WOMEN‘S HEALTH CENTER OF WEST VIRGINIA, INC., Women‘s Health Services, Inc., and West Virginia Free, on Behalf of Themselves and All Medicaid-Eligible Women in West Virginia, Plaintiffs Below, Appellants, and The West Virginia Chapter of the National Organization for Women, Intervening Plaintiff, Appellee, v. Ruth Ann PANEPINTO, PH.D., Secretary, West Virginia Department of Health and Human Resources; and Nancy J. Tolliver, Commissioner, Bureau of Administration and Finance, Department of Health and Human Services, Defendants Below, Appellants, and Karen A. Cross, Rebecca A. Romero, Charlotte S. Snead, Dianne Fowler, Rev. Wayne Swisher, Jay Gould, Dr. Ric Day, Linda Day, Phyllis Martin, Kim Hale, Karen Austin, Leonard Anderson, Keith Wagner, Donna Boley, Odell Huffman, Barbara Warner, Ben Vest, Steve Harrison, Dick Henderson, Danny Ellis, Larry Hendricks, John Pino, Larry Border, Tom Louisos, Jay Nesbitt, Farrell Johnson, Ron Walters, Kenneth Adkins and Randy Schoonover, Taxpayers and Citizens of the State of West Virginia, and West Virginians for Life, Inc., A West Virginia Corporation, Intervening Defendants Below, Appellees. WOMEN‘S HEALTH CENTER OF WEST VIRGINIA, INC., Women‘s Health Services, Inc., and West Virginia Free, on Behalf of Themselves and All Medicaid-Eligible Women In West Virginia, Plaintiffs Below, Appellees, and The West Virginia Chapter of the National Organization for Women, Intervening Plaintiff, Appellant, v. Ruth Ann PANEPINTO, PH.D., Secretary, West Virginia Department of Health and Human Resources; and Nancy J. Tolliver, Commissioner, Bureau of Administration and Finance, Department of Health and Human Services, Defendants Below, Appellees, and Karen A. Cross, Rebecca A. Romero, Charlotte S. Snead, Dianne Fowler, Rev. Wayne Swisher, Jay Gould, Dr. Ric Day, Linda Day, Phyllis Martin, Kim Hale, Karen Austin, Leonard Anderson, Keith Wagner, Donna Boley, Odell Huffman, Barbara Warner, Ben Vest, Steve Harrison, Dick Henderson, Danny Ellis, Larry Hendricks, John Pino, Larry Border, Tom Louisos, Jay Nesbitt, Farrell Johnson, Ron Walters, Kenneth Adkins and Randy Schoonover, Taxpayers and Citizens of the State of West Virginia, and West Virginians for Life, Inc., A West Virginia Corporation, Intervening Defendants Below, Appellants.
Nos. 21924 to 21926
Supreme Court of Appeals of West Virginia
Submitted Nov. 30, 1993. Decided Dec. 17, 1993.
441 S.E.2d 385 | 191 W. Va. 436
Certified questions answered.
446 S.E.2d 658
WOMEN‘S HEALTH CENTER OF WEST VIRGINIA, INC., Women‘s Health Services, Inc., and West Virginia Free, on Behalf of Themselves and All Medicaid-Eligible Women in West Virginia, Plaintiffs Below, Appellants,
and
The West Virginia Chapter of the National Organization for Women, Intervening Plaintiff, Appellee,
v.
Ruth Ann PANEPINTO, PH.D., Secretary, West Virginia Department of Health and Human Resources; and Nancy J. Tolliver, Commissioner, Bureau of Administration and Finance, Department of Health and Human Services, Defendants Below, Appellants,
and
Karen A. Cross, Rebecca A. Romero, Charlotte S. Snead, Dianne Fowler, Rev. Wayne Swisher, Jay Gould, Dr. Ric Day, Linda Day, Phyllis Martin, Kim Hale, Karen Austin, Leonard Anderson, Keith Wagner, Donna Boley, Odell Huffman, Barbara Warner, Ben Vest, Steve Harrison, Dick Henderson, Danny Ellis, Larry Hendricks, John Pino, Larry Border, Tom Louisos, Jay Nesbitt, Farrell Johnson, Ron Walters, Kenneth Adkins and Randy Schoonover, Taxpayers and Citizens of the State of West Virginia, and West Virginians for Life, Inc., A West Virginia Corporation, Intervening Defendants Below, Appellees.
WOMEN‘S HEALTH CENTER OF WEST VIRGINIA, INC., Women‘s Health Services, Inc., and West Virginia Free, on Behalf of Themselves and All Medicaid-Eligible Women In West Virginia, Plaintiffs Below, Appellees,
and
The West Virginia Chapter of the National Organization for Women, Intervening Plaintiff, Appellant,
v.
