Doe v. Department of Social Services

439 Mich v DOE DEPARTMENT OF SOCIAL SERVICES (Calendar 91092, 7, Argued Docket Nos. 91093. November No. 12). Decided June 1992. Doe, year pregnant Jane a fifteen old who became as a result of Doe, mother, rape, Nancy eligible and her both women through to receive medical assistance the state’s Medicaid program, brought declaratory Wayne action in the Circuit against Department Services, seeking Court of Social permanent injunction prohibiting enforcement of MCL 400.109a; 16.490(19a), precludes public MSA which the use of pay necessary funds to for an abortion unless it is to save the plaintiffs alleged pay mother’s life. The that the refusal to for a therapeutic pursuant equal 109a § violates the protection guarantee Michigan Constitution in that it unequal indigent, pregnant accords treatment two classes of women—those who choose childbirth and those who choose court, Hausner, J., granted abortion. The summary John H. disposition defendant, ruling for the 109a does not § vio- Michigan Appeals, late the Constitution. The Court of (Sullivan, P.J., dissenting), and J. W. Fitzgerald, JJ. Doctoroff reversed, finding Michigan’s Equal Protection Clause offers greater protection counterpart than its federal and that 109a § impinges upon a state to an abortion and thus violates (Docket 116069). Michigan’s Equal Protection Clause No. The department appeals. opinion joined In an Griffin, Justice Chief Justice Cavanagh, and Justices Levin, Brickley, Riley, the Su- preme Court held: Michigan The Protection Clause of the Constitution permits expenses childbirth, the state to fund the even though it does not fund abortions. 1. guarantee Both the equal state and federal constitutions Neither, however, requires of the laws. absolute References 2d, 1.5, 37.5; Am Jur Abortion §§ Welfare Laws 72.6. Validity regulations limiting of state statutes restricting or public funding sought by indigent for abortions women. 20 ALR4th 1166. Social Services Doe people differently, groups it equality. Even if a law treats guarantee. equal protection necessarily violate the will not liberties; rights guarantee is not a source of substantive rather, govern- tolerance of a measure of the constitution’s legislation challenged as is schemes. When ment classification guarantee equal protection consti- under either of the violative tution, scrutiny subjected judicial whether to to determine it is justify the.goals legislation treatment it the differential of the legislation presumption Generally, a the is accorded authorizes. suspect constitutionality. scheme is Unless the classification of right, upon impinges fundamental such the exercise of a by applying legislation a rational basis standard is reviewed if the classification it will not be struck down under which legitimate govern- rationally to a it creates is related scheme purpose. mental Wade, not establish an 410 US 113 did 2. Roe v constitution; unqualified right under the federal to an abortion unduly rather, right from burden- shields a woman the federal the to decide whether to termi- interference with freedom some provide by government pregnancy. to fund- Refusal the nate a right ing woman’s to does not interfere with a for an abortion argument Assuming a state an abortion. for the sake choose right with the federal to abortion coextensive constitutional Michigan right, the Constitution. There 109a does not violate § Michigan framers Constitution is no evidence that provide protection in Protection Clause intended to rather, counterpart; in its federal than that found broader suggests pattern arrangement of the clause a deliberate clause, protection duplicate the federal secured effort to equal protection incorporate the basic notions of to affirm and Michigan’s prevailed Constitutional Conven- at the time of that tion. on the to of some burden 3. In the absence right, provide a the exercise of a decision funds for right Legislature of a is distinct from not to fund the exercise right. impinges upon legislative Even where action right, not previously of a it is has funded the exercise the state funding. required state offers a such When the to continue assistance, persons receiving public particular benefit different, power entitle- a less valuable retains the to substitute date, deprived recipient is not of due later and the ment at a adjusted. process levels are when benefit right right a to continue to in this case is not 4. The involved rather, past; it is the offered in the funds that were receive govern- unduly without burdensome an abortion to choose Mich 650 indigent an abortion An woman who desires ment interference. disadvantage consequence of the state’s decision as a suffers no dependent on as before to be fund childbirth. She continues Similarly, private an indi- the service she desires. sources for gent excluded from the who desires an abortion not woman preg- program. terminate her Whether she decides to Medicaid term, carry way nancy she is treated in the same or to i.e., treated, Medicaid-qualified pregnant any woman is other childbirth, expenses for the but she is offered reimbursement expenses of an abortion. The election subsidize not for impermissibly procreative not influence the childbirth does into women. Nor does it coerce a woman decisions forfeiting to choose an abortion. The state have her it, option by paying a more attractive but it made childbirth obtaining imposed on an abortion that was has no restriction Thus, childbirth, already not there. the state’s decision to fund abortion, impinge upon the exercise of but not does right provided by Michigan fundamental Constitution. impinge upon 5. 109a does not the exercise of Because because, right, respect fundamental at least with to the abortions, equal protection guarantee Michigan greater protection Constitution does not offer than its counterpart, proper federal the standard of review is the ra- Appeals subjected tional basis test. The Court of erred when it scrutiny. rationally 109a to strict Section 109a is related to § legitimate governmental purpose protecting potential the of life promoting allocating and childbirth and state benefits in a way public policy that reflects its determination of the of the obligation state. The state has no constitutional to remain regarding any obligation it neutral more than has an respect to remain neutral with to the exercise other funda- Michigan rights. require mental The Constitution does not a values; that, government requires only pursuit without it in the values, improperly of certain the state will not interfere with rights. the of fundamental exercise Levin, concurring, Justice stated that 109a does not § estab- eligibility proscribing lish an unconstitutional criterion in the public provide medically use of funds to indicated abortions to indigent deny any It not women. does woman access to medical Rather, persons benefits that other are entitled to receive. it benefit, provides particular abortion, funding that a the is no longer provided. eligibility be to There is no criterion which any might publicly woman obtain a funded abortion. principle legisla- No constitutional makes or constitutes all only suspect, especially legislation tion one that affects sex of Social Services concerning subject only matter that can affect one sex. The shelter, food, protects right Due Process Clause to seek government medical service free from unreasonable restric- tions, obligate government provide it not but does to them. judiciary The Protection Clause does not endow the with power supervise public the allocation of funds or to require principles that neutral be announced. legislative provide decision to funds for the medical expenses right impermissibly of childbirth does not burden government may to choose abortion. While the not interfere abortion, right prohibit with it to choose need not support public though support it with it funds even does public concept government childbirth with funds. The neu- trality question neutrality on the is fallacious. Even if with respect rights possible, to fundamental were such a stance governance, gover- would not result sound but rather in no express nance at all. The must some set values however, govern. judiciary, if it is to It is not the role of the properly may decide which values be taken into account in choosing provided by govern- the medical benefits to be limited, governments ment. The resources of are and the deci- excluding necessarily sion to include one benefit while another choice, largely reflects some value a task to be left representative government. power branches of Judicial is most arrogating forcefully asserted when court refrains from properly itself decisions entrusted to the other branches. While deprive only indigent be unfair to women of the funds to people Legislature pregnancy, terminate have Michigan decided otherwise. There is no basis in the Constitu- tion to reverse that result.

Reversed. dissenting, unduly Mallett, Justice stated that 109a is an indigent woman’s fundamen- burdensome interference with an privacy to termi- tal that includes the to choose equal protection pregnancy encompassed in the nate her that is guarantees Michigan Constitution. Although United States Court case law has held denying medically Medicaid indicated abor- required to save their tions for women are impinge right privacy upon lives does not their fundamental to constitution, Michigan Supreme Court is under the federal Michigan’s precluded independently interpreting not from broadly more than the federal and Protection Clause rejecting analyses States Court. of the United However, interpretation unnecessary it is to reach a broader Mich right privacy impinges upon fundamental case; 109a this § subject to and indigent thus is unconstitutional women government requiring to demonstrate scrutiny, strict compelling underlying act. interest governmental woman’s interests: a two Roe v Wade identified govern- potential Because the of a fetus. life and the health potential does not become life of a fetus interest in the ment’s viable, woman’s interest in a compelling its the fetus is until prohibition of reimbursement The examined. health must be advance does not in all trimesters under 109a for abortions § gov- Rather, between the balance it exceeds this interest. of the woman the constitutional interest and ernment’s procreative government deci- in her interference be free from Legislature deny Michigan Medi- The decision of the sions. indigent a medi- woman who seeks to an reimbursements caid abortion, provide to a woman cally but to indicated preg- her treatment for as a medical who chooses childbirth Michigan scrutiny analysis. nancy, strict cannot survive argue to an a woman has a To Roé v Wade. bound abortion, access to need not allow her but that the service, meaningless. v Wade this renders Roe equal protection guarantees Michigan’s based on are similarly unfairly prejudice premise situ- must not laws Michigan Legislature possess persons. unlim- does not ated popular authority the basis of moralistic ited to enact laws on constitutionally protected upon objectives free- that encroach occurs, with the the courts are doms. When this .entrusted nullify legislative power responsibility acts to review and the repugnant to the constitution. which are Boyle, dissenting, not be stated that should Justice 109a necessary applied abortions to women who seek first-trimester preserve medical health. Michigan analysis 109a not survive under Section does right by selec- Constitution in that it burdens a fundamental first-trimester, medically necessary tively denying benefits for involving selectively It focuses on one of two choices abortions. penalizes constitutionally protected the exercise decision requiring option, women to sacrifice their of the disfavored pregnancy to the interest medical needs in the first trimester of obliga- Although potential life. the state has no of the state choice, opts private to fund medical tion to fund when it women, may concerning pregnancy procedures conditioning receipt penalize option by the disfavored protected right. on A statute that makes benefits waiver damage a more attractive alterna- serious health to the mother govern- rationally promote the tive than abortion does not of Social Services encouraging ment’s interest normal childbirth when ana- lyzed scrutiny. under either strict or intermediate (1991) App NW2d reversed. Indigents — — — Equal Constitutional Law Protection Abor- tion. Michigan per- Protection Clause of the Constitution childbirth, expenses though mits the state to fund the even (Const 1963, 1, 2; 400.109a; does fund abortions art MCL 16.490[19a]). MSA American Civil Liberties Union Fund of Michi- gan (by Gleicher, Denenfeld, Elizabeth Paul J. and Sedler) plaintiffs. A. Robert for the Kelley, Attorney Gay General,

Frank J. Secor Hardy, General, Solicitor and John Wernet and Attorneys Konwinski, General, John M. Assistant for the defendants. Dykema, (by Curdo, B. Gossett John Richard D. Torbert)

McLellan, and Ronald J. for the interven- ing defendants.

Amici Curiae: Coughlin, Forsythe,

William J. D. Clarke Michigan Repre- Kevin J. Todd for Senators and sentatives and Americans United for Life.

Joseph Dellapenna W. for the American Acad- emy of Medical Ethics. Granzotto, Linkner,

Mark Monica Farris Michigan Charles P. Burbach for the Trial Law- yers Association. Riddering, (by

Varnum, Schmidt & Howlett Decker); May Robert J. Eleveld and Teresa S. & May, (by May), Michigan’s Repub- P.C. Alan A. licans for Choice. 439 Mich 650 op the Court Gregory

George Curtner, Jr., L. Bushnell, E. Megan Abigail Tickner, Norris, M. Elias, P. Ellen Ende, Mich- H. and John H. Willems for Carl Von igan Soci- and Detroit Medical Nurses Association ety.

