Doe v. Department of Social ServicesDoe v. Department of Social Services
Lead Opinion
A statute which became law as the result of a vote of the people of Michigan prohibits the use of public funds to pay for an abortion unless the abortion is necessary to save the moth
In reviewing the decision of the Court of Appeals, we emphasize the limited scope of the question presented. This case does not concern a woman’s right under the federal constitution to choose to terminate her pregnancy. That right, articulated for the first time in Roe v Wade,
As the result of an initiative petition, a legislative proposal which became § 109a was placed before, and adopted by, the Legislature in 1987.
The costs of nearly all medically appropriate services required by qualified participants are reimbursed through the Medicaid program. One exception is reimbursement for abortion. In 1976, Congress passed the first of the so-called Hyde Amendments,
Notwithstanding any other provision of this act, an abortion shall not be a service provided with public funds to a recipient of welfare benefits, whether through a program of medical assistance, general assistance, or categorical assistance or through any other type of public aid or assistance program, unless the abortion is necessary to save the life of the mother. It is the policy of this state to prohibit the appropriation of public funds for the purpose of providing an abortion to a person who receives welfare benefits unless the abortion is necessary to save the life of the mother. [MCL 400.109a; MSA 16.490(19a).]
This lawsuit was filed against two state officials responsible for administration of the Medicaid program.
In accordance with § 109a, the Michigan Department of Social Services refused to pay for the requested abortion. That refusal prompted this lawsuit. In the complaint, plaintiffs maintained that § 109a violates the Michigan Constitution, specifically its Equal Protection, Due Process, and Civil Rights Clauses, as well as a claimed right to privacy. As relief, plaintiffs sought a declaratory judgment and a permanent injunction prohibiting enforcement of § 109a.
After minimal discovery, defendants filed a motion for summary disposition.
II
Our state constitution declares that "[n]o person shall be denied the equal protection of the laws . . . .”
Thus, when legislation is challenged as violative of the equal protection guarantee under either
On the other hand, in two situations the equal protection guarantee is less tolerant of legislation that creates a classification scheme — when the classification is based upon suspect factors (such as race, national origin, or ethnicity), or when the legislation that creates the classification impinges upon the exercise of a fundamental right. Plyler v Doe,
While recognizing that plaintiffs base their case on the state constitution, we believe a brief review of the reasoning that underlies related decisions of the United States Supreme Court is instructive. In a series of cases, that Court has held that the Hyde Amendment and state statutes which restrict Medicaid funding of abortions do not violate the equal protection guarantee of the federal constitution.
In Maher, the Court upheld a Connecticut statute that limited state funding to medically necessary abortions performed during the first trimester of pregnancy.
Under its analysis, the Maher Court first determined that indigent women desiring abortions did not constitute a suspect class. After noting that no
The underlying fundamental right was the right of privacy as articulated in Roe v Wade, supra. In Beal v Doe,
The Connecticut regulation places no obstacles— absolute or otherwise — in the pregnant woman’s path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as aconsequence of Connecticut’s decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there. [Id. at 474.]
The United States Supreme Court has held in other cases that a legislature’s election not to fund the exercise of a fundamental right does not impinge upon that right, Regan v Taxation with Representation,
Moreover, abortion funding cannot be equated to situations where public funding is required because the government has monopoly control over the means of exercising a fundamental right.
In determining that government’s failure to fund abortion does not impinge upon the exercise of a fundamental right, the Harris Court explained, "[I]t simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”
Because in these cases the Court found no suspect classification and no impingement upon the exercise of a fundamental right, it applied the rational basis standard of scrutiny, i.e., whether the legislation is rationally related to a legitimate governmental interest. On this point, even the Roe Court acknowledged that the state has an "important and legitimate interest ... in protecting the potentiality of human life.”
Finally, the Court has emphasized that no burden is imposed upon the government to remain neutral regarding abortion: "[The right recognized in Roe] implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.” Maher,
As the Court of Appeals majority in this case candidly conceded,
Clearly, if the issues presented were to be adjudicated under the federal constitution, whether under the Equal Protection or Due Process Clauses of the Fourteenth Amendment, or some "right of privacy” extracted from the First, Third, Fourth or Ninth Amendments, plaintiffs’ challenges to the constitutional validity of [§ 109a] would be rejected. [187 Mich App 522 -523.]
IV
We turn now to an examination of the reasoning employed by a majority of the Court of Appeals panel in reaching its contrary conclusion under the Michigan Constitution.
The panel’s analysis begins with a declaration that "our [state] Constitution affords a right to an abortion.” Id. at 508. Then, the panel proceeds to a conclusion, which it considers "dispositive in this case,” that § 109a is violative of the Equal Protection Clause of Const 1963, art 1, § 2. Id. at 510.
In due course, we shall examine, in turn, each of these propositions. First, however, we pause to comment briefly on the assertion that our state constitution includes the right to an abortion.
A
In this appeal, plaintiffs and supporting amici curiae have argued that a state constitutional abortion right should be inferred from previous decisions of this Court and of the Court of Appeals. For example, they rely on Advisory Opinion on Constitutionality of
This Court has long recognized privacy to be a highly valued right. De May v Roberts,46 Mich 160 ;9 NW 146 (1881). No one has seriously challenged the existence of a right to privacy in the Michigan Constitution nor does anyone suggest that right to be of any less breadth than the guarantees of the United States Constitution.
The United States Supreme Court has recognized the presence of constitutionally protected "zones of privacy.” Griswold v Connecticut,381 US 479 , 484;85 S Ct 1678 ;14 L Ed 2d 510 (1965); Roev Wade, 410 US 113 ;93 S Ct 705 ;35 L Ed 2d 147 (1973). These zones have been described as being within "penumbras” emanating from specific constitutional guarantees. Often mentioned as a basis of the right to privacy are the 1st, 3rd, 4th, 5th, 9th and 14th Amendments to the United States Constitution. The people of this state have adopted corresponding provisions in art 1 of our Constitution.