Ruth Ann PANEPINTO, PH.D., Secretary, West Virginia Department of Health and Human Resources; and Nancy J. Tolliver, Commissioner, Bureau of Administration and Finance, Department of Health and Human Services, Defendants Below, Appellees,
and
Karen A. Cross, Rebecca A. Romero, Charlotte S. Snead, Dianne Fowler, Rev. Wayne Swisher, Jay Gould, Dr. Ric Day, Linda Day, Phyllis Martin, Kim Hale, Karen Austin, Leonard Anderson, Keith Wagner, Donna Boley, Odell Huffman,
Nos. 21924 to 21926.
Supreme Court of Appeals of West Virginia.
Submitted Nov. 30, 1993.
Decided Dec. 17, 1993.
Dissenting Opinion of Justice McHugh July 21, 1994.
John M. Hedges, Charleston, Barbara Fleischauer, Morgantown, for NOW.
Thomas M. Woodward, Deborah L. McHenry, Deputy Attys. Gen., Charleston, for Health & Human Resources.
John Andrew Smith, Stephen A. Weber, Geoffry A. Haddad, Kay, Casto, Chaney, Love & Wise, Charleston, for Cross, et al.
WORKMAN, Chief Justice:
Appellants challenge the August 25, 1993, order of the Circuit Court of Kanawha County upholding the constitutionality of
Senate Bill 2, in essence a medicaid tax reform bill, was introduced and passed by the Legislature during a second special session in May 1993. Also contained within the provisions of Senate Bill 2 was the text of
(1) On the basis of the physician‘s best clinical judgment, there is:
(i) A medical emergency that so complicates a pregnancy as to necessitate an immediate abortion to avert the death of the mother or for which a delay will create grave peril of irreversible loss of major bodily function or an equivalent injury to the mother: Provided, That an independent physician concurs with the physician‘s clinical judgment; or
(ii) Clear clinical medical evidence that the fetus has severe congenital defects or terminal disease or is not expected to be delivered; or
(2) The individual is a victim of incest or the individual is a victim of rape when the rape is reported to a law-enforcement agency.
(b) The Legislature intends that the state‘s medicaid program not provide coverage for abortion on demand and that abortion services be provided only as expressly provided for in this section.
On July 9, 1993, the Women‘s Health Center of West Virginia, Inc., Women‘s Health Services, Inc., and West Virginia Free, on behalf of themselves and all medicaid-eligible women in West Virginia filed a complaint in
In preface to the discussion to follow, we borrow the opening comments of another tribunal faced with similar issues:
At the outset, to dispel certain misconceptions that have appeared in this case, we must clarify the precise, narrow legal issue before this court. First, this case does not turn on the morality or immorality of abortion, and most decidedly does not concern the personal views of the individual justices as to the wisdom of the legislation itself or the ethical considerations involved in a woman‘s individual decision whether or not to bear a child. Indeed, although in this instance the Legislature has adopted restrictions which discriminate against women who choose to have an abortion, similar constitutional issues would arise if the Legislature—as a population control measure, for example—funded [medicaid] . . . abortions but refused to provide comparable medical care for poor women who choose childbirth. Thus, the constitutional question before us does not involve a weighing of the value of abortion as against childbirth, but instead concerns the protection of either procreative choice from discriminatory governmental treatment.
Committee to Defend Reprod. Rights v. Myers, 29 Cal.3d 252, 256, 625 P.2d 779, 780, 172 Cal.Rptr. 866, 867 (1981) (emphasis supplied).
Contrary to Appellees’ representation, the question before this Court is not whether the state is obligated to subsidize the exercise of a woman‘s right to have an abortion. Rather, the issue presented is whether, once the state undertakes funding of medical care for the poor, which includes funding for childbirth, can the state deny funding for medically necessary abortion services? More specifically, does the limitation of funds to certain legislatively-specified reproductive services violate the constitutional protections afforded the indigent female citizens of this state?
We begin our analysis by addressing Appellees’ contention that the decision of the United States Supreme Court in Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), which upheld the funding restrictions imposed by the Hyde Amendment,8 should control the outcome of this case. At issue in Harris, was whether the denial of public funding via the Medicaid program for certain medically necessary abortions violated the liberty or equal protec-
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 was explained in Maher [v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (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 . . . . [T]he 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. We are thus not persuaded that the Hyde Amendment impinges on the constitutionally protected freedom of choice recognized in [Roe v.] Wade [410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)].
Id. at 316-317, 100 S.Ct. at 2688. The Court also rejected claims based on equal protection and religion. Id. at 319-326, 100 S.Ct. at 2689-2693. Appellees suggest that we adopt the reasoning used in Harris and conclude that notwithstanding a woman‘s fundamental right to have an abortion, the state is not required to provide funding to enable the exercise of that right.