Marcy Johnsen, Eis- Wilder, and Lois Dawn (Deborah Nory Murphy; Miller, Levine, and ner counsel), Small, National Abor- Michael C. of for League, Michigan Rights Action Abortion tion Rights League, forty-five and Action and national Michigan organizations committed to women’s equality. Robinson, Robinson, K. Marietta S. and

James Chapter Fitzgerald for Detroit Joanne Ross the Organization Michigan, the of Women of National Union, Automobile, United Aero- International Implement space Agricultural Workers and (UAW), League of Women Voters America Michigan, Michigan the Organization, Rights

Welfare Women, the National Counsel of Jewish Greater League, Section, Inc., Planned Detroit Inc., Parenthood Religious Rights, Abortion the Coalition for Association, Bar and Women Wolverine Lawyers Michigan. Association of Caucus,

Gail Benson Law S. for Women’s Lawyer’s Guild, National "The Coalition” Students University Wayne Gay Choice, for State Lesbian Law Caucus. J. A which statute became law as

Griffin, people Michigan prohibits result of a vote public pay an use of funds necessary unless the abortion is save the moth- of Social Services Opinion op the Court required er’s life. We are statute, § to decide whether that Act,1 109a of the Social Welfare violates equal protection guarantee Michigan of the following court, Constitution.2 The trial related Supreme Court, decisions of the United States panel found no A constitutional violation.3 divided Appeals major- of the Court of then reversed. The ity Michigan’s Equal found that Protection Clause greater protection offers than its federal counter- part4 impinges upon and that 109a a state majority abortion; thus, an concluded that § 109a does violate the Protection Clause of Michigan Constitution.5 reviewing Ap the decision of the Court of peals, emphasize scope ques we the limited presented. tion This case does not concern a wom an’s under the federal constitution to choose pregnancy. right, to terminate her That articu Wade, lated for the first time in 113; Roe v 410 US (1973), 93 S Ct 35 L Ed 2d reh den 410 US not, be, nor could it restricted our today. Rather, decision this case concerns whether equal protection § 109a exceeds the limits of estab by lished our state constitution. We conclude that it does not and reverse the decision of the Court of Appeals. seq.; seq. 1 MCL 400.1 et MSA 16.401 et 2 relating equal The 1963 Constitution contains two clauses to 1, states,

protection. people. protection.” protection political power Art 1§ is inherent in the "[a]ll benefit, equal security Government is instituted for their and 1, states, person equal Art 2 shall § be denied the ''[n]o provisions . . . .” the laws These will be referred to as Equal Clause, respec the tively. Benefit Clause and the Protection 3 court, plaintiffs alleged In the circuit the several constitutional (art 1, 17), right violations —violations of the Due Process Clause the § (art (art 1, 23), 1, privacy equal protection the of the laws § 2). 1, 2), (art 1, protection rights and the of civil §§ § 4 Const, XIV, US Am 1.§ 5 App 468 NW2d 862 439 650 658 Mich op the Court

I legisla- petition, a the of an initiative As result placed 109a was became proposal tive which in 1987.6 before, Legislature the adopted by, and Thereafter, petition, referendum response to a and to the electorate the measure was submitted Sec- in the 1988 election.7 approved by the voters Act, which the tion 109a amended Social Welfare Michigan’s participation for provides authority the fed- funded program.8 Jointly by the Medicaid governments and state eral pro- participate,9 program to Medicaid choose the needy for vides reimbursement medical services persons. medically appropriate costs nearly

The all re- qualified are required by participants services ex- program. the Medicaid One through imbursed 1976, is reimbursement for abortion. ception passed Hyde Congress first so-called Amendments,10 prohibited which of federal use under pay funds costs of an abortion neces- program Medicaid unless the abortion was became enacted art enacted tive The ers and submitted to the part of the Board of State referendum vote of the 1988 ballot. The Pursuant See 42 USC 2, PL petition petition 9.§ to have 94-439, 209, effective, powers by Medicaid Canvassers, Social was certified was filed with § Legislature 1396d(b). MCL 168.471 Legislature a second Security program propose PA 59 90 Stat 1434. Legislature people. on June Act. 42 petition are laws, was placed on June et reserved Secretary PA 59 was established seq.; and to This USC was on as 1987 MSA 1987, the ballot petition 1396 et 23, 1987; however, presented to the approve of State on 6.1471 placed by by Congress PA seq. people by the Board of Canvass was certified 59. 1987 PA to the et on the November disapprove seq., April subjected Secretary of Const in 1965 as before 30, 59 was initia 1987. 1963, laws to a Doe of Social Services op the Court sary pregnant to save the life of the woman.11 After federal Medicaid abortions was withdrawn, Michigan provided per- one hundred required cent of the funds until 109a became effective. Section provides: 109a act,

Notwithstanding provision any other of this provided an abortion shall not be a service public with benefits, recipient funds to a of welfare through assistance, program whether general of medical assistance, categorical assistance or through any public type other aid or assistance program, necessary unless the abortion is to save the life of the mother. It is policy of this state prohibit appropriation to the public funds for purpose providing person an abortion to a who receives welfare benefits unless the abortion necessary is 400.109a; to save the life of the mother. [MCL 16.490(19a).]

MSA This lawsuit against was filed two state officials responsible for administration of the Medicaid program.12 At the time of the filing of their com- plaint, plaintiffs mother, Jane Doe and her Nancy Doe,13 were indigent women eligible to receive medical assistance through the state’s Medicaid program. Their complaint alleged Doe, Jane old, then years fifteen pregnant had become when she was raped 1989. January Nancy Doe re- quested medical assistance for a first trimester abortion for her daughter protect daughter’s her physiological and psychological health. According to the complaint, Jane Doe had been affected 11Subsequent Hyde versions of the Amendment have been enacted by Congress. upheld by One version was the United States McRae, 297, 302-303; Court. See Harris v 448 US 100 S Ct 65 L (1980), Ed 2d 784 reh den 448 US 917 discussed below. organizations Several and a number individuals were allowed to intervene as defendants. identity plaintiffs was revealed to the trial court camera.

660 439 650 Mich Opinion of the Court unspecified periodically by disorder, and seizure an aggravate pregnancy her would it the feared that was addition, Doe and her In both Jane disorder. an would reduce mother believed that abortion pregnancy. trauma associated with the emotional However, physician plaintiffs Doe’s nor Jane neither represented an abortion was neces- sary to save Doe’s life. Jane Michigan Depart- § 109a, the with

In accordance pay for the refused to ment of Social Services requested prompted this abortion. That refusal complaint, plaintiffs maintained In the lawsuit. that Michigan Constitution, 109a violates the specifically Process, Protection, Due and its Rights Clauses, a Civil privacy. as well as claimed sought plaintiffs declaratory relief, As permanent injunction prohibiting judgment and a §of 109a. enforcement discovery, filed

After minimal defendants a mo- disposition.14 summary court, The trial tion for relying People 524; Bricker, 389 208 on Mich (1973), citing 172 two States United NW2d Supreme cases, McRae, Court Harris v 448 US (1980), L 297; 2671; 100 S Ct 65 Ed 2d 784 reh den (1980), Roe, 464; 917 432 448 US and Maher v US (1977), 53 L Ed 484 ruled that S Ct 2d Michigan § 109a does violate the Constitution. granted summary disposi- Thus, it for motion Thereafter, tion and dismissed panel suit.15 divided Appeals reversed, 187 Mich Court App 493; 468 this NW2d Court 2.116(0(10). 14 MCR ruling, Within hours of the trial court’s Jane Doe received an private paid Although funds. her with donated abortion moot, appropriate we render case consider decide this disposition required on case. "A underlying based mootness is not where the capable repetition, yet conduct is evades review.” Mead (1990). Batchlor, 480, 487; addition, v case 460 NW2d 493 this public importance an issue of sufficient that a decision on raises the merits is warranted. Id. of Social Services op the Court granted appeal. then leave Mich

II person Our state "[n]o constitution declares that equal protection shall be denied wording parallel . . .”16 laws . clause in pro- It federal constitution almost identical. person "deny any vides that no state shall jurisdiction equal protection within its the of the plaintiffs complain case, § laws.”17In this that 109a unequal accords treatment between two classes of Medicaid-qualified, pregnant women—those who choose childbirth and those who choose abortion. The women who choose childbirth reim-

receive expenses bursement for medical related to child- birth, while those who choose abortion receive no expenses reimbursement the to abor- related course, tion. it is Of well established even if a that groups people differently, law treats necessarily it will not guarantee protec- equal

violate the interpreted tion. Neither has constitution been require Independ- equality.” San "absolute Antonio Rodriguez, ent School Dist v Ct (1973). 1, 24; 411 93 US S 1278; L 36 Ed 2d 16 reh 411 den US 959 equal Likewise, it is well established protection guarantee a is not source of substantive rights liberties; rather, or it is a of our measure constitution’s tolerance of classifica- (Stewart, Id., tion J., schemes. 411 US 58 concurring). legislation challenged

Thus, when as violative protection equal guarantee under either 16 1963, 1, Const art 2.§ 17 Const, XIV, US Am 1. The Fifth been Amendment has inter preted equal protection component applied an to contain that is Harris, government. supra, federal 448 US 321. op the Court judicial scrutiny subjected

constitution, it is legislation goals determine whether As justify it authorizes. treatment differential deciding panel Appeals concedes, in Court appellate of this state have courts such cases analysis employed to that similar which a mode of developed States has the United been speaking, Generally App Court. 187 Mich 510.18 grounds protection legislation challenged equal on presumption constitutionality, and is accorded applying a rational basis stan- it is reviewed Attorney General, 402 Mich dard. Shavers v (1978). standard, a Under that 267 NW2d if struck down the classification statute will not be legiti- rationally to a scheme it creates is related governmental purpose. Bank & mate Manistee McGowan, 655, 668; Mich Trust Co v NW2d equal hand,

On the other two situations legislation protection guarantee tolerant of is less scheme—when creates a classification (such upon suspect factors as classification is based origin, ethnicity), race, or when the national legislation impinges the classification creates right. upon Plyler the exercise of fundamental Doe, 2382; L Ed 216-217; 457 US 102 S Ct 72 (1982). (1982), 1131 In these 2d 786 situations, reh den 458 US higher review, strict standard of scru tiny, applied. under this A statute reviewed upheld only if the strict standard will be state its scheme has demonstrates classification compelling gov precisely been tailored to serve ernmental interest. Id.19 18 McGowan, example, v 394 For see Manistee Bank & Trust Co (1975). 655, 668; Employment Mich Security Detroit, 232 636 See v also Fox NW2d Comm, (1967); 579; 644 v 153 NW2d Alexander (1974). 30; Mich 219 392 NW2d 41 19Although have the basis most these two tiers of review been of Social Services Opinion of the Court

III recognizing plaintiffs While base their case constitution, on the state we believe a brief review reasoning that underlies related decisions of the United States Court is instructive. In cases, a series of that Court has held that Hyde Amendment and state statutes which re- funding strict Medicaid of abortions do not violate equal protection guarantee of the federal con- stitution. upheld Maher, the Court a Connecticut stat- funding medically

ute that sary limited state neces- performed during abortions the first trimester pregnancy.20 years later, A few in Harris, Court reaffirmed Maher and validated a version of Hyde Amendment that allowed Medicaid abor- funding only tion when the mother’s life was in danger pregnant or when she had become as the rape Finally, result of or incest.21 in Williams v 65 L Ed 2d 831 Zbaraz, 358; 448 US 2694; S Ct (1980), upheld the Court an Illinois statute that provided § 109a; mirrors Medicaid for only when the woman’s life was threat- pregnancy. ened analysis,

Under its the Maher Court first deter- desiring mined that women abortions did suspect noting not constitute a class. After that no equal protection analysis, there are cases in which the courts have heightened scrutiny. used a middle requires tier of This middle tier challenged govern- classification scheme further a substantial Plyler, mental Typically, interest. 457 US 217. this middle tier has applied been gender capacity. classifications based on or mental See, example, Boren, Craig 190; 451; v 429 US 97 S Ct 50 L Ed 2d (1977). However, reh den 429 US it has not been so Doe; Plyler FCC, Broadcasting restricted. See 547; v Metro 497 US (1990). 2997; 110 S Ct 111 L Ed 2d 445 See also Manistee Bank & Co, supra. Trust Doe, 2366; See also Beal v 432 US 97 S Ct 53 L Ed 2d 464 96-123, 109, PL 93 Stat 926. 439 Mich Opinion of the Court recognized suspect in earlier class had been such 470-471,22 the decisions, the found that id. at Court suspect legislation challenged did not create legisla- though the the even effect of classification pay: upon "[T]his not tion those who could fell alone financial need Court has never held equal suspect purposes of class identifies a protection analysis.” Thus, Court Id. at 471. the question im- the statute the whether turned to right. upon pinged of a fundamental exercise right right underlying The fundamental was the supra. privacy Wade, as articulated Roe v of Doe, 438, 454; 53 L Ed Beal v 97 S Ct US right of 2d 464 Court declared privacy "the in the federal constitution includes Maher, However, in the nature abortion decision.” and scope right was established Roe said, an The Court "Roe did not declare clarified. unqualified right abortion,’ as 'constitutional to an Rather, to think. the District Court seemed unduly protects the from burdensome woman with her freedom to decide whether interference pregnancy.” Maher, 432 US 473-474. her terminate The focus then shifted to effect decision’s government’s an on refusal fund the a refusal It concluded that woman’s freedom choose. provide funding for an interfere of a abortion did with woman to choose an abortion: regulation places Connecticut no obstacles— pregnant absolute otherwise —in woman’s

path An indigent to an abortion. woman who disadvantage an abortion suffers no as a desires 22Typically, suspectness.” the Court look for will some "indicia history purposeful unequal or a These indicia include a treatment degree powerlessness extraordinary protec political that commands Dist, majoritarian political process. tion Antonio from the San School 411 US 28. of Social Services Opinion of the Court consequence of Connecticut’s decision to fund childbirth; dependent she continues as before to be private on sources for the service she desires. The may State have made childbirth a more attractive alternative, sion, thereby influencing the woman’s deci- imposed

