author: Me. Justice Blackmun Mr. Justice White,

text:
    BATTERTON, SECRETARY, DEPARTMENT OF HUMAN RESOURCES OF MARYLAND, et al. v. FRANCIS et al.
    No. 75-1181.
    Argued April 19, 1977
    Decided June 20, 1977

      BlacemuN, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, and Rehnquist, JJ., joined. White, J., filed a dissenting opinion, in which BreNNAN, Marshall, and SteveNs, JJ., joined, post, p. 432.

      Joel J. Babin, Assistant Attorney General of Maryland, argued the cause for petitioners. With him on the brief were Francis B. Burch, Attorney General, George A. Nilson, Deputy Attorney General, and Theodore Losin, Assistant Attorney General.

      C. Christopher Brown argued the cause for respondents Francis et al. With him on the brief was Dennis M. Sweeney. Gerard C. Smetana, William H. DuBoss III, Lawrence B. Kraus, and Bichard O’Brecht filed briefs for respondent Chamber of Commerce of the United States.
   Me. Justice Blackmun

delivered the opinion of the Court.

This case concerns the validity of 45 CFR § 233.100 (a) (1) (1976), a regulation promulgated by the Secretary of Health, Education, and Welfare (HEW) pursuant to a delegation of rulemaking authority in § 407 (a) of the Social Security Act, 42 U. S. C. § 607 (a). The issue is whether the regulation is a proper exercise of the Secretary’s statutory authority.

I

The statute is contained in the Social Security Act’s Title IV, which has to do primarily with Aid to Families with Dependent Children (AFDC). The AFDC program was established by the Act in 1935 to provide welfare payments where children are needy because of the death, absence, or incapacity of a parent. 42 IT. S. C. § 606 (a). The original conception of AFDC was to allow widows and divorced mothers to care for their children at home without having to go to work, thus eliminating the practice of removing needy children in situations of that kind to institutions. See Burns v. Alcala, 420 U. S. 575, 581-582 (1975). AFDC was not originally designed to assist children who are needy simply because the family breadwinner is unable to find work; it was contemplated that other programs would alleviate that problem by attacking unemployment directly. See Carleson v. Remillard, 406 U. S. 598, 603 (1972); King v. Smith, 392 U. S. 309, 313, 327-329 (1968). Other parts of the Act encouraged the establishment of state unemployment compensation programs, primarily through tax incentives, but the federal role in these programs is not so great as in AFDC. See Ohio Bureau of Employment Services v. Hodory, 431 U. S. 471 (1977).

Title IY was amended in 1961 to add § 407. Pub. L. 87-31, § 1, 75 Stat. 75. This section established an experimental program (AFDC-UF) to provide assistance in some cases where the unemployment of a parent causes dependent children to be needy. The States were given broad power to define “unemployment” for purposes of the program and to determine the relationship of this new program to existing state unemployment compensation plans. In 1968 the AFDC-UF program was made permanent, 81 Stat. 882, but the eligibility criteria were modified to withdraw some of the definitional authority delegated to the States. The statute now requires a participating State to provide assistance where a needy child “has been deprived of parental support or care by reason of the unemployment (as determined in accordance with standards prescribed by the Secretary) of his father.” 42 U. S. C. § 607 (a). See Philbrook v. Glodgett, 421 U. S. 707, 709-711 (1975).

Both AFDC and AFDC-UF are cooperative ventures of the Federal Government and the States. States that elect to participate in these programs administer them under federal standards and HEW supervision. Funding is provided from state and federal revenues on a matching basis. See, e. g., Shea v. Vialpando, 416 U. S. 251, 253 (1974); King v. Smith, 392 U. S., at 316. Although every. State currently participates in AFDC, only about half the States participate in the AFDC-UF program. Dept. of HEW, Public Assistance Statistics, Oct. 1976, table 5, p. 9 (1977).

II

The instant case originated in 1971 as a challenge to Rule 200.X. (A) (2) of the Maryland Department of Employment and Social Services. That Rule denies AFDC-UF benefits to families where the father is out of work for reasons that disqualify him for state unemployment insurance compensation. The original plaintiffs represented two classes of families with dependent children who were thereby ineligible for AFDC-UF benefits: one where the father had been discharged for misconduct (excessive absenteeism), and the other where the father was out of work because of a strike. The defendants were Maryland officials having responsibility for the administration of public assistance grants in the State. A three-judge United States District Court was convened to consider the claim that Rule 200.X.(A)(2) violated the Equal Protection Clause of the Fourteenth Amendment. The court sustained the constitutionality of the state regulation but went on to hold it invalid because it was contrary to the federal regulation prescribing standards for the determination of unemployment under the AFDC-UF program. Francis v. Davidson, 340 F. Supp. 351 (Md.), summarily aff’d, 409 U. S. 904 (1972) (Francis I). Although HEW did not agree that its regulation was inconsistent with Rule 200.X.(A) (2), the Solicitor General, in his memorandum for the United States as amicus curiae, filed in Francis I at this Court’s invitation, 408 U. S. 920 (1972), suggested a summary affirmance in that case in light of the then-forthcoming revision of the HEW regulation.

The HEW regulation, as amended, expressly authorizes some state discretion in defining unemployment. Generally, it requires the States to consider a person to be unemployed for AFDC-UF purposes if he works less than 100 hours a month, except for intermittent employment, and “except that, at the option of the State, such definition need not include a father whose unemployment results from participation in a labor dispute or who is unemployed by reason of conduct or circumstances which result or would result in disqualification for unemployment compensation under the State’s unemployment compensation law.” 45 CFR § 233.100 (a) (1) (1976). The Secretary had stated that the purpose of this amendment was to nullify the effect of Francis I by making explicit the HEW policy of allowing the States to exclude AFDC-UF participants based on the particular reason that the father was out of work.

After the amended HEW regulation became effective, the defendant Maryland officials moved that the District Court dissolve its earlier injunction issued March 16, 1972, after Francis I had been decided, against enforcement of Rule 200.X.(A) (2). That court recognized that “[t]he conflict between the federal and the Maryland regulation ended after the former was amended,” but nevertheless it denied the motion and continued the injunction on the ground that the amended federal regulation now was in conflict with the federal statute. Francis v. Davidson, 379 F. Supp. 78, 81 (Md. 1974) (Francis II). First, with regard to the class of fathers discharged for misconduct, the District Court stated that these people are necessarily “unemployed,” within the meaning of the statute, and that any contrary regulation is invalid. Second, the court recognized that it is not clear whether the statutory term “unemployed” includes persons involved in a labor dispute. The court held, however, that the HEW regulation was invalid in this regard because it delegated the question of coverage to the States without providing a uniform national standard. Id., at 81-82.

After this Court dismissed a direct appeal in Francis II for want of jurisdiction, 419 U. S. 1042 (1974), appeals were taken by the state defendants and by the Chamber of Commerce of the United States, as intervenor, to the United States Court of Appeals for the Fourth Circuit. There the case was consolidated with an appeal in a similar case, Bethea v. Mason, 384 F. Supp. 1274 (Md. 1974), where a single District Judge had followed Francis II in holding the same HEW regulation invalid insofar as it authorized the State to deny AFDC-UF benefits to fathers who had voluntarily quit their previous jobs.

The Fourth Circuit affirmed the three appeals in an unpublished per curiam adopting the respective opinions of the two District Judges. See 529 F. 2d 514 and 515 (1975). The state defendants petitioned for certiorari, contending that the current HEW regulation is authorized by the federal statute and that the injunction against the state regulation therefore should be dissolved. The Solicitor General, at the invitation of the Court, 425 U. S. 969 (1976), filed a memorandum for the United States as amicus curiae, supporting the state defendants’ position. We granted certiorari. 429 U. S. 939 (1976).

Ill

The ultimate question in this case is whether the statutory term “unemployment” may be interpreted to allow the State to exclude the three classes" of respondents from receiving AFDC-UF benefits. There can be no doubt that 45 CFR § 233.100 (a)(1) (1976) embodies that interpretation. Thus, the actual issue we must decide is not how the statutory term should be interpreted, but whether the Secretary’s regulation is proper.

Ordinarily, administrative interpretations of statutory terms are given important but not controlling significance. This was the Court’s approach, for example, when it had under consideration the question whether the term “wages” in Title II of the Social Security Act included a backpay award. Social Security Board v. Nierotko, 327 U. S. 358, 369 (1946).

Unlike the statutory term in Title II, however, Congress in § 407 (a) expressly delegated to the Secretary the power to prescribe standards for determining what constitutes “unemployment” for purposes of AFDC-UF eligibility. In a situation of this kind, Congress entrusts to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory term. In exercising that responsibility, the Secretary adopts regulations with legislative effect. A reviewing court is not free to set aside those regulations simply because it would have interpreted the statute in a different, manner. American Telephone & Telegraph Co. v. United States, 299 U. S. 232, 235-237 (1936).

The regulation at issue in this ease is therefore entitled to more than mere deference or weight. It can be set aside only if the Secretary exceeded his statutory authority or if the regulation is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U. S. C. §§ 706 (2) (A), (C).

IV

We turn now to the grounds on which the District Courts and the Court of Appeals held the regulation invalid, keeping in mind the narrow scope of review that is indicated in this situation.