Plaintiffs also find support for a state constitutional right to abortion in the Court of Appeals decision in People v Nixon,
On the other hand, defendants respond that the conclusions drawn by the Court of Appeals in Nixon were dicta and have not been adopted by this Court. Indeed, defendants argue that a subsequent decision of this Court, People v Bricker, supra, overruled Nixon and established that no separate state right involving abortion exists. Further, defendants challenge reliance on Advisory
Whatever the merit of these and other arguments available to both sides concerning the existence of a separate state right to an abortion, we find it is unnecessary to decide that issue in this case, given our conclusion with regard to the funding question. As the discussion that follows makes clear, even if it is assumed arguendo that a state constitutional abortion right coextensive with the federal right exists, we are able to conclude that § 109a does not violate the Michigan Constitution, just as the United States Supreme Court was able to uphold the denial of public funding in Maher and Harris, without need to question the validity of Roe.
B
To support its conclusion that § 109a is invalid, the Court of Appeals panel claims that the equal protection guarantee in our state constitution provides greater protection than the corresponding guarantee in the federal constitution.
The Court of Appeals panel seeks to justify its expansive reading of our equal protection guarantee by pointing to textual differences between the 1908 and 1963 Constitutions, and by referring to the debates of the Constitutional Convention which preceded adoption of the 1963 Constitution. However, we are not persuaded by these considerations.
While the 1908 Constitution was in effect, the only basis for a state guarantee of equal protection was found in a few words included in a broad statement concerning "Political Power” in art 2, § 1: "All political power is inherent in the people. Government is instituted for their equal benefit, security and protection.” (Emphasis added.)
Despite this sparsity of words, the pre-1963 decisions of this Court ruled that equal protection rights under the state constitution were the same as under the federal constitution. See In re Fox Estate,
It is true that the delegates included in art 1, § 2 a second clause relating to civil rights: "nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin.” However, that a separate clause to provide explicit protection for civil rights was adopted in the midst of the civil rights movement, does not, in and of itself, suggest any purpose on the part of the delegates to broaden the scope of the preceding Equal Protection Clause.
Accordingly, we do not find in the wording used, nor in its arrangement, any evidence of purpose on the part of the drafters to provide broader protection in the Equal Protection Clause of the state constitution than is found in its federal counterpart. Rather, the pattern suggests a deliberate effort to duplicate the protection secured by the federal clause. Furthermore, a careful examination of the record of the debates of the Constitutional Convention confirms this view.
We note that when the Committee on Declaration of Rights, Suffrage, and Election offered its report recommending adoption of art 1, § 2, including the Equal Protection Clause as now worded, it was accompanied by a minority report proposing substitute language.
To support its assertion that the framers of our constitution intended to provide broader equal protection rights than those secured by the federal constitution, the Court of Appeals majority makes only two references to the proceedings of the Constitutional Convention. First, it notes that the "convention comment to Const 1963, art 1, § 2 clearly stated, 'This is a new section.’ ”
"[T]here has been a distinct trend in recent State Constitutions to incorporate equal protection or civil rights clauses to apply to all persons as well as those singled out for special attention because of more apparent discrimination.” [Id. Emphasis added by the Court of Appeals.]
It is unnecessary to take issue with either point to observe that the extent of support mustered from the convention proceedings is very thin. Furthermore, if the purpose of quoting the chairman was to suggest that the delegates intended our state’s Equal Protection Clause to be broader ("all persons”) than its federal counterpart, the argument misses its mark. The federal clause assures equal protection to "any person.”
The portions of the convention debate that focused on equal protection do not support the analysis of the Court of Appeals majority. Rather, we draw from a reading of the convention record the firm conclusion that the delegates intended to
C
In addition to concluding that our state’s equal protection guarantee is broader in scope than the federal guarantee, the Court of Appeals panel claims to have rejected "the method used by the United States Supreme Court in analyzing the federal Equal Protection Clause in favor of a different analysis of Michigan’s Equal Protection Clause.” Id. at 518. The panel states:
Beyond our freedom to read our own state’s Equal Protection Clause more broadly than that of the United States Constitution, we are also free to reject the method used by the United States Supreme Court in analyzing the federal Equal Protection Clause in favor of a different analysis of Michigan’s Equal Protection Clause. See [City of Mesquite v] Aladdin’s Castle, Inc, 455 US [283] 293 [102 S Ct 1070 ;71 L Ed 2d 152 (1982)]. [Id][31 ]
As the United States Supreme Court has acknowledged, and we find equally true under our state constitution, the Equal Protection Clause, like the Due Process Clause, "is not susceptible of exact delimitation. No definite rule in respect of either, which automatically will solve the question in specific instances, can be formulated.” Although the "equal protection” provision of our constitution is not a clause with precise definition, we recognize it can be violated by legislation that either affects a fundamental interest, as in this case, or creates a suspect classification, and that cannot be justified by any compelling interest of the state. In a case that does not involve a fundamental interest or a suspect class', a determination whether the legislation violates the Equal Protection Clause is made under the rational basis test, which requires that the party challenging the statute show it is without reasonable justification. [187 Mich App 510 -511. Citations omitted.]
There is no suggestion by the panel that equal protection claims should not be reviewed using this framework, nor is any alternative framework proposed.
Moreover, even though it claims that it is employing a method of equal protection analysis distinct from that used by the United States Supreme Court, the panel scrutinizes § 109a under Michigan’s Equal Protection Clause just as the Supreme Court scrutinized abortion funding restrictions under the federal Equal Protection Clause. Because § 109a is alleged to create a classification scheme
It is in analyzing the effect of a funding restriction on the right of procreative choice that the Court of Appeals majority disagrees with the United States Supreme Court. In contrast to that Court, the panel concludes that § 109a does impinge upon the exercise of the right to choose an abortion:
[I]f [a Medicaid-qualified pregnant] woman chooses to have an abortion, even where medically necessary or required to terminate a pregnancy resulting from rape or incest, § 109a directly prevents the state from providing funds for that care.
It is the woman’s exercise of one fundamental right — the right to an abortion — which triggers § 109a’s restrictions. Her right to bear the child is not similarly impinged upon.
We recognize that, while the woman’s indigency also acts as a barrier to her freedom of choice, the state is not required to remedy that condition. But the state itself, by adoption of § 109a, has created a direct barrier to the woman’s exercise of her right to an abortion.
