MARY MOE & others vs. SECRETARY OF ADMINISTRATION AND FINANCE & others.
Supreme Judicial Court of Massachusetts
February 18, 1981
382 Mass. 629
Suffolk. September 8, 1980. — February 18, 1981. Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS, & ABRAMS, JJ.
Judicial resolution of a controversy with respect to certain statutory provisions restricting the funding of abortions under the Massachusetts
In an action by a class of pregnant women eligible for assistance under the Massachusetts Medical Assistance Program and a class of qualified Medicaid providers challenging certain statutory provisions restricting the funding of abortions under the Medicaid program, there was no merit to the defendants’ contention that, because the ultimate relief sought was reimbursement to Medicaid providers for abortion services rendered to recipients, it would be premature to resolve the issue of the validity of the statutory provisions until reimbursement was actually withheld; allegations that the challenged restriction would prevent the class of pregnant women from obtaining abortions were sufficient to present an actual controversy appropriate for a declaration of rights. [642-644]
Although the Massachusetts limitation on funding for abortions under the Massachusetts Medical Assistance Program during the fiscal year 1980 was more restrictive than the corresponding Federal legislation and the State legislation would thus have been rendered invalid to the extent of the inconsistency, that statutory conflict was abrogated as to the fiscal year 1981 restriction by
Discussion of the scope of a woman‘s constitutional right to decide whether or not to terminate a pregnancy by abortion. [645-651]
The Massachusetts Declaration of Rights affords a greater degree of protection to a woman‘s right to decide whether or not to terminate a pregnancy by abortion than does the Federal Constitution as interpreted by Harris v. McRae, 448 U.S. 297 (1980). [651]
A statutory restriction on the funding of abortions under the Massachusetts Medical Assistance Program, which limited such funding to cases in which the procedure was necessary to prevent a woman‘s death, to the exclusion of other lawful, medically necessary abortions, impermissibly burdened a woman‘s right to decide whether or not to terminate a pregnancy by abortion in violation of the right to due process of law as guaranteed by the Massachusetts Declaration of Rights. [651-659] HENNESSEY, C.J., dissenting.
Where a statutory restriction on the funding of abortions under the Massachusetts Medical Assistance Program was invalid so far as it pro-
CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on July 9, 1980.
The case was reported by Kaplan, J.
Nancy Gertner (John Reinstein, Marjorie Heins & Katherine Triantafillou with her) for the plaintiffs.
Thomas R. Kiley, Assistant Attorney General (Garrick F. Cole, Assistant Attorney General, with him) for the defendants.
Jeanne Barkin, for Preterm, Inc., amicus curiae, submitted a brief.
Robert A. Destro, for Catholic League for Religious and Civil Rights, amicus curiae, submitted a brief.
Carolynn Fischel & Rita J. DiGiovanni, for various religious professors & others, amici curiae, submitted a brief.
John H. Henn, Eve W. Paul & Dara Klassel, for Planned Parenthood Federation of America, Inc., & others, amici curiae, submitted a brief.
Kimberly Homan & Joyce Perkit Zalkind, for Boston Women‘s Health Book Collective, Inc., & others, amici curiae, submitted a brief.
Charles Kindregan, Dennis J. Horan, Victor G. Rosenblum, John D. Gorby, Patrick A. Trueman & Thomas J. Marzen, for certain Massachusetts physicians, amici curiae, submitted a brief.
Henry C. Luthin, for certain members of the General Court, and for Massachusetts Citizens for Life, Inc., amici curiae, submitted briefs.
Terry Jean Seligmann, Margot Botsford & Susanne C. Howard, for Women‘s Bar Association of Massachusetts & others, amici curiae, submitted a brief.
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,
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
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, 410 U.S. 113 (1973), the State issued regulations establishing abortion coverage coextensive with the limits on State regulation set [forth] in that decision.8
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.”
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,
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, 491 F. Supp 630 (E.D.N.Y. 1980). Since the First Circuit had already held the Doyle-Flynn Amendment to be in conflict with Title XIX, the order in McRae had the apparent effect of requiring Medicaid coverage for medically necessary abortions, and the Commonwealth continued to provide such coverage. On June 30, 1980, however, the United States Supreme Court reversed the Federal District Court‘s decision in McRae, holding that Title XIX does not require State Medicaid programs to fund abortion services for which Federal reimbursement is unavailable and upholding the validity of the Hyde Amendment against a variety of constitutional challenges. Harris v. McRae, 448 U.S. 297 (1980).