but has no restriction on access to abortions that already was not there. at [Id. 474.] The United States Court has held in legislature’s other cases that a election not to fund right the exercise of a fundamental does not im- pinge upon right, Regan v Taxation with Representation, 540; 1997; US 103 S 76 L Ct (1983).23 example, private schools, Ed 2d 129 For though permitted, constitutionally have never support been entitled to from the state under the thing say Protection Clause: "It is one to may prohibit that a State private not the maintenance of quite say schools and another to that such equal protection, must, schools a as matter of Harrison, receive state aid.” Norwood v 455, 462; 413 US 2804; 93 S Ct 37 L Ed 2d 723 equated Moreover, abortion cannot be to public funding required situations where is be- government monopoly cause the has control over exercising right.24 the means of a fundamental The government performance monopoly has no on the 23 Regan, tax-exempt nonprofit corpora In the denial of status for a upheld corporation tion was tial because the intended to devote substan lobbying. amounts its time to Court held there was no obligation Congress support corporation’s lobbying on to with a exemption, though right lobby tax fundamental. even 24See, Connecticut, 371; example, 780; for Boddie v 401 US 91 S Ct (1971). Boddie, 28 L Ed 2d 113 In the Court struck down a court fee precluded indigent going court,to which women from into obtain a system only system empow divorce. Because the state court was marriages, process ered to dissolve the fee was found to violate due requirements. closely Jane Doe’s case more resembles Kadrmas v Schools, 450, 460; Dickinson Public 487 US 108 S Ct 101 L Ed (1988). Kadrmas, 2d 399 policy In a school district North Dakota ended its providing transportation began charging free to school and a plaintiffs, family living poverty fee for bus service. The a near the the Court pay for abortions. means or on the abortions perform abortions, and, inas Jane clinics Private private case, can be made available funds

Doe’s that purpose. government’s determining failure to impinge upon the exercise

fund abortion does right, ex- Court Harris a fundamental of plained, simply that a wom- "[I]t does not follow it a constitu- freedom of carries with an’s choice to the financial resources tional entitlement protected range full herself of the avail choices.” pregnant 316. Just US because an abortion have the choose woman to have the mean that she has does not pay government it. for no in cases Court found sus

Because these upon impingement pect classification and no right, applied of a it exercise rational basis standard fundamental scrutiny, i.e., whether legitimate legislation rationally to a the governmental is related point, this even the Roe interest. On "impor acknowledged an that state has Court tant and legitimate protecting ... in interest potentiality life.” 410 162. And in human US recognized Doe, the Court a Beal v US legitimate "strong encourag [state] interest explaining ing normal the rational childbirth.” by government provide of a basis decision fund ing medically necessary generally, but services medically necessary not for the Court in abortions, inherently Harris said: is different from "Abortion procedures, pro- medical other because no other line, placed complained that it the fee was unconstitutional because a path greater path poor in the obstacle education in the than legal Finding of wealthier families. that North Dakota had neither practical transporting monopoly nor a school, the means of children to on the rejected argument: the Court "The Constitution does not all, require imagine why choosing provided at difficult be [bus] service to offer the service should entail constitu- obligation to 487 US tional offer it for free.” 462. of Social Services Opinion of the Court purposeful termination of a cedure involves potential life.” 448 US 325. emphasized

Finally, the Court has that no bur- imposed upon den is remain regarding right recognized "[The neutral in abortion: implies authority Roe] no limitation on the of a judgment favoring State to make a value child- implement judg- abortion, birth over and to public Maher, ment 432 US 474. For these and other the allocation of funds.”

reasons, legislation pro- which Court has concluded generally, vides for medical but services Equal abortions, not for is within the limits of the Protection Clause of the federal constitution. Appeals majority

As the Court of case this candidly conceded, Clearly, presented adju- if the issues were to be constitution,

dicated under the federal whether under the Protection or Due Process Clauses Amendment, "right of the Fourteenth or some First, Third, privacy” extracted from the Fourth or Amendments, plaintiffs’ challenges Ninth constitutional to the validity would re- be [§ 109a] jected. App Mich [187 522-523.]

IV reasoning We turn now to an examination of the employed Appeals by majority of the Court of panel reaching contrary in its conclusion under Michigan Constitution. panel’s analysis begins

The with a declaration right that "our [state] Constitution affords a to an panel proceeds Then, abortion.” Id. at 508. to a "dispositive conclusion, which it considers in this Equal case,” that 109a violative of the Protec- 1963, 1, § tion Clause of Const art 2. 510. Id. at 650 439 Mich the Court support panel its decision finds (1) Equal Michigan’s following propositions: greater protection provides than Clause Protection the federal gan provisions (2) Clause, that Michi- Protection analyze constitutional state free to courts are analyze differently courts than federal (3) provisions, constitutional federal right upon impinges under fundamental § 109a triggers Michigan Constitution, strict which the scrutiny.25 turn, examine, in each course, we shall In due pause propositions. First, however, we these briefly state that our on the assertion comment right to an abortion. includes the constitution

A supporting appeal, plaintiffs amici In this argued constitutional that a state have curiae abortion decisions For previous right inferred from should be Appeals. of the Court of of this Court and Advisory Opinion example, they rely on on Constitutionality 465, Mich 1975 PA said, it was wherein 504-505; NW2d recognized privacy to be a long This Court has Roberts, 46 Mich right. May De highly valued seriously chal- 160; one has 9 NW No privacy lenged existence of a suggest anyone does Michigan Constitution nor than the any to be of less breadth of the United States Constitution. guarantees recog- Supreme Court has The United States protected constitutionally presence nized Connecticut, 381 US privacy.” Griswold v "zones of (1965); 479, 484; L Roe 85 S Ct 14 Ed 2d compelling panel is without a also asserts that the state 25 The scrutiny. Although satisfy we do not here focus strict interest separately analysis point, in the which it will be discussed on this follows. 669 of Social Services Opinion op the Court Wade, 113; 705; v 410 US 93 S Ct 35 L 2d 147 Ed (1973). being These zones have been described as "penumbras” emanating specific within stitutional from con- guarantees. mentioned Often as a basis 1st, 5th, 3rd, 4th, privacy of the 9th and 14th Amendments Constitution. The to are the

to the United States people adopted of this state have corresponding provisions in 1 art of our Constitu- tion. support

Plaintiffs also find for a state constitu- Appeals tional to abortion in the Court of People App Nixon, decision v 42 332; Mich 201 (1972), 635 NW2d remanded Mich 809 App Remand, 50 On Mich NW2d Nixon, In the Court determined that be- Michigan’s cause enacted to criminal abortion statute26 was

protect pregnant women from unsafe abortions, the statute became obsolete as advances technology safety in medical increased the of abor- pregnant tion for women. respond hand,

On the other defendants that the Appeals conclusions drawn the Court of adopted Nixon were dicta and have not been argue Indeed, this Court. quent defendants that a subse- People Court, decision of this Bricker, supra, overruled Nixon and established that no separate right involving state abortion exists. Fur- challenge ther, Advisory defendants reliance on 750.14; provides, MCL MSA 28.204. The statute Any person wilfully any pregnant who shall administer medicine, any drug, whatever, thing woman substance or employ any whatever, shall intent instrument or other means with thereby procure woman, miscarriage any such necessary preserve unless the same shall have been the life woman, guilty felony, of such shall be of a and in case the pregnant thereby produced, death of such shall be deemed woman be the offense manslaughter. any prosecution section, this under it shall not be neces- sary prosecution prove for the necessity that no such existed. 439 Mich Opinion Court Constitutionality 227, be- 1975 PA on abortion or cause that decision did deal with subject, any closely it was a related and because precedential authority. no decision with argu- the of and other Whatever merit these concerning to the exis- ments available sides both right separate abortion, of an we tence find it case, state to unnecessary issue in this is to decide given regard the our conclusion with to funding question. As the discussion that follows arguendo clear, makes even that a if is assumed state constitutional coextensive with right exists, to the we are able conclude federal Michigan § does that tion, 109a not violate the Constitu- just as the United States Court was uphold public in able the denial question Harris, Maher and need to the without validity of Roe.27

B support invalid, To 109a its conclusion that is Appeals equal panel the Court of claims the guarantee pro- protection in our state constitution greater protection corresponding vides than the guarantee in the Mich federal constitution. 187 App panel Specifically, 517. the the concludes that Equal adopted Protection Clause our constitution was purpose "creating rights broader scope in than under those afforded its federal counterpart.” App However, 187 Mich 516. a re- jurisprudence of the his- view tory and constitutional suggests opposite of this state our —that Appeals Given our reversal of the Court of decision on intimating any dispositive funding question, regard and without view vacate, merits, ing precedential weight we and direct no is accorded, Appeals in be the discussion and conclusion the Court of opinion regarding underlying issue of a state constitutional to abortion. of Social Services Opinion op the Court duplicate Equal Protection Clause was intended to protection. clause and to offer similar the federal panel Appeals justify its The Court seeks reading equal protection guaran- expansive of our by pointing to textual differences tee between by referring Constitutions, 1908 and 1963 of the Constitutional Convention debates preceded adoption which Constitution. persuaded by However, we are not these considera- tions. effect,

While the 1908 Constitution was in guarantee equal only protection basis for a state in in was found a few words included a broad concerning statement "Political Power” art political power people. § 1: "All inherent equal benefit, Government security is instituted for their added.) protection.” (Emphasis Despite sparsity pre-1963 words, this the deci- equal protection sions of this Court ruled that rights under the state constitution were the same as under the federal constitution. See In re Fox Estate, 5; 154 Mich 117 NW 558 rev’d on (1909); grounds 124 60 other Mich NW Lahr, 216, 222; Naudzius v NW (1931). Nevertheless, it is understandable that the delegates produced to the convention which the appro- 1963 Constitution would have considered priate adequate to draft a more statement to de- equal protection rights scribe the to be secured. purpose However, if it had been their create rights encompassed in more or different the federal than those Equal surely they Clause, Protection person would not have chosen these words: "No equal protection shall be denied the of the Obviously, except adjustment . . . .” laws necessary for the drafting they state, because were a language constitution, federal, rather than the the essentially Equal the same as the Protection Mich op the Court pro- Amendment, which Fourteenth Clause person any deny . . . shall "No state vides: protection equal jurisdiction the the its within laws.” delegates 1, § 2 in art included the

It is true that rights: relating shall "nor to civil clause a second any enjoyment person civil or of his the be denied against rights political in the discriminated or be religion, race, color or thereof because exercise national separate origin.” However, clause that a rights protection provide explicit for civil was rights adopted movement, in the midst of the civil suggest any purpose itself, on not, in and of does scope delegates part the the to broaden Equal preceding Protection Clause.28 wording Accordingly, used, in do not find we purpose arrangement, any on evidence of nor in its provide protec- part broader of the drafters Equal the state Protection Clause of tion counter- than is found its federal constitution suggests pattern part. Rather, deliberate protection duplicate secured effort to Furthermore, examination a careful federal clause. debates of the Constitutional of the record of the confirms this view. Convention on Declara- that when the Committee We note Rights, Suffrage, and Election offered its tion of report recommending adoption ing 1, § 2, of art includ- worded, it Protection Clause as now minority report proposing accompanied by was language.29 focused, not The substitute substitute sep- Equal Clause, on the Protection but on Rights The amendments which arate Civil Clause. 28Moreover, Appeals majority opinion the makes in its Court Equal solely on the Protection Clause of clear that its decision rests 1, 2, 1963, succeeding Rights on the Civil Clause. Const art and not § App 534-535. 187 Mich Record, 1961, pp 740-741. Convention 1 Official Constitutional of Social Services op the Court were coverage of that clause expanded would have then was proposal and the committee’s rejected, 1, 1963, art became Const adopted ultimately §2. of our that the framers its assertion support

To equal provide intended to broader constitution the federal by than those secured rights protection makes constitution, Appeals majority the Court of the proceedings to the two references only First, it notes Convention. Constitutional 1, art comment to Const "convention ” stated, 'This is a new section.’ clearly Second, attention to a statement 515. calls App on Declaration the chairman of the Committee Suffrage, and Elections: Rights, a distinct trend in recent has been "[T]here protection incorporate equal State Constitutions to apply persons as rights civil clauses to all singled special attention well as those out apparent discrimination.” because of more [Id. Emphasis Appeals.] the Court of added point take with either unnecessary It is issue support mustered to observe that the extent thin. Fur- proceedings very from the convention thermore, the chairman purpose quoting if the intended our suggest delegates was to ("all state’s Protection Clause to be broader argu- counterpart, than its federal persons”) its mark. The federal clause assures ment misses person.” equal protection "any fo- convention debate that portions support do not the anal- equal protection cused on Rather, we Appeals majority. of the Court of ysis reading from a of the convention record draw intended delegates firm conclusion 439 Mich 650 674 Opinion op the Court equal incorporate the notions of affirm and basic prevailed protection that at the time.30