There is thus an inequality within the program, with the distinction based on an indigent pregnant woman’s exercise of an option which the constitution vouchsafes to her individually. If she exercises her constitutional right to abortion, she is excluded from a program for which she is otherwise qualified; if she elects not to exercise that constitutional option, she may continue to receive the benefits of this statutory program. [Id. at 524.]
Having determined that § 109a does impinge upon the exercise of a fundamental right under the Michigan Constitution, the panel then applies strict scrutiny. Predictably, it concludes that § 109a cannot meet this demanding level of review and strikes down the section.
Obviously, the critical element in the panel’s analysis is not its purported rejection of basic equal protection analysis as developed by the United States Supreme Court, but its conclusion that § 109a impinges upon the right to choose an abortion. We agree with the panel that the Equal Protection Clause would require strict scrutiny of § 109a if the section were to impinge upon the exercise of a fundamental right. Thus, we turn to the question whether § 109a impinges upon the exercise of a fundamental right in the Michigan Constitution.
D
The Court of Appeals majority concludes that § 109a directly interferes with the exercise of a woman’s right to choose an abortion.
In the absence of some burden on the government to provide funds for the exercise of a right, a decision by the Legislature not to fund the exercise of a right is distinct from a legislative action that impinges upon that right. Regan v Taxation with Representation,
Clearly, the right involved in this case is not a right to continue to receive funds that were offered in the past; rather, it is the right to choose an abortion without unduly burdensome government interference. Like the United States Supreme Court, we do not see how a decision to offer funds only for childbirth takes away any of the choices
Further, we do not find that an offer to fund childbirth impermissibly influences the procreative decisions of an indigent woman. The state’s election to subsidize childbirth does not coerce a woman into forfeiting her right to choose an abortion any more than the state’s election to subsidize public schools coerces parents into forfeiting their right to send their children to private schools. See Norwood v Harrison, supra. As with the decision to fund public schools, the state may have made childbirth a more attractive option by paying for it, but it has imposed no restriction on obtaining an abortion that was not already there. Maher,
v
Having determined that § 109a does not impinge upon the exercise of a fundamental right, we hold that the Court of Appeals erred when it subjected § 109a to strict scrutiny. Because § 109a does not impinge upon the exercise of a fundamental right, and because, at least with respect to the funding of abortions, our equal protection guarantee does not offer greater protection than the federal equal protection guarantee, the proper standard of review is the rational basis test as articulated earlier.
Like the United States Supreme Court, we conclude that § 109a is rationally related to a legitimate governmental purpose. Contrary to the suggestion of the Court of Appeals,
In reaching this decision, we are cognizant of plaintiffs’ argument that "[t]he sentiment of the legislature, or, in fact, of the electorate, with regard to a given issue does not change the role of the judiciary.” Similarly, we agree with the Court of Appeals that "[t]he legislative power of the people, through the initiative and referendum, does not give any more force or effect to voter-approved legislation than to other legislative acts . . . .”
For these reasons, we hold that the Equal Pro
Notes
MCL 400.1 et seq.; MSA 16.401 et seq.
The 1963 Constitution contains two clauses relating to equal protection. Art 1, § 1 states, "[a]ll political power is inherent in the people. Government is instituted for their equal benefit, security and protection.” Art 1, § 2 states, ''[n]o person shall be denied the equal protection of the laws . . . .” These provisions will be referred to as the Equal Benefit Clause and the Equal Protection Clause, respectively.
In the circuit court, the plaintiffs alleged several constitutional violations — violations of the Due Process Clause (art 1, § 17), the right of privacy (art 1, § 23), the right of equal protection of the laws (art 1, §§ 1, 2), and the right of protection of civil rights (art 1, § 2).
US Const, Am XIV, § 1.
The powers to propose laws, and to approve or disapprove laws enacted by the Legislature are reserved to the people by Const 1963, art 2, § 9.
Pursuant to MCL 168.471 et seq.; MSA 6.1471 et seq., the initiative petition was filed with the Secretary of State on April 30, 1987. The petition was certified on June 12, 1987, by the Board of Canvassers and submitted to the Legislature as
The Medicaid program was established by Congress in 1965 as part of the Social Security Act. 42 USC 1396 et seq.
See 42 USC 1396d(b).
PL 94-439, § 209, 90 Stat 1434.
Subsequent versions of the Hyde Amendment have been enacted by Congress. One version was upheld by the United States Supreme Court. See Harris v McRae,
Several organizations and a number of individuals were allowed to intervene as defendants.
The identity of the plaintiffs was revealed to the trial court in camera.
MCR 2.116(0(10).
Within hours of the trial court’s ruling, Jane Doe received an abortion paid for with donated private funds. Although her abortion may render the case moot, we consider it appropriate to decide this case. "A disposition based on mootness is not required where the underlying conduct is capable of repetition, yet evades review.” Mead v Batchlor,
Const 1963, art 1, § 2.
US Const, Am XIV, § 1. The Fifth Amendment has been interpreted to contain an equal protection component that is applied to the federal government. Harris, supra,
For example, see Manistee Bank & Trust Co v McGowan,
Although these two tiers of review have been the basis of most
See also Beal v Doe,
PL 96-123, § 109, 93 Stat 926.
Typically, the Court will look for some "indicia of suspectness.” These indicia include a history of purposeful unequal treatment or a degree of political powerlessness that commands extraordinary protection from the majoritarian political process. San Antonio School Dist,
In Regan, the denial of tax-exempt status for a nonprofit corporation was upheld because the corporation intended to devote substantial amounts of its time to lobbying. The Court held that there was no obligation on Congress to support the corporation’s lobbying with a tax exemption, even though the right to lobby the government is fundamental.
See, for example, Boddie v Connecticut,
The panel also asserts that the state is without a compelling interest to satisfy strict scrutiny. Although we do not here focus separately on this point, it will be discussed in the analysis which follows.
MCL 750.14; MSA 28.204. The statute provides,
Any person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in case the death of such pregnant woman be thereby produced, the offense shall be deemed manslaughter.
In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.
Given our reversal of the Court of Appeals decision on the dispositive funding question, and without intimating any view regarding the merits, we vacate, and direct that no precedential weight is to be accorded, the discussion and conclusion in the Court of Appeals opinion regarding the underlying issue of a state constitutional right to abortion.
