Lead Opinion
In this class action, the plaintiffs seek to have declared invalid and to enjoin the enforcement of certain statutory provisions restricting the funding of abortions under the Massachusetts Medical Assistance Program (Medicaid). The defendants are all officials in the executive branch of the government of the Commonwealth. The challenged enactments include G. L. c. 29, § 20B, inserted by St. 1979, c. 268, § 1, and various appropriation measures including St. 1979, c. 393, § 2, Item 4402-5000, and St. 1980, c. 329, § 2, Item 4402-5000.
I. The background of this action. The Medicaid program is one of the several joint Federal-State programs of assistance to the indigent included in the Social Security Act, 42 U.S.C. § 301 et seq. (1976 & Supp. Ill 1979) (Act). By enacting Title XIX of the Act, 42 U.S.C. §§ 1396-1396k (1976 & Supp. Ill 1979), Congress in 1965 authorized the expenditure of Federal funds to enable each State to furnish medical assistance to certain categories of needy persons. Participation is at the option of each State, and the States are free within broad parameters to determine the scope and extent of the assistance offered. Certain minimum requirements must be met, however, to qualify for Federal aid. A State must furnish five types of services
Massachusetts joined the national Medical Assistance Program in 1966, by Executive Order of the Governor. The Legislature established the Massachusetts Medical Assistance Program in 1969; the program is codified in G. L. c. 118E, §§ 1-27. The major responsibility for policy making and administration is lodged in the.Department of Public Welfare. G. L. c. 118E, §§ 2, 4. The current administrative and billing regulations are contained in 106 Code Mass. Regs. 450.000 et seq., as amended, 185 Mass. Reg. 9 (November 23, 1979).
The Massachusetts program is broad and comprehensive. For eight categories of recipients, the program affords twenty-nine types of services; a more limited range of services, numbering ten, is available under the State’s General Relief Medical Assistance Program. See 106 Code Mass. Regs. 450.105 and 107. These services are all provided subject to the standard of “medical necessity” set forth at 106 Code Mass. Regs. 450.204, as follows: “A provider must furnish or prescribe medical services to the recipient only when, and to the extent, medically necessary, unless otherwise specified in Department regulations. For the purposes of this Chapter 450.000, a service is ‘medically necessary’ if it is (1) reasonably calculated to prevent, diagnose, prevent the worsening of, alleviate, correct, or cure conditions in the recipient that endanger life, cause suffering or pain, cause physical deformity or malfunction, threaten to cause
An understanding of the plaintiffs’ objectives in this case requires some knowledge of the history of Medicaid funding for abortion in Massachusetts. Following the decision of the United States Supreme Court in Roe v. Wade,
The first Federal restrictions on Medicaid funding for abortions came in 1976. In that year, Congress enacted the so called “Hyde Amendment,” a rider to the Labor-HEW Appropriations Act limiting Federal reimbursement of abortion services to cases in which “the life of the mother would be endangered if the fetus were carried to term.” Pub. L. No. 94-439, § 209, 90 Stat. 1434 (1976). Similar restrictions were passed by Congress in 1977, 1978, and 1979.