C concluding equal that our state’s addition scope protection guarantee is broader in than the guarantee, Appeals panel the Court of federal claims to have

rejected "the method used Supreme analyzing United States Court Equal in favor of a dif- federal Protection Clause Michigan’s Equal analysis ferent Protection panel Id. at 518. The states: Clause.” Beyond our freedom to read our own state’s Equal broadly Protection Clause more than that of Constitution, the United States we are also free to by the United States Su reject the method used preme tection Clause in favor of a different Michigan’s Equal analyzing Court the federal Pro Mesquite [102 S Ct v] 1070; Aladdin’s 71 L Ed 2d 152 Protection Clause. See Castle, Inc, (1982)]. 455 US [Id][31] analysis ^[283] [City 293 30 supported by This is earlier decisions of this Court and conclusion See, 360, Spangler, Appeals. e.g., Moore v 401 Mich of the Court of 370; (1977); Comm, Employment Security n 18 258 NW2d 34 Fox v Tavern, Inc, 664, 667; supra 588; App Roy at v Rau 167 Mich 423 497, (1988); Estes, 512; App 126 337 NW2d 54 Doster v Mich NW2d (1983); Dearborn, 602, 613-614; App 549 cf. NAACP v 173 Mich 434 444 NW2d 31 true, stated, Appeals majority It has as the Court " Supreme monopoly Court does not have a on United States '[t]he ” (citation interpretation.’ App correct constitutional omitted). 187 Mich course, authority Of this Court has the to determine that a provision interpreted applied in our state constitution should be differently of 424 Mich parallel provision City in the than a federal constitution. Castle, Inc, Mesquite supra 293; People Thompson, v Aladdin’s at v v Dinolfo, 125; (1985); Twp Delta Charter NW2d (1984). However, 253; 351 NW2d 831 in certain cases where pointed have to a textual similarities historical considerations meaning, adopt fit common this Court has seen construction given by the federal constitution in the absence of Supreme parallel provision in the United States Court to a compelling impose reason to See, Nash, interpretation. e.g., People a different Mich of Social Services op the Court assertion, Appeals actu- the Court Despite this equal protec- framework accepts the basic ally United States developed by the as analysis tion Court: Supreme Court has ac- United States As the equally true our knowledged, state like the exact we find under Clause, constitution, Equal Protection the Clause, susceptible "is not of of Due Process respect delimitation. rule in No definite question either, the automatically will solve which instances, Although specific can be formulated.” provision of our constitu- "equal protection” the tion is definition, precise we not a clause with legislation that violated recognize it can be interest, in this as affects a fundamental either classification, that case, suspect or creates a any compelling interest of justified by cannot be funda- does not involve a In a case that the state. class', suspect a determination interest or a mental Equal the Protec- legislation violates whether test, the rational basis is made under tion Clause challenging the party requires that which justification. it is without reasonable statute show App 510-511. Citations Mich omitted.] [187 panel equal suggestion by the There is no using reviewed should not be protection claims framework framework, is alternative any this nor proposed. it is em-

Moreover, it claims that though even dis- equal protection analysis a method of ploying Supreme the United States from that used tinct under Michi- Court, 109a panel scrutinizes § Supreme as the just Clause Equal Protection gan’s un- restrictions funding scrutinized abortion Court Because Protection Clause. federal der the scheme a classification alleged to create 109a is § 447; Catania, (1983); People 427 Mich 398 NW2d v NW2d Collins, (1986); People 475 NW2d 684 Mich op the Court differently than treats some women appropriate panel others, first determines scrutiny apply. judicial if To determine level of inquires applied, panel scrutiny strict is to be upon impinges § the exercise of a whether fundamental 109a right.32 panel Again, the follows the analyzes Court; § of 109a on the effect "right procreative choice.” Id. at 523. analyzing It the effect of a restric- procreative tion on the choice Appeals disagrees majority with the Court of Supreme Court. In contrast to that United States Court, pinge upon panel § 109a does im- concludes that the exercise of the to choose an abortion: Medicaid-qualified pregnant] woman [a [I]f abortion, medically

chooses to have an necessary resulting even where required pregnancy to terminate or incest, rape pre- directly from 109a providing vents the state from It right funds for that care. is the woman’s exercise of one fundamental right triggers to an abortion —which —the right 109a’s restrictions. Her to bear the child is § similarly impinged upon. that, recognize indigency We while the woman’s choice, also acts as a barrier to her freedom of the required state is not to remedy that condition. But itself, 109a, by adoption the state has created § a direct barrier to the woman’s exercise of her right an to abortion. inequality program,

There is thus an within the indigent pregnant with the distinction based on an option woman’s exercise of an tion the constitu- which individually. vouchsafes her If she exercises abortion, right her constitutional she is ex- program cluded from a for which she is otherwise qualified; if she elects not to exercise that constitu- panel suggest class, suspect does not that 109a creates a § trigger scrutiny. which also would strict Dep’t op Social Services Opinion of the Court the option, she continue receive tional program. [Id. at statutory

benefits this 524.] upon impinge Having § 109a does determined that right under the the of a fundamental exercise applies panel Michigan Constitution, the then Predictably, scrutiny. that it concludes strict demanding level of review § meet this 109a cannot the section. and strikes down panel’s Obviously, in the element the critical rejection purported analysis of basic its is not developed by analysis equal protection the as Supreme Court, its conclusion but United States that right impinges upon an to choose § 109a agree panel abortion. We with scrutiny require would strict Protection Clause upon impinge § if section were to 109a right. Thus, turn to of a fundamental we exercise the upon impinges question § 109a whether Michigan in the fundamental exercise Constitution.

D Appeals majority concludes that The Court of directly of a interferes with exercise 109a to choose an abortion. woman’s App appears of this conclu- It basis 524. Medicaid-qualified assumption sion is an funds for an abor- entitlement women have an actually Although panel state does not tion. suggests exists, it at an entitlement least that such compares the situa- an entitlement when such Medicaid-qualified after before and tion women panel adoption ”[b]efore notes that §of 109a. The Michigan women, 109a, rich all enactment right poor [their alike, to were able exercise and procreative panel However, the choice].” Id. at 523. 439 Mich Opinion of the Court continues, § 109a, after the enactment of benefits away itself, once offered are taken so "the state adoption § 109a, a has created direct barrier right woman’s exercise her to an abortion.” panel addition, 524. Id. at asserts that when Medicaid-qualified a woman elects have an abor- program tion, she is "excluded from a for which qualified disagree. she is otherwise . . . .” Id. We govern- In the absence some burden on the provide right, ment to funds for the exercise of a a Legislature decision fund the exer- right legislative a cise of is distinct from a action impinges upon right. Regan v Taxation Representation, Likewise, with 461 US 549. even previously where the state has funded the exercise right, required of a funding. it is not to continue such Parker, 115; See Atkins v 472 US 105 S (1985). public policy 2520; Ct 86 L Ed 2d 81 For reasons, the state choose to eliminate benefits previously Thus, offered.33 when the state particular persons receiving offers benefit public "power assistance, it retains the to substi- different, tute a later date. prived less at valuable entitlement recipient

. . . '[A] welfare is not de- process legislature adjusts of due when the ” Atkins, benefit levels.’ 472 US 129-130. See also App Services, Saxon of Social 191 Mich 689; 479 NW2d 361 den 439 lv Mich 884 (1991). Clearly, involved in this case is not a right to continue to receive funds that were offered past; rather, in the it is the to choose an unduly abortion without burdensome interference. Like the United States Court, we do not see how a decision to offer funds only away any for childbirth takes of the choices 33See, States, example, Jones 574; Bob Univ v United 461 US 103 S 76 L Ct Ed 2d 157 Social Services Opinion op the Court indigent if to an woman be available would may- funds for It the state did not offer childbirth. indi- in the absence of state her be that choosing gency abortion, to but acts as a barrier indigent an "[a]n woman who desires abortion disadvantage consequence of [Michi- as a suffers no gan’s] childbirth; continues as to fund she decision private dependent on sources for before be Similarly, Maher, 432 US service she desires.” 474. indigent abortion is not an woman who desires an program. a the Medicaid Whether excluded from Medicaid-qualified to terminate her woman wants carry pregnancy term, is her fetus to she or to way any Medicaid- other treated in same qualified pregnant is treated: she offered woman expenses childbirth, but for the reimbursement expenses of an abortion. not for the fund Further, find that an offer to we do not procreative impermissibly influences childbirth The elec woman. state’s decisions of an not childbirth does coerce tion to subsidize forfeiting her to choose an abor into woman any to subsidize than the state’s election tion more forfeiting parents public their into coerces schools private See schools. their children to send supra. Harrison, with decision v As Norwood public schools, have made the state to fund paying option a more attractive childbirth it, obtaining imposed on no restriction it has but already Maher, there. was an 432 US 474.34 course, childbirth cannot be the state’s decision subsidize Of encourage attempt simply women to choose as an

characterized childbirth explains his Professor McConnell As instead of abortion. religious article, funding problem: Abortions selective (1991): schools, L R 1011-1012 104 Harv serve function involved childbirth medical services [T]he "terminating improving the pregnancy” mother’s

beyond Mich Opinion of the Court disagree reasons, For these we with the Court of Appeals and conclude that the state’s decision to impinge childbirth, abortion, fund upon but not does not right provided the exercise of a fundamental by Michigan Constitution.

Having impinge determined that 109a does not upon right, the exercise of a fundamental we hold Appeals subjected that the Court of erred when it scrutiny. § 109a to strict § Because 109a does not impinge upon right, the exercise of a fundamental respect because, at least with to the of equal protection guarantee abortions, our does not greater protection equal offer than the federal protection guarantee, proper standard of re- view is the rational basis test as articulated ear- lier.

Like the United Court, States we con- rationally legiti- clude that 109a is related to a governmental purpose. Contrary mate sug- to the gestion Appeals,35 of the Court of there is no obligation constitutional on the state to remain regarding any neutral an more than there is obligation on the state to remain neutral re- garding rights. the exercise of other fundamental legitimate The potential promoting protecting state has a interest in legitimate life, and it has a interest in Equally important, Leg- childbirth. legitimate allocating islature has a interest They just health. are abortion; more than they substitute for caring are also a means of for appropriate a child. While the way pregnancy issue, to deal with everyone is a controverted agrees born, that if a child is to be the birth should be completed safely possible. as as Medical services at birth should part be government-funded understood as of a network of social services for the benefit of children .... App 531. Social Services of Opinion of the Court way its in a that reflects benefits state determina- public policy Our constitu- of state. tion of the government require we have does not tion without pur- only requires that, in the values; it not values, our will of suit improperly certain of funda- the exercise interfere with procedure rights. be- Because no medical mental termination the deliberate abortion involves sides high cost child- life, of the fetal and because relatively abortion, it is lower cost of and the birth pursue legitimate its the state to rational interests for paying childbirth, but not abor- tion. cognizant reaching decision, this we are

plaintiffs’ argument "[t]he sentiment legislature, fact, electorate, with or, change given regard role of does not to a issue agree judiciary.” Similarly, the Court we with legislative power Appeals "[t]he of people, through referendum, initiative and give any voter- force or effect to more does legislative approved legislation than other important, App . . 527. Just as . .” 187 Mich acts legisla- principle however, limits of is the the power by our federal and state tive are defined judi- by constitutions, the sentiment Cranch) (1 ciary. Marbury Madison, 137; 2 US previously Thus, we have ob- L Ed served, desirable, unfair, as appears legislative un- solution "[t]hat unjust not of or inhumane does legislature empower override the itself a court to & Manistee Bank and substitute its own solution.” Co, the circum- Mich 666-667. Whatever Trust adoption surrounding § 109a, we are stances history any or text of in the unable our constitution find basis support the conclusion would Appeals. of the Court Equal Pro- reasons, hold that

For we these 439 Mich 650 Levin, J. tection Clause of our constitution permits state expenses fund the of childbirth even though state does not fund abortions.36 The decision of the Court of Appeals is reversed.

Cavanagh, C.J., Levin, Beickley, Riley, JJ., Griffin, concurred with J.