These courts held that the Secretary exceeded his statutory authority to prescribe standards, in the first place, because he permitted the determination of eligibility to turn in part on the reason for the father’s unemployment. The language of § 407 (a) was thought to make the only relevant consideration that of whether, not why, the father was out of work:

“ ‘A man out of work because he was discharged for cause by his employer is unemployed. There can be no two ways about that conclusion’.... [N]o combination of federal and state regulations may provide that a father who is unemployed is not unemployed.” Francis II, 379 F. Supp., at 81, quoting Francis I, 340 F. Supp., at 366.

And in Bethea the court by like reasoning held that a person who voluntarily quit his job is to be considered unemployed within the meaning of the statute. 384 F. Supp., at 1280-1281.

We do not agree that the statutory language is so unambiguous. The term “unemployment” is often used in a specialized context where its meaning is other than simply not having a job. For example, the concept of unemployment is frequently limited to persons who have some connection with the work force, that is, individuals who desire to work and are capable of working, and who, usually but not always, have held- jobs in the past. In addition, the feature of involuntariness is often linked with unemployment. Limitations of this nature are found in the definitions used by the Department of Labor in compiling unemployment statistics. State unemployment compensation programs generally confine their benefits in this manner. Indeed, the other provisions of § 407 impose similar limitations, indicating that the AFDC-UF program was not intended to provide assistance without regard to the reason a person is out of work.

Thus, we conclude that the statutory term is capable of more than the tautological definition imposed by the District Judges and the Court of Appeals. Congress- itself must have appreciated that the meaning of the statutory term was not self-evident, or it would not have given the Secretary the power to prescribe standards.

Respondents argue, however, that Congress intended that the Secretary prescribe an “hours-worked” standard for determining unemployment but did not intend any further additions to the eligibility criteria specified in other provisions of the statute. In fact, a minimum hours-worked standard is part of the regulation at issue in this case, but there is no indication in the statutory language or legislative history that Congress intended to foreclose other factors in the determination of what constitutes unemployment for purposes of the AFDC-TJF program.

Of course, the Secretary’s statutory authority to prescribe standards is not unlimited. He could not, for example, adopt a regulation that bears no relationship to any recognized concept of unemployment or that would defeat the purpose of the AFDC-UF program. But the regulation here at issue does not even approach these limits of the delegated authority. By allowing the States to exclude persons who would be disqualified under the State’s unemployment compensation law, the Secretary has incorporated a well-known and widely applied standard for “unemployment.” Exclusion of individuals who are out of work as a result of their own conduct and thus disqualified from state unemployment compensation is consistent with the goal of AFDC-UF, namely, to aid the families of the involuntarily unemployed. On the other hand, state unemployment benefits are ordinarily available only after a waiting period and only for a limited number of weeks or months. By providing benefits during the periods before and after state unemployment compensation is available, AFDC-UF fills a significant gap in social insurance coverage. Thus we cannot say that the Secretary’s regulation defeats the purpose of the AFDC-UF program.

We therefore hold that the HEW regulation, to the extent it allows the States to determine that persons disqualified under unemployment compensation laws are not "unemployed” under §407 (a), is within the statutory authority delegated to the Secretary, and is reasonable.

V

The second stated reason for the District Judges’ and Court of Appeals’ holding that the Secretary’s regulation was invalid was that it permitted the States the option of denying unemployment compensation benefits to participants in a labor dispute. Although the holding is not entirely clear to us, it appears that what was regarded as fatal was the Secretary’s failure to impose sufficient standards to control the States’ decisions under this optional feature. Presumably, the same rationale would provide an alternative basis for holding the regulation invalid to the extent it allows States the uncontrolled option of denying benefits to persons who were discharged for cause or had voluntarily quit their jobs.

It is clear that a major purpose of the 1968 amendment was to retract some of the authority previously delegated to the States under § 407 (a). Philbrook v. Glodgett, 421 U. S., at 710. We, however, do not think this shift of authority from the States to the Secretary required the Secretary to adopt a regulation that precludes any recognition of local policies. If Congress had intended such a result, it might have changed the statutory language from “unemployment (as defined by the State)” to “unemployment (as defined by the Secretary).” Instead, § 407 (a) now reads “unemployment (as determined in accordance with standards prescribed by the Secretary).” The power to “determine” unemployment remains with the States, and we conclude that the power to prescribe “standards” gives the Secretary sufficient flexibility to recognize some local options in determining AFDC-TJF eligibility.

The legislative history, we acknowledge, is at some variance with the statutory language. The effect of the 1968 amendment is described as to “provide for a -uniform definition of unemployment throughout the United States,” and as to “authorize a Federal definition of unemployment by the Secretary.” S. Rep. No. 744, 90th Cong., 1st Sess., 3-4,160 (1967). See H. R. Rep. No. 544, 90th Cong., 1st Sess., 3, 17, 108 (1967); 113 Cong. Rec. 32592 (1967) (remarks of Sen. Long). We do not understand these comments to mean, however, that the Secretary is prohibited from allowing the States any options in determining whether or not a person is “unemployed” for purposes of the AFDC-UF program. First, the legislative history cannot be read literally in its claim that the amended statute itself provides a federal definition of unemployment; at best the statute delegates to the Secretary the power to- prescribe such a definition. Second, we have no quarrel with the statements in the legislative history that the Secretary is authorized to adopt such a uniform definition; we simply hold that he is not required to do so.

Certainly, the congressional purpose was to promote greater uniformity in the applicability of the AFDC-UF program. But the goal of greater uniformity can be met without imposing identical standards on each State. In one case, for example, a State was permitted to adopt a somewhat more liberal hours-worked test than the minimum required by the Secretary. Macias v. Finch, 324 F. Supp. 1252 (ND Cal.), summarily aff’d, 400 U. S. 913 (1970). We conclude, therefore, that the Secretary’s approach in the present case is not contrary to the purpose of the statute.

Our conclusion is reinforced by our understanding of the AFDC-UF program as involving the concept of cooperative federalism. The States are free not to participate in the program, and, as we have noted, only about half of them in fact do so. The congressional purpose is not served at all in those States where AFDC-UF is totally unavailable. Accordingly, we should not lightly infer a congressional intention to preclude the Secretary from recognizing legitimate local policies in determining eligibility. See New York Dept. of Soc. Services v. Dublino, 413 U. S. 405, 413-414, 421-422 (1973).

We therefore hold that 45 CFR § 233.100 (a) (1) (1976) adequately promotes the statutory goal of reducing interstate variations in the AFDC-UF program. In this respect, the regulation is both reasonable and within the authority delegated to the Secretary.

The judgment of the Court of Appeals is reversed.

It is so ordered.

Mr. Justice White,

with whom Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Stevens join, dissenting.

The regulation under review in this case, 45 CFR § 233.100 (a)(1) (1976), provides that for purposes of the AFDC-UF program, the definition of unemployment need not include, “at the option of the State,” a father whose unemployment results from a labor dispute or some conduct that would disqualify him under the State’s unemployment compensation law. (Emphasis added.) The Court today sustains this regulation notwithstanding its recognition that “a major purpose of the 1968 amendment was to retract some of the authority previously delegated to the States under §407 (a).” Ante, at 430. The Court reasons, without citation to legislative authority, that “the goal of greater uniformity can be met without imposing identical standards on each State.” Ante, at 431. Contrary to the majority, I do not believe that the legislative history reflects a congressional intent to achieve merely “greater uniformity” in the definition of unemployment; the legislative record plainly reveals that Congress contemplated a federal definition of unemployment applicable to all States that adopt the AFDC-UF program. Since I do not believe that the subject regulation conforms to this congressional mandate, I would affirm the judgment of the Court of Appeals.

The Court acknowledges that the legislative history is “at some variance” with its position. Ante, at 430. This understates the case; literally all of the relevant legislative history repeatedly and unequivocally affirms the strong congressional objective of creating a federal definition of unemployment. It is common ground that Congress changed the wording of § 407 (a) from “unemployment (as defined by the State)” to “unemployment (as determined in accordance with standards prescribed by the Secretary)” for the express purpose of “eliminat[ing] the variations in state definitions of unemployment.” Philbrook v. Glodgett, 421 U. S. 707, 719 (1975). But the Court would have us believe that the statute nevertheless contemplates a regulation leaving it completely within state discretion whether to cover those not working by reason of labor disputes or because of discharge for cause. In my view, this is flatly contrary to the thrust of the legislative history, which bears some recitation.

In the Senate, most of the work on the 1968 amendments was done by the Finance Committee. That Committee reported that the bill would:

“(e) modify the optional unemployed fathers program to provide for a uniform definition of unemployment throughout the United States.” S. Rep. No. 744, 90th Cong., 1st Sess., 4 (1967) (emphasis added).
“A major characteristic of the existing law is the authority left to the States to define ‘unemployment.’ The committee believes that this has worked to the detriment of the program because of the wide variation in the definitions used by the States. In some instances, the definitions have been very narrow so that only a few people have been helped. In other States, the definitions have been relatively broad. The committee bill is designed to correct this situation and to make other improvements in the program.
“The amendments proposed by the committee would authorize a Federal definition of unemployment by the Secretary . . . .” Id., at 160 (emphasis added).

