guard against fraudulentreceipt of double benefits. Denial of benefits surely does impededouble dipping to a degree, so the judgment of "unreasonableness" isimpossible without considering the denial of the benefit as a "cost"even if such denial is not a "burden" in an absolute sense. The "cost,"of course, is an opportunity cost, and its extent must also be relevant toconsideration of the denial's rationality. A one-day denial of the grantwhile food and lodging were supplied in kind, for instance, would raisea very different rationality question than did a year's denial of the en-tire grant. 154 But that is just another way of saying that the opportunitycost of denying the benefit-the year's food, clothing, and housing thatthe grant would buy for the new arrivals-are part and parcel of therationality judgment.

If the relevance of the opportunity cost of benefits denied is ac-knowledged, it is possible to reconcile Harris v. McRae with Roe v.Wade, simply because denial of abortion subsidy is less intrusive thancriminal prohibition of abortion.155 A woman denied a subsidy forabortion may still lawfully obtain one. Such evidence as exists suggeststhat substantial numbers of Medicaid eligible women desiring abor-tions are indeed able to obtain them despite state denial of the sub-sidy. 156 The opportunity cost "burden" on those women is less than onwomen with comparable reasons for desiring abortions who are en-tirely unable to obtain them when they are made criminal.' 57 If allother considerations bearing on the rationality or the fairness of therespective measures were assumed to be either constant or of trivialsignificance in the two contexts, the two decisions would not necessarilybe inconsistent.

Other considerations are, however, neither constant in the twocontexts nor of trivial significance. The further differences between the

153 394 U.S. 618 (1969).154 1 have long thought that Shapiro was more readily appreciated in terms of the total denial

of welfare benefits it imposed on affected individuals than in terms of the right to travel rationalethat the Court articulated. See Bennett, Liberty, Equality, and Welfare Reform, 68 Nw. U.L. REv.74, 98-99 (1973). See also Medora v. Colautti, 602 F.2d 1149, 1153 n.9 (3d Cir. 1979); Davidson,Welfare Cases and the "New Maajorioy' Constitutional Theory and Practice, 10 HARv. C.R.-C.L.L. REv. 513, 537-45 (1975).

155 I am assuming that the state's basic goal in refusing abortion funding is the same as thepurpose of criminal abortion laws. See ILL. ANN. STAT. ch. 38, § 81-21 (Smith-Hurd Supp. 1980).

156 See CHI. REP., Oct. 1980, at 1. The article does not distinguish between women desiring

elective abortions and those with a medical justification, and its data are soft in a number of otherrespects. The basic point will, however, probably not be seriously disputed.

157 Actually, of course, many women did obtain abortions despite the criminal prohibitions, bygoing to other jurisdictions, by finding doctors who would violate the law, or by undertaking theabortions themselves. Whether the burdens of criminal laws could be assessed in light of thelimited efficacy of those laws is an intriguing question that must await another day.

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two cases indeed suggest that once Roe v. Wade had been decided, 158

the discriminatory refusal to fund in McRae should clearly have beenimpermissible.

First, while a number of the women denied the subsidy seem toobtain abortions nonetheless, many do not. Perhaps one can assumethat those who obtain the abortions are generally the ones with themost urgent need for them, but we have seen that in Wade and Boltonthe Court disdained any such fine concern with the specific justificationfor the abortion. In any case, the women denied the subsidies are, bydefinition, within the subclass of Medicaid eligible women with partic-ularly great need for abortions; unlike Maher, McRae involved onlymedically necessary abortions. While it is possible that a "medical ne-cessity" standard for obtaining abortions would result in some abor-tions with only marginal medical justification, 159 the Court had alreadyrecognized in its treatment of the postviability abortions in Wade thatmedical reasons provided a particularly compelling justification forabortion.

Second, to the extent that women denied the subsidy actually doobtain abortions, the state's interest in denying the subsidy is also di-minished. The state might value disentanglement from what is per-ceived as murder, but even this interest must be qualified by the factthat many of the abortions that are obtained would also be paid forwith the state subsidy represented by other public assistance funds. Inany case, the state's dominant goal in both contexts is to prevent abor-tion, and to the extent that denial of a subsidy fails to prevent abortion,the state's purpose is pro tanto frustrated.