Levin, (concurring). Jane and Nancy Doe concede, for purposes lawsuit, of this that 1987 PA adding Act,1 109a of the Social Welfare § insofar as it proscribes the use of public funds to pay abortion, for an elective is in the main consti possibly ninety to ninety-nine percent tutional — constitutional. Doe and her amici curiae supporters claim that 109a is nevertheless § unconstitutional insofar as it proscribes public use of funds to provide a “medically indicated” for an indigent woman.

A While there is evidence that pregnancy repre- sents for some women a serious and long-term threat to their health unless they have an abor- tion, and thus that an abortion is indi- medically women, cated for such the record is silent concern- ing the number of indigent women that might Appeals Because the Court of found that 109a § violated the Equal Clause, Protection it did not address the other constitutional arguments by plaintiffs. advanced Plaintiffs have not renewed their other Court; however, constitutional claims before this we conclude that process those claims would not today. affect our decision We review due using substantially claims the same standards as we use to equal protection review General, Attorney claims. Shavers v Further, analysis 612-613. our under Protection Clause incorporates privacy right the claim that a woman’s is violated 109a. seq.;

1 MCL 400.1 seq. et MSA 16.401 et of Social Services Levin, medically justifiably as indicated abortion seek distinguished elective abortion. from an litigation, ordinary silent, the record is when

In proof of the to one the failure court attributes a parties accordingly, judgment or, on and enters taking of addi- occasion, the case for the remands ordinary case, an If this were evidence. tional however, as moot been dismissed it have would This is not ordi- abortion. an when Doe obtained litigation. nary having provide parties, evidence failed to

The might justi- concerning number of women medically abortion, fiably tinguished as dis- indicated seek a think, abortion, is, I an elective from presented put appropriate, the issue in order to truly attempt perspective, what is to determine an abortion for whom women at stake medically indicated.

B projected Department Services of Social The (15,200) percent eighty year 1990,2 in fiscal that the estimated who, the enact- 19,000 women before eligible for a have been §of 109a would ment Medicaid-funded funding although public would, abortion, withdrawn, nevertheless obtain had been this lawsuit was after did Doe an abortion —as commenced._ during the introduced projection in an exhibit is set forth department said that

testimony of the dss who the Director following have the 109a would enactment of § estimated program effect: coverage will Medicaid abortion FY termination in:

result 19,000 to term. will be carried abortions Medicaid 20% 3,800 deliveries. Medicaid An additional 1,000 afdc cases. additional 439 Mich Opinion by Levin, J. having posed long-term baby If a a serious and (ten many 1,900 threat to the health of as as 19,000) percent indigent pregnant of the women a year, required pay abortions, the amount at payment approximate $318, the dss rate of would annually.3 $600,000 sought survey why

A that to determine women per- have abortions indicates that fewer than ten cent of the women who chose to have an abortion did so because

having posed baby a a serious and long-term survey threat to their health. The re- ports percent responded that seven that concern for their "own health” contributed to their deci- only percent abortion, sion to have an but "53 having those an abortion because of a health problem said that a doctor had told them that by being their condition would be made worse pregnant.”4 appears It therefore that an abortion may medically be indicated for less than four percent indigent 19,000, of the or less than 800 pregnant year, consequently, that, women a $300,000 the amount involved is less than annu- ally. appears5 private

It funds or donated ser- approaching year may $4,000,000 vices a be avail- pay medically able for elective and indicated percent high, If ten is too the amount involved be closer to $200,000 $300,000. hand, having baby poses or On the other if a long-term many serious twenty percent health risk to as as fifteen or pregnant, might of women who become the amount involved be closer $1,000,000. Forrest, Why Torres & Family do women have abortions? 20 Planning Perspectives, 1988), (July/Aug pp study No. 4 169 ff. This auspices was done under the of the Alan Guttmacher Institute and was conducted 1987. I have been advised that this is the latest survey available. payment abortion, On the basis of the dss rate of $318 an and the projection 19,000 eighty percent dss’s women —who before qualified 109a became law would have for a Medicaid abortion— privately provided would obtain an abortion in FY 1990 with or funds donated services. of Social Services Levin, indigent be suffi- women. This should

abortions for provide women an to all cient to medically indicated6— abortion is for whom an year required $300,000 a is whether amount year. $1,000,000 I conclude therefore as much as question whether is a substantial there medically indi- for whom an abortion women having in mind available cated are fact — fund- alternative to sources indigent. ing medically — practical many appears

It that there are also obtaining facing an elective woman in obstacles a Obtaining medically funds abortion.7 or indicated funding private in the are devoted sources Absent evidence abortions, suppose pay that such funds one would main to are at least as available elective abortion. for elective medically indicated abortion as for an for a supporters by light placed curiae Doe and her amici of the stress long-term plight threat to her health with a on the of a woman faced indicated, medically think that if one would an abortion is for whom resources, prioritize a woman for whom an abortion need to there is a is priority. medically some indicated would have moment, in of Ameri is not available At this 83% counties, nearly of a third of American women home to ca’s fear, professional pride, childbearing age. or For reasons pro away pressure, from doctors have backed economic cedure even where it available. remains territory, political entering moral and . . . America is new uncharted, righteous by phosphor rough certainties. And as the combatants concilable lit but square with their irre- off ground, liberty, what the middle notions of life and it, promises earth. to become scorched there is trying get predicament is harder abortions of women wrenching image. single are 1.6 million There into a to distill abortions representing year, almost in the U.S. each carried out than pregnancies. that more It is estimated 46% a fourth of all of American women But while they by are 45. one the time will have had country 2,500 places around the there are about 2,908 years ago— high ten provide from a abortions —down cities, leaving areas of they mostly broad clustered around are in single 24 counties country clinic serves unserved. A the northern provides abortions one doctor Minnesota. Just happens [Lacayo, to Roe matter what No South Dakota. patients Wade, perform and their abortions doctors who Levin, J. pay the least be for an abortion reality, obstacles, or, no obstacle substantial relatively for whom an women the abortion is few medically indicated.

C clearly constitutional If there were a established publicly abortion, would, funded to a course, that an abortion is ob be of no moment private sources. The as from charitable tainable contrary, however, is, entitlement, on the serted support prece any in the without well-established dents. truly being new This Court is asked to break ground legislative providing remedy rectify judicial decision to withdraw for a com- abortion) (medical larger ponent program (general for an of a service Medicaid). under medical service justified be- Doe and amici curiae assert this is facing indigent women cause the alternatives nied de- public pay medically funds to for a indicated Court, abortion are so dire that this to avoid the injustice designed Protection Clause was avoid, must intervene and hold to be invidiously discriminatory challenged classifi- indigent pregnant cation of women between those fully provided for whom if medical service will be they carry baby a to term and those in need medically medical service for a indicated abortion. obstacles, 4, 1992, Magazine, May pp face formidable Time 28.] (see text) rely accompanying The dissenters ns 11-13 and on case holding Equal against protects law crimination in Legislature Protection Clause dis establishing eligibility program criteria for a support has chosen to fund. Those cases do not a claim Equal requires Legislature that program Protection Clause to fund a program components because it has funded another or program. such a Dep’t of Social Services Opinion by Levin, J. place

Since Doe and amici curiae such stress on indigent plight desperate of an in need woman medically abortion, a indicated and the of ters dissen-

place such stress on the burden Doe’s represented by an to ing, the denial of fund- availability private funding and do- is, believe, I nated services a relevant considera- deciding judicial tion whether intervention is warranted. having

It not been established that private funding or women do not have access to medically for indicated donated services even a unpersuaded abortion, I am this Court can attempt prin- properly be asked to to articulate a attempted cipled basis—I have to do so without distinguishing plight success—for gent of an indi- medically woman whom an abortion is plight woman, from indicated formerly of a man or general assistance, on welfare who has winter, been evicted from shelter without acquiring adequate food, the means of shelter or put freezing starving at risk of to death and depen- physical entirely streets, assault on the private charity dent on because unable to obtain employment.9

i The Due Process Clause secures to a woman reproductive during freedom at first tri- least the pregnancy, mester of a such also secure to her govern- liberty obtain, interest without medically interference, mental indicated abor- Services, App See Saxon v of Social (1991), declining provide NW2d 361 injunctive lv den 439 Mich 880 challenging relief in a case the elimination of the General programs. challenge Assistance and Job Start include a claim that did not indeed programs the elimination these was violative Protection Clause. Mich Opinion Levin, J. pregnancy. beyond trimester of the first

tion fundamental as a described has been This right. contended, however, has that a woman

It is not governmentally funded to a a fundamental the rather that because appropriate It is claimed abortion. large governments state federal and through provide Medi- care to medical sums persons, indigent Doe, program such as for caid medically pay provide to for funds to the failure Equal Pro- of the abortions is violative indicated that while It is contended tection Clause. Legislature obliged provide medical care is not having indigent persons, established for prenatal program, and which includes Medicaid indigent women, gynecological for medical care Equal discriminate, with consistent cannot against indigent Clause, who women Protection right to have their fundamental desire to exercise by denying them, in contradistinction an abortion generally, indigent and women men from requi- particular, pregnant care medical women obtaining medically indicated abortion. site question presented is thus whether Legislature requires Protection Clause medically provide pay for a indicated funds to Legis- because the for an woman comprehensive program has funded a lature indigent men and women. medical care for

A join signed opinion Court, I have Appeals because there Equal in reversal of the Court construing precedent Protec- is no require empowering judiciary tion Clause as Dep’t op Social Services Levin, component of a legislative program,10 excepting only state comprehensive program that, in the context of the Medi- court decisions11 Protec- controversy, Equal read the caid abortion argument predicated require. tion Clause to so begs question decisions on those state court legitimately this Court cannot presentéd; clearly re- Protection Clause so Equal decide that other state simply in this context because quires courts have so required.12

B Supreme of the United States The decisions dissenting opin- relied on in one of the two Court eligibility constitutionality concern the ions13 Congress had chosen programs criteria for cases, Court, in that dura- to fund. The those held availability-for-work-on-the- and tional residency14 Maher, Administration & for parental Amendment, 55 an abortion. counsel for 2d 799 P2d the program Memorial Committee to S Ct McRae, Ct reh den 448 US 917 12 No 11 ^[10] J., Boyle, 13 (1976). 1790; indigent Right The United States Memorial 779 (1974), 1322; precedent (1963), 40 Conn 448 US (1981). 10 Ed 2d 965 or a rights. Hosp Maricopa The state is not to Choose v 22 L Protection were L parents where the indigent Gideon component Defend post, p Hosp Maricopa Ed 2d 600 v 297, 317, Reist is cited in these decisions Supp discussed this Court has Finance, v Reproductive Rights Myers, defendants 710, v Byrne, 91 Supreme Wainwright, Clause 394; Bay of a (1963); Shapiro n (1969). citing moving against in the Co, 19; 515 A2d 134 Circuit comprehensive program. 382 Mass state moves requires 100 S Ct 415 US Co and Court has Sherbert Sherbert and in criminal cases under NJ required public funding opinion 372 US Judge, 287; Shapiro Thompson, 250; v 629; 2671; v v (1986); 450 A2d 925 Thompson, required public funding supportive indigent against of the Court Verner, 335; 417 NE2d 65 L Ed 2d 784 Shapiro, together S Ct v 83 S Ct Moe v them to terminate 29 Cal 3d women who seek 374 US 1076; of a claim that 326; 394 US (1982); Secretary in 792; 387 39 L Ed 2d 241 NW2d of counsel 398; Harris supra. 252; fund a 618; 9 L Ed (1981); (1980), Sixth with 82 S 625 v 439 Mich Levin, gov- eligibility criteria for entitlement Sabbath15 invalid as violative were ernmental benefits constitutional group rights, of cases for one religious one’s travel, to observe another beliefs. point if 109a would be Those decisions

sought penalize who have an women by denying to medical bene them access by the As stated welfare benefits.16 fits or other McRae, in Harris v Court 100 S Ct United States 448 US 784 317, 267;. 65 L Ed 2d n (1980): "A 448 US 917 substan reh den Congress question if would arise tial constitutional attempted all Medicaid benefits had from to withhold eligible simply be

an otherwise candidate constitu cause that candidate had exercised her preg tionally protected freedom to terminate her by nancy abortion.”17 Verner, supra. Sherbert v 400.40-400.43; dissenting opinion argues that MCL The other require indigent report an woman to