The Ways and Means Committee, which carried the legislation in the House, adopted the same view:

“Under present law . . . [t]he definition of unemployment is left up to the individual States. Under the bill. .. the definition of unemployment would be made by the Federal Government.” H. R. Rep. No. 544, 90th Cong., 1st Sess., 17 (1967) (emphasis added).

See also id., at 3, 108 (using language almost identical to that adopted by the Senate Finance Committee, S. Rep. No. 744, supra, at 3-4, 160).

The Undersecretary of HEW, Wilbur J. Cohen, expressed his Department’s view that the new legislation would require a uniform national standard:

“Today, 22 States have programs to assist [children who are needy because their fathers are unemployed]. But the differences between State programs are great. States may define unemployment as narrowly or broadly as they wish, requiring substantial previous work experience or no work experience. This variation in definition of unemployment is shown clearly by three adjacent Southwestern States, Arizona, Utah, and Colorado. Each of these States has a population of between 1 and 2 million, yet in Arizona only 19 families of unemployed parents received AFDC in May, while during the same month there were 880 in Utah and 1,600 in Colorado. Arizona’s narrow definition of unemployment has kept its program to a token level.
“The House bill continues to allow States to choose whether they will include dependent children of unemployed parents under AFDC. But for the first time the House will set a Federal definition of unemployment. We are in complete agreement that there should be a Federal definition of unemployment established by the Congress and the Secretary.” Hearings on H. R. 12080 before the Senate Committee on Finance, 90th Cong., 1st Sess., 268 (1967) (emphasis added).

The members of the Senate Finance Committee expressed no doubt as to the meaning of the Undersecretary’s remarks: “Senator Williams: I notice you say you are in complete agreement that there should be a Federal definition of unemployment.” Id., at 269 (emphasis added).

Finally, after the enactment of the 1968 amendments, the Senate Finance Committee was unequivocal in summing up the amendments to the unemployed fathers provisions: “The amendments provide for a Federal definition of unemployment for States which have AFDC-UF programs.” Senate Committee on Finance, 90th Cong., 2d Sess., Report on Social Security Amendments of 1967 — Pub. L. 248, Brief Summary of Major Provisions and Detailed Comparison with Prior Law 3 (July 15, 1968) (emphasis added). See also id., at 63 (“Unemployment will be defined by the Secretary of Health, Education, and Welfare”); 113 Cong. Rec. 23054 (1967) (remarks of Rep. Mills) (“[W]e found . . . that the fact that the definition of unemployment is left to the States has had unfortunate results. . . . The Bill would correct this situation”); id., at 32592 (remarks of Sen. Long) (“[T]here would be a Federal definition of 'unemployment’ ”); id., at 36373-36374 (“[T]he Secretary will prescribe standards for the determination of what constitutes unemployment. The term is defined by the States under present law”); Senate Committee on Finance and House Committee on Ways and Means, 90th Cong., 1st Sess., Report on Summary of Social Security Amendments of 1967, p. 17 (Comm. Print 1967) (“[T]he Secretary will prescribe standards for the determination of what constitutes unemployment”).

Unlike the majority, I have no doubt that the legislative history means what it says and confines the regulatory authority of the Secretary; by amending §407 (a) to place the responsibility for defining unemployment on the Secretary, Congress intended to establish “a uniform definition of unemployment throughout the United States.” S. Rep. No. 744, supra, at 4; H. R. Rep. No. 544, supra, at 3. While I agree with the majority that this Court should defer to any reasonable definition given by the Secretary to the term “unemployment,” I cannot agree, in light of the legislative history, that the Secretary may simply delegate the responsibility for defining that term to the States, for in important respects this would simply return the law to the situation existing prior to the amendment defining that term to the States. Here, the Secretary has promulgated a regulation describing a rather broad category of individuals who may be eligible for AFDC-UF benefits but has then permitted the States to include or exclude those individuals from eligibility “at the option of the State.” Contrary to the obvious intent of Congress, this leaves to state discretion the coverage of important categories of claimants and invites the very diversity in coverage that the 1968 amendment -was designed to prevent. I cannot believe that this regulation conforms to the statutory purpose. Accordingly, I respectfully dissent.

       “§ 233.100 Dependent children of unemployed fathers.
      “(a) Requirements for State Plans. If a State wishes to provide AFDC for children of unemployed fathers, the State plan under Title IV — Part A of the Social Security Act must, except as specified in paragraph (b) of this section:
      “(1) Include a definition of an unemployed father which shall apply only to families determined to be needy in accordance with the provisions in § 233.20 of this chapter. Such definition must include any father who:
      “ (i) Is employed less than 100 hours a month; or

        “ (ii) Exceeds that standard for a particular month, if his work is intermittent and the excess is of a temporary nature as evidenced by the fact that he was under the 100-hour standard for the prior 2 months and is expected to be under the standard during the next month;
      “except that, at the option of the State, such definition need not include a father whose unemployment results from participation in a labor dispute or who is unemployed by reason of conduct or circumstances which result or would result in disqualification for unemployment compensation under the State’s unemployment compensation law.”

       “§ 607. Dependent children of unemployed fathers; definition.
      “(a) The term ‘dependent child’ shall, notwithstanding section 606 (a) of this title, include a needy child who meets the requirements of section 606 (a) (2) of this title who has been deprived of parental support or care by reason of the unemployment (as determined in accordance with standards prescribed by the Secretary) of his father, and who is living with any of the relatives specified in section 606 (a)(1) of this title in a place of residence maintained by one or more of such relatives as his (or their) own home.”

       The program originally was to expire June 30, 1962. It was extended, however, first for five years, 76 Stat. 193, and then to June 30, 1968, 81 Stat. 94.

       Before the 1968 amendments, § 407 (a) referred to “unemployment (as defined by the State).” 75 Stat. 75. Under the original statute the States were also free to decide to what extent receipt of unemployment compensation would affect eligibility for AFDC-UF benefits. Section 407 (b) (2) (C) (ii) was added and amended in 1968 to require participating States to deny AFDC-UF benefits “with respect to any week for which such child's father receives unemployment compensation under an unemployment compensation law of a State or of the United States.” § 302, 82 Stat. 273.
      In Philbrook v. Glodgett, 421 U. S., at 710 n. 6, 719, the Court observed that a purpose of the 1968 amendments was to eliminate variations in AFDC-UF coverage among the States. Accordingly, § 407 (b) (2) (C) (ii) was held to establish a nationwide test of eligibility under which only the actual “receipt” of unemployment compensation would preclude AFDC-UF benefits. Thus the States were required to allow persons eligible for both programs to refuse unemployment compensation and receive AFDC-UF benefits instead. 421 U. S., at 713-719.
      The effect of the Court’s decision in Phübrook was counteracted the following year when Congress again amended § 407 (b) (2) (C) (ii) to require denial of AFDC-UF benefits where a father is qualified for unemployment compensation but refuses to apply for or accept it. Pub. L. 94^566, § 502, 90 Stat. 2688.

       This Rule, which has since been redesignated COMAR 07.02.09.10 (A) (2) (1975), provides that AFDC-UF benefits' may not be paid “[t]o meet need due to being disqualified for unemployment insurance.” Maryland’s Unemployment Insurance Law specifies various grounds that disqualify otherwise eligible individuals from receiving benefits. These grounds include, among others, voluntarily leaving work without good cause, gross misconduct, discharge or suspension as a disciplinary measure (temporary disqualification for not less than one week and for not more than nine weeks), and certain work stoppages due to labor disputes other than lockouts. Md. Ann. Code, art. 95A, §§6 (a), (b), (c), and (e) (1969).

       The notice of rulemaking read:
      “Dependent Children of Unemployed Fathers
      “Notice is hereby given that the regulation set forth in tentative, alternative form below is proposed by the Administrator, Social and Rehabilitation Service, with the approval of the Secretary of Health, Education, and Welfare. Both alternatives would amend § 233.100 (a) (1), which provides a Federal definition of unemployed father under the AFDC program in terms of hours of work.
      “In applying the existing regulation, the Department policy has been to permit a State, at its option, to use a definition of unemployed father which imposes additional conditions relating to the reason for the unemployment, e. g., the State definition might exclude a father whose unemployment results from participation in a labor dispute or who is unemployed by reason of conduct or circumstances which result or would result in disqualification for unemployment compensation under the State’s unemployment compensation law. In Davidson v. Francis, the U. S. Supreme Court on October 16, summarily affirmed the judgment of the district court which held, in effect, that while the Secretary has broad authority to define an unemployed father for purposes of section 407 of the Social Security Act, the existing Federal regulation provides only an hours-of-work test, and thus prohibits a State from excluding fathers who meet this test but are disqualified for unemployment compensation.
      “Accordingly, the proposed alternative A below would amend the regulation to make the prior Department policy explicit, by stating the options which are permitted to the States in defining an unemployed father. Alternative B, on the other hand, would amend the regulation to make clear that the hours-of-work test is intended as the exclusive definition of unemployed father, so that States may not have definitions which impose added conditions. This would be a change in Department policy, but would be consistent with the way that the existing regulation has been interpreted by the courts.” 38 Fed. Reg. 49 (1973).
      “Alternative A” was eventually adopted. Id., at 18549.