On July 10, 1978, the General Court first acted to limit State Medicaid expenditures for abortion. The restriction was in a form similar to the Hyde Amendment; a rider to the State’s Medicaid appropriations for fiscal year 1979, St. 1978, c. 367, § 2, Item 4402-5000, prohibited State reimbursement for abortions except when necessary to prevent the death of the pregnant woman or in certain cases of rape or incest. Chapter 367 was immediately challenged in an action filed in the United States District Court for the District of Massachusetts. The plaintiffs alleged that the State’s failure to provide for “medically necessary” abortions violated Title XIX and the United States Constitution. That court, while agreeing that c. 367, § 2, Item 4402-5000, violated the requirements of Title XIX, declined to order the State to pay for abortions other than those which would qualify for Federal reimbursement under the Hyde Amendment. Jaffe v. Sharp,
Between October 1, 1979, and January 15, 1980, although not bound by any court order, the Commonwealth chose not to implement any funding restriction and paid for all medically necessary abortions. During this interim, the United States District Court for the Eastern District of New York held the restriction placed on Federal reimbursement for abortions by the Hyde Amendment to be unconstitutional and entered an order effective January 15, 1980, enjoining the Secretary of Health, Education and Welfare from discontinuing Federal reimbursement for medically necessary abortions. McRae v. Califano,
The upshot of this long course of litigation is that before the June 30, 1980, decision in Harris v. McRae, supra, Massachusetts had never refused to reimburse Medicaid pro
We summarize the facts alleged by the plaintiffs in their complaint and in the affidavits which accompanied their motion for a temporary restraining order, filed simultaneously with the complaint. Each of the three pseudonymous plaintiffs representing the class of Medicaid-eligible pregnant women alleges similar facts. Each is pregnant and is eligible for Medicaid assistance. Each has decided after consultation with her physician that she wishes to terminate her pregnancy by abortion. In each case, the consulting physician believes that an abortion is medically indicated, but cannot certify that the procedure is necessary to prevent death. None of the three could afford to have an abortion without Medicaid assistance.
Dr. Phillip Stubblefield, the fourth named plaintiff, is a physician licensed to practice in Massachusetts; his specialty is obstetrics and gynecology. He is an authorized Medicaid provider whose practice includes performing abortions and supervising the abortion service in a Boston hospital. He brings this action on his own behalf and on behalf of a class consisting of qualified Medicaid providers who are willing to perform abortions which cannot be characterized as necessary to prevent death. He describes the various procedures used to perform abortions, and the considerations, relating primarily to the stage of pregnancy, which determine which procedure is appropriate. He cites statistics tending to demonstrate that the risks to health associated with abortion increase as a pregnancy progresses, and states that postponing an abortion unnecessarily is wholly inconsistent with sound medical practice. Dr. Stubblefield lists a number of medical conditions which, in conjunction with
The defendants answered on July 16, 1980, asserting in the form of affirmative defenses a number of alleged pro
After hearing counsel, the single justice on July 23, 1980, entered an order provisionally certifying two plaintiff classes, dismissing the action against the Governor on the ground that he had been improperly joined, and granting a preliminary injunction against taking any action to enforce the challenged statutes in so far as they would prohibit the funding of medically necessary abortions for Medicaid recipients.
II. Threshold considerations. We consider at the outset three potential grounds for avoiding the constitutional issues argued by the plaintiffs. The defendants advance two reasons for refusing to adjudicate this case at present. They argue, first, that this court lacks subject matter jurisdiction over this action; and second, that the relief sought by the plaintiffs is barred by the existence of an adequate remedy at law. We reach the third ground, namely a possible conflict between State and Federal standards for Medicaid eligibility, in deference to our obligation to avoid constitutional adjudication if any other ground of decision appears sufficient to dispose of a particular case. We therefore discuss the possibility that this case may be decided on statutory grounds.
A. Jurisdiction. The defendants assert that this court lacks subject matter jurisdiction of this case both because granting relief would violate the principle of separation of powers expressed in art. 30 of the Massachusetts Declaration of Rights, and because this case involves a political question. The basis for their position is that the challenged enactments are, in part, appropriations measures, and the power to appropriate funds is committed to the Legislature.