MSA 16.440-16.443would abortion, receipt private funding for an and that indigent funds from outside source to an woman received an [i]f abortion, monthly could

finance an her total welfare benefits be payments proportionately rectly Id. Because are made di- reduced. given provider no cash allowance is to the assistance, waiving given medical other medical necessities in favor of a abortion. she is not even the choice of medically indicated Consequently, who a woman chooses to have forgo housing family if abortion must or care for her she wants J., post, p [Mallett, this medical treatment. 702.] McRae, 19, supra As set forth in Harris v at n a "substantial question Department constitutional Services were to seek to reduce an would arise” if the of Social indigent woman’s welfare benefits regard because she had an abortion without to whether she or paid someone else provided for the abortion or the medical services were charge. without invalidity penalizing indigent an woman for exercise of her constitutional to have an abortion does not and would not mean abortion; pay remedy that the to declare the must for the would be benefits, penalty, reduction of welfare to be invalid. analogous The Court continued that this would be to Sherbert v Verner: of Social Services Levin, J. point however, not, Those decisions are be- indigent penalize an cause 109a does not woman by denying who has an abortion her access either indigent An to medical or other welfare benefits. woman who has had an all abortion is entitled to any the medical benefits that other man might including, appear, claim, or woman it would any might required medical care that be conse- quence having of her had an abortion.18 holding though Congress

Case law that even Legislature may constitutionally or the not be required provide particular program, funds for a eligibility it when chooses to do so the criteria must be consistent with other constitutional limi- support Legis- tations, does not the claim that the component larger lature program, not eliminate a of a provide must funds for a component larger program. of a

Section 109a does not establish an unconstitu- eligibility deny any tional criterion. It does not per- woman access to medical benefits that other pro- Rather, § sons are entitled to receive. 109a particular benefit, vides that a of abor- longer provided. tions, is no to be There is no eligibility any criterion which woman can ob- publicly tain a funded abortion. This is not like dissenting opinion, the cases cited in the where the Congress program, sought, had funded a but or a legislature sought, deny persons state access to the had some

program who otherwise would be not, where this Court held that a State consistent with the Amendments, unemployment First and Fourteenth compensation withhold all from a benefits claimant who would otherwise be eligible unwilling for such benefits but for the fact that she is day per to work one week on her Sabbath. suggestion There is no on this record that a woman who suffered complications medical whatever medical care she as a result of an abortion would be denied might require. Mich by Levin, J. by program participate

eligible the estab- in the eligibility found the court criteria lishment limitation. constitutional violative of a to be C unconstitutional 59 ordain an does Act Nor simply gender-based truism a It classification. pregnant, thus, and, only become women can that only Simi- an abortion. or obtain can seek women military eligible larly, for the draft.19 are now while women subject only service, have been men principle that makes no constitutional There is only legislation one affects all or constitutes concerning legislation suspect, especially sex subject nature, can that, the laws of matter only one sex. affect

II com- of a to rule that Were this Court program prehensive disables assistance of welfare component eliminating Legislature from (i) legislative program motivation that is based where (ii) part judgment, on a moral some eliminating funding seriously burdens exercise indigent persons of a fundamental right, lawyers asserting a new cause a basis for would have for welfare assis- of candidates action behalf generally. tance rights at least as shelter and food are

The for a to medical services as the fundamental medically Due Process indicated abortion. protects food seek shelter and Clause governmental interference, at unreasonable from might argue into service or their families Men who were drafted [men],’ special vulnerability "legally the draft reinforc[es] Boyle, J., p post, 710. even at the risk of their health [or life].” Doe of Social Services Opinion by Levin, J. protects right least to the same extent that it to seek reasonable medical assistance. But the Due Clause, Process no more so for the fundamental rights to shelter and food than the fundamental right oblige gov- service, to seek medical does not poverty. ernment to relieve the burdens of While may right shelter, food, one have a fundamental govern- and medical service free of unreasonable right restrictions, mental one does not have the government provide shelter, demand that free free food, or free medical services. provide does, indeed,

The modern welfare state many indigent population. such services for in the But the allocation of such services has never been thought justiciable. govern- sure, To if be be program ment decides to establish a for the benefit poor persons, eligibility not establish criteria violative of constitutional limitations on power government. But the Protec- thought tion Clause has not been to endow the judiciary power supervise with the the alloca- public require tion of principles funds or to that neutral announced,

be to be enforced judiciary, government governs to assure that fairly.

III legislative provide The decision to funds for the expenses impermis- medical sibly of childbirth does not burden the to choose abortion. Other- great many wise a federal and state actions would subject challenge. be to constitutional Both the governments state and federal have enacted laws programs designed and marriage. to aid the institution of provides

The Internal Revenue Code persons. passed benefits to married has state against adultery bigamy. Marriage gives laws Levin, J. property legal rights spouse one other. marry, not to to choose

There is also right equally to as the fundamental which is as marry. provides benefits, enti- no no the state But that choice. tlements, the exercise to facilitate truthfully the state contend can And no one unconstitutionally marry not to burdens marriage. competing by promoting value, the effects to alleviate if the state chooses But funding by poverty pregnant medical women on fund medical childbirth, it not how can care for care for Should ing childbirth, abortion? to the alternative compet- respect of these both not the state equally? values enlightened

Perhaps to do choose state would an require however, not, The constitution does so. though fairly. govern wisely And or even to state it take sides on an state to unfair for the be strongly, people many so feel which so issue about it The state to do so. for the is not unlawful prohibit government may interfere with not support abortion; it need to choose support though public with it does funds even with competing public value of childbirth. funds the people purposes institutes for which One develop express government choices, to to value people way norms, in which about societal govern- The act of their freedom. should exercise govern ing requires make value those who choices. government concept neu-

Indeed, the entire trality falla- issue is the abortion/childbirth on position government one must embrace cious. argument say It is at least fair or another. by provid- promote would medically ing funding indicated abor- for a even oppose offend those who Such would tion. Services Social Levin, J. contrary result offends abortion as much as short, is no mid- choice. there those who favor ground. promote "choice” is as The decision to dle much an

expression of the decision to values as promote childbirth. possible it if for the state to maintain

Even were rights, neutrality respect to fundamental with gover- neutrality would not result in sound such gov- logical Indeed, the result would be no nance. Nearly every state and federal ernance at all. program subject challenge. It will would be possible argue always entitlement be an promotes one bundle of funda- created the state rights expense A re- mental at of another. gov- quirement neutrality would mean that could create no entitlement without also ernment creating equal opposite Under an entitlement. government, the role of the such a scheme of police neutrality legisla- judiciary would be to striking legislation steadfastly any tion, down expressed thought, idea, or took a an contained a Only position on the issues that matter most. legislation consisting gray of dull matter would survive.

IV government express The must some set of values govern democracy then in if are the values of the and is to at all. How be identified proper articulated, is of the and what the role judiciary respect choices? In with to those value by cases, must be made most such value choices government, overtly political the the branches legislative judicial executive, and not the branch. cooperation government, with federal

Michigan provides a set of medical benefits Mich 650 Levin, Presumably,

indigent population. these medical indigent persons go only to those will benefits Because condition warrants. medical whose govern- Michigan federal and resources of the made limitless, must be choices are not ments concerning pro- of benefits and level the extent program. one to include The decision vided benefit while necessarily

excluding reflects another Perhaps will be eco- the value value choice. some nomic least subjective. utility, utility. at economic But ideas of notoriously market, are in the absence of Somebody we are decide whether has to transplants paying for all who for heart better off spending pay resources cannot need them but Either school children. on inoculations choice would be made can be defensible. Neither system of human val- reference some without ues. judiciary to decide

It not the role of is properly taken into account be values making is what is involved choices. Because such of societal and articulation the identification repre- largely norms, left to the the task should be government. sentative branches depends judicial for the enforcement branch upon judgments of the executive the will of its legislative upon ultimately the will branches and citizenry. confidence is That of the and confidence eroded when politically by acting perceived judiciary to be substituting political judgment political judg- majority for the of the Court expressed people majority at as ment of the power force- is most booth. Judicial the election fully arrogat- from a court refrains asserted when properly ing to the entrusted to itself decisions people. government or to the branches of other indigent deprive only may women unfair to It be particularly pregnancy, the funds to terminate of Social Services Dissenting Opinion Mallett, J. likely precisely to women who are when it is such pregnancy most need medical care for termination well-being urgently preserve physical or, their preserve opportunity least, their to decide for at people of their lives. But the themselves the course Legislature Michigan have decided otherwise, gan in the Michi- and I do not find a basis I therefore

Constitution to reverse that result. holding judgment the Court that concur Equal § Protection 109a does not violate Clause. (dissenting). § Under 109a of Mallett, Act,1 re-

Social Welfare an woman will expenses if ceive no reimbursement for medical medically she chooses to have a indicated abortion. majority § that 109a does not ex- The concludes guarantee equal protection ceed the limits of the Michigan respectfully I dis- Constitution. sent.

I plaintiffs argue Nancy Jane and Doe § Clause of the 109a violates the Protection Michigan creating Constitution an intolerable agree. pregnant classificatory Indigent scheme. I requiring women medical care childbirth indigent preg- However, receive Medicaid benefits. abortion, women an even when nant who seek medically preserve necessary health, their are through Medicaid unless denied reimbursement necessary the abortion is to save their lives. App 493, 523; I Mich 468 NW2d 862 find unduly 109a is an burdensome interference privacy with a woman’s fundamental to terminate her includes the to choose MCL 400.1 et seq.; et MSA 16.401 seq. 439 Mich 650 698 by Dissenting Opinion Mallett, J. pregnancy. Wade, 113; 93 S Ct 410 US See Roe v (1973), 959 410 US 147 reh den 705; 35 L Ed 2d (1973). exclusively

Relying States on United almost majority Supreme decisions, concludes Court Michigan’s denial of Medicaid that indigent pregnant medically who seek a women required to save is not indicated abortion their lives does not upon impinge fundamen- their privacy. Doe, 438; 97 S 432 US Beal v tal Ct (1977); Roe, 432 Maher v

2366; L Ed 2d 464 53 (1977); 2d 484 464; 2376; Ct 53 L Ed 297; US 97 S L 2671; 65 McRae, 448 US 100 S Ct Harris v (1980); 917 reh den 448 US Ed 2d Regan Representation, 461 US v Taxation with I find 540; 1997; 103 Ct 76 L Ed 2d S Supreme analysis in Court these the United States majority’s thus, flawed, and, reliance decisions misplaced. § 109a Judicial review of on these cases analysis equally "rationality” defec- is under tive. indepen- hardly precluded from

This Court is interpreting Michigan’s Equal dently Protection Supreme may reject United States Clause Court Mesquite analysis. City Cas- v Aladdin’s tle, Inc, 283, 293; 1070; 71 L Ed 455 US S Ct (1982) (a entirely is free to read 2d 152 state court broadly more than this Court its own constitution reject constitution, or to reads the federal mode of analysis used this Court favor of a corresponding analysis of its constitu- different Michigan guaranty). Moreover, have tional courts analysis rejected Court on United States People previous Jackson, See v 391 Mich occasions. (1974) (extended rights of defen- 217 NW2d corporeal represented by at dants to be photographic counsel indepen- procedures identification ruling); People constitutional dent of federal Services of Social Dissenting Opinion Mallett, (1986) 277; 395 NW2d App Sundling, exception to the faith” adoption "good (rejected improper). is rule where search exclusionary unconstitutional, I 109a concluding Protection Michigan’s find that need not its federal than greater protection Clause offers that a I need to conclude Nor do counterpart.2 privacy to is broader right fundamental woman’s the federal than Michigan’s Constitution under 109a in Roe v Wade. Section established right right of privacy fundamental upon the impinges as a chooses abortion indigent woman who an and, there- pregnancy treatment for her medical fore, is unconstitutional. right that to do not contend plaintiffs