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 restaining 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.12 The single justice further reserved decision on and reported to the full court a number of procedural and jurisdictional issues, as well as the plaintiffs’ central constitutional claims.13
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
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., 378 Mass. 550, 552-553 (1979), we rejected the argument that either the doctrine of separation of powers or the political question doctrine requires that result. “Without in any way attempting to invade the rightful province of the Legislature to conduct its own business, we have the duty, certainly since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803), to adjudicate a claim that a law and the actions undertaken pursuant to that law conflict with the requirements of the Constitution. ‘This,’ in the words of Mr. Chief Justice Marshall, ‘is of the very essence of judicial duty.‘” Colo, supra at 553. Clearly, the relief sought by the plaintiffs is within our power to grant. As to the form that relief should take, we think that question more appropriately addressed at the end of this opinion.
B. Adequacy of the remedy provided by
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
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, 428 U.S. 106, 118-119 n.7 (1976) (four Justices concurring).
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, 378 Mass. 327, 336 n.14 (1979); Preterm, Inc. v. Dukakis, 591 F.2d 121, 134 (1st Cir.), cert. denied sub nom. Preterm, Inc. v. King, 441 U.S. 952 (1979). During the fiscal year 1980, the Massachusetts limitation on Medicaid funding for abortions, although never enforced, was more restrictive than the corresponding Federal legislation. The State limited funding to cases in which abortion was required to avert death, while the Federal appropriations included funding for abortion in certain cases of rape or incest. Compare
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
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., 375 Mass. 63 (1978), and that this restriction discriminates on the basis of sex in violation of the State Equal Rights Amendment. Finally, the plaintiffs argue that this restriction does not meet even the traditional minimum rationality standard of equal protection.
A. The protected choice. Our starting point is necessarily the landmark decision of the United States Supreme Court in Roe v. Wade, 410 U.S. 113 (1973). There, the Court held that a woman‘s decision whether or not to terminate a pregnancy by abortion falls within a constitutionally protected zone of privacy. Id. at 153. Without defining precisely either the scope of the right or its source, the Court made it clear that the right of the individual is not absolute. State regulations are permitted which advance a “compelling state interest” and are “narrowly drawn to express only the legitimate state interests at stake.” Id. at 155. The Court identified two such interests, one in protecting the health of the pregnant woman, and the other in fostering potential human life. Id. at 159. “Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.‘” Id. at 162-163. Dividing pregnancy into three stages, the Court weighed the State and individual interests present during each. During the first trimester, the Court held the right of individual choice to be paramount; accordingly, the State may not restrict abortions during this period beyond requiring that they be performed by a licensed physician. In the second trimester of pregnancy, the State‘s interest in maternal health was held to be sufficient to permit regulation reasonably related to such health concerns. Only at the point of fetal viability, beginning at approximately the seventh month of pregnancy, does the State‘s interest in potential
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, 443 U.S. 622 (1979) (requirement of parental consultation and consent or court approval prior to permitting unmarried minors to undergo abortion); Colautti v. Franklin, 439 U.S. 379 (1979) (requirement that physician determine fetal viability prior to performing abortion; imposing criminal and civil sanctions for failure to exercise care to save fetal life); Planned Parenthood v. Danforth, 428 U.S. 52 (1976) (requirement of parental or spousal consent prior to abortion; prohibition of saline abortion after first trimester; imposing civil and criminal sanctions for failure to exercise care to save fetal life); Doe v. Bolton, 410 U.S. 179 (1973) (limiting those hospitals in which abortions could be performed; requiring prior hospital committee approval and concurrence of three doctors that abortion is necessary).
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, 365 Mass. 556 (1974), we held that a pregnant woman‘s husband had no right, whether constitutional or at common law, to declaratory and injunctive relief designed to prevent her from securing an abortion. We recognized that the line of cases culminating in Roe v. Wade, supra, “all . . . involved a shield for the
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, 321 U.S. 158, 166 (1944), is a cardinal precept of our jurisprudence.” Custody of a Minor (No. 1), 377 Mass. 876, 880 (1979). In the seminal case of Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728 (1977), in which we considered the limits of the State‘s power, or obligation, to impose life-prolonging treatment on a terminally ill incompetent in its care, we said that “[t]he constitutional right to privacy . . . is an expression of the sanctity of individual free choice and self-determination as fundamental constituents of life. The value of life as so perceived is lessened not by a decision to
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, 381 Mass. 648 (1980) (recognizing the relevance of a fundamental right to life in invalidating death penalty); Department of Pub. Welfare v. J.K.B., 379 Mass. 1 (1979) (recognizing indigent parents’ right to court appointed counsel in State instituted proceeding to remove child from parents’ custody). It is established that “[t]he decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices. That decision holds a particularly important place in the history of the right of privacy. . . . This is understandable, for in a field that by definition concerns the most intimate of human activities and relationships, decisions whether to accomplish or to prevent conception are among the most private and sensitive” (citations omitted). Carey v. Population Servs. Int‘l, 431 U.S. 678, 685 (1977). Having