Moreover, in its opinion the Court of Appeals majority makes clear that its decision rests solely on the Equal Protection Clause of Const 1963, art 1, § 2, and not on the succeeding Civil Rights Clause.
1 Official Record, Constitutional Convention 1961, pp 740-741.
This conclusion is supported by earlier decisions of this Court and of the Court of Appeals. See, e.g., Moore v Spangler,
It is true, as the Court of Appeals majority has stated, that " '[t]he United States Supreme Court does not have a monopoly on correct constitutional interpretation.’ ”
The panel does not suggest that § 109a creates a suspect class, which also would trigger strict scrutiny.
See, for example, Bob Jones Univ v United States,
Of course, the state’s decision to subsidize childbirth cannot be characterized simply as an attempt to encourage women to choose childbirth instead of abortion. As Professor McConnell explains in his article, The selective funding problem: Abortions and religious schools, 104 Harv L R 989, 1011-1012 (1991):
[T]he medical services involved in childbirth serve a function beyond "terminating pregnancy” and improving the mother’shealth. They are more than just a substitute for abortion; they are also a means of caring for a child. While the appropriate way to deal with pregnancy is a controverted issue, everyone agrees that if a child is to be born, the birth should be completed as safely as possible. Medical services at birth should be understood as part of a network of government-funded social services for the benefit of children ....
Because the Court of Appeals found that § 109a violated the Equal Protection Clause, it did not address the other constitutional arguments advanced by plaintiffs. Plaintiffs have not renewed their other constitutional claims before this Court; however, we conclude that those claims would not affect our decision today. We review due process claims using substantially the same standards as we use to review equal protection claims. Shavers v Attorney General,
Concurrence Opinion
(concurring). Jane and Nancy Doe concede, for the purposes of this lawsuit, that
Doe and her amici curiae supporters claim that § 109a is nevertheless unconstitutional insofar as it proscribes the use of public funds to provide a “medically indicated” abortion for an indigent woman.
A
While there is evidence that pregnancy represents for some women a serious and long-term threat to their health unless they have an abortion, and thus that an abortion is medically indicated for such women, the record is silent concerning the number of indigent women that might
In ordinary litigation, when the record is silent, a court attributes the failure of proof to one of the parties and enters judgment accordingly, or, on occasion, remands the case for the taking of additional evidence. If this were an ordinary case, however, it would have been dismissed as moot when Doe obtained an abortion. This is not ordinary litigation.
The parties, having failed to provide evidence concerning the number of women that might justifiably seek a medically indicated abortion, as distinguished from an elective abortion, it is, I think, appropriate, in order to put the issue presented in perspective, to attempt to determine what is truly at stake for indigent women for whom an abortion is medically indicated.
B
The Department of Social Services projected that in fiscal year 1990,
A survey that sought to determine why women have abortions indicates that fewer than ten percent of the women who chose to have an abortion did so because having a baby posed a serious and long-term threat to their health. The survey reports that seven percent responded that concern for their "own health” contributed to their decision to have an abortion, but only "53 percent of those having an abortion because of a health problem said that a doctor had told them that their condition would be made worse by being pregnant.”
It appears
It also appears that there are many practical obstacles facing a woman in obtaining an elective or medically indicated abortion.
C
If there were a clearly established constitutional right to a publicly funded abortion, it would, of course, be of no moment that an abortion is obtainable from private charitable sources. The asserted entitlement, however, is, on the contrary, without any well-established support in the precedents.
This Court is truly being asked to break new ground by providing a judicial remedy to rectify a legislative decision to withdraw funding for a component (medical service for an abortion) of a larger program (general medical service under Medicaid). Doe and amici curiae assert this is justified because the alternatives facing indigent women denied public funds to pay for a medically indicated abortion are so dire that this Court, to avoid the injustice that the Equal Protection Clause was designed to avoid, must intervene and hold to be invidiously discriminatory the challenged classification of indigent pregnant women between those for whom medical service will be fully provided if they carry a baby to term and those in need of medical service for a medically indicated abortion.
It not having been established that indigent women do not have access to private funding or donated services even for a medically indicated abortion, I am unpersuaded that this Court can properly be asked to attempt to articulate a principled basis — I have attempted to do so without success — for distinguishing the plight of an indigent woman for whom an abortion is medically indicated from the plight of a man or woman, formerly on general welfare assistance, who has been evicted from shelter in the winter, without the means of acquiring adequate shelter or food, put at risk of freezing or starving to death and physical assault on the streets, and entirely dependent on private charity because unable to obtain employment.
i
The Due Process Clause secures to a woman reproductive freedom during at least the first trimester of a pregnancy, and may also secure to her such a liberty interest to obtain, without governmental interference, a medically indicated abor
It is not contended, however, that a woman has a fundamental right to a governmentally funded abortion. It is claimed rather that because the federal and state governments appropriate large sums to provide medical care through the Medicaid program for indigent persons, such as Doe, the failure to provide funds to pay for medically indicated abortions is violative of the Equal Protection Clause. It is contended that while the Legislature is not obliged to provide medical care for indigent persons, that having established the Medicaid program, which includes prenatal and gynecological medical care for indigent women, it cannot discriminate, consistent with the Equal Protection Clause, against indigent women who desire to exercise their fundamental right to have an abortion by denying them, in contradistinction from indigent men and women generally, and pregnant women in particular, medical care requisite to obtaining a medically indicated abortion.
The question presented is thus whether the Equal Protection Clause requires the Legislature to provide funds to pay for a medically indicated abortion for an indigent woman because the Legislature has funded a program of comprehensive medical care for indigent men and women.
A
I have signed the opinion of the Court, and join in reversal of the Court of Appeals because there is no precedent for construing the Equal Protection Clause as empowering the judiciary to require
B
The decisions of the United States Supreme Court relied on in one of the two dissenting opinions
Those decisions would be in point if § 109a sought to penalize indigent women who have an abortion by denying them access to medical benefits or other welfare benefits.
Case law holding that even though the Congress or the Legislature may not be constitutionally required to provide funds for a particular program, when it chooses to do so the eligibility criteria must be consistent with other constitutional limitations, does not support the claim that the Legislature may not eliminate a component of a larger program, or that it must provide funds for a component of a larger program.