The includes a indicated abortion medically choose a Ante, 666. p for it. pay that regard goes beyond in this The assertion majority’s this Court. As Justice scope of the case before Harris, supra, in Roe does Brennan clarifies State is under that "the proposition stand for the to abor- to ensure access obligation affirmative an 330 them.” US for all who desire tions how- (Brennan, J., require, Roe does dissenting.) ever, wielding from its that the state "refrain in a manner that and influence power enormous woman’s freedom might pregnant burden the Id. have abortion.” whether an choose constitutional, 109a is Concluding that § Maher, proposition for the supra, cites majority " implies no '[(t)he right recognized that Roe] to make a authority limitation on the State deny any provides: state The federal constitution "[no shall] equal protection person jurisdiction of the laws.” US within its 1, 1, Constitution, provides: Const, XIV, Michigan’s 1963 art § Am 1.§ people. power insti political Government is inherent in the "All benefit, protection.” equal security their tuted for equal person provides: shall be denied also "No constitution protection 1, 2. . . . .” Const art of the laws 439 Mich Dissenting Opinion Mallett, favoring abortion, judgment childbirth over

value implement judgment the allocation and to ” majority p public fails Ante, 667. The funds.’ notwithstanding acknowledge that, this the fact govern- conclusion, that the the Maher Court held unduly woman’s] [a "with cannot interfere ment freedom to decide nancy.” preg- her

whether to terminate Baird, 428 474. also Bellotti v US See (1976) (a 132, 147; 2857; 49 L Ed 2d 844 96 S Ct US requirement unduly burdens state to unconstitutional). an abortion is seek prohibits govern- Ruling legislation that unconstitutional, abortions is not ment-funded United States has reasoned that a Court government’s indigency, action, not the woman’s Maher and an abortion inaccessible. See makes supra. Harris, The Court held: place [Although government may not obstacles path exercise of her freedom of a woman’s choice, it not remove those not of its own of creation. need category. latter The Indigency falls indigent financial constraints restrict an range full ability enjoy woman’s constitu- prod- are the tionally protected freedom choice governmental on access to uct not of abortions, restrictions indigency. Although but rather of her government] medically opted has to subsidize [the necessary generally, services not certain medi- but abortions, necessary the fact remains cally denial of funds for an abortion] [the indigent the same leaves an range woman with at least deciding of choice in whether to obtain a have medically necessary abortion as she would Congress if had chosen to no health had subsidize [Harris, supra, pp care costs at all. 316-317.] Thus, concluded the United States Court public for an abortion does that the denial of funds upon infringe a fundamental not woman’s of Social Services Dissenting Opinion Mallett, procedure. This examination is this medical choose analysis commonly as the "obstacles” referred to soundly rejected by members and has been United States

Supreme Court. See Maher at 482- (Brennan, dissenting). reject too, J., I, analysis” it is illusive and mis- "obstacles because leading. Michigan program a state- Medicaid designed plan pay the costs of

administered recipients care for most welfare and cer- medical tain other Michigan poor chose to individuals. indigent the health care costs of its subsidize enacting PA MCL 400.105 et citizens 16.490(15) seq.; seq. MSA et eligible to receive Medi- a woman is found Once quality assistance, her access to medical care caid theoretically person who is require gan’s the same as a does words, In

Medicaid assistance. other Michi- program of the Medicaid removes enactment recipient’s indigent relating status to medical § 109a, however, care. With the enactment of recipient may female obtain access to the full range provided of medical treatments under this program unless she chooses abortion as a medical government’s treatment. The restriction of Medi- medically abortion, caid funds for a indicated fact, creates the financial "obstacles” that program purposefully Medicaid restriction is eliminated. Such a infringement

clearly upon an a wom- freedom of choice. an’s provided instances, services under Medi- most represent indigent

caid an woman’s sole access to government may health care. While the restrict its public inappropriate funds, use of such action is here where the effect is that an woman’s of choice is altered to accommodate the freedom government’s agenda. Brennan in

Justice stated supra: Harris, 439 Mich Dissenting Mallett, . . . in the Court’s flaw The fundamental acknowledge that the its failure to

analysis ... is gov- of of the benefits distribution discriminatory discourage of the exercise largesse can ernmental fundamental effectively as can an just as liberties through criminal rights of those outright denial US sanctions. regulatory 334.] and [448 of incen- Here, too, distributions the differential an effect as § 109a have the same under tives indigent outright prohibition exer- an woman’s right. fundamental cise of her design complex in Furthermore, of welfare Michigan effect the burdensome contributes scheme, if a woman the current § 109a. Under Dependent receiving Children or Aid to Medicaid receipt report of other fails benefits (adc) disqualified assets, she could become income for 400.40-400.43; MSA MCL future benefits. indigent received funds If an woman 16.440-16.443. abortion, her to finance an outside source from an proportion monthly benefits could be welfare total ately payments are made Id. Because reduced. provider directly is and no cash allowance to the given given assistance, she is not even for medical waiving other medical necessities the choice medically indicated Conse abortion. favor of a quently, the abor who chooses to have a woman family forgo housing if or care for her tion must Corns, treatment. See this medical she wants impact indigent public decisions on abortion proposal statu A to reform state women: funding provi tory constitutional sions, J L Ref 24 U Mich indigent with an woman’s context Considered circumstance, the effect of coercive entire financial procreation choice is obvious. § 109a on a woman’s benefits, an with the denial Faced pressured carrying into the fetus woman of Social Services Dissenting Opinion Mallett, J. notwithstanding term, her choice to have an abor- impairment tion, and the sometimes substantial physiological psychological health. her

II unduly reasons, § I 109a For these find right privacy burdens a woman’s fundamental subject judicial under the and thus is review scrutiny” analysis. "strict examining Equal Protec- When violations of the right impli- tion Clause where a fundamental adopted scrutiny” cated, this has the "strict Court analysis employed United States Independent School Dist v Court. San Antonio Rodriguez, 1, 1278; 17; 93 S Ct 36 L Ed US (1973). den 411 US 959 If the 2d legislation impinges upon reh

a fundamental suspect government classification, involves a compelling interest or the must demonstrate legislation Bank & Trust Co v fails. See Manistee McGowan, 394 Mich 232 NW2d implicated, If is not a fundamental legislation legiti- rationally must be related to a government purpose. Id. mate supra, Wade, In Roe v the United States Su- preme governmental Court identified two interests (1) procreative health, choices: a woman’s (2) potential However, life of the fetus. government’s potential interest in the life of the compelling until fetus does not become the fetus is compelling only Thus, Id. at 163-164. viable. government procreation interest a woman’s protection choice before the third month is the Prohibiting reimbursement woman’s own health. under 109a in all trimesters does abortions government’s compelling advance the interest not in the health of the woman or the child. fact, Opinion by Dissenting Mallett, gov- the balance between exceeds such action right of the constitutional interest and ernment’s the woman interfer- to be free from Michigan procreative decisions. in her ence Legislature’s deny reimburse- Medicaid decision a medi- who seeks to an woman ments provides cally ato but indicated abortion treat- a medical childbirth as who chooses woman pregnancy survive the strict cannot ment for her scrutiny analysis.

III rights Michigan a cannot be The exercise of fundamental of remains The State vain endeavor. legalized by in Roe v Wade the decision bound right argue has a to an To that a woman abortion. not need allow but that abortion Roe v to this service renders Wade her access meaningless. Supreme States Court deci- But for the United supra, Maher, Beal, Harris, several in sions limitations on abor- would find Medicaid courts Rampton, Supp 366 F Doe v tions unconstitutional. 1973) (Medicaid (D Utah, and the 189 inseparable); Coe v to choose abortion are 1976) (D (abortion Supp NH, Hooker, F 1072 is 406 pregnancy, and the an alternative treatment recip- arbitrarily may not restrict a Medicaid state ient’s F treatment); Mathews, 421 choice of McRae 1976) (ED (the Supp NY, freedom to choose indigents if can- an "unreal” an abortion is not subsidy).3 receive Medicaid legislation Similarly, enacted several states have provide government-funded abortions that would pregnant indigent as has become where an woman rape Preterm, Dukakis, Inc v or incest. a result of See supra Corns, at 389-391. Social Services Doe v Dissenting Mallett, (CA 1979), den 441 US cert F2d 121 (1980); Busbee, app 448 US dis 1979). (ND Supp Ga, These 1326, 1329 471 F part recognition represent on the a decisions legislatures pregnant choice to become that the always place woman with a rest does the first penalize her when thus, need not and, the state permits no such 109a Section she is victimized. recognition. inflexibility § 109a Moreover, unwillingness Legislature’s Michigan exhibits to requiring cooperate needs of women the health with is re- action Such assistance.

Medicaid prehensible. assumption, majority’s

Contrary a Medi- to the private recipient’s finance a funds to access caid medically any abortion, treat- medical indicated reality scarcely matter, ment for that prototype hardly Michigan.4 Jane Doe is State of majority pregnant women, of whom situation ad- have their fortuitous to are not as Shortly Michigan Court. dressed request Nancy plaintiff for medical Doe’s after for her a first-trimester assistance daughter pre- plaintiff denied, Jane Doe was was private How- funds for her abortion. sented with availability private funds for Jane ever, only notori- to the can be attributed Doe’s abortion ety of her situation. pointed Healy James, v out

As Justice Powell 2338; 33 L Ed 2d 169, 183; 92 S Ct 408 US practical disregard free to "[w]e are not protection guarantees Michigan’s equal realities.” are based premise must not laws on the persons. similarly prejudice unfairly The situated possess Michigan Legislature unlimited does not on a constitu medicaid decisions note, of recent The effect See 687, 710 only right: rich? 6 Fordham Urb L J for the Abortions tional (1978). 439 Mich by Dissenting Opinion Boyle, J. popular

authority to enact laws on the basis of upon objectives moralistic that encroach constitu- tionally protected Marbury See v Madi- freedoms. (1 Cranch) (1803). son, 137; 2 L 5 US Ed 60 When occurs, this "the courts are entrusted with power nullify responsibility to review and the legislative repugnant acts which are to the consti- supra Bank, 666. tution.” Manistee at Michigan accepted responsi- The State of has bility equitably providing by services medical enacting program. By denying the Medicaid an and medically accepted to a woman access constitutionally protected medically abortion when treating physician, Legisla- indicated her equal protection her ture denies under the law of Michigan. State I would affirm the decision of the Court of Appeals that found that 109a is unconstitutional Michigan’s under Constitution. (dissenting). question us is before Boyle, qualified indigent

whether an otherwise fifteen- pregnant year-old, who became as the result of a rape, may be denied benefits for a first-trimester necessary preserve agree I her health. with Justice Mallett’s conclusion that benefits separately briefly I not be denied. write my address narrow reasons for this result and the more

remedy appropriate. I believe proceeded cautiously declaring This Court has rights under our constitution that differ from those enumerated the United States People Court, Catania, 447; v 427 Mich 398 NW2d explicitly recognized We have Bay Judge, to do so. Reist v Circuit (1976) (an indigent parent 241 NW2d 55 is entitled appeal terminating to counsel on parental rights); from a decision Twp Dinolfo,

Delta Charter 707 Social Services of by Dissenting Opinion Boyle, (an (1984) ordinance 831 253; 351 NW2d Mich living together persons prohibiting from unrelated of Michi- Clause Process the Due of violative was Constitution);1 gan’s equal Michigan high priority in accorded equality 1, benefits, art protection, of 1, § 2, to art 51, protection 4, § counsel health, art § and analysis McRae, 448 rejection v in Harris (1980), reh 2d 784 2671; 65 L Ed 297; 100 S Ct US (1980).2 conclude I would 917 448 US den under a fundamental burdens statute Michigan denying selectively bene- Constitution necessary medically abor- first-trimester, fits for any question, in our unlike The statute tions.3 selectively one of two jurisprudence, focuses on constitutionally protected and decision of a choices penalizes option, the disfavored the exercise requiring needs medical their women to sacrifice pregnancy the interest first trimester in the potential life. of the state dispute beyond Wade, 410 US that Roe v It is McGowan, 655; 1 Co v Bank & Trust See also Manistee passenger (1975) holding guest opinion (plurality 636 232 NW2d Equal Protection Clause exception of the as violative unconstitutional Supreme Court Michigan States after the United Constitution challenged pursuant to the Fourteenth upheld Amendment), statute a similar General, Attorney 384 City Dist v Traverse School and (1971) (a barring nonpublic proposal 390; school 9 Mich students from 185 NW2d public auxiliary schools at services shared time equal protection exercise of deny the free and burden was deemed religion). 2 virtually every state court been endorsed This conclusion has Reproductive question. to Defend See Committee with the confronted (1981), 866; Rptr 252; P2d 779 Myers, Rights Doe v Cal 3d 172 Cal v (1986), Secretary 394; Maher, Supp Moe v 515 A2d 134 40 Conn (1981), Finance, 629; 417 382 Mass NE2d & of Administration Hope 287; Byrne, A2d 925 Right 91 NJ to Choose v Perales, 150 Misc 2d 571 NYS2d positing question as Although has been characterized claim in (The Detroit fetus recipient’s that of a nonviable vis-á-vis Michigan, Organization amicus Chapter curiae, of Women of National alleges 16), complaint "a trimester plaintiff’s first p medically necessary . . . .” 439 Mich Opinion by Dissenting Boyle, J. (1973), 113, 163-164; 705; 93 S Ct 35 L Ed 2d 147 (1973), right reh den US 959 a established be free from state interference in an abortion decision, at least before the end of the first trimes- ter, and held that even when the state’s in interest potential compelling, may go life is "it so far as to proscribe except . . . when it is neces- sary preserve the life or health of the mother.”4 added.) (Emphasis Bolton, In Doe v 410 US 193, 195, 197; 739; 93 Ct 35 L 2d 201 S Ed "hospital Court a invalidated requirement . . . [that] fails to exclude the first pregnancy,” require- trimester of ment not apart an accreditation imposed any procedure on other medical requirement statutory abortion, from and a approval by hospital committee, a "[t]he because right woman’s to receive medical care in accor- physician’s judgment dance and the substantially her with licensed best physician’s right to administer it are by statutorily imposed

limited this overview.”5 my analysis view, the statute does not survive constitution, first,

under our state because the protection of health lies at the core of the interest imple Wade, second, in identified mentation of the Roe v because protection is within the provided by finally, Bolton, and, because withholding medically necessary benefit when virtually medically necessary all other health care provided benefits are is a coercive burden on exer protected cise of the right. widely speculated expectancy questiona It is that the life of Roe is However, Michigan

ble. the State of is bound that decision. separately recognize Whether we would if Roe were over question. turned is a different noted, disapproval As Justice O’Connor has the Court’s of these requirements impose clearly was “on based the fact that the State did not any procedure them on other medical . . . .” Akron v Akron Health, 416, 465, Reproductive 2481; Center for 462 US n 103 S Ct (1983) (O’Connor, J., dissenting). 76 L Ed 2d 687 of Social Services Doe Dissenting Opinion Boyle, squarely