B. Neutrality of the State regulation.
In Harris v. McRae, 448 U.S. 297 (1980), and its companion case Williams v. Zbaraz, 448 U.S. 358 (1980), the Supreme Court of the United States upheld enactments substantially identical to those challenged here against claims that they violated the due process and equal protection components of the Fifth and Fourteenth Amendments to the United States Constitution. In the view of five members of the Court, neither the Federal nor the parallel State funding restriction denied any federally protected constitutional right. While granting the importance of a woman‘s interest in protecting her health in the scheme established by Roe v. Wade, supra, the Court held that “it 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. The reason why was explained in [Maher v. Roe, 432 U.S. 464 (1977)]: 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. . . . Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment 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 v. McRae, supra at 316-317.17 The Court went on to reject claims based on the free exercise and establishment clauses of the First Amendment, and on the Fifth Amendment guarantee of
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., 363 Mass. 409, 416 (1973). Accord, District Attorney for the Plymouth Dist. v. New England Tel. & Tel. Co., 379 Mass. 586, 597 n.1 (1980) (Liacos, J., dissenting). See 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 (1980); Douglas, State Judicial Activism — The New Role for State Bills of Rights, 12 Suffolk U.L. Rev. 1123 (1978); Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). We think our Declaration of Rights affords a greater degree of protection to the right asserted here than does the Federal Constitution as interpreted by Harris v. McRae, supra.
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.19 Their claim is
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, 432 U.S. 464, 469-470 (1977). While the State retains wide latitude to decide the manner in which it will allocate benefits, it may not use criteria which discriminatorily burden the exercise of a fundamental right. Massachusetts Pub. Interest Research Group v. Secretary of the Commonwealth, 375 Mass. 85, 93 (1978). Opinion of the Justices, 375 Mass. 795, 806 (1978), and cases cited.
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, 408 U.S. 169 (1972), a State college denied recognition to a group of students who wished to form a local chapter of Students for a Democratic Society (SDS), on the basis that the goals and methods of the national SDS organization were antithetical to the educational process and ideals of the college. By this action, the students were denied access to campus bulletin boards and the student newspaper, and were prohibited from using campus facilities for their meetings. Notwithstanding the fact that the State had imposed no direct obstacle to the exercise of the students’ First Amendment rights, the Court held this action to be
The principle underlying these cases is not novel in our own jurisprudence. In Schulte v. Director of the Div. of Employment Security, 376 Mass. 107 (1978), we remanded for more explicit findings a case in which it appeared that unemployment benefits had been denied because the claimant refused to be available to work on the Jewish Sabbath. In a concurring opinion, two Justices commented that “[i]t goes without saying that any decision by a State agency that, in order to qualify for benefits, a claimant must be available for work on a day which the claimant observes as the Sabbath is invidious and unconstitutional discrimina-
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, 373 Mass. 279, 284 (1977), “[i]t is not easy to find a precise answer to the question what burden a State must sustain in order to establish the validity of a regulation impinging on the constitutional right during [the early period of a pregnancy]. . . .” The Federal cases suggest that, in this context, “‘compelling’ is . . . the key word; where a decision as fundamental as that whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.” Carey v. Population Servs. Int‘l, 431 U.S. 678, 686 (1977). We have at times expressed the relevant test in similar language. See Massachusetts Pub. Interest Research Group v. Secretary of the Commonwealth, 375 Mass. 85, 93 (1978); Opinion of the Justices, 375 Mass. 795, 806 (1978). At the same time, we have recognized to some extent the limitations inherent in such a rigid formulation. See Mar- coux v. Attorney Gen., 375 Mass. 63, 65 n.4 (1978) (“The cases at times speak of legislation which need only undergo a test of ‘reasonable relation’ and legislation that must survive ‘strict scrutiny,’ but we conceive that these soubriquets are a shorthand for referring to the opposite ends of a continuum of constitutional vulnerability determined at every point by the competing values involved“). Our recent cases in this area exemplify a more flexible approach to the weighing of interests that must take place. See In the Matter of Spring, supra at 634-635; Commissioner of Correction v. Myers, supra at 261; Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 740-741 (1977).