       The Chamber of Commerce of the United States, as intervenor in Francis II, also filed a petition for certiorari, No. 75-1182, arguing that federal labor policy prohibits the payment of welfare benefits to persons involved in labor disputes. Although we did not act on its petition, the Chamber filed a brief as respondent-intervenor in the present case. In light of today’s decision, the petition for certiorari in No. 75-1182 is denied.

       The Court there explained:
      “Administration, when it interprets a statute so as to make it apply to particular circumstances, acts as a delegate to the legislative power. Congress might have declared that 'back pay’ awards under the Labor Act should or should not be treated as wages. Congress might have delegated to the Social Security Board to determine what compensation paid by employers to employees should be treated as wages. Except as such interpretive power may be included in the agencies’ administrative functions, Congress did neither. An agency may not finally decide the limits of its statutory power. That is a judicial function. Congress used a well understood word — 'wages’—to indicate the receipts which were to govern taxes and benefits under the Social Security Act. There may be borderline payments to employees on which courts would follow administrative determination as to whether such payments were or were not wages under the act.
      “We conclude, however, that the Board’s interpretation of this statute to exclude back pay goes beyond the boundaries of administrative routine and the statutory limits.” 327 U. S., at 369 (footnote omitted).

       Legislative, or substantive, regulations are “issued by an agency pursuant to statutory authority and . . . implement the statute, as, for example, the proxy rules issued by the Securities and Exchange Commission .... Such rules have the force and effect of law.” U. S. Dept. of Justice, Attorney' General’s Manual on the Administrative Procedure Act 30 n. 3 (1947). See United States v. Mersky, 361 U. S. 431, 437-438 (1960); Atchison, T. & S. F. R. Co. v. Scarlett, 300 U. S. 471, 474 (1937).
      By way of contrast, a court is not required to give effect to an interpretative regulation. Varying degrees of deference are accorded to administrative interpretations, based on such factors as the timing and consistency of the agency’s position, and the nature of its expertise. See General Electric Co. v. Gilbert, 429 U. S. 125, 141-145 (1976); Morton v. Ruiz, 415 U. S. 199, 231-237 (1974); Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944).
      See generally K. Davis, Administrative Law Treatise § 5.03 (1958 and Supps. 1970, 1976); L. Jaffe, Judicial Control of Administrative Action 564r-565 (1965).

       The other kinds of review provided by the Administrative Procedure Act are not involved in this case. The constitutionality and procedural aspects of the regulation, 5 U. S. C. §§ 706 (2) (B), (D), are not at issue at this time. Neither substantial-evidence review nor trial de novo, §§706 (2)(E), (F), was available in this case. See Camp v. Pitts, 411 U. S. 138, 140-142 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 413-416 (1971).

       “Employed persons are (1) those who worked for pay any time during the week which includes the 12th day of the month or who worked unpaid for 15 hours or more in a family-operated enterprise and (2) those who were temporarily absent from their regular jobs because of illness, vacation, industrial dispute, or similar reasons. . . .
      “Unemployed persons are those who did not work during the survey week, but were available for work except for temporary illness and had looked for jobs within the preceding 4 weeks. Persons who were available for work but did not work because they were on layoff or waiting to start new jobs within the next 30 days are also counted among the unemployed. . . .
      "... Persons not in the labor force are those not classified as employed or unemployed; this group includes persons retired, those engaged in their own housework, those not working while attending school, those unable to work because of long-term illness, those discouraged from seeking work because of personal or job market factors and those who are voluntarily idle. . . .” U. S. Dept, of Labor, Monthly Labor Review 91 (Apr. 1977).

       “Unemployment insurance programs are designed to provide cash benefits to regularly employed members of the labor force who become involuntarily unemployed and who are able and willing to accept suitable jobs.” Dept. of HEW, Social Security Programs in the United States 54 (1971). See also Ohio Bureau of Employment Services v. Hodory, 431 U. S., at 482, and 487 n. 15.

       Among the conditions imposed by § 407 (b) are requirements that the unemployed father have a substantial connection with the work force and that he actively seek employment. See Philbrook v. Glodgett, 421 U. S. 707, 710 n. 6 (1975).

       In describing the bill on the floor of the House, a cosponsor stated that the concern was with the “involuntarily unemployed and I put the emphasis on the word 'involuntarily.’ ” 107 Cong. Rec. 3767 (1961) (remarks of Cong. Byrnes).

       When President Kennedy proposed the adoption of the AFDC-UF program in 1961, the only example he gave of the sort of person that would be covered was one “who has exhausted unemployment benefits and is not receiving adequate local assistance. . . Message from the President on Economic Recovery and Growth, 107 Cong. Rec. 1679 (1961).

       Although 45 CFR § 233.100 (a) (1) (1976) contains a separate option for States to exclude labor-dispute participants from AFDC-UF, Maryland has incorporated its labor-dispute rule as a disqualification for unemployment compensation. The labor-dispute provision of the federal regulation, therefore, is not directly at issue in this case. We attach no significance to the approach followed by Maryland in this case.

       The Francis I court initially held that the Secretary could have left the decision on whether strikers are unemployed up to each State, but that he had failed to do so in the regulation then in effect. 340 F. Supp., at 367-368. After the regulation was so amended, however, the same court held it invalid, 379 F. Supp., at 81-82, because the Secretary failed to establish “national standards within which the regulations of each of the states were to be channelized and confined.” Id., at 82. The extent to which any significant options in coverage would be tolerated under this approach is not clear. The court, however, stopped short of repudiating its previous conclusion that § 407 (a) does not require the Secretary to adopt a “national definition” of unemployment. 379 F. Supp., at 82.

      The Court appears to believe that the statutory language supports its view that the States are still free to define the eligibility criteria for AFDC-UF benefits; but the statute provides that “unemployment” will be “determined in accordance with standards prescribed by the Secretary,” not the States. (Emphasis added.) The Court concludes that the statutory language contemplates that unemployment will be “determined” by the States and that only the “standards” will be determined by the Secretary. The majority suggests that if Congress had intended for the Secretary to define unemployment, it would have used the words “unemployment (as defined by the Secretary).” The Court’s paper-thin distinction between “determining” unemployment and prescribing “standards” totally escapes me. Moreover, according to the Court’s logic, if Congress had intended the meaning suggested by the majority, it would have provided that unemployment would be “determined by the States in accordance with the standards prescribed by the Secretary”; instead, Congress eliminated all references to the States. The commonsense meaning of the statutory language is that “unemployment” is to be defined by the Secretary, and as we shall see, the statute is susceptible of no other interpretation when read in the context of the legislative history.


source: Caselaw Access Project

author:
      Mr. Justice Powell
     Mr. Justice Brennan, Mr. Justice Marshall, Mr. Justice Blackmun,

license: Public Domain

text:
    BEAL, SECRETARY, DEPARTMENT OF PUBLIC WELFARE OF PENNSYLVANIA, et al. v. DOE et al.
    No. 75-554.
    Argued January 11, 1977
    Decided June 20, 1977

      Powell, J., delivered the opinion of the Court, in which BüRger, C. J., and Stewart, White, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall and Blackmun, JJ., joined, post, p. 448. Marshall, J., filed a dissenting opinion, post, p. 454. Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 462.

      Norman J. Watkins, Deputy Attorney General of Pennsylvania, argued the cause for petitioners. With him on the briefs were Robert P. Kane, Attorney General, and /. Justin Blewitt, Jr., Deputy Attorney General.

      Judd F. Crosby argued the cause and filed a brief for respondents.

        William F. Hyland, Attorney General, Stephen Skillman, Assistant Attorney General, and Erminie L. Conley, Deputy Attorney General, filed a brief for the State of New Jersey as amicus curiae urging reversal.

        David S. Dolowitz, Melvin L. Wulf, and Judith M. Mears filed a brief for the American Public Health Assn, et al. as amici curiae urging affirmance.

        Patricia A. Butler and Michael A. Wolff filed a brief for Jane Doe as amicus curiae.

   Mr. Justice Powell

delivered the opinion of the Court.

The issue in this case is whether Title XIX of the Social Security Act, as added, 79 Stat. 343, and amended, 42 U. S. C. § 1396 et seq. (1970 ed. and Supp. V), requires States that participate in the Medical Assistance (Medicaid) program to fund the cost of nontherapeutic abortions.

I

Title XIX establishes the Medicaid program under which participating States may provide federally funded medical assistance to needy persons. The statute requires participating States to provide qualified individuals with financial assistance in five general categories of medical treatment. 42 U. S. C. §§ 1396a (a) (13) (B) (1970 ed., Supp. V), 1396d (a) (l)-(5) (1970 ed. and Supp. V). Although Title XIX does not require States to provide funding for all medical treatment falling within the five general categories, it does require that state Medicaid plans establish “reasonable standards ... for determining . . . the extent of medical assistance under the plan which . . . are consistent with the objectives of [Title XIX] ” 42 U. S. C. § 1396a (a) (17) (1970 ed., Supp. V).

Respondents, who are eligible for medical assistance under Pennsylvania’s federally approved Medicaid plan, were denied financial assistance for desired abortions pursuant to Pennsylvania regulations limiting such assistance to those abortions that are certified by physicians as medically necessary. When respondents’ applications for Medicaid assistance were denied because of their failure to furnish the required certificates, they filed this action in the United States District Court for the Western District of Pennsylvania seeking declaratory and in-junctive relief. Their complaint alleged that Pennsylvania’s requirement of a certificate of medical necessity contravened relevant provisions of Title XIX and denied them equal protection of the laws in violation of the Fourteenth Amendment.