There are two answers to the concerns expressed by the defendants. First, the plaintiffs do not seek any forced appropriation of funds. Here, the Legislature has already exercised its unquestioned power to appropriate funds. The appropriation is general in form; the sole restriction pertaining to the coverage of medical services is the abortion funding provision challenged here. See St. 1980, c. 329, § 2, Item 4402-5000. If we were to grant the relief the plaintiffs seek, it is undisputed that the net effect would be to reduce the Commonwealth’s Medicaid expenditures, not increase them. See note 20, infra,
More fundamentally, we have never embraced the proposition that merely because a legislative action involves an exercise of the appropriations power, it is on that account immunized against judicial review. In Colo v. Treasurer & Receiver Gen.,
B. Adequacy of the remedy provided by G. L. c. 258, §§ 1-13. The defendants further take the position that
We think this argument misperceives the interest asserted by the plaintiffs, and takes a correspondingly unrealistic view of the effect of the challenged restrictions. Inescapably at stake in this case is the availability of medically necessary abortion services to the plaintiff class of Medicaid-eligible women. By definition, these women are financially incapable of affording these services themselves. See 42 U.S.C. § 1396. To require them to find a Medicaid provider who will perform an abortion in the face of an express prohibition on reimbursement, and who will then undertake the additional burden of litigating the constitutionality of that prohibition, would be to render whatever right they may have totally illusory.
The plaintiffs clearly allege that the challenged restriction will prevent them from obtaining abortions. Affidavits submitted by Medicaid providers indicate that, in practice, Medicaid providers will not perform any significant number of abortions in the hope that they may ultimately prevail in a lawsuit challenging this restriction. We think these allegations to be entirely sufficient to present an actual controversy appropriate for a declaration of rights. “For a doctor who cannot afford to work for nothing, and a woman who cannot afford to pay him, the State’s refusal to fund an abortion is as effective an ‘interdiction’ of [a woman’s right to choose an abortion] as would ever be necessary.” Singleton v. Wulff,
Because the necessary predicates for maintaining this suit are present with respect to the plaintiff class of Medicaid-
C. Statutory conflict. The plaintiffs have not advanced any statutory ground for the relief they seek. Nevertheless, because such a ground arguably existed prior to the current fiscal year, we discuss briefly the possibility, now eliminated, of a statutory resolution of this case.
Under the supremacy clause, a conflict between State and Federal standards for Medicaid eligibility would render the State legislation invalid, at least to the extent of the inconsistency. See ABCD, Inc. v. Commissioner of Pub. Welfare,
If only the State’s fiscal 1980 restriction were before us, the remedial question would be crucial. If we were to invalidate the Massachusetts restriction entirely, the controversy presented might be resolved. However, by Pub. L. No. 96-536, § 109, 94 Stat. 3170 (1980), enacted December 16, 1980, the Congress has stated that “States are and shall remain free not to fund abortions to the extent that they in their sole discretion deem appropriate.” It is thus clear that as to the State’s fiscal year 1981 restriction — the only restriction which can now be enforced — no statutory conflict exists with the governing Federal legislation. We thus turn to the constitutional issues presented.
III. Constitutional claims. The plaintiffs mount a broad attack on the restriction of Medicaid funding for abortions to cases in which the procedure is necessary to prevent a woman’s death. First, they argue that this form of restriction is an impermissible burden on the exercise of a fundamental right secured by the guarantee of due process implicit in art. 10 of our Declaration of Rights. In addition, they argue that the classification established by this legislation cannot survive the equal protection analysis articulated in Marcoux v. Attorney Gen.,
A. The protected choice. Our starting point is necessarily the landmark decision of the United States Supreme Court in Roe v. Wade,
Although we are not unaware of the criticism leveled at Roe v. Wade, supra, we have accepted the formulation of rights that it announced as an integral part of our jurisprudence. We note that it has been repeatedly reaffirmed by the Supreme Court in decisions invalidating State laws burdening the abortion decision. See Bellotti v. Baird,
We have twice been called upon to apply the principles enunciated in Roe v. Wade, supra, in cases raising the question of the limits of permissible State intervention in the abortion decision. In Doe v. Doe,
The cases dealing specifically with a woman’s right to make the abortion decision privately express but one aspect of a far broader constitutional guarantee of privacy. These cognate cases are linked by their recognition that “[t]he existence of a ‘private realm of family life which the state cannot enter,’ Prince v. Massachusetts,
In sum, we deal in this case with the application of principles to which this court is no stranger, and in an area in which our constitutional guarantee of due process has sometimes impelled us to go further than the United States Supreme Court. See, e.g., District Attorney for the Suffolk Dist. v. Watson,
B. Neutrality of the State regulation. In Harris v. McRae,
We are urged by the defendants to adopt this analysis of the interests here at stake. The plaintiffs, on the other hand, remind us that when asked to interpret the Massachusetts Constitution, this court is “not bound by Federal decisions, which in some respects are less restrictive than our Declaration of Rights.” Corning Glass Works v. Ann & Hope, Inc.,
As we have demonstrated, the limitation on State action which is imposed by the fundamental right of privacy declared in Roe v. Wade, supra, is one of neutrality. We do not understand the plaintiffs here to assert either an absolute right to have abortions or an equivalent right to have their abortions subsidized by the State.