Third, the women who do obtain abortions despite the denial ofthe subsidy do not escape all burdens simply because they avoid child-birth. Most will presumably obtain the abortions through private doc-

158 The role of precedent in the Court's judgments of rationality and fairness is complex. The

use of precedent both facilitates decisionmaking and increases the equity (and perception of eq-uity) among different decisions. In the process, however, both precedents and the doctrines theyemploy can take on lives of their own. They then carry the potential to obscure as well as furtherrationality and fairness judgments, even for judges who see such judgments as the legitimate endof equal protection and due process decisionmaking. The evolution of constitutional doctrinereflects these tensions, among many others. See text accompanying notes 18-20 infra. For presentpurposes, I am assuming that the "fairness" judgment in Wade is to be taken as authoritative inaddressing the problem presented in McRae.

159 Defendants argued strenuously in McRae and Zbaraz that the distinction between medi-

cally necessary and elective abortions is an illusory one, that women with no plausible healthjustifica tion for abortions would obtain them from sympathetic doctors who would feel uncon-strained by the vague medical necessity limitation. See note 57 supra. The point is probablysound to a degree, but only to a degree. There was a substantial dropoff in the number of Medi-caid abortions performed in Illinois when a medical necessity limitation was imposed by the com-bination of a restrictive statute and a court injunction. See Brief for Appellees at 7, Williams v.Zbaraz, 100 S. Ct. 2694 (1980). It seems quite likely that in general a doctor's willingness toperform an abortion under a standard of medical necessity would be roughly proportional to thehealth justification for the abortion.

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tors, and the expense will press their budgets at other points. All thesewomen are impecunious and hence their resources are devoted almostexclusively to the purchase of what most Americans think of as thenecessities of life-food, clothing, and housing. In other contexts, theSupreme Court has recognized that loss of these basic items of subsis-tence weighs heavily in any constitutional balance. 160

There is no measuring rod by which to compare the rationality orfairness judgments in the two contexts, but a straightforward attemptseems to me to render McRae perverse in light of Wade. And McRaeis also the context in which judicial intervention is more appropriate.In addition to the empathy problem that clouds the subject of abortionin general, because of their poverty the affected women in McRae werelikely to be less effective politically than the larger and wealthier classof women whose interests were involved in Wade. To me the differ-ences suggest that Harris v. McRae might justifiably have been decideddifferently for a state that had legalized abortion, even if Roe v. Wadehad never been handed down.

160 See text accompanying note 105 supra. In addition, withholding funds for medically neces-sary abortions results in a net economic burden for the state. This is so for two reasons: the costof delivery is many times the cost of an abortion, and the cost of public income support for chil-dren born is obviously avoided by an abortion. Justice Stevens's dissent in McRae and Zbarazrelies on the cost-saving nature of abortion funding, 100 S. Ct. at 2715 & n.9, and the majoritymakes no attempt to dispute these fiscal consequences. Aside from some of the early briefs in thecases, I am aware of only one attempt to argue that withholding abortions might save state money.Hardy, Privacy and Public Funding: Maher v. Roe as the Interaction of Roe v. Wade and Dan-dridge v. Williams, 18 Asuz. L. REV. 903, 926-933 (1976). Hardy's argument is premised on theincentive provided by the availability of abortion to forego standard birth control techniques, withthe result that more than one abortion is required to forestall what would be only one birth in theabsence of easily available abortions. The argument is addressed to the situation where Medicaidfunding is available for all desired abortions, not just medically necessary ones, so that it hasdiminished bearing on the medically necessary abortion question in McRae and Zbaraz where thecost of childbirth could be expected to be higher and the availability of abortion-and hence anyincentive-more limited. Even on its own terms, however, the argument is farfetched, since itwould be necessary to have encouraged almost routine use of abortion as a birth control techniquebefore the cost could be expected to approach those of childbirth and childraising that abortionavoids. The cost-saving nature of abortion funding is relevant to the measure's rationality but notso saliently to its fairness.

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Documents

Bennett_abortion and Judicial Review