A three-judge District Court was convened pursuant to 28 U. S. C. § 2281. After resolving the statutory issue against respondents, the District Court held that Pennsylvania’s medical-necessity restriction denied respondents equal protection of the laws. Doe v. Wohlgemuth, 376 F. Supp. 173 (1974). Accordingly, the court granted a declaratory judgment that the Pennsylvania requirement was unconstitutional as applied during the first trimester. The United States Court of Appeals for the Third Circuit, sitting en banc, reversed on the statutory issue, holding that Title XIX prohibits participating States from requiring a physician’s certificate of medical necessity as a condition for funding during both the first and second trimesters of pregnancy. 523 F. 2d 611 (1975). The Court of Appeals therefore did not reach the constitutional issue.

We granted certiorari to resolve a conflict among the federal courts as to the requirements of Title XIX. 428 U. S. 909 (1976).

II

The only question before us is one of statutory construction : whether Title XIX requires Pennsylvania to fund under its Medicaid program the cost of all abortions that are permissible under state law. “The starting point in every case involving construction of a statute is the language itself.” Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (Powell, J., concurring). Title XIX makes no reference to abortions, or, for that matter, to any other particular medical procedure. Instead, the statute is cast in terms that require participating States to provide financial assistance with respect to five broad categories of medical treatment. See n. 2, supra. But nothing in the statute suggests that participating States are required to fund every medical procedure that falls within the delineated categories of medical care. Indeed, the statute expressly provides:

“A State plan for medical assistance must . . . include reasonable standards ... for determining eligibility for and the extent of medical assistance under the plan which . . . are consistent with the objectives of this [Title] . . . 42 U. S. C. § 1396a (a) (17) (1970 ed., Supp. V).

This language confers broad discretion on the States to adopt standards for determining the extent of medical assistance, requiring only that such standards be “reasonable” and “consistent with the objectives” of the Act.

Pennsylvania’s regulation comports fully with Title XIX’s broadly stated primary objective to enable each State, as far as practicable, to furnish medical assistance to individuals whose income and resources are insufficient to meet the costs of necessary medical services. See 42 U. S. C. §§ 1396, 1396a (10) (C) (1970 ed., Supp. V). Although serious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage, it is hardly inconsistent with the objectives of the Act for a State to refuse to fund unnecessary — though perhaps desirable— medical services.

The thrust of respondents’ argument is that the exclusion of nontherapeutic abortions from Medicaid coverage is unreasonable on both economic and health grounds. The economic argument is grounded on the view that abortion is generally a less expensive medical procedure than childbirth. Since a pregnant woman normally will either have an abortion or carry her child full term, a State that elects not to fund nontherapeutic abortions will eventually be confronted with the greater expenses associated with childbirth. The corresponding health argument is based on the view that an early abortion poses less of a risk to the woman’s health than childbirth. Consequently, respondents argue, the economic and health considerations that ordinarily support the reasonableness of state limitations on financing of unnecessary medical services are not applicable to pregnancy.

Accepting respondents’ assumptions as accurate, we do not agree that the exclusion of nontherapeutic abortions from Medicaid coverage is unreasonable under Title XIX. As we acknowledged in Roe v. Wade, 410 U. S. 113 (1973), the State has a valid and important interest in encouraging childbirth. We expressly recognized in Roe the “important and legitimate interest [of the State] ... in protecting the potentiality of human life.” Id., at 162. That interest alone does not, at least until approximately the third trimester, become sufficiently compelling to justify unduly burdensome state interference with the woman’s constitutionally protected privacy interest. But it is a significant state interest existing throughout the course of the woman’s pregnancy. Respondents point to nothing in either the language or the legislative history of Title XIX that suggests that it is unreasonable for a participating State to further this unquestionably strong and legitimate interest in encouraging normal childbirth. Absent such a showing, we will not presume that Congress intended to condition a State’s participation in the Medicaid program on its willingness to undercut this important interest by subsidizing the costs of nontherapeutic abortions.

Our interpretation of the statute is reinforced by two other relevant considerations. First, when Congress passed Title XIX in 1965, nontherapeutic abortions were unlawful in most States. In view of the then-prevailing state law, the contention that Congress intended to require — rather than permit — participating States to fund nontherapeutic abortions requires far more convincing proof than respondents have offered. Second, the Department of Health, Education, and Welfare, the agency charged with the administration of this complicated statute, takes the position that Title XIX allows — but does not mandate — funding for such abortions. “[W]e must be mindful that The construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong New York Dept. of Soc. Services v. Dublino, 413 U. S. 405, 421 (1973), quoting Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 381 (1969). Here, such indications are completely absent.

We therefore hold that Pennsylvania’s refusal to extend Medicaid coverage to nontherapeutic abortions is not inconsistent with Title XIX. We make clear, however, that the federal statute leaves a State free to provide such coverage if it so desires.

HH t-H HH

There is one feature of the Pennsylvania Medicaid program, not addressed by the Court of Appeals, that may conflict with Title XIX. Under the Pennsylvania program, financial assistance is not provided for medically necessary abortions unless two physicians in addition to the attending physician have examined the patient and have concurred in writing that the abortion is medically necessary. See n. 3, supra. On this record, we are unable to determine the precise role played by these two additional physicians, and consequently we are unable to ascertain whether this requirement interferes with the attending physician’s medical judgment in a manner not contemplated by the Congress. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for consideration of this requirement.

It is so ordered.

Mr. Justice Brennan,

with whom Mr. Justice Marshall and Mr. Justice Blackmun join, dissenting.

The Court holds that the “necessary medical services” which Pennsylvania must fund for individuals eligible for Medicaid do not include services connected with elective abortions. I dissent.

Though the question presented by this case is one of statutory interpretation, a difficult constitutional question would be raised where Title XIX of the Social Security Act, as amended, 42 U. S. C. § 1396 et seq. (1970 ed. and Supp. V), is read not to require funding of elective abortions. Maher v. Roe, post, p. 464; Doe v. Bolton, 410 U. S. 179 (1973); Roe v. Wade, 410 U. S. 113 (1973). Since the Court should “first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided,” Ashwander v. TV A, 297 U. S. 288, 341, 348 (1936) (Brandéis, J., concurring); see Westby v. Doe, 420 U. S. 968 (1975), Title XIX, in my view, read fairly in light of the principle of avoidance of unnecessary constitutional decisions, requires agreement with the Court of Appeals that the legislative history of Title XIX and our abortion cases compel the conclusion that elective abortions constitute medically necessary treatment for the condition of pregnancy. I would therefore find that Title XIX requires that Pennsylvania pay the costs of elective abortions for women who are eligible participants in the Medicaid program.

Pregnancy is unquestionably a condition requiring medical services. See Roe v. Norton, 380 F. Supp. 726, 729 (Conn. 1974); Klein v. Nassau County Medical Center, 347 F. Supp. 496, 500 (EDNY 1972), vacated for further consideration (in light of Roe v. Wade and Doe v. Bolton), 412 U. S. 925 (1973). Treatment for the condition may involve medical procedures for its termination, or medical procedures to bring the pregnancy to term, resulting in a live birth. “[AJbortion and childbirth, when stripped of the sensitive moral arguments surrounding the abortion controversy, are simply two alternative medical methods of dealing with pregnancy .. ..” Roe v. Norton, 408 F. Supp. 660, 663 n. 3 (Conn. 175). The Medicaid statutes leave the decision as to choice among pregnancy procedures exclusively with the doctor and his patient, and make no provision whatever for intervention by the State in that decision. Section 1396a (a) (19) expressly imposes the obligation upon participating States to incorporate safeguards in their programs that assure medical “care and services will be provided, in a manner consistent with . . . the best interests of the recipients.” And, significantly, the Senate Finance Committee Report on the Medicaid bill expressly stated that the “physician is to be the key figure in determining utilization of health services.” S. Rep. No. 404, 89th Cong., 1st Sess., 46 (1965). Thus the very heart of the congressional scheme is that the physician and patient should have complete freedom to choose those medical procedures for a given condition which are best suited to the needs of the patient.

The Court’s original abortion decisions dovetail precisely with the congressional purpose under Medicaid to avoid interference with the decision of the woman and her physician. Roe v. Wade, supra, at 163, held that “[t]he attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.” And Doe v. Bolton, supra, at 192, held that “the medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age— relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.” Once medical treatment of some sort is necessary, Title XIX does not dictate what that treatment should be. In the face of Title XIX's emphasis upon the joint autonomy of the physician and his patient in the decision of how to treat the condition of pregnancy, it is beyond comprehension how treatment for therapeutic abortions and live births constitutes “necessary medical services" under Title XIX, but that for elective abortions does not.