Section 109a does not establish an unconstitutional eligibility criterion. It does not deny to any woman access to medical benefits that other persons are entitled to receive. Rather, § 109a provides that a particular benefit, funding of abortions, is no longer to be provided. There is no eligibility criterion by which any woman can obtain a publicly funded abortion. This is not like the cases cited in the dissenting opinion, where the Congress had funded a program, but sought, or a state legislature had sought, to deny some persons access to the program who otherwise would be
C
Nor does Act 59 ordain an unconstitutional gender-based classification. It is simply a truism that only women can become pregnant, and, thus, only women can seek or obtain an abortion. Similarly, while women are now eligible for military service, only men have been subject to the draft.
There is no constitutional principle that makes or constitutes all legislation that affects only one sex suspect, especially legislation concerning a subject matter that, by the laws of nature, can only affect one sex.
II
Were this Court to rule that funding of a comprehensive program of welfare assistance disables the Legislature from eliminating a component of that program where (i) the legislative motivation is based in some part on a moral judgment, and (ii) eliminating funding seriously burdens exercise by indigent persons of a fundamental right, lawyers would have a basis for asserting a new cause of action in behalf of candidates for welfare assistance generally.
The rights to shelter and food are at least as fundamental as the right to medical services for a medically indicated abortion. The Due Process Clause protects the right to seek shelter and food from unreasonable governmental interference, at
The modern welfare state does, indeed, provide such services for many in the indigent population. But the allocation of such services has never been thought to be justiciable. To be sure, if the government decides to establish a program for the benefit of poor persons, it may not establish eligibility criteria violative of constitutional limitations on the power of government. But the Equal Protection Clause has not been thought to endow the judiciary with the power to supervise the allocation of public funds or to require that neutral principles be announced, to be enforced by the judiciary, to assure that the government governs fairly.
III
The legislative decision to provide funds for the medical expenses of childbirth does not impermissibly burden the right to choose abortion. Otherwise a great many federal and state actions would be subject to constitutional challenge. Both the state and federal governments have enacted laws and programs designed to aid the institution of marriage. The Internal Revenue Code provides benefits to married persons. The state has passed laws against adultery and bigamy. Marriage gives
There is also a right to choose not to marry, which is as equally fundamental as the right to marry. But the state provides no benefits, no entitlements, to facilitate the exercise of that choice. And no one can truthfully contend that the state unconstitutionally burdens the right not to marry by promoting the competing value, marriage.
But if the state chooses to alleviate the effects of poverty on pregnant women by funding medical care for childbirth, how can it not fund medical care for the alternative to childbirth, abortion? Should not the state respect both of these competing values equally?
Perhaps an enlightened state would choose to do so. The constitution does not, however, require the state to govern wisely or even fairly. And though it may be unfair for the state to take sides on an issue about which so many people feel so strongly, it is not unlawful for the state to do so. The government may not interfere with or prohibit the right to choose abortion; it need not support it with public funds even though it does support with public funds the competing value of childbirth.
One of the purposes for which a people institutes government is to express value choices, to develop societal norms, about the way in which people should exercise their freedom. The act of governing requires those who govern to make value choices.
Indeed, the entire concept of government neutrality on the abortion/childbirth issue is fallacious. The government must embrace one position or another. It is at least fair argument to say that the government would promote abortion by providing funding even for a medically indicated abortion. Such funding would offend those who oppose
Even it if were possible for the state to maintain neutrality with respect to fundamental rights, such neutrality would not result in sound governance. Indeed, the logical result would be no governance at all. Nearly every state and federal program would be subject to challenge. It will always be possible to argue that an entitlement created by the state promotes one bundle of fundamental rights at the expense of another. A requirement of neutrality would mean that the government could create no entitlement without also creating an equal and opposite entitlement. Under such a scheme of government, the role of the judiciary would be to police neutrality in legislation, steadfastly striking down any legislation that expressed an idea, contained a thought, or took a position on the issues that matter most. Only legislation consisting of dull gray matter would survive.
IV
The government must express some set of values if it is to govern at all. How then in a democracy are the values of the government to be identified and articulated, and what is the proper role of the judiciary with respect to those value choices? In most cases, such value choices must be made by the overtly political branches of government, the legislative and executive, and not the judicial branch.
In cooperation with the federal government, Michigan provides a set of medical benefits to the
It is not the role of the judiciary to decide the values that properly may be taken into account in making such choices. Because what is involved is the identification and articulation of societal norms, the task should be left largely to the representative branches of government.
The judicial branch depends for the enforcement of its judgments upon the will of the executive and legislative branches and ultimately upon the will and confidence of the citizenry. That confidence is eroded when the judiciary is perceived to be acting politically by substituting the political judgment of the majority of the Court for the political judgment of the majority of the people as expressed at the election booth. Judicial power is most forcefully asserted when a court refrains from arrogating to itself decisions properly entrusted to the other branches of government or to the people.
It may be unfair to deprive only indigent women of the funds to terminate pregnancy, particularly
MCL 400.1 et seq.; MSA 16.401 et seq.
The projection is set forth in an exhibit introduced during the testimony of the Director of the dss who said that the department estimated that the enactment of § 109a would have the following program effect:
In FY 1990, termination of Medicaid abortion coverage will result in:
20% of the 19,000 Medicaid abortions will be carried to term.
An additional 3,800 Medicaid deliveries.
1,000 additional afdc cases.
If ten percent is too high, the amount involved may be closer to $200,000 or $300,000. On the other hand, if having a baby poses a serious long-term health risk to as many as fifteen or twenty percent of women who become pregnant, the amount involved might be closer to $1,000,000.
Torres & Forrest, Why do women have abortions? 20 Family Planning Perspectives, No. 4 (July/Aug 1988), pp 169 ff. This study was done under the auspices of the Alan Guttmacher Institute and was conducted in 1987. I have been advised that this is the latest survey available.
On the basis of the dss payment rate of $318 an abortion, and the dss’s projection that eighty percent of the 19,000 women — who before § 109a became law would have qualified for a Medicaid abortion— would obtain an abortion in FY 1990 with privately provided funds or donated services.