It is elementary that “when a State decides to alleviate some of the hardships of poverty by providing medical care, the manner in which it dispenses benefits is subject to constitutional limitations.” Maher v. Roe,
When the question is whether a selective grant of benefits impinges on a right held to be fundamental, it is unimportant whether the burden imposed is direct or indirect. In Healy v. James,
The principle underlying these cases is not novel in our own jurisprudence. In Schulte v. Director of the Div. of Employment Security,
We think the instant case stands on the same footing as those cited. Our prior decisions demonstrate that our Declaration of Rights affords the privacy rights asserted here no less protection than those guaranteed by the First or Fifth Amendments to the Federal Constitution. In our view, “articulating the purpose [of the challenged restriction] as ‘encouraging normal childbirth’ does not camouflage the simple fact that the purpose, more starkly expressed, is discouraging abortion.” Perry, The Abortion Funding Cases: A Comment on the Supreme Court’s Role in American Government, 66 Geo. L.J. 1191,1196 (1978). As an initial matter, the Legislature need not subsidize any of the costs associated with child bearing, or with health care generally. However, once it chooses to enter the constitutionally protected area of choice, it must do so with genuine indifference. It may not weight the options open to the pregnant woman by its allocation of public funds; in this area, government is not free to “achieve with carrots what [it] is forbidden to achieve with sticks.” L. Tribe, Ameri
C. Interest balancing. Our inquiry does not end with the conclusion that this funding restriction burdens the plaintiffs’ fundamental right of choice. It remains to examine the interests asserted by the State to justify this measure. As we noted in Framingham Clinic, Inc. v. Selectmen of Southborough,
The basic judicial authority defining the interests involved when a State seeks to regulate the performance of abortions is, of course, Roe v. Wade,
This formulation, if accepted, would prove fatal to the challenged restriction. Rather than mechanically accepting this result, however, we prefer to test these enactments by the balancing principles which we have developed in our own recent decisions.
Perhaps the clearest exposition of those principles in a case presenting an analogous, although not identical, issue is found in Commissioner of Correction v. Myers, supra. The Commissioner sought declaratory and injunctive relief to establish that he could compel a prisoner in the State prison to undergo medically necessary hemodialysis. We began our analysis of this issue by reference to Superintendent of Belchertown State School v. Saikewicz, supra, our leading case on the law involving involuntary life-saving medical treatment. In Saikewicz, we recognized an interest of constitutional dimension in an individual’s freedom from nonconsensual invasions of bodily integrity; and further, that such an interest, or right, may be asserted to prevent infringements of bodily integrity in circumstances defined by a proper balancing of State and individual interests. Id. at 738-745. See Myers, supra at 261. Both Saikewicz and Myers identify four countervailing State interests present in cases involving involuntary medical treatment: “(1) the preservation of life; (2) the protection of the interests of innocent third parties; (3) the prevention of suicide; and (4) the maintenance of the ethical integrity of the medical profession.” Myers, supra at 262. The interest primarily implicated in Myers was in preserving life, since hemodialysis treatment permitted the defendant to live an otherwise normal life. Against that strong interest, we balanced the individual’s interest in being free of the hemodialysis treatments, an invasion of his bodily integrity we thought to be significant, although not great. Viewed in isolation, we thought these two interests to yield “a very close balance of interests.” Id. at 263. The decisive factor thus became the State’s interest in the orderly administra
Here, as in Myers, the State interest primarily involved is in preservation of life, albeit potential life.