The basic judicial authority defining the interests involved when a State seeks to regulate the performance of abortions is, of course, Roe v. Wade, 410 U.S. 113 (1973). While the balance of interests struck in that case is not controlling here, it is nevertheless instructive to look to that case for guidance. The Supreme Court defined two State interests that are implicated by the abortion procedure: the first, “in preserving and protecting the health of the pregnant woman“; and a second, distinct interest, “in protecting the potentiality of human life.” Roe v. Wade, supra at 162. It seems obvious — and the defendants do not argue to the contrary — that the instant enactments in no way further the State interest in maternal health. Thus, under Wade, the only State interest at stake in this case is the interest in preserving potential life.20 In Roe v. Wade, supra at 162-165, the Court held that interest to be present throughout a woman‘s pregnancy, but to be “compelling” only from
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.21 Against this interest, we must balance the interest of the pregnant woman in choosing a medically necessary abortion. We think that there can be no question that the magnitude of this invasion far exceeds that of the compelled medical treatments challenged in Myers; the nine months of enforced pregnancy inherent in effectuating these regulations are only a prelude to the ultimate burden the State seeks to impose. See Tribe, supra at 924 (“If a man is the involuntary source of a child — if he is forbidden, for example, to practice contraception — the violation of his personality is profound; the decision that one wants to engage in sexual intercourse but does not want to parent another human being may reflect the deepest of personal convictions. But if a woman is forced to bear a child — not simply to provide an ovum but to carry the child to term — the invasion is incalculably greater. Quite apart from the physical experience of pregnancy itself, an experience which of course has no analogue for the male, there is the attachment the experience creates, partly physiological and partly psychological, between mother and child. Thus it is difficult to imagine a clearer case of bodily intrusion, even if the original conception was in some sense voluntary“). Where the balance of these interests in Myers was close, we think the balance in this
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, 330 Mass. 713, 726 (1953): “When a court is compelled to pass upon the constitutionality of a statute and is obliged to declare part of it unconstitutional, the court, as far as possible, will hold the remainder to be constitutional and valid, if the parts are capable of separation and are not so entwined that the Legislature could not have intended that the part otherwise valid should take effect without the invalid part.” See DelDuca v. Town Adm‘r of Methuen, 368 Mass. 1, 13-14 (1975).
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.23 They point, in support of this position, to the long record of legislative opposition to Medicaid funded abortions and to the deep division in public opinion still existing with regard
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, 378 Mass. 327, 338-339 (1979); Rosado v. Wyman, 397 U.S. 397, 420-422 (1970). On the contrary, as we have previously explained, severing the offending restriction in this instance will create a financial benefit to the program as a whole.
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
So ordered.
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, 432 U.S. 464 (1977). They also rightly concede the State‘s privilege to choose to fund no medical expenses of indigent persons, including expenses associated with pregnancy. They simply contend that the State may not provide for the payment of medically necessary expenses of childbirth, but simultaneously refuse to fund the medically necessary expenses of therapeutic abortion.
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, 448 U.S. 297 (1980). The majority‘s opinion here, on the contrary, concludes that the legislative action impermissibly burdens a right protected by the guarantee of due process in our Massachusetts Declaration of Rights.
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.2
Nevertheless, there are the best of reasons in policy and logic why the court should not do so in this case. One of the principles of Wade which the majority profess to accept is the recognition of the State‘s interest in the protection of potential life. I think that one effective way in which the State can advance this interest, aside from exercising its limited power to regulate and prohibit abortion,3 is to provide disparate funding which favors birth over abortion. The majority have now denied that privilege to the State, although the State has not by its legislation erected “obstacles” (in any sense which will find support in Wade, Maher, McRae or Webster‘s Dictionary) to a woman‘s freedom to choose. Since the State has no constitutional duty to provide medical expenses for abortion or any other medical need, the ease with which an abortion may be obtained remains unchanged by the Legislature‘s decision to pay for the necessary medical expenses of childbirth. The conclusion of the majority that the State must be “neutral” ignores, and largely nullifies the State‘s long recognized interest in protecting potential life. The majority‘s extension of due process is particularly inappropriate in light of the principle that “[c]onstitutional concerns are greatest when the State attempts to impose its will by force of law; the State‘s power to encourage actions deemed to be in the public interest is necessarily far broader.” Maher v. Roe, 432 U.S. 464, 476 (1977).
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
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