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Full Opinion
MAHER, COMMISSIONER OF SOCIAL SERVICES OF CONNECTICUT
v.
ROE ET AL.
Supreme Court of United States.
*465 Edmund C. Walsh, Assistant Attorney General of Connecticut argued the cause for appellant. With him on the brief was Carl R. Ajello, Attorney General.
Lucy V. Katz argued the cause for appellees. With her on the brief were Kathryn Emmett and Catherine Roraback.[*]
MR. JUSTICE POWELL delivered the opinion of the Court.
In Beal v. Doe, ante, p. 438, we hold today that Title XIX of the Social Security Act does not require the funding of nontherapeutic abortions as a condition of participation in the *466 joint federal-state Medicaid program established by that statute. In this case, as a result of our decision in Beal, we must decide whether the Constitution requires a participating State to pay for nontherapeutic abortions when it pays for childbirth.
I
A regulation of the Connecticut Welfare Department limits state Medicaid benefits for first trimester abortions[1] to those that are "medically necessary," a term defined to include psychiatric necessity. Connecticut Welfare Department, Public Assistance Program Manual, Vol. 3, c. III, § 275 (1975).[2] Connecticut enforces this limitation through a system of prior authorization from its Department of Social Services. In order to obtain authorization for a first trimester abortion, the hospital or clinic where the abortion is to be performed must submit, among other things, a certificate from the patient's attending physician stating that the abortion is medically necessary.
This attack on the validity of the Connecticut regulation *467 was brought against appellant Maher, the Commisioner of Social Services, by appellees Poe and Roe, two indigent women who were unable to obtain a physician's certificate of medical necessity.[3] In a complaint filed in the United States District Court for the District of Connecticut, they challenged the regulation both as inconsistent with the requirements of Title XIX of the Social Security Act, as added, 79 Stat. 343, as amended, 42 U. S. C. § 1396 et seq. (1970 ed. and Supp. V), and as violative of their constitutional rights, including the Fourteenth Amendment's guarantees of due process and equal protection. Connecticut originally defended its regulation on the theory that Title XIX of the Social Security Act prohibited the funding of abortions that were not medically necessary. After certifying a class of women unable to obtain Medicaid assistance for abortions because of the regulation, the District Court held that the Social Security Act not only allowed state funding of nontherapeutic abortions but also required it. Roe v. Norton, 380 F. Supp. 726 (1974). On appeal, the Court of Appeals for the Second Circuit read the Social Security Act to allow, but not to require, state funding of such abortions. 522 F. 2d 928 (1975). Upon remand for consideration of the constitutional issues raised in the complaint, a three-judge District Court was convened. That court invalidated the Connecticut regulation. 408 F. Supp. 660 (1975).
*468 Although it found no independent constitutional right to a state-financed abortion, the District Court held that the Equal Protection Clause forbids the exclusion of nontherapeutic abortions from a state welfare program that generally subsidizes the medical expenses incident to pregnancy and childbirth. The court found implicit in Roe v. Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U. S. 179 (1973), the view that "abortion and childbirth, when stripped of the sensitive moral arguments surrounding the abortion controversy, are simply two alternative medical methods of dealing with pregnancy. . . ." 408 F. Supp., at 663 n. 3. Relying also on Shapiro v. Thompson, 394 U. S. 618 (1969), and Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974), the court held that the Connecticut program "weights the choice of the pregnant mother against choosing to exercise her constitutionally protected right" to a nontherapeutic abortion and "thus infringes upon a fundamental interest." 408 F. Supp., at 663-664. The court found no state interest to justify this infringement. The State's fiscal interest was held to be "wholly chimerical because abortion is the least expensive medical response to a pregnancy." Id., at 664 (footnote omitted). And any moral objection to abortion was deemed constitutionally irrelevant:
"The state may not justify its refusal to pay for one type of expense arising from pregnancy on the basis that it morally opposes such an expenditure of money. To sanction such a justification would be to permit discrimination against those seeking to exercise a constitutional right on the basis that the state simply does not approve of the exercise of that right." Ibid.
The District Court enjoined the State from requiring the certificate of medical necessity for Medicaid-funded abortions.[4]*469 The court also struck down the related requirements of prior written request by the pregnant woman and prior authorization by the Department of Social Services, holding that the State could not impose any requirements on Medicaid payments for abortions that are not "equally applicable to medicaid payments for childbirth, if such conditions or requirements tend to discourage a woman from choosing an abortion or to delay the occurrence of an abortion that she has asked her physician to perform." Id., at 665. We noted probable jurisdiction to consider the constitutionality of the Connecticut regulation. 428 U. S. 908 (1976).