If Pennsylvania is not obligated to fund medical services rendered in performing elective abortions because they are not “necessary” within the meaning of 42 U. S. C. § 1396 (1970 ed., Supp. Y), it must follow that Pennsylvania also would not violate the statute if it refused to fund medical services for “therapeutic” abortions or live births. For if the availability of therapeutic abortions and live births makes elective abortions “unnecessary,” the converse must also be true. This highlights the violence done the congressional mandate by today’s decision. If the State must pay the costs of therapeutic abortions and of live birth as constituting medically necessary responses to the condition of pregnancy, it must, under the command of § 1396, also pay the costs of elective abortions; the procedures in each case constitute necessary medical treatment for the condition of pregnancy.

The 1972 family-planning amendment to the Act, 42 U. S. C. § 1396d (a) (4) (C) (1970 ed., Supp. V), buttresses my conclusion that the Court’s construction frustrates the objectives of the Medicaid program. Section 1396 (2) states that an explicit purpose of Medicaid is to assist eligible indigent recipients to “attain or retain capability for independence or self-care.” The 1972 amendment furthered this objective by assisting those who “desire to control family size in order to enhance their capacity and ability to seek employment and better meet family needs.” S. Rep. No. 92-1230, p. 297 (1972). Though far less than an ideal family-planning mechanism, elective abortions are one method for limiting family size and avoiding the financial and emotional problems that are the daily lot of the impoverished. See Special Subcommittee on Human Resources of the Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess., Report of the Secretary of Health, Education, and Welfare Submitting Five-Year Plan for Family Planning Services and Population Research Programs 319 (Comm. Print 1971).

It is no answer that abortions were illegal in 1965 when Medicaid was enacted, and in 1972 when the family-planning amendment was adopted. Medicaid deals with general categories of medical services, not with specific procedures, and nothing in the statute even suggests that Medicaid is designed to assist in payment for only those medical services that were legally permissible in 1965 and 1972. I fully agree with the Court of Appeals statement:

“It is impossible to believe that in enacting Title XIX Congress intended to freeze the medical services available to recipients at those which were legal in 1965. Congress surely intended Medicaid to pay for drugs not legally marketable under the FDA’s regulations in 1965 which are subsequently found to be marketable. We can see no reason why the same analysis should not apply to the Supreme Court’s legalization of elective abortion in 1973.” 523 F. 2d 611, 622-623 (1975).

Nor is the administrative interpretation of the Department of Health, Education, and Welfare that funding of elective abortions is permissible but not mandatory dispositive of the construction of “necessary medical services.” The principle of according weight to agency interpretation is inapplicable when a departmental interpretation, as here, is patently inconsistent with the controlling statute. Townsend v. Swank, 404 U. S. 282, 286 (1971).

Finally, there is certainly no affirmative policy justification of the State that aids the Court’s construction of “necessary medical services” as not including medical services rendered in performing elective abortions. The State cannot contend that it protects its fiscal interests in not funding elective abortions when it incurs far greater expense in paying for the more costly medical services performed in carrying pregnancies to term, and, after birth, paying the increased welfare bill incurred to support the mother and child. Nor can the State contend that it protects the mother’s health by discouraging an abortion, for not only may Pennsylvania’s exclusion force the pregnant woman to use of measures dangerous to her life and health but, as Roe v. Wade, 410 U. S., at 149, concluded, elective abortions by competent licensed physicians are now “relatively safe” and the risks to women undergoing abortions by such means “appear to be as low as or lower than ... for normal childbirth.”

The Court's construction can only result as a practical matter in forcing penniless pregnant women to have children they would not have borne if the State had not weighted the scales to make their choice to have abortions substantially more onerous. Indeed, as the Court said only last Term: “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.” Singleton v. Wulff, 428 U. S. 106, 118— 119, n. 7 (1976). The Court’s construction thus makes a mockery of the congressional, mandate that States provide “care and services ... in a manner consistent with . . . the best interests of the recipients.” We should respect the congressional plan by construing § 1396 as requiring States to pay the costs of the “necessary medical services” rendered in performing elective abortions, chosen by physicians and their women patients who participate in Medicaid as the appropriate treatment for their pregnancies.

The Court does not address the question whether the provision requiring the concurrence in writing of two physicians in addition to the attending physician conflicts with Title XIX. I would hold that the provision is invalid as clearly in conflict with Title XIX under my view of the paramount role played by the attending physician in the abortion decision, and in any event is constitutionally invalid under Doe v. Bolton, 410 U. S., at 198-200.

I would affirm the judgment of the Court of Appeals.

Mr. Justice Marshall,

dissenting.

It is all too obvious that the governmental actions in these cases, ostensibly taken to “encourage” women to carry pregnancies to term, are in reality intended to impose a moral viewpoint that no State may constitutionally enforce. Roe v. Wade, 410 U. S. 113 (1973); Doe v. Bolton, 410 U. S. 179 (1973). Since efforts to overturn those decisions have been unsuccessful, the opponents of abortion have attempted every imaginable means to circumvent the commands of the Constitution and impose their moral choices upon the rest of society. See, e. g., Planned Parenthood of Missouri v. Danforth, 428 U. S. 52 (1976); Singleton v. Wulff, 428 U. S. 106 (1976); Bellotti v. Baird, 428 U. S. 132 (1976). The present cases involve the most vicious attacks yet devised. The impact of the regulations here falls tragically upon those among us least able to help or defend themselves. As the Court well knows, these regulations inevitably will have the practical effect of preventing nearly all poor women from obtaining safe and legal abortions.

The enactments challenged here brutally coerce poor women to bear children whom society will scorn for every day of their lives. Many thousands of unwanted minority and mixed-race children now spend blighted lives in foster homes, orphanages, and “reform” schools: Cf. Smith v. Organization of Foster Families, 431 U. S. 816 (1977). Many children of the poor, sadly, will attend second-rate segregated schools. Cf. Milliken v. Bradley, 418 U. S. 717 (1974). And opposition remains strong against increasing Aid to Families With Dependent Children benefits for impoverished mothers and children, so that there is little chance for the children to grow up in a decent environment. Cf. Dandridge v. Williams, 397 U. S. 471 (1970). I am appalled at the ethical bankruptcy of those who preach a “right to life” that means, under present social policies, a bare existence in utter misery for so many poor women and their children.

I

The Court’s insensitivity to the human dimension of these decisions is particularly obvious in its cursory discussion of appellees’ equal protection claims in Maher v. Roe. That case points up once again the need for this Court to repudiate its outdated and intellectually disingenuous “two-tier” equal protection analysis. See generally Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 317 (1976) (Marshall, J., dissenting). As I have suggested before, this “model’s two fixed modes of analysis, strict scrutiny and mere rationality, simply do not describe the inquiry the Court has undertaken — or should undertake — in equal protection cases.” Id., at 318. In the present case, in its evident desire to avoid strict scrutiny — or indeed any meaningful scrutiny— of the challenged legislation, which would almost surely result in its invalidation, see id., at 319, the Court pulls from thin air a distinction between laws that absolutely prevent exercise of the fundamental right to abortion and those that “merely” make its exercise difficult for some people. See Maher v. Roe, post, at 471-474. Mr. Justice Brennan demonstrates that our cases support no such distinction, post, at 485-489, and I have argued above that the challenged regulations are little different from a total prohibition from the viewpoint of the poor. But the Court’s legal legerdemain has produced the desired result: A fundamental right is no longer at stake and mere rationality becomes the appropriate mode of analysis. To no one’s surprise, application of that test — combined with misreading of Roe v. Wade to generate a “strong” state interest in “potential life” during the first trimester of pregnancy, see infra, at 460; Maher v. Roe, post, at 489-490 (Brennan, J., dissenting); post, at 462 (Blackmun, J., dissenting) — “leaves little doubt about the outcome; the challenged legislation is [as] always upheld.” Massachusetts Bd. of Retirement v. Murgia, supra, at 319. And once again, “relevant factors [are] misapplied or ignored,” 427 U. S., at 321, while the Court “forgo [es] all judicial protection against discriminatory legislation bearing upon” a right “vital to the flourishing of a free society” and a class “unfairly burdened by invidious discrimination unrelated to the individual worth of [its] members.” Id., at 320.

As I have argued before, an equal protection analysis far more in keeping with the actions rather than the words of the Court, see id., at 320-321, carefully weighs three factors — “the importance of the governmental benefits denied,, the character of the class, and the asserted state interests,” id., at 322. Application of this standard would invalidate the challenged regulations.

The governmental benefits at issue here, while perhaps not representing large amounts of money for any individual, are nevertheless of absolutely vital importance in the lives of the recipients. The right of every woman to choose whether to bear a child is, as Roe v. Wade held, of fundamental importance. An unwanted child may be disruptive and destructive of the life of any woman, but the impact is felt most by those too poor to ameliorate those effects. If funds for an abortion are unavailable, a poor woman may feel that she is forced to obtain an illegal abortion that poses a serious threat to her health and even her life. See n. 1, supra. If she refuses to take this risk, and undergoes the pain and danger of state-financed pregnancy and childbirth, she may well give up all chance of escaping the cycle of poverty. Absent day-care facilities, she will be forced into full-time child care for years to come; she will be unable to work so that her family can break out of the welfare system or the lowest income brackets. If she already has children, another infant to feed and clothe may well stretch the budget past the breaking point. All chance to control the direction of her own life will have been lost.