Conversely, Appellants maintain that this Court is not bound by the Harris decision under the rationale that because the
Those protections unique to our state constitution as contrasted to the federal constitution are found in sections one, three, and ten of article III. Section one of article III reads:
All men are, by nature, equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely: the enjoyment of life and liberty, with the means of acquiring and possessing property, and of pursuing and obtaining happiness and safety.
In Bonham, this Court noted that, “the United States Supreme Court has . . . recognized that a state supreme court may set its own constitutional protections at a higher level than that accorded by the federal constitution.” 173 W.Va. at 418, 317 S.E.2d at 503 (citing, inter alia, Connecticut v. Johnson, 460 U.S. 73, 81 n. 9, 103 S.Ct. 969, 974 n. 9, 74 L.Ed.2d 823 n. 9 (1983)). Based on the principle that “[t]he provisions of the Constitution of the State of West Virginia may, in certain instances, require higher standards of protection than afforded by the Federal Constitution[,]’ Syllabus Point 2, Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979),” we ruled in Bonham, that this state‘s due process clause affords a criminal defendant greater protections than the federal counterpart. 173 W.Va. at 418-19, 317 S.E.2d at 503-04 and Syl. Pt. 1 (holding that imposition of more severe sentence following trial de novo does violate defendant‘s due process rights); see also West Virginia Citizens Action Group v. Daley, 174 W.Va. 299, 324 S.E.2d 713 (1984) (state constitution compels striking limitation on soliciting after sunset even if federal constitution does not); Woodruff v. Board of Trustees of Cabell Huntington Hospital, 173 W.Va. 604, 611, 319 S.E.2d 372, 379 (1984) (
The provision of enhanced guarantees for “the enjoyment of life and liberty . . . and safety” by our state constitution both permits and requires us to interpret those guarantees independent from federal precedent.
Under Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the constitutional basis for granting a woman choice with regard to pregnancy termination is grounded in the “Fourteenth Amendment‘s concept of personal liberty and restrictions upon state action.” Id. at 153, 93 S.Ct. at 727. In the most recent United States Supreme Court decision on the issue, the Court reiterated the central premise of Roe—that women may, for some time period, make independent decisions to obtain abortions based on the right to privacy. Planned Parenthood v. Casey, 505 U.S. 833, 811-12, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Appellees claim, however, that West Virginia has not recognized a parallel fundamental right to privacy under our state constitution similar to that recognized in Roe. See 410 U.S. at 152-53, 93 S.Ct. at 726. Because there is a federally-created right of privacy that we are required to enforce in a non-discriminatory manner, it is inconsequential that no prior decision of this Court expressly determines the existence of an analogous right.
Appellants note that if an indigent woman who is receiving Aid to Families with Dependent Children (AFDC) benefits, receives a gift or donation, earns additional income, or borrows funds to pay for an abortion, that money is required to be reported to the Department of Human Resources (“DHS“) and may render the woman ineligible to receive continued benefits. As attested to by
Furthermore, Appellants point out that the provisions of
Given that the term safety, by definition, conveys protection from harm, it stands to reason that the denial of funding for abortions that are determined to be medically necessary both can and most likely will affect the health and safety of indigent women in this state. To deny this conclusion requires that we similarly deny the reality of being poor. The question then becomes whether this arguable impingement on safety resulting from the provisions of
The United States Supreme Court explained in Maher,
The Constitution imposes no obligation on the States to pay the pregnancy-related medical expenses of indigent women, or indeed to pay any of the medical expenses of indigents. But 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.
432 U.S. at 469-70, 97 S.Ct. at 2380 (emphasis supplied and footnote omitted). The Court ruled in Maher that Connecticut regulations which excluded funding for nontherapeutic abortions did not violate the Equal Protection Clause of the Fourteenth Amendment. Id. at 479-80, 97 S.Ct. at 2385-86. The oft-quoted reasoning of the Court in Maher was that:
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 a consequence 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. The indigency that may make it difficult—and in some cases, perhaps impossible—for some women to have abortions is neither created nor in any way affected by the Connecticut regulation.
Id. at 474, 97 S.Ct. at 2382-83. Perhaps just as frequently-quoted is Justice Brennan‘s response to this reasoning:
As a practical matter, many indigent women will feel they have no choice but to carry their pregnancies to term because the State will pay for the associated medical services, even though they would have chosen to have abortions if the State had also provided funds for that procedure, or indeed if the State had provided funds for neither procedure. This disparity in funding by the State clearly operates to coerce indigent pregnant women to bear children they would not otherwise choose to have, and just as clearly, this coercion can only operate upon the poor, who are uniquely the victims of this form of financial pressure.