II
The Constitution imposes no obligation on the States to pay the pregnancy-related medical expenses of indigent women, or indeed to pay any of the medical expenses of indigents.[5] But when a State decides to alleviate some of the *470 hardships of poverty by providing medical care, the manner in which it dispenses benefits is subject to constitutional limitations. Appellees' claim is that Connecticut must accord equal treatment to both abortion and childbirth, and may not evidence a policy preference by funding only the medical expenses incident to childbirth. This challenge to the classifications established by the Connecticut regulation presents a question arising under the Equal Protection Clause of the Fourteenth Amendment. The basic framework of analysis of such a claim is well settled:
"We must decide, first, whether [state legislation] operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. . . . If not, the [legislative] scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination. . . ." San Antonio School Dist. v. Rodriguez, 411 U. S. 1, 17 (1973).
Accord, Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 312, 314 (1976). Applying this analysis here, we think the District Court erred in holding that the Connecticut regulation violated the Equal Protection Clause of the Fourteenth Amendment.
A
This case involves no discrimination against a suspect class. An indigent woman desiring an abortion does not come within *471 the limited category of disadvantaged classes so recognized by our cases. Nor does the fact that the impact of the regulation falls upon those who cannot pay lead to a different conclusion. In a sense, every denial of welfare to an indigent creates a wealth classification as compared to nonindigents who are able to pay for the desired goods or services. But this Court has never held that financial need alone identifies a suspect class for purposes of equal protection analysis. See Rodriguez, supra, at 29; Dandridge v. Williams, 397 U. S. 471 (1970).[6] Accordingly, the central question in this case is whether the regulation "impinges upon a fundamental right explicitly or implicitly protected by the Constitution." The District Court read our decisions in Roe v. Wade, 410 U. S. 113 (1973), and the subsequent cases applying it, as establishing a fundamental right to abortion and therefore concluded that nothing less than a compelling state interest would justify Connecticut's different treatment of abortion and childbirth. We think the District Court misconceived the nature and scope of the fundamental right recognized in Roe.
B
At issue in Roe was the constitutionality of a Texas law making it a crime to procure or attempt to procure an abortion, except on medical advice for the purpose of saving the life of the mother. Drawing on a group of disparate cases restricting governmental intrusion, physical coercion, and criminal prohibition of certain activities, we concluded that the Fourteenth Amendment's concept of personal liberty *472 affords constitutional protection against state interference with certain aspects of an individual's personal "privacy," including a woman's decision to terminate her pregnancy.[7]Id., at 153.
The Texas statute imposed severe criminal sanctions on the physicians and other medical personnel who performed abortions, thus drastically limiting the availability and safety of the desired service. As MR. JUSTICE STEWART observed, "it is difficult to imagine a more complete abridgment of a constitutional freedom . . . ." Id., at 170 (concurring opinion). We held that only a compelling state interest would justify such a sweeping restriction on a constitutionally protected interest, and we found no such state interest during the first trimester. Even when judged against this demanding standard, however, the State's dual interest in the health of the pregnant woman and the potential life of the fetus were deemed sufficient to justify substantial regulation of abortions in the second and third trimesters. "These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes `compelling.' " Id., at 162-163. In the second trimester, the State's interest in the health of the pregnant woman justifies state regulation reasonably related to that concern. Id., at 163. At viability, usually in the third trimester, the State's interest in the potential life of the fetus justifies prohibition with criminal penalties, except where the life or health of the mother is threatened. Id., at 163-164.