1 have already adverted to some of the characteristics of the class burdened by these regulations. While poverty alone does not entitle a class to claim government benefits, it is surely a relevant factor in the present inquiry. See San Antonio School Dist. v. Rodriguez, 411 U. S. 1, 70, 117-124 (1973) (Marshall, J., dissenting). Indeed, it was in the San Antonio case that Mr. Justice Powell for the Court stated a test for analyzing discrimination on the basis of wealth that would, if fairly applied here, strike down the regulations. The Court there held that a wealth-discrimination claim is made out by persons who share “two distinguishing characteristics: because of their impecunity they [are] completely unable to pay for some desired benefit, and as a consequence, they sustai[n] an absolute deprivation of a meaningful opportunity to enjoy that benefit.” Id., at 20. Medicaid recipients are, almost by definition, “completely unable to pay for” abortions, and are thereby completely denied “a meaningful opportunity” to obtain them.

It is no less disturbing that the effect of the challenged regulations will fall with great disparity upon women of minority races. Nonwhite women now obtain abortions at nearly twice the rate of whites, and it appears that almost 40% of minority women — more than five times the proportion of whites — are dependent upon Medicaid for their health care. Even if this strongly disparate racial impact does not alone violate the Equal Protection Clause, see Washington v. Davis, 426 U. S. 229 (1976); Jefferson v. Hackney, 406 U. S. 635 (1972), “at some point a showing that state action has a devastating impact on the lives of minority racial groups must be relevant.” Id., at 558, 575-576 (Marshall, J., dissenting).

Against the brutal effect that the challenged laws will have must be weighed the asserted state interest. The Court describes this as a “strong interest in protecting the potential life of the fetus.” Maher v. Roe, post, at 478. Yet in Doe v. Bolton, supra, the Court expressly held that any state interest during the first trimester of pregnancy, when 86% of all abortions occur, CDC Surveillance 3, was wholly insufficient to justify state interference with the right to abortion. 410 U. S., at 192-200. If a State’s interest in potential human life before the point of viability is insufficient to justify requiring several physicians’ concurrence for an abortion, ibid., I cannot comprehend how it magically becomes adequate to allow the present infringement on rights of disfavored classes. If there is any state interest in potential life before the point of viability, it certainly does not outweigh the deprivation or serious discouragement of a vital constitutional right of especial importance to poor and minority women.

Thus, taking account of all relevant factors under the flexible standard of equal protection review, I would hold the Connecticut and Pennsylvania Medicaid regulations and the St. Louis public hospital policy violative of the Fourteenth Amendment.

II

When this Court decided Roe v. Wade and Doe v. Bolton, it properly embarked on a course of constitutional adjudication no less controversial than that begun by Brown v. Board of Education, 347 U. S. 483 (1954). The abortion decisions are sound law and undoubtedly good policy. They have never been questioned by the Court, and we are told that today’s cases “signa [1] no retreat from Roe or the cases applying it.” Maher v. Roe, post, at 475. The logic of those cases inexorably requires invalidation of the present enact- meats. Yet I fear that the Court’s decisions will be an invitation to public officials, already under extraordinary pressure from well-financed and carefully orchestrated lobbying campaigns, to approve more such restrictions. The effect will be to relegate millions of people to lives of poverty and despair. When elected leaders cower before public pressure, this Court, more than ever, must not shirk its duty to enforce the Constitution for the benefit of the poor and powerless.

Mr. Justice Blackmun,

with whom Me. Justice Brennan and Mr. Justice Marshall join, dissenting.

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

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

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

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

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

       Title XIX establishes two groups of needy persons: (1) the “categorically” needy, which includes needy persons with dependent children and the aged, blind, and disabled, 42 U. S. C. § 1396a (a) (10) (A) (1970 ed., Supp. V); and (2) the “medically” needy, which includes other needy persons, § 1396a (a) (10) (C) (1970 ed., Supp. V). Participating States are not required to extend Medicaid coverage to the “medically” needy, but Pennsylvania has chosen to do so.

       The general categories of medical treatment enumerated are:
      “(1) inpatient hospital services (other than services in an institution for tuberculosis or mental diseases) ;
      “(2) outpatient hospital services;
      “(3) other laboratory and X-ray services;
      “(4) (A) skilled nursing facility services (other than services in an institution for tuberculosis or mental diseases) for individuals 21 years of age or older (B) effective July 1, 1969, such early and periodic screening and diagnosis of individuals who are eligible under the plan and are under the age of 21 to ascertain their physical or mental defects, and such health care, treatment, and other measures to correct or ameliorate defects and chronic conditions discovered thereby, as may be provided in regulations of the Secretary; and (C) family planning services and supplies furnished (directly or under arrangements with others) to individuals of childbearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies;
      “(5) physicians’ services furnished by a physician (as defined in section 1395x (r) (1) of this title), whether furnished in the office, the patient’s home, a hospital, or a skilled nursing facility, or elsewhere.” 42 U. S. C. § 1396d (a) (1970 ed. and Supp. V).
      Participating States that elect to extend coverage to the “medically” needy, see n. 1, supra, have the option of providing somewhat different categories of medical services to those individuals. 42 U. S. C. § 1396a (a) (13) (C) (ii) (1970 ed., Supp. V).

       An abortion is deemed medically necessary under the Pennsylvania Medicaid program if:
      “(1) There is documented medical evidence that continuance of the pregnancy may threaten the health of the mother;
      “ (2) There is docmnented medical evidence that an infant may be born with incapacitating physical deformity or mental deficiency; or
      “(3) There is documented medical evidence that continuance of a pregnancy resulting from legally established statutory or forcible rape or incest, may constitute a threat to the mental or physical health of a patient; and
      “(4) Two other physicians chosen because of their recognized professional competency have examined the patient and have concurred in writing; and
      “ (5) The procedure is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals.” Brief for Petitioners 4, citing 3 Pennsylvania Bulletin 2207, 2209 (Sept. 29, 1973).
      In Doe v. Bolton, 410 U. S. 179, 192 (1973), this Court indicated that “[wjhether ‘an abortion is necessary’ is a professional judgment that . . . may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment.” We were informed during oral argument that the Pennsylvania definition of medical necessity is broad enough to encompass the factors specified in Bolton. Tr. of Oral Arg. 7-8.
      The dissent of MR. Justice Brennan emphasizes the “key” role of the physician within the Medicaid program, noting that “[t]he Medicaid statutes leave the decision as to the choice among pregnancy procedures exclusively with the doctor and his patient . . . .” Post, at 449-450. This is precisely what Pennsylvania has done. Its regulations provide for the funding of abortions upon certification of medical necessity, a determination that the physician is authorized to make on the basis of all relevant factors.

         The District Court was of the view that the regulation creates “an unlawful distinction between indigent women who choose to carry their pregnancies to birth, and indigent women who choose to terminate their pregnancies by abortion.” 376 F. Supp., at 191. In Maher v. Roe, post, p. 464, we today conclude that the Equal Protection Clause of the Fourteenth Amendment does not prevent a State from making the policy choice to fund costs incident to childbirth without providing similar funding for costs incident to nontherapeutic abortions.

       Petitioners appealed the District Court’s declaratory judgment to the Court of Appeals. Respondents cross-appealed from the denial of declaratory relief with respect to the second and third trimesters of pregnancy. Since respondents did not seek review of the District Court’s denial of injunctive relief, the Court of Appeals had jurisdiction over the appeals. Gerstein v. Coe, 417 U. S. 279 (1974).

       As a result of the decision of the Court of Appeals, petitioners issued a Temporary Revised Policy on September 25, 1975. This interim policy allows financial assistance for abortions without regard to medical necessity. Brief for Petitioners 3 n. 3.

       Two other Courts of Appeals have concluded that the federal statute does not require participating States to fund the cost of nontherapeutic abortions. Roe v. Norton, 522 F. 2d 928 (CA2 1975); Roe v. Ferguson, 515 F. 2d 279 (CA6 1975). See also, e. g., Doe v. Westby, 402 F. Supp. 140 (WDSD 1975) (three-judge court) (Title XIX requires funding of nontherapeutic abortions), appeal docketed, No. 75-813; Doe v. Stewart, Civ. No. 74-3197 (ED La., Jan. 26, 1976) (three-judge court) (Title XIX does not require funding of nontherapeutic abortions), appeal docketed, No. 75-6721.

       Respondents concede that Title XIX “indicates that the states will have wide discretion in determining the extent of services to be provided.” Brief for Respondents 9.

       Respondents also contend that Pennsylvania’s restriction on coverage is unreasonable within the meaning of Title XIX in that it interferes with the physician’s professional judgment concerning appropriate treatment. With one possible exception addressed in Part III, infra, the Pennsylvania program does not interfere with the physician’s medical judgment concerning his patient’s needs. If a physician certifies that an abortion is medically necessary, see n. 3, supra, the medical expenses are covered under the Pennsylvania Medicaid program. If, however, the physician concludes that the abortion is not medically necessary, but indicates a willingness to perform the abortion at the patient’s request, the expenses are not covered. The decision whether to fund the costs of the abortion thus depends solely on the physician’s determination of medical necessity. Respondents point to nothing in the Pennsylvania Medicaid plan that indicates state interference with the physician’s initial determination.