Simply stated, Roe v Wade because it if is unreasonable interference holds that state importance in greater interest to the attaches protecting the potential the interest than to life wrong, if vRoe health, v McRae Harris mother’s obligation right. no the state has While Wade is opts private fund choice, when state fund concerning pregnancy procedures indi- medical penalize gent disfavored women, conditioning receipt on option by benefit of the right.6 protected waiver Court decisions The United States 53 Ed 2376; L 464; 97 Ct Roe, 432 US S Maher v supra, (1977), and Wil McRae, Harris v 484 2d L 2694; 65 358; S Ct Zbaraz, 448 US 100 liams v assumption (1980), the that on the rest Ed 2d 831 right right negative to be a in Roe is established assumption, the that it follows this let alone. From measuring the enactment whether for baseline a question it constitutes is whether is coercive on the to burden choose.7 6 574; 2017; States, L Ct 76 461 US 103 S Univ v United Bob Jones contrary. (1983), provide authority In Bob to the Ed 2d 157 Jones, does policy approved that Service Court an Internal Revenue the a tax-exempt it maintained status the because eliminated school’s racially discriminatory policy. not conclude The Court did admissions previously never benefit could of a offered that the elimination Rather, are all burdens the noted that not a burden. Court constitute unconstitutional before in that denial their concluding compelling interest the that state’s any eradicating burden in education overrode racial discrimination petitioners’ placed on exercise tax the the benefits religion. Id. at 603-604. 7 provide part funding basis for of the theoretical cases analysis first articu- in the abortion context method undue burden lated Health, Reproductive for in Akron v Akron Center Justice O’Connor suggested in supra also at Justice O’Connor n 5 452-453. Ashcroft, 476; US 103 v Ass’n Akron and in Planned Parenthood (1983), throughout regulations 2517; health 76 L Ed 2d 733 S Ct pregnancy I not here have undue burdens. do never constitute in mater- question the interest view that need nal health Justice O’Connor’s throughout pregnancy, or potential life extant for However, she Roe was overstated. rationale of the view that the broad trimesters,” regarding regulations yet suggest for a substitute "has 439 Mich Dissenting Opinion Boyle, supra Maher, 474-475, 8-9, at ns the Court rejected the conclusion of the court a district excluding state statute medicaid-funded benefits nontherapeutic infringed a fun- on a characterizing interest, damental in- volved as the freedom to decide whether to termi- pregnancy. distinguished nate a The Court Sher- Verner, 398; v 1790; bert 374 US 83 S Ct 10 L Ed (1963), Shapiro Thompson, 2d 394 US 1322; S Ct L Ed 2d 600 on apparent basis because cases those had with- "consequence” they drawn as conduct, benefits analogous penalties were more on the exercise rights. of constitutional closely McRae,

In Harris v divided Court analysis uphold funding extended the Maher medically necessary abortions, restrictions for once again distinguishing Shapiro and Sherbert on protected activity basis that a refusal to fund equated impo- "without more” cannot be with the "penalty” activity. of a 317, sition on that 448 US government’s n 19. The Court concluded that only choice act, involved a failure to "place[ing] rather than affirmative conduct path,” . . . obstacle[s] Harris at right. approach exercise of This can be charac- legally reinforcing "special terized as vulnera- bility women,” of even the at risk of their health.8 holdings

Thus, Maher and Harris avoided the in by recharacterizing Roe and Doe v Bolton the preserve potential Sullivan, that seek to life. Estrich & Abortion politics: Writing one, (1989). an for audience 138 of U Pa L R 141 majority Nor has Justice O’Connor or a of the United States regulations Court ever said that all further in the interest potential "automatically compelling.” life are at 145. Id. As the both Reproductive authors and Justice Scalia in Webster v Health Ser vices, 490, 536-537; 3040; 492 US 109 CtS 106 L Ed 2d 410 observe, logical there is a contradiction between Justice O’Connor’s description possible viability of and the survival Roe. of 8Tribe, (2d ed), 15-10, p American Constitutional Law 1355. Dep’t 711 Doe of Social Services v Boyle, Dissenting Opinion right question right to free from from the be in terminate a in to interference the decision state right unduly pregnancy to to free of burden- be choosing to termi- in whether interference some pregnancy. This recharacteriza- or continue nate differentiating stage the abortion the tion set the condition- that invalidated from decisions issue ing governmental of on the exercise benefits rights.9 my view, however, the fundamental simply to extend a failure involves not statute government’s of al- benefits, ready withdrawal but the during to medical care extended benefits purported pregnancy. Moreover, the indirectness significant in Sher- was not a factor effect assump- bert, Further, or other benefit cases.10 than is less coercive those tion that the statute problematic. Shapiro in Sherbert and is considered Given regarding inquiry there was no serious fact that plain- available to the the alternatives appears Harris, in in the difference results tiffs explainable only differen- in terms Court’s ranking rights tial involved.11 neutral, in which a state’s This is not a situation applicable indirectly generally law, a fun- burdens right.12 This is a in which state case damental protected intentionally selectively funds one withdrawing option other, funds from the while op- pressuring the disfavored select hers, being deprived something plaintiff her is The here health, deprived just surely was as as the Sabbatarian in Sherbert accept unemployment of her refusal work. benefits because rights Failinger, See An offer she can’t refuse: When fundamental collide, 833, 837, R L n beneSts Vill and conditions of (1986). however, observation, not unlimited. That involved is rights- may engage question begs pressuring activity as whether state period and under the circum for the of time which, heen held be interference has freedom from stances fundamental. Smith, Div, Employment 494 US of Human Resources 1595; 108 L Ed 2d 876 110 S Ct 712 439 650 Mich by Dissenting Opinion Boyle, tion. The decision in Harris is inconsistent13 with guarded those Court benefit cases in which the has against government overreaching preserve pre- ferred liberties.14 expect protection provided

One would to see no recipient endangered merely where benefits are because of circumstances unrelated to the reasons supra. Sherbert, for the state’s as in action But upheld actually because the statute in Harris is more coercive than the statutes invalidated in Shapiro Thompson,15 Sherbert and v or the statute upheld Employment Dep’t Div, in of Human Re Smith, 872; 1595; sources v 494 US S110 Ct 108 L (1990), Ed 2d 876 Court has not "coherently articulated the values at in stake Failinger, conditions An statutes.”16 offer can’t she consistent, applied plaintiffs, Nor is Harris as to these with the scrutiny Doe, applied Plyler 202; results of intermediate in 457 US 2382; (1982) (1982), 102 S Ct 72 L Ed 2d den 458 reh US 1131 (invalidating imposed hardship a statute because a lifetime on a disabling status, involving discrete class not accountable for their no suspect no right). or class fundamental The notion that has obligation people consequences to save from the their own inability purchase frugal services those be more would able to purchase is refuted in this context. While we do not deal here with questionable assumption pregnancies voluntary, that all are surely statute, By operation minor, is true of Jane Doe. a this pregnancy rape, placed whose denied results from is a discrete class and medically necessary exercising health care for her pregnancy terminate a for which ho she is more accountable than disadvantaged those Plyler. who were the classification in analysis question princi This does not call the well-established ple heightened governmental justification required only when degree. a law burdens a fundamental to some minimum San Independent Rodriguez, 1278; Antonio School Dist v 411 US 93 S Ct 36 L Ed 2d 16 reh 411 US 959 den persuasive Nor do I find the Court’s distinction of Sherbert as a benefits, case that involved denial of rather than a refusal mere only special subsidize. "Whether the State withholds costs of a option penalizes broadly disfavored manner in constitutionally protected mental the individual more for the choice, she which exercises her it cannot interfere with through govern decision the coercive use of McRae, largesse.” supra (Brennen, J., Harris v at n 6. dissenting.) put bluntly: Another commentator has the criticism more Social Services Dissenting Opinion Boyle, J. rights and conditions fundamental

refuse: When 833, government collide, 835 Vill L R benefits (1986). on intrudes that the statute I believe

Because only protected constitutionally decision, I need the serious that makes that statute further observe damage attractive a more to the mother health rationally pro- not does than abortion alternative encouraging government’s in interest mote the inter- childbirth, under either strict normal only scrutiny. advanced —to The rationale mediate discourage necessary procedures otherwise medical jus- preserve mother —would health of the to tify the right recognized in of the the elimination total Indeed, Harris, General in Solicitor v Wade. Roe logic acknowledged that the McCree Wade funding justify position of denial would Court’s life-saving procedure only the if was even abortion Id. at 354. available. acknowledges intervening that

The defendant pur- governmental is not neutral. the statute pose discouragement abor- the all is enforce the life of mother. do threaten tions that not presents a between two conflict This case thus body principles shall one’s fundamental be —whether expense life, at another even the source of no funda- health, is less and "a command may life not be taken innocent [that] mental an supposed funding on absence cases turned [T]he perhaps in mistake .... It worst "coercive” acts of current unconstitutional instances of the flagrant analysis that such conditions rights-pressuring on intent have been immunized theory no coercive act. has committed 1415, conditions, 1500- [Sullivan, 102 Harv Unconstitutional Why Perry, was Court See also wrong Hyde case: A brief comment plainly Amendment Tribe, (1980); McRae, L R 1117-1118 32 Stan on Harris rights, affirma Inalienable conundrum: The abortion tive duties, dependence, Harv L R 330 dilemma of and the (1985).] 439 Mich Dissenting Opinion Boyle, except to save the life another.”17 The state has obligation private may no to fund choice. It reward promote However, choices that its interest. when opts procedures state fund medical concern- ing pregnancy may women, condition the benefits on waiver of the in a manner with conflicts health mother.18 stated,

For I the reasons concur Justice remedy result, but would narrow the Mallett’s applied hold that the statute not be to women necessary pre- who seek first-trimester abortions serve medical health.19 17Tribe, supra, p n 8 1340. body jurisprudence This has demonstrated that abstract no rights pigeon tions are less than problems holes framed to deal other with adequate resolving profoundly abstractions for existen regarding tial assertions the interest in freedom from subordination life, competing of life and health to nascent and the moral and intellectually principle life, adult, honest all human fetal and prove has value. Few decisions more difficult those in than which opposed, competing rights these little community, responsibility analysis absolutes stand sheds light responsibilities on the claimant individual to the potential carries, of the claimant to the life she or the the state to the claimant. Whether the United States ultimately Court will determine that the state’s interest in protecting potential of compelling during life is even first trimester that, pregnancy, Doe, it is fair to observe women like Jane "who inevitably physical will they their claim injury suffer serious . . . emotional unless may argue legitimately can responsibilities they abort have considered against may others their own lives also [and] responsible Failinger, supra action the state . . . .” at 929. government may accommodate the interests of those tax payers holding morally opposed positions to use of tax revenues for Tribe, purposes. supra, p these in See n 16 n 38. It also invest pushes technology viability conception, backward toward thus increasing society’s power responsibly protection to act toward the

fetal life.

Case Details

Case Name: Doe v. Department of Social Services

Court Name: Michigan Supreme Court

Date Published: Jun 9, 1992

Citation: 487 N.W.2d 166

Docket Number: Docket Nos. 91092, 91093, (Calendar No. 12)

Court Abbreviation: Mich.