The Texas law in Roe was a stark example of impermissible interference with the pregnant woman's decision to terminate her pregnancy. In subsequent cases, we have invalidated *473 other types of restrictions, different in form but similar in effect, on the woman's freedom of choice. Thus, in Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 70-71, n. 11 (1976), we held that Missouri's requirement of spousal consent was unconstitutional because it "granted [the husband] the right to prevent unilaterally, and for whatever reason, the effectuation of his wife's and her physician's decision to terminate her pregnancy." Missouri had interposed an "absolute obstacle to a woman's decision that Roe held to be constitutionally protected from such interference." (Emphasis added.) Although a state-created obstacle need not be absolute to be impermissible, see Doe v. Bolton, 410 U. S. 179 (1973); Carey v. Population Services International, 431 U. S. 678 (1977), we have held that a requirement for a lawful abortion "is not unconstitutional unless it unduly burdens the right to seek an abortion." Bellotti v. Baird, 428 U. S. 132, 147 (1976). We recognized in Bellotti that "not all distinction between abortion and other procedures is forbidden" and that "[t]he constitutionality of such distinction will depend upon its degree and the justification for it." Id., at 149-150. We therefore declined to rule on the constitutionality of a Massachusetts statute regulating a minor's access to an abortion until the state courts had had an opportunity to determine whether the statute authorized a parental veto over the minor's decision or the less burdensome requirement of parental consultation.
These cases recognize a constitutionally protected interest "in making certain kinds of important decisions" free from governmental compulsion. Whalen v. Roe, 429 U. S. 589, 599-600, and nn. 24 and 26 (1977). As Whalen makes clear, the right in Roe v. Wade can be understood only by considering both the woman's interest and the nature of the State's interference with it. Roe did not declare an unqualified "constitutional right to an abortion," as the District Court seemed to think. Rather, the right protects the woman from *474 unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. It implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.
The Connecticut regulation before us is different in kind from the laws invalidated in our previous abortion decisions. The Connecticut regulation places no obstacles—absolute or otherwise—in the pregnant woman's path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut's decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman's decision, but it has imposed no restriction on access to abortions that was not already there. The indigency that may make it difficult—and in some cases, perhaps, impossible—for some women to have abortions is neither created nor in any way affected by the Connecticut regulation. We conclude that the Connecticut regulation does not impinge upon the fundamental right recognized in Roe.[8]
*475 C
Our conclusion signals no retreat from Roe or the cases applying it. There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.[9]*476 Constitutional concerns are greatest when the State attempts to impose its will by force of law; the State's power to encourage actions deemed to be in the public interest is necessarily far broader.
This distinction is implicit in two cases cited in Roe in support of the pregnant woman's right under the Fourteenth Amendment. Meyer v. Nebraska, 262 U. S. 390 (1923), involved a Nebraska law making it criminal to teach foreign languages to children who had not passed the eighth grade. Id., at 396-397. Nebraska's imposition of a criminal sanction on the providers of desired services makes Meyer closely analogous to Roe. In sustaining the constitutional challenge brought by a teacher convicted under the law, the Court held that the teacher's "right thus to teach and the right of parents to engage him so to instruct their children" were "within the liberty of the Amendment." 262 U. S., at 400. In Pierce v. Society of Sisters, 268 U. S. 510 (1925), the Court relied on Meyer to invalidate an Oregon criminal law requiring the parent or guardian of a child to send him to a public school, thus precluding the choice of a private school. Reasoning that the Fourteenth Amendment's concept of liberty "excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only," the Court held that the law "unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control." 268 U. S., at 534-535.
Both cases invalidated substantial restrictions on constitutionally protected liberty interests: in Meyer, the parent's right to have his child taught a particular foreign language; in Pierce, the parent's right to choose private rather than public school education. But neither case denied to a State *477 the policy choice of encouraging the preferred course of action. Indeed, in Meyer the Court was careful to state that the power of the State "to prescribe a curriculum" that included English and excluded German in its free public schools "is not questioned." 262 U. S., at 402. Similarly, Pierce casts no shadow over a State's power to favor public education by funding it—a policy choice pursued in some States for more than a century. See Brown v. Board of Education, 347 U. S. 483, 489 n. 4 (1954). Indeed, in Norwood v. Harrison, 413 U. S. 455, 462 (1973), we explicitly rejected the argument that Pierce established a "right of private or parochial schools to share with public schools in state largesse," noting that "[i]t is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid." Yet, were we to accept appellees' argument, an indigent parent could challenge the state policy of favoring public rather than private schools, or of preferring instruction in English rather than German, on grounds identical in principle to those advanced here. We think it abundantly clear that a State is not required to show a compelling interest for its policy choice to favor normal childbirth any more than a State must so justify its election to fund public but not private education.[10]
*478 D
The question remains whether Connecticut's regulation can be sustained under the less demanding test of rationality that applies in the absence of a suspect classification or the impingement of a fundamental right. This test requires that the distinction drawn between childbirth and nontherapeutic abortion by the regulation be "rationally related" to a "constitutionally permissible" purpose. Lindsey v. Normet, 405 U. S. 56, 74 (1972); Massachusetts Bd. of Retirement v. Murgia, 427 U. S., at 314. We hold that the Connecticut funding scheme satisfies this standard.
Roe itself explicitly acknowledged the State's strong interest in protecting the potential life of the fetus. That interest exists throughout the pregnancy, "grow[ing] in substantiality as the woman approaches term." 410 U. S., at 162-163. Because the pregnant woman carries a potential human being, she "cannot be isolated in her privacy. . . . [Her] privacy is no longer sole and any right of privacy she possesses must be measured accordingly." Id., at 159. The State unquestionably has a "strong and legitimate interest in encouraging normal childbirth," Beal v. Doe, ante, at 446, an interest honored over the centuries.[11] Nor can there be any question that the Connecticut regulation rationally furthers that interest. The medical costs associated with childbirth are substantial, and have increased significantly in recent years. As *479 recognized by the District Court in this case, such costs are significantly greater than those normally associated with elective abortions during the first trimester. The subsidizing of costs incident to childbirth is a rational means of encouraging childbirth.
We certainly are not unsympathetic to the plight of an indigent woman who desires an abortion, but "the Constitution does not provide judicial remedies for every social and economic ill," Lindsey v. Normet, supra, at 74. Our cases uniformly have accorded the States a wider latitude in choosing among competing demands for limited public funds.[12] In Dandridge v. Williams, 397 U. S., at 485, despite recognition that laws and regulations allocating welfare funds involve "the most basic economic needs of impoverished human beings," we held that classifications survive equal protection challenge when a "reasonable basis" for the classification is shown. As the preceding discussion makes clear, the state interest in encouraging normal childbirth exceeds this minimal level.
The decision whether to expend state funds for nontherapeutic abortion is fraught with judgments of policy and value over which opinions are sharply divided. Our conclusion that the Connecticut regulation is constitutional is not based on a weighing of its wisdom or social desirability, for this Court does not strike down state laws "because they may be unwise, improvident, or out of harmony with a particular school of thought." Williamson v. Lee Optical Co., 348 U. S. 483, 488 (1955), quoted in Dandridge v. Williams, supra, at 484. Indeed, when an issue involves policy choices as sensitive as those implicated by public funding of nontherapeutic abortions, the appropriate forum for their resolution in a democracy is the legislature. We should not forget that "legislatures *480 are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." Missouri, K. & T. R. Co. v. May, 194 U. S. 267, 270 (1904) (Holmes, J.).[13]
In conclusion, we emphasize that our decision today does not proscribe government funding of nontherapeutic abortions. It is open to Congress to require provision of Medicaid benefits for such abortions as a condition of state participation in the Medicaid program. Also, under Title XIX as construed in Beal v. Doe, ante, p. 438, Connecticut is free—through normal democratic processes—to decide that such benefits should be provided. We hold only that the Constitution does not require a judicially imposed resolution of these difficult issues.
III
The District Court also invalidated Connecticut's requirements of prior written request by the pregnant woman and prior authorization by the Department of Social Services. Our analysis above rejects the basic premise that prompted invalidation of these procedural requirements. It is not unreasonable for a State to insist upon a prior showing of medical necessity to insure that its money is being spent only for authorized purposes. The simple answer to the argument that similar requirements are not imposed for other medical procedures is that such procedures do not involve the termination of a potential human life. In Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52 (1976), we held that the woman's written consent to an abortion was not an impermissible burden under Roe. We think that decision is controlling on the similar issue here.
*481 The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
[For dissenting opinion of MR. JUSTICE MARSHALL, see ante, p. 454.]
[For dissenting opinion of MR. JUSTICE BLACKMUN, see ante, p. 462.]
MR. CHIEF JUSTICE BURGER, concurring.
I join the Court's opinion. Like the Court, I do not read any decision of this Court as requiring a State to finance a nontherapeutic abortion. The Court's holdings in Roe v. Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U. S. 179 (1973), simply require that a State not create an absolute barrier to a woman's decision to have an abortion. These precedents do not suggest that the State is constitutionally required to assist her in procuring it.
From time to time, every state legislature determines that, as a matter of sound public policy, the government ought to provide certain health and social services to its citizens. Encouragement of childbirth and child care is not a novel undertaking in this regard. Various governments, both in this country and in others, have made such a determination for centuries. In recent times, they have similarly provided educational services. The decision to provide any one of these services—or not to provide them—is not required by the Federal Constitution. Nor does the providing of a particular service require, as a matter of federal constitutional law, the provision of another.
Here, the State of Connecticut has determined that it will finance certain childbirth expenses. That legislative determination *482 places no state-created barrier to a woman's choice to procure an abortion, and it does not require the State to provide it. Accordingly, I concur in the judgment.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR. JUSTICE BLACKMUN join, dissenting.
The District Court held:
"When Connecticut refuses to fund elective abortions while funding therapeutic abortions and prenatal and postnatal care, it weights the choice of the pregnant mother against choosing to exercise her constitutionally protected right to an elective abortion. . . . Her choice is affected not simply by the absence of payment for the abortion, but by the availability of public funds for childbirth if she chooses not to have the abortion. When the state thus infringes upon a fundamental interest, it must assert a compelling state interest." Roe v. Norton, 408 F. Supp. 660, 663-664 (1975).
This Court reverses on the ground that "the District Court misconceived the nature and scope of the fundamental right recognized in Roe [v. Wade, 410 U. S. 113 (1973)]," ante, at 471, and therefore that Connecticut was not required to meet the "compelling interest" test to justify its discrimination against elective abortion but only "the less demanding test of rationality that applies in the absence of . . . the impingement of a fundamental right," ante, at 477, 478. This holding, the Court insists, "places no obstacles—absolute or otherwise— in the pregnant woman's path to an abortion"; she is still at liberty to finance the abortion from "private sources." Ante, at 474. True, "the State may [by funding childbirth] have made childbirth a more attractive alternative, thereby influencing the woman's decision, but it has imposed no restriction on access to abortions that was not already there." Ibid. True, also, indigency "may make it difficult—and in some cases, *483 perhaps impossible—for some women to have abortions," but that regrettable consequence "is neither created nor in any way affected by the Connecticut regulation." Ibid.
But a distressing insensitivity to the plight of impoverished pregnant women is inherent in the Court's analysis. The stark reality for too many, not just "some," indigent pregnant women is that indigency makes access to competent licensed physicians not merely "difficult" but "impossible." As a practical matter, many indigent women will feel they have no choice but to carry their pregnancies to term because the State will pay for the associated medical services, even though they would have chosen to have abortions if the State had also provided funds for that procedure, or indeed if the State had provided funds for neither procedure. This disparity in funding by the State clearly operates to coerce indigent pregnant women to bear children they would not otherwise choose to have, and just as clearly, this coercion can only operate upon the poor, who are uniquely the victims of this form of financial pressure. Mr. Justice Frankfurter's words are apt:
"To sanction such a ruthless consequence, inevitably resulting from a money hurdle erected by the State, would justify a latter-day Anatole France to add one more item to his ironic comments on the `majestic equality' of the law. "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread'. . . ." Griffin v. Illinois, 351 U. S. 12, 23 (1956) (concurring opinion).
None can take seriously the Court's assurance that its "conclusion signals no retreat from Roe [v. Wade] or the cases applying it," ante, at 475. That statement must occasion great surprise among the Courts of Appeals and District Courts that, relying upon Roe v. Wade and Doe v. Bolton, 410 U. S. 179 (1973), have held that States are constitutionally required to fund elective abortions if they fund pregnancies carried to *484 term. See Doe v. Rose, 499 F. 2d 1112 (CA10 1974); Wulff v. Singleton, 508 F. 2d 1211 (CA8 1974), rev'd and remanded on other grounds, 428 U. S. 106 (1976); Doe v. Westby, 383 F. Supp. 1143 (WDSD 1974), vacated and remanded (in light of Hagans v. Lavine, 415 U. S. 528 (1974)), 420 U. S. 968, on remand, 402 F. Supp. 140 (1975); Doe v. Wohlgemuth, 376 F. Supp. 173 (WD Pa. 1974), aff'd on statutory grounds sub nom. Doe v. Beal, 523 F. 2d 611 (CA3 1975), rev'd and remanded, ante, p. 438; Doe v. Rampton, 366 F. Supp. 189 (Utah 1973); Klein v. Nassau County Medical Center, 347 F. Supp. 496 (EDNY 1972), vacated and remanded (in light of Roe v. Wade and Doe v. Bolton, 412 U. S. 925 (1973)), on remand, 409 F. Supp. 731 (1976). Indeed, it cannot be gainsaid that today's decision seriously erodes the principles that Roe and Doe announced to guide the determination of what constitutes an unconstitutional infringement of the fundamental right of pregnant women to be free to decide whether to have an abortion.