       Respondents rely heavily on the fact that in amending Title XIX in 1972 to include “family planning services” within the five broad categories of required medical treatment, see n. 2, supra, Congress did not expressly exclude abortions as a covered service. Since Congress had expressly excluded abortions as a method of family planning services in prior legislation, see 42 U. S. C. § 300a-6, respondents conclude that the failure of Congress to exclude coverage of abortions in the 1972 amendments to Title XIX “strongly indicates” an intention to require coverage of abortions. This fine of reasoning is flawed. The failure to exclude abortions from coverage indicates only that Congress intended to allow such coverage, not that such coverage is mandatory for nontherapeutic abortions.

       The Court of Appeals concluded that Pennsylvania’s regulations also violated the equality provisions of Title XIX requiring that an individual’s medical assistance “shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual.” 42 U. S. C. § 1396a (a) (10) (B) (1970 ed., Supp. V). See § 1396a (a) (10) (C) (1970 ed., Supp. V). According to the Court of Appeals, the Pennsylvania regulation “force[s] pregnant women to use the least voluntary method of treatment, while not imposing a similar requirement on other persons who qualify for aid.” 523 F. 2d 611, 619 (1975). We find the Pennsylvania regulation to be entirely consistent with the equality provisions of Title XIX. Pennsylvania has simply decided that there is reasonable justification for excluding from Medicaid coverage a particular medically unnecessary procedure — nontherapeutic abortions.

       At the time of our 1973 decision in Roe, some eight years after the enactment of Title XIX, at least 30 States had statutory prohibitions against nontherapeutic abortions. 410 U. S. 113, 118 n. 2 (1973).

       Federal funds are made available only to those States whose Medicaid plans have been approved by the Secretary of HEW. 42 U. S. C. § 1396 (1970 ed., Supp. V).

       Congress by statute has expressly prohibited the use during fiscal year 1977 of federal Medicaid funds for abortions except when the life of the mother would be endangered if the fetus were carried to term. Departments of Labor and Health, Education, and Welfare Appropriation Act, 1977, § 209, Pub. L. 94-439, 90 Stat. 1434.

       Our dissenting Brothers, in this case and in Maher v. Roe, post,
        p. 482, express in vivid terms their anguish over the perceived impact of today’s decisions on indigent pregnant women who prefer abortion to carrying the fetus to childbirth. We think our Brothers misconceive the issues before us, as well as the role of the judiciary.
      In these cases we have held merely that (i) the provisions of the Social Security Act do not require a State, as a condition of participation, to include the funding of elective abortions in its Medicaid program; and (ii) the Equal Protection Clause does not require a State that elects to fund expenses incident to childbirth also to provide funding for elective abortions. But we leave entirely free both the Federal Government and the States, through the normal processes of democracy, to provide the desired funding. The issues present policy decisions of the widest concern. They should be resolved by the representatives of the people, not by this Court.

      The Court states, ante, at 442 n. 3, that Pennsylvania has left the abortion decision to the patient and her physician in the manner prescribed in Doe v. Bolton. Pennsylvania indeed does allow the attending physician to provide a certificate of medical necessity “on the basis of all relevant factors,” ante, at 442 n. 3, but Pennsylvania’s concept of relevance does not extend far enough to permit doctors freely to provide certificates of medical necessity for all elective abortions. At oral argument, counsel for petitioners carefully stated the State’s position as follows:
      “[L]et me make perfectly clear my concession. That is, that a physician, in examining a patient, may take psychological, physical, emotional, familial considerations into mind and in the light of those considerations, may determine if those factors affect the health of the mother to such an extent as he would deem an abortion necessary.
      “I think the key in the Bolton language, and the key in the Vuitch [United States v. Vuitch, 402 U. S. 62 (1971)] language is the fact that the physician, using all of these facts — and there are probably more that he should use — must determine if the woman’s health — that is, her physical or psychological health — is jeopardized by the condition of pregnancy.
      “That is not to say, obviously, as I believe the Plaintiffs are asserting, that the fact that the family is going to increase makes an abortion medically necessary.” Tr. of Oral Arg. 8.
      Petitioners’ “concession” only goes so far as to permit an attending physician to consider an abortion as it relates to a woman’s health. Bolton recognized that the factors considered by a physician “may relate to health,” but in the very same paragraph made clear that those factors were more broadly directed to the “well-being” of the woman. 410 U. S., at 192 (emphasis added). While the right to privacy does implicate health considerations, the constitutional right recognized and protected by the Court’s abortion decisions is the “right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, 405 U. S. 438, 453 (1972).

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

       Although an abortion performed during the first trimester of pregnancy is a relatively inexpensive surgical procedure, usually costing under $200, even this modest sum is far beyond the means of most Medicaid recipients. And “if one does not have it and is unable to get it the fee might as well be” one hundred times as great. Smith v. Bennett, 365 U. S. 708, 712 (1961).
      Even before today’s decisions, a major reason that perhaps as much as one-third of the annual need for an estimated 1.8 million abortions went unmet was the fact that 8 out of 10 American counties did not have a single abortion provider. Sullivan, Tietze, & Dryfoos, Legal Abortion in the United States, 1975-1976, 9 Family Planning Perspectives 116-117,121, 129 (1977). In 1975, 83,000 women had to travel from their home States to obtain abortions (there were 100 abortions performed in West Virginia and 310 in Mississippi), and about 300,000 more, or a total of nearly 40% of abortion patients, had to seek help outside their home counties. Id., at 116, 121, 124. In addition, only 18% of the public hospitals in the Nation performed even a single abortion in 1975 and in 10 States not one public hospital provided abortion services. Id., at 121, 128.
      Given the political realities, it seems inevitable that the number and geographical distribution of abortion providers will diminish as a result of today’s decisions. It is regrettable but likely that fewer public hospitals will provide the service and if Medicaid payments are unavailable, other hospitals, clinics, and physicians will be unable to do so. Since most Medicaid and public hospital patients probably do not have the money, the time, or the familiarity with the medical delivery system to travel to distant States or cities where abortions are available, today’s decisions will put safe and legal abortions beyond their reach. The inevitable human tragedy that will result is reflected in a Government report:
      “[F]or some women, the lack of public funding for legal abortion acted as a deterrent to their obtaining the safer procedures. The following case history [of a death which occurred during 1975] exemplifies such a situation:
      . .A 41-year-old married woman with a history of 6 previous pregnancies, 5 living children, and 1 previous abortion sought an illegal abortion from a local dietician. Her stated reason for seeking an illegal procedure was financial, since Medicaid in her state of residence would not pay for her abortion. The illegal procedure cost $30, compared with an estimated $150 for a legal procedure .... Allegedly the operation was performed by inserting a metal rod to dilate the cervix .... [The woman died of cardiac arrest after two weeks of intensive hospital care and two operations.]” U. S. Dept, of Health, Education, and Welfare, Center for Disease Control, Abortion Surveillance, 1975, p. 9 (1977) (hereafter CDC Surveillance).

       If public funds and facilities for abortions are sharply reduced, private charities, hospitals, clinics, and doctors willing to perform abortions for far less than the prevailing fee will, I trust, accommodate some of the need. But since abortion services are inadequately available even now, see n. 1, supra, such private generosity is unlikely to give many poor women “a meaningful opportunity” to obtain abortions.

       Blacks and other nonwhite groups are heavily overrepresented among both abortion patients and Medicaid recipients. In 1975, about 13.1% of the population was nonwhite, Statistical Abstract of the United States, 1976, p. 25, yet 31% of women obtaining abortions were of a minority race. CDC Surveillance 2 and 24, Table 8. Furthermore, nonwhites secured abortions at the rate of 476 per 1,000 live births, while the corresponding figure for whites was only 277. Id., at 2, and Tables 8, 9. Abortion is thus a family-planning method of considerably more significance for minority groups than for whites.

       Although complete statistics are unavailable (three States, Puerto Rico, and the Virgin Islands having furnished no racial breakdown, and eight States giving incomplete data), nonwhites accounted for some 43.4% of Medicaid recipients during fiscal year 1974 in jurisdictions reporting. U. S. Dept, of HEW, National Center for Social Statistics, Medicaid Recipient Characteristics and Units of Selected Medical Services, Fiscal Year 1974, p. 2 (Feb. 1977). Extrapolating this percentage to cover the entire Medicaid caseload of over 17.6 million, minority racial groups would account for 7,656,000 recipients. Assuming comparability of the HEW and census figures, this amounts to 27.4% of the Nation's nonwhite population. See Statistical Abstract, supra, n. 3, at 25. Since there are 1.8 female Medicaid recipients for every male, see Medicaid Recipient Characteristics, supra, the proportion of nonwhite women who must rely upon Medicaid is probably far higher, about 38.5%. The comparable figure for white women appears to be about 7%.

       Requirements that the abortion be performed by a physician exercising his best clinical judgment, and in a facility meeting narrowly tailored health standards, are allowable. Doe v. Bolton, 410 U. S., at 192-200.

       Application of the flexible equal protection standard would allow the Court to strike down the regulations in these cases without calling into' question laws funding public education or English language teaching in public schools. See Maher v. Roe, post, at 476-477. By permitting a court to weigh all relevant factors, the flexible standard does not logically require acceptance of any equal protection claim that is “identical in principle” under the traditional approach to those advanced here. See Maher, post, at 477.

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