Absent evidence that private funding sources are devoted in the main to pay for elective abortions, one would suppose that such funds are at least as available for a medically indicated abortion as for an elective abortion.
In light of the stress placed by Doe and her amici curiae supporters on the plight of a woman faced with a long-term threat to her health for whom an abortion is medically indicated, one would think that if there is a need to prioritize resources, a woman for whom an abortion is medically indicated would have some priority.
At this moment, abortion is not available in 83% of America’s counties, home to nearly a third of American women of childbearing age. For reasons of professional pride, or fear, or economic pressure, doctors have backed away from the procedure even where it remains available.
. . . America is entering new moral and political territory, rough and uncharted, but lit by the phosphor of righteous certainties. And as the combatants square off with their irreconcilable notions of life and liberty, the middle ground, what there is of it, promises to become scorched earth.
The predicament of women trying to get abortions is harder to distill into a single wrenching image. There are 1.6 million abortions carried out in the U.S. each year, representing almost a fourth of all pregnancies. It is estimated that more than 46% of American women will have had one by the time they are 45. But while there are about 2,500 places around the country that provide abortions — down from a high of 2,908 ten years ago— they are mostly clustered around cities, leaving broad areas of the country unserved. A single clinic serves 24 counties in northern Minnesota. Just one doctor provides abortions in South Dakota. [Lacayo, No matter what happens to Roe v Wade, the doctors who perform abortions and their patientsface formidable obstacles, Time Magazine, May 4, 1992, pp 27, 28.]
The dissenters rely (see ns 11-13 and accompanying text) on case law holding that the Equal Protection Clause protects against discrimination in establishing eligibility criteria for a program that the Legislature has chosen to fund. Those cases do not support a claim that the Equal Protection Clause requires the Legislature to fund a program because it has funded another program or components of such a program.
See Saxon v Dep’t of Social Services,
The United States Supreme Court has required public funding of counsel for indigent defendants in criminal cases under the Sixth Amendment, Gideon v Wainwright,
Right to Choose v Byrne, 91 NJ 287;
No precedent is cited in these decisions supportive of a claim that the Equal Protection Clause requires the government to fund a program or a component of a comprehensive program.
Boyle, J., post, p 710, citing Sherbert v Verner,
Memorial Hosp v Maricopa Co and Shapiro v Thompson, supra.
Sherbert v Verner, supra.
The other dissenting opinion argues that MCL 400.40-400.43; MSA 16.440-16.443 would require an indigent woman to report the receipt of private funding for an abortion, and that
[i]f an indigent woman received funds from an outside source to finance an abortion, her total monthly welfare benefits could be proportionately reduced. Id. Because payments are made directly to the provider and no cash allowance is given for medical assistance, she is not even given the choice of waiving other medical necessities in favor of a medically indicated abortion. Consequently, a woman who chooses to have the abortion must forgo housing or care for her family if she wants this medical treatment. [Mallett, J., post, p 702.]
As set forth in Harris v McRae, supra at 317, n 19, a "substantial constitutional question would arise” if the Department of Social Services were to seek to reduce an indigent woman’s welfare benefits because she had an abortion without regard to whether she or someone else paid for the abortion or the medical services were provided without charge.
The invalidity of penalizing an indigent woman for exercise of her constitutional right to have an abortion does not and would not mean that the government must pay for the abortion; the remedy would be to declare the penalty, reduction of welfare benefits, to be invalid.
The Court continued that this would be analogous to Sherbert v Verner:
where this Court held that a State may not, consistent with the First and Fourteenth Amendments, withhold all unemployment compensation benefits from a claimant who would otherwise be eligible for such benefits but for the fact that she is unwilling to work one day per week on her Sabbath.
There is no suggestion on this record that a woman who suffered medical complications as a result of an abortion would be denied whatever medical care she might require.
Men who were drafted into service or their families might argue that the draft "legally reinforc[es] the special vulnerability of [men],’ even at the risk of their health [or life].” Boyle, J., post, p 710.
Dissenting Opinion
(dissenting). Under § 109a of the Social Welfare Act,
I
The plaintiffs Jane and Nancy Doe argue that § 109a violates the Equal Protection Clause of the Michigan Constitution by creating an intolerable classificatory scheme. I agree. Indigent pregnant women requiring medical care for childbirth may receive Medicaid benefits. However, indigent pregnant women who seek an abortion, even when medically necessary to preserve their health, are denied reimbursement through Medicaid unless the abortion is necessary to save their lives.
Relying almost exclusively on United States Supreme Court decisions, the majority concludes that Michigan’s denial of Medicaid funding for indigent pregnant women who seek a medically indicated abortion that is not required to save their lives does not impinge upon their fundamental right to privacy. Beal v Doe,
This Court is hardly precluded from independently interpreting Michigan’s Equal Protection Clause and may reject United States Supreme Court analysis. City of Mesquite v Aladdin’s Castle, Inc,
In concluding that § 109a is unconstitutional, I need not find that Michigan’s Equal Protection Clause offers greater protection than its federal counterpart.
The plaintiffs do not contend that the right to choose a medically indicated abortion includes a right that the government pay for it. Ante, p 666. The majority’s assertion in this regard goes beyond the scope of the case before this Court. As Justice Brennan clarifies in Harris, supra, Roe does not stand for the proposition that "the State is under an affirmative obligation to ensure access to abortions for all who may desire them.”
Concluding that § 109a is constitutional, the majority cites Maher, supra, for the proposition that " '[(t)he right recognized in Roe] implies no limitation on the authority of a State to make a
Ruling that legislation that prohibits government-funded abortions is not unconstitutional, the United States Supreme Court has reasoned that a woman’s indigency, not the government’s action, makes an abortion inaccessible. See Maher and Harris, supra. The Court held:
[Although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category. The financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although [the government] has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that [the denial of government funds for an abortion] leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. [Harris, supra, pp 316-317.]
Thus, the United States Supreme Court concluded that the denial of public funds for an abortion does not infringe upon a woman’s fundamental right to
The Michigan Medicaid program is a state-administered plan designed to pay the costs of medical care for most welfare recipients and certain other poor individuals. Michigan chose to subsidize the health care costs of its indigent citizens by enacting
Once a woman is found eligible to receive Medicaid assistance, her access to quality medical care is theoretically the same as a person who does not require Medicaid assistance. In other words, Michigan’s enactment of the Medicaid program removes a recipient’s indigent status relating to medical care. With the enactment of § 109a, however, a female recipient may obtain access to the full range of medical treatments provided under this program unless she chooses abortion as a medical treatment. The government’s restriction of Medicaid funds for a medically indicated abortion, in fact, creates the financial "obstacles” that the Medicaid program purposefully eliminated. Such a restriction is clearly an infringement upon a woman’s freedom of choice.
In most instances, services provided under Medicaid represent an indigent woman’s sole access to health care. While the government may restrict its use of public funds, such action is inappropriate here where the effect is that an indigent woman’s freedom of choice is altered to accommodate the government’s agenda. Justice Brennan stated in Harris, supra:
The fundamental flaw in the Court’s . . . analysis ... is its failure to acknowledge that the discriminatory distribution of the benefits of governmental largesse can discourage the exercise of fundamental liberties just as effectively as can an outright denial of those rights through criminal and regulatory sanctions. [ 448 US 334 .]
Here, too, the differential distributions of incentives under § 109a have the same effect as an outright prohibition of an indigent woman’s exercise of her fundamental right.
Furthermore, the complex design of welfare in Michigan contributes to the burdensome effect of § 109a. Under the current scheme, if a woman receiving Medicaid or Aid to Dependent Children (adc) benefits fails to report the receipt of other income and assets, she could become disqualified for future benefits. MCL 400.40-400.43; MSA 16.440-16.443. If an indigent woman received funds from an outside source to finance an abortion, her total monthly welfare benefits could be proportionately reduced. Id. Because payments are made directly to the provider and no cash allowance is given for medical assistance, she is not even given the choice of waiving other medical necessities in favor of a medically indicated abortion. Consequently, a woman who chooses to have the abortion must forgo housing or care for her family if she wants this medical treatment. See Corns, The impact of public abortion funding decisions on indigent women: A proposal to reform state statutory and constitutional abortion funding provisions, 24 U Mich J L Ref 371, 388 (1991).
Considered in context with an indigent woman’s entire financial circumstance, the coercive effect of § 109a on a woman’s procreation choice is obvious. Faced with the denial of benefits, an indigent woman is pressured into carrying the fetus to
II
For these reasons, I find that § 109a unduly burdens a woman’s fundamental right to privacy and thus is subject to judicial review under the "strict scrutiny” analysis.
When examining violations of the Equal Protection Clause where a fundamental right is implicated, this Court has adopted the "strict scrutiny” analysis employed by the United States Supreme Court. San Antonio Independent School Dist v Rodriguez,
In Roe v Wade, supra, the United States Supreme Court identified two governmental interests in procreative choices: (1) a woman’s health, and (2) the potential life of the fetus. However, the government’s interest in the potential life of the fetus does not become compelling until the fetus is viable. Id. at 163-164. Thus, the only compelling government interest in a woman’s procreation choice before the third month is the protection of a woman’s own health. Prohibiting reimbursement for abortions under § 109a in all trimesters does not advance the government’s compelling interest in the health of the woman or the child. In fact,
III
The exercise of fundamental rights cannot be a vain endeavor. The State of Michigan remains bound by the decision in Roe v Wade that legalized abortion. To argue that a woman has a right to an abortion but that the government need not allow her access to this service renders Roe v Wade meaningless.
But for the United States Supreme Court decisions in Harris, Maher, and Beal, supra, several courts would find Medicaid limitations on abortions unconstitutional. Doe v Rampton,
Similarly, several states have enacted legislation that would provide government-funded abortions where an indigent woman has become pregnant as a result of rape or incest. Preterm, Inc v Dukakis,
Contrary to the majority’s assumption, a Medicaid recipient’s access to private funds to finance a medically indicated abortion, or any medical treatment for that matter, is scarcely a reality in the State of Michigan.
As Justice Powell pointed out in Healy v James,
The State of Michigan has accepted the responsibility of equitably providing medical services by enacting the Medicaid program. By denying an indigent woman access to a medically accepted and constitutionally protected abortion when medically indicated by her treating physician, the Legislature denies her equal protection under the law of the State of Michigan.
I would affirm the decision of the Court of Appeals that found that § 109a is unconstitutional under Michigan’s Constitution.
MCL 400.1 et seq.; MSA 16.401 et seq.
The federal constitution provides: "[no state shall] deny to any person within its jurisdiction the equal protection of the laws.” US Const, Am XIV, § 1. Michigan’s 1963 Constitution, art 1, § 1, provides: "All political power is inherent in the people. Government is instituted for their equal benefit, security and protection.” The 1963 constitution also provides: "No person shall be denied the equal protection of the laws . . . .” Const 1963, art 1, § 2.
See Corns, supra at 389-391.
See note, The effect of recent medicaid decisions on a constitutional right: Abortions only for the rich? 6 Fordham Urb L J 687, 710 (1978).
Dissenting Opinion
(dissenting). The question before us is whether an otherwise qualified indigent fifteen-year-old, who became pregnant as the result of a rape, may be denied benefits for a first-trimester abortion necessary to preserve her health. I agree with Justice Mallett’s conclusion that benefits may not be denied. I write separately to briefly address my reasons for this result and the more narrow remedy I believe appropriate.
This Court has proceeded cautiously in declaring rights under our constitution that differ from those enumerated by the United States Supreme Court, People v Catania,
The high priority accorded in Michigan to equal protection, art 1, § 2, to equality of benefits, art 1, § 1, and to protection of health, art 4, § 51, counsel rejection of the analysis in Harris v McRae,
It is beyond dispute that Roe v Wade, 410 US
In my view, the statute does not survive analysis under our state constitution, first, because the protection of health lies at the core of the interest identified in Roe v Wade, second, because implementation of the right is within the protection provided by Doe v Bolton, and, finally, because withholding a medically necessary benefit when virtually all other medically necessary health care benefits are provided is a coercive burden on exercise of the protected right.
The United States Supreme Court decisions in Maher v Roe,
In Harris v McRae, a closely divided Court extended the Maher analysis to uphold funding restrictions for medically necessary abortions, once again distinguishing Shapiro and Sherbert on the basis that a refusal to fund protected activity "without more” cannot be equated with the imposition of a "penalty” on that activity.
Thus, Maher and Harris avoided the holdings in Roe and Doe v Bolton by recharacterizing the
This is not a situation in which a state’s neutral, generally applicable law, indirectly burdens a fundamental right.
One would expect to see no protection provided where recipient benefits are endangered merely because of circumstances unrelated to the reasons for the state’s action as in Sherbert, supra. But because the statute upheld in Harris is actually more coercive than the statutes invalidated in Sherbert and Shapiro v Thompson,
Because I believe that the statute intrudes on the constitutionally protected decision, I need only observe further that a statute that makes serious health damage to the mother a more attractive alternative than abortion does not rationally promote the government’s interest in encouraging normal childbirth, under either strict or intermediate scrutiny. The only rationale advanced — to discourage medical procedures otherwise necessary to preserve the health of the mother — would justify the total elimination of the right recognized in Roe v Wade. Indeed, in Harris, Solicitor General Wade McCree acknowledged that the logic of the Court’s position would justify denial of funding even if abortion was the only life-saving procedure available. Id. at 354.
The intervening defendant acknowledges that the statute is not neutral. The governmental purpose is to enforce the discouragement of all abortions that do not threaten the life of the mother. This case thus presents a conflict between two fundamental principles — whether one’s body shall be the source of another life, even at the expense of health, and "a command that is no less fundamental [that] an innocent life may not be taken
For the reasons stated, I concur in Justice Mallett’s result, but would narrow the remedy to hold that the statute may not be applied to women who seek first-trimester abortions necessary to preserve medical health.
See also Manistee Bank & Trust Co v McGowan,
This conclusion has been endorsed by virtually every state court confronted with the question. See Committee to Defend Reproductive Rights v Myers, 29 Cal 3d 252; 172 Cal Rptr 866;
Although the claim in question has been characterized as positing the recipient’s right vis-á-vis that of a nonviable fetus (The Detroit Chapter of National Organization of Women of Michigan, amicus curiae, p 16), the plaintiff’s complaint alleges that "a first trimester abortion is medically necessary . . . .”
It is widely speculated that the life expectancy of Roe is questionable. However, the State of Michigan is bound by that decision. Whether we would separately recognize the right if Roe were overturned is a different question.
As Justice O’Connor has noted, the Court’s disapproval of these requirements was clearly based “on the fact that the State did not impose them on any other medical procedure . . . .” Akron v Akron Center for Reproductive Health,
Bob Jones Univ v United States,
The funding cases provide part of the theoretical basis for the undue burden method of analysis in the abortion context first articulated by Justice O’Connor in Akron v Akron Center for Reproductive Health, n 5 supra at 452-453. Justice O’Connor also suggested in Akron and in Planned Parenthood Ass’n v Ashcroft,
Tribe, American Constitutional Law (2d ed), § 15-10, p 1355.
The plaintiff here is being deprived of something that is hers, her health, just as surely as the Sabbatarian in Sherbert was deprived of unemployment benefits because of her refusal to accept work.
See Failinger, An offer she can’t refuse: When fundamental rights and conditions of government beneSts collide, 31 Vill L R 833, 837, n 11 (1986).
The right involved is not unlimited. That observation, however, begs the question as to whether the state may engage in rights-pressuring activity for the period of time and under the circumstances in which, the freedom from interference has heen held to be fundamental.
Employment Div, Dep’t of Human Resources v Smith,
Nor is Harris consistent, as applied to these plaintiffs, with the results of intermediate scrutiny applied in Plyler v Doe,
This analysis does not call in question the well-established principle that heightened governmental justification is required only when a law burdens a fundamental right to some minimum degree. San Antonio Independent School Dist v Rodriguez,
Nor do I find persuasive the Court’s distinction of Sherbert as a case that involved denial of benefits, rather than a mere refusal to subsidize. "Whether the State withholds only the special costs of a disfavored option or penalizes the individual more broadly for the manner in which she exercises her choice, it cannot interfere with a constitutionally protected decision through the coercive use of governmental largesse.” Harris v McRae, supra at 336, n 6. (Brennen, J., dissenting.)
Another commentator has put the criticism more bluntly:
[T]he abortion funding cases turned on the supposed absence of "coercive” acts .... It is perhaps the worst mistake in current unconstitutional conditions analysis that such flagrant instances of rights-pressuring intent have been immunized on the theory that government has committed no coercive act. [Sullivan, Unconstitutional conditions, 102 Harv 1415, 1500-1501 (1989). See also Perry, Why the Supreme Court was plainly wrong in the Hyde Amendment case: A brief comment on Harris v McRae, 32 Stan L R 1113, 1117-1118 (1980); Tribe, The abortion funding conundrum: Inalienable rights, affirmative duties, and the dilemma of dependence, 99 Harv L R 330 (1985).]
Tribe, n 8 supra, p 1340.
This body of jurisprudence has demonstrated that abstract notions of rights and pigeon holes framed to deal with other problems are less than adequate abstractions for resolving profoundly existential assertions regarding the interest in freedom from subordination of life and health to nascent life, and the competing moral and intellectually honest principle that all human life, fetal and adult, has value. Few decisions prove more difficult than those in which these absolutes stand opposed, and competing rights analysis sheds little light on the responsibilities of the individual claimant to the community, of the claimant to the potential life she carries, or the responsibility of the state to the claimant. Whether the United States Supreme Court will ultimately determine that the state’s interest in protecting potential life is compelling even during the first trimester of pregnancy, it is fair to observe that, women like Jane Doe, "who will inevitably suffer serious physical or emotional injury . . . unless they can abort may legitimately argue that they have considered their responsibilities to others against their own lives [and] may also claim responsible action by the state . . . .” Failinger, supra at 929.
The government may accommodate the interests of those taxpayers holding morally opposed positions to use of tax revenues for these purposes. See Tribe, n 16 supra, p 340, n 38. It may also invest in technology that pushes viability backward toward conception, thus increasing society’s power to act responsibly toward the protection of fetal life.