IV. Remedy. We have concluded that the challenged restriction is invalid in so far as it prohibits the use of State Medicaid funds to reimburse authorized providers for lawful, medically necessary abortion services rendered to qualified Medicaid recipients. We now address the question of fashioning an appropriate remedy. The question posed is whether simply to invalidate the existing restriction in so far as it is constitutionally offensive or whether it is necessary to nullify the Medicaid appropriation for the current fiscal year in its entirety.
The parties agree that this question is governed by the rule stated in Opinion of the Justices,
The defendants argue that this is indeed a case in which the Legislature could not, or at least would not, have intended the Medicaid program to continue had they been aware of the invalidity of the abortion funding restriction.
We cannot agree. We do not doubt that there exists in the Legislature a deep-seated resistance to public funding for abortion. Equally clear, however, is the Legislature’s strong commitment over a period of fifteen years to a State Medicaid program. The Medicaid appropriation has become the largest single item in the State’s budget. The program goes far beyond federally mandated requirements, both in terms of standards of eligibility and in terms of the scope of the services offered. It is obviously a program on which a large number of our State’s needy people rely to meet their most urgent needs. Moreover, this is not a case in which a decision to sever the funding restriction will result in an increased financial burden to the State. Cf. ABCD, Inc. v. Commissioner of Pub. Welfare,
The principle embodied in the rule governing this remedial question is straightforward: we must seek to minimize the scope of any necessary intrusion into the legislative sphere. We think a nullification of the Medicaid program in its entirety would represent a far greater intrusion into that sphere than a remedy excising only the offending restriction. We therefore remand this case to the county court with instructions that the single justice enter a judgment (1) declaring that the plaintiff class of Medicaid-eligible pregnant women is entitled to nondiscriminatory funding of lawful, medically necessary abortion services, and (2) enjoining the enforcement of G. L. c. 29, § 20B, and St. 1980, c. 329, § 2, Item 4402-5000, in so far as these statutory provisions would prevent reimbursement to Medicaid providers for services in performing lawful, medically necessary abortions on Medicaid-eligible pregnant women.
So ordered.
Notes
General Laws c. 29, § 20B, inserted by St. 1979, c. 268, § 1, provides in full as follows: “No account or demand approved by the head of a department, office, commission or institution for which it was contracted, requiring the certification of the comptroller or warrant of the governor shall be paid from an appropriation for an abortion, as defined in section twelve K of chapter one hundred and twelve except for an abortion where the attending physician has certified in writing that the abortion is necessary to prevent the death of the mother.”
Similar restrictions were first placed on the Commonwealth’s Medicaid appropriations by St. 1978, c. 367, § 2, Item 4402-5000, which provided in so far as is here pertinent, “that no funds appropriated under this item shall be expended for the payment of abortions not necessary to prevent the death of the mother. This provision does not prohibit payment for medical procedures necessary for the prompt treatment of the victims of forced rape or incest if such rape or incest is reported to a licensed hospital or law enforcement agency within thirty days after said incident.”
The appropriations for fiscal year 1980, St. 1979, c. 393, § 2, Item 4402-5000, eliminated the exception for rape and incest present in the 1978 appropriations; it provided “that no funds appropriated under this item shall be expended for the payment of abortions not necessary to prevent the death of the mother.” The relevant language of the most recent Appropriations Act, St. 1980, c. 329, § 2, Item 4402-5000, is identical.