Maher, 432 U.S. at 483, 97 S.Ct. at 2387 (Brennan, J., dissenting). As noted above, the potential denial of AFDC benefits upon borrowing, earning, or receiving funds to pay for an abortion is yet another illustration of how indigent women are coerced by the State to have children which they might otherwise choose not to bear.
Appellees strenuously argue that the state is not obligated to pay for the exercise of constitutional rights. While this proposition is true as stated, it is equally true that once a government chooses to dispense funds, it must do so in a nondiscriminatory fashion, and it certainly cannot withdraw benefits for no reason other than that a woman chooses to avail herself of a federally-granted constitutional right. See Maher, 432 U.S. at 469-70, 97 S.Ct. at 2380; accord Moe, 382 Mass. at 654, 417 N.E.2d at 402; Byrne, 91 N.J. at 306-07, 450 A.2d at 935. As noted in Moe,
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 weigh 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.’
382 Mass. at 654, 417 N.E.2d at 402 (quoting Lawrence Tribe, American Constitutional Law, § 15-10 at 933 n. 77 (1978)).
The concept invoked by selective governmental funding is the issue of government neutrality. We have previously determined that the common benefit clause of
In reliance on Parsons, Appellants argue that strict neutrality is mandated whenever state government operates to assist constitutionally-protected decisions. In resolving this same issue of neutrality, the Massachusetts Supreme Court looked to the views Justice Brennan expressed in his dissent to Harris:
‘In every pregnancy, [either medical procedures for its termination, or medical procedures to bring the pregnancy to term are] medically necessary, and the poverty-stricken woman depends on the Medicaid Act to pay for the expenses associated with [those] procedure[s]. But under [this restriction], the Government will fund only those procedures incidental to childbirth. By thus injecting coercive financial incentives favoring childbirth into a decision that is constitutionally guaranteed to be free from governmental intrusion, [this restriction] deprives the indigent woman of her freedom to choose abortion over maternity, thereby impinging on the due pro-
cess liberty right recognized in Roe v. Wade.’
Moe, 417 N.E.2d at 402 (quoting Harris, 448 U.S. at 333, 100 S.Ct. at 2703-04, Brennan, J., dissenting).
Appellants urge this Court to accept the reasoning articulated by Justice Brennan and others that by denying funding for medically necessary abortions while funding childbirth, the state impermissibly pressures women towards a state-approved reproductive choice. The effect of such restrictions is inherently coercive where a woman is too poor to afford appropriate medical care:
[F]rom a realistic perspective, we cannot characterize the statutory scheme as merely providing a public benefit which the individual recipient is free to accept or refuse without any impairment of her constitutional rights. On the contrary, the state is utilizing its resources to ensure that women who are too poor to obtain medical care on their own will exercise their right of procreative choice only in the manner approved by the state.
Myers, 29 Cal.3d at 276, 625 P.2d at 793, 172 Cal.Rptr. at 880. Appellants suggest and we agree that for an indigent woman, the state‘s offer of subsidies for one reproductive option and the imposition of a penalty for the other necessarily influences her federally-protected choice. Under the rationale announced by this Court in Parsons, we hold that when state government seeks to act “for the common benefit, protection and security of the people” in providing medical care for the poor, it has an obligation to do so in a neutral manner so as not to infringe upon the constitutional rights of our citizens. See 172 W.Va. at 398, 305 S.E.2d at 354.
While Appellees prefer to characterize this case as one involving guarantees of state funding to carry out a protected right, what is really at issue here is “the right of the individual . . . [to be] free[] from undue government interference, not an assurance of government funding.” Byrne, 91 N.J. at 307, 450 A.2d at 935 n. 5. Given West Virginia‘s enhanced constitutional protections, we cannot but conclude that the provisions of
Having concluded that the provisions of West Virginia are unconstitutional, all that remains is to fashion a remedy. In syllabus point six of Waite v. Civil Service Commission, 161 W.Va. 154, 241 S.E.2d 164 (1978) we held that: “[w]here there is an adequate procedural remedy which prevents a statute from being unconstitutionally applied, the Court will, under the doctrine of least obtrusive remedy, adopt such procedure to avoid declaring a statute unconstitutional.” Accord, State ex rel. Harris v. Calendine, 160 W.Va. 172, 177, 233 S.E.2d 318, 323 (1977); Syl. Pt. 4, State ex rel. Alsop v. McCartney, 159 W.Va. 829, 228 S.E.2d 278 (1976). Accordingly, we conclude that that portion of Senate Bill 2 which is
Based on the foregoing, we hereby reverse and remand the decision of the Circuit Court of Kanawha County for entry of an order reflecting the rulings herein.
Reversed and remanded.
McHUGH, Justice, dissenting:
I dