NEAR THE END of its opinion upholding the right of Congress and state legislatures to refuse to pay for abortions, the Supreme Court said, "It is not the mission of this court or any other to decide whether the balance of competing interests reflected in the Hyde Amendment is wise social policy.If that were our mission, not every justice who has subscribed to the judgment of the court today could have done so." That puts the continuing debate about the use of public funds for abortions in perspective. The question is no longer whether Congress can refuse to pay for abortions for poor women -- according to the court, it can -- but whether it should refuse to do so.
The arguments on those two questions are quite different. All of them, however, start from a fixed point. The court had previously held, and it reaffirmed on Monday, that the Constitution gives all women -- rich and poor -- freedom to decide during the early months of pregnancy whether or not to have an abortion and freedom to decide to do so at any point in the pregnancy if carrying the child endangers the mother's health. a
The court's majority ruled Monday that government has no obligation to help a poor woman exercise that freedom of choice. All that is required of government, it said, is that it not place obstacles in the path of the woman who chooses an abortion. The constraints that restrict a poor woman from exercising her choice are not the doing of government, the court explained, but of indigency. Since the government did not make her poor, it is not obliged to solve her problem
That argument has some legitimacy in constitutional terms; individuals have many rights that the government does not help them exercise. But does it have the same legitimacy in terms of public policy? We think not. It cannot be right for a poor woman to be denied the ability to exercise her freedom of choice when a woman of means can do so with ease. That is an inequity that only Congress or the states can now redress.
The other argument made by the court's majority was that Congress was fostering "the legitimate governmental objective of protecting potential life" by denying fundings for poor women to have abortions while paying the expenses of poor women who have babies. It is on this argument that in our opinion the majority floundered.
In a brilliant dissent, Justice John Paul Stevens pointed out that the court had ruled in the 1973 abortion case that this particular government objective can never outweigh an individual women's interest in protecting her own life or health. "Because a denial of benefits for medically necessary abortions inevitably causes serious harm to the excluded women, it is tantamount to severe punishment," he wrote. "That denial cannot be justified unless government may, in effect, punish women who want abortions." And punishing those involved in such abortions, the court had decided in 1973, was something government could not do.
This may be a tricky and close question in constitutional terms. But it is neither in terms of public policy. It may be constitutionally permitted, as the court says. But is it right for Congress to refuse to pay for an abortion for a poor woman to whom pregnancy is a seriously disabling or permanently crippling condition (especially when a rich woman can readily avail herself of an abortion)?
The court has answered the constitutional question. But there are others that the society must answer. Is it just for Congress to pay for an abortion for a poor woman who has been raped and reported the crime promptly to police while, as one version of the Hyde Amendment has it, refusing to pay if the rape was not reported promptly? Would it be right for Congress to refuse to pay for a poor woman's abortion even though carrying the fetus full term would kill her? The court did not face the issues raised by so restrictive a funding ban, but its logic is headed toward sustaining one.
Questions of this type must be deeply troubling to all but the most dogmatic foes of abortion. They are the kinds of questions that are now squarely before members of Congress and state legislatures. They deserve thoughtful consideration and compassionate answers.