We have historically taken the view that the principles of due process of law in our State Constitution are embodied in arts. 1,10, and 12 of the Declaration of Rights and in Part II, c. 1, of the Constitution. See, e.g., Wilkins, Judicial Treatment of the Massachusetts Declaration of Rights in Relation to Cognate Provisions of the United States Constitution, 14 Suffolk U.L. Rev. 887, 909-910 n.135 (1980).
These services include (1) inpatient hospital services; (2) outpatient hospital services; (3) other laboratory and X-ray services; (4) skilled nursing services, early periodic screening and diagnosis, and family planning services, and (5) physicians’ services. See 42 U.S.C. § 1396a(a)(13)(B) and 42 U.S.C. § 1396d(a)(l)-(5).
The “categorically needy” include the aged, blind, or disabled, and recipients of either supplemental security income or aid for dependent children. 42 U.S.C. § 1396a(a)(13)(B).
An overview of the provisions of Title XIX may be found at 3 Medicare & Medicaid Guide (CCH) par. 14,010, from which our summary is in part derived.
The introduction to the 1974 regulations, Massachusetts Public Assistance Policy Manual c. 7, § 10, part 1 (effective October 1, 1974), stated that “[a] woman always has the freedom of choice regarding abortion, just as she has freedom of choice with regard to any other medical service.” First trimester abortions were required to be performed by a licensed and qualified physician in a licensed clinic or in a hospital. The performance of second trimester abortions was permitted only in hospitals. Funding for third trimester abortions was limited to those necessary to save the life of a woman or “to eliminate substantial risk of grave impairment to her physical or mental health." Massachusetts Public Assistance Policy Manual, supra at 1-2.
The 1977 version, covering fiscal year 1978, was slightly broader than the 1976 version in that it included two additional categories, cases of
Dr. Stubblefield cites the following conditions as illustrative: “chronic lung disease (childbirth accelerates the deterioration of the lung function); essential hypertension (pregnancy may increase the likelihood of pre-eclampsia or eclampsia, complications of pregnancy characterized by significant protein loss in the urine and edema, which in turn accelerates the likelihood of vascular disease and the risk of a cerebral-vascular accident, of brain vessel and kidney damage, and increased incidence of diabetes); diabetes; heart disease (particularly mitral stenosis — the most common cardiac complication associated with pregnancy); and renal (kidney) disease particularly chronic nephritis and pyelonephritis; pregnancy can contribute to renal failure.”
According to Dr. Stubblefield, abortion is recommended without regard to the patient’s wish in cases involving a severe diabetic retinopathy, which may cause blindness in a pregnant woman; certain genital and other cancers; and habituation or addiction to alcohol or other drugs.
The plaintiff classes provisionally certified by the single justice were as follows: “ (a) Medicaid-eligible pregnant women who desire abortions and whose physicians have determined that abortion is medically necessary, even though not necessary to avert their death; and (b) Physicians who are willing to perform abortions in the circumstances indicated in (a) above.” The single justice expressly denied relief as to nontherapeutic abortions and limited his order enjoining enforcement of the funding restrictions to cases involving medically necessary abortions.
We agree with the distinction drawn by the single justice between non-therapeutic and medically necessary abortions. The Massachusetts Medicaid program establishes a single standard of medical necessity, and funds no service which does not meet that standard. See 106 Code Mass. Regs. 450.204, as amended, 185 Mass. Reg. 9 (November 23, 1979). Because there is no entitlement under the Massachusetts plan to “elective” services which are not also medically necessary, the exclusion of funding for abortions which fall into that category presents no constitutional issue. See Maher v. Roe,
The order of July 23 was superseded by a substantially identical order entered by the single justice on August 1, 1980, which continued temporary relief pending argument of this case to the full court.
In Harris v. McRae,
This consensus is evident from a number of our recent decisions applying privacy principles in diverse areas, including parents’ rights to custody of their children, Department of Pub. Welfare v. J.K.B.,
As noted earlier, supra at 643-644, the presence of the plaintiff class of Medicaid-eligible pregnant women in this action obviates any necessity to examine at length the correlative right asserted by the plaintiff class of Medicaid providers represented by Dr. Stubblefield.
In Maher v. Roe,
In Williams v. Zbaraz,
We emphasize again that this case, as narrowed by the order of the single justice, involves only the exclusion of lawful, medically necessary abortions from Medicaid coverage. See note 12, supra.
The defendants make no argument that these restrictions are calculated to conserve funds. This is not surprising; other courts which have considered the question have found that, on a program-wide basis, the cost of providing the medical services necessary to support women through to childbirth, even offset by available Federal reimbursement, exceeds the cost of providing abortion services to eligible women who want them. See Preterm, Inc. v. Dukakis,
At least prior to viability, we are constrained by Roe v. Wade,
Although we do not regard it as decisive, we note that placing physicians in the position of choosing between their livelihood and the preservation of the health of a patient for whom abortion is a medical necessity cannot be thought to foster the ethical integrity of the profession.
In Part II (A) of this opinion we have disposed of the argument that “extension” of the benefit would violate art. 30 of the Declaration of Rights of the Constitution of the Commonwealth.
Dissenting Opinion
(dissenting). I dissent. I do not subscribe to the opinion of the majority of the court that the legislation violates the guarantee of due process implicit in art. 10 of the Massachusetts Declaration of Rights. Nor do I believe that the legislation contravenes either the equal protection provision or the Equal Rights Amendment of our State Constitution.
The constitutional arguments of the plaintiffs are rooted in Wade, which held that the liberty protected by the United States Constitution includes the freedom of a woman to decide whether to terminate a pregnancy. At the same time, the United States Supreme Court also affirmed in Wade that a State has legitimate interests in protecting the health of the mother, and protecting potential human life. These State interests become more substantial as the woman approaches term until, at viability, usually in the third trimester, the State interest justifies a criminal prohibition against abortion.
The plaintiffs here correctly do not contend that they have a right to public funding of abortions. See Maher v. Roe,
The United States Supreme Court, faced with the precise issue presented here, held that there was no impediment in the United States Constitution to congressional funding of childbirth but not of certain abortions. Harris v. McRae,
The majority opinion states that it accepts the formulation of rights announced in Wade. In my view, it nevertheless then proceeds to modify and extend the Wade principles. It
I do not dispute that this court is free in appropriate circumstances to decide that the Massachusetts guarantee of due process is more extensive than its Federal counterpart.
The majority, having decided this case on a due process approach, recognized that there was no necessity to examine the plaintiffs’ assertions that the legislation violates the provision in our State Constitution for equal protection of the laws, and the related provision in the Equal Rights Amendment. I conclude that these arguments, like those addressed to due process, fail. The legislation was not
The plaintiffs also are not assisted by the Equal Rights Amendment to the Massachusetts Constitution, which is intended to eliminate gender-based discrimination. This court has not yet fully addressed the question of what, if any, proof of discriminatory intent is required to make out a prima facie showing of discrimination under the Equal Rights Amendment. Cf. School Comm. of Braintree v. Massachusetts Comm’n Against Discrimination,
It is clear that the matter in which this court now intrudes is a matter for the Legislature. “It is not the mission of this Court or any other to decide whether the balance of competing interests reflected in [the disparate treatment by the Legislature of childbirth and abortion] is wise social policy. If that were our mission, not every Justice who has subscribed to the judgment of the Court today could have done so.” McRae, supra at 326.
I would direct the single justice to enter a judgment declaring that the challenged legislation is constitutional in all respects under the Constitution of Massachusetts.
The majority cite the following: “Bellotti v. Baird,
I suggest that the majority inappropriately rely upon District Attorney for the Suffolk Dist. v. Watson,
I trust and assume that one of the principles of Wade which the court accepts is that which permits a limited intrusion by the State into the pregnant woman’s freedom of choice, particularly by the processes of the criminal law and particularly in the third trimester.