The Court's premise is that only an equal protection claim is presented here. Claims of interference with enjoyment of fundamental rights have, however, occupied a rather protean position in our constitutional jurisprudence. Whether or not the Court's analysis may reasonably proceed under the Equal Protection Clause, the Court plainly errs in ignoring, as it does, the unanswerable argument of appellees, and the holding of the District Court, that the regulation unconstitutionally impinges upon their claim of privacy derived from the Due Process Clause.
Roe v. Wade and cases following it hold that an area of privacy invulnerable to the State's intrusion surrounds the decision of a pregnant woman whether or not to carry her pregnancy to term. The Connecticut scheme clearly impinges upon that area of privacy by bringing financial pressures on indigent women that force them to bear children they would not otherwise have. That is an obvious impairment of the *485 fundamental right established by Roe v. Wade. Yet the Court concludes that "the Connecticut regulation does not impinge upon [that] fundamental right." Ante, at 474. This conclusion is based on a perceived distinction, on the one hand, between the imposition of criminal penalties for the procurement of an abortion present in Roe v. Wade and Doe v. Bolton and the absolute prohibition present in Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52 (1976), and, on the other, the assertedly lesser inhibition imposed by the Connecticut scheme. Ante, at 472-474.
The last time our Brother POWELL espoused the concept in an abortion case that "[t]here is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy," ante, at 475, the Court refused to adopt it. Singleton v. Wulff, 428 U. S. 106, 122 (1976). This was made explicit in Part II of our Brother BLACKMUN'S opinion for four of us and is implicit in our Brother STEVENS' essential agreement with the analysis of Part II-B. Id., at 121-122 (concurring in part). Part II-B stated:
"MR. JUSTICE POWELL would so limit Doe and the other cases cited, explaining them as cases in which the State `directly interfered with the abortion decision' and `directly interdicted the normal functioning of the physician-patient relationship by criminalizing certain procedures,' [428 U. S.,] at 128. There is no support in the language of the cited cases for this distinction . . . . Moreover, a `direct interference' or `interdiction' test does not appear to be supported by precedent. . . . For a doctor who cannot afford to work for nothing, and a woman who cannot afford to pay him, the State's refusal to fund an abortion is as effective an `interdiction' of it as would ever be necessary. Furthermore, since the right . . . is not simply the right to have an abortion, but the right to have abortions nondiscriminatorily funded, *486 the denial of such funding is as complete an `interdiction' of the exercise of the right as could ever exist." Id., at 118 n. 7.
We have also rejected this approach in other abortion cases. Doe v. Bolton, the companion to Roe v. Wade, in addition to striking down the Georgia criminal prohibition against elective abortions, struck down the procedural requirements of certification of hospitals, of approval by a hospital committee, and of concurrence in the abortion decision by two doctors other than the woman's own doctor. None of these requirements operated as an absolute bar to elective abortions in the manner of the criminal prohibitions present in the other aspect of the case or in Roe, but this was not sufficient to save them from unconstitutionality. In Planned Parenthood, supra, we struck down a requirement for spousal consent to an elective abortion which the Court characterizes today simply as an "absolute obstacle" to a woman's obtaining an abortion. Ante, at 473. But the obstacle was "absolute" only in the limited sense that a woman who was unable to persuade her spouse to agree to an elective abortion was prevented from obtaining one. Any woman whose husband agreed, or could be persuaded to agree, was free to obtain an abortion, and the State never imposed directly any prohibition of its own. This requirement was qualitatively different from the criminal statutes that the Court today says are comparable, but we nevertheless found it unconstitutional.
Most recently, also in a privacy case, the Court squarely reaffirmed that the right of privacy was fundamental, and that an infringement upon that right must be justified by a compelling state interest. Carey v. Population Services International, 431 U. S. 678 (1977). That case struck down in its entirety a New York law forbidding the sale of contraceptives to minors under 16 years old, limiting persons who could sell contraceptives to pharmacists, and forbidding advertisement *487 and display of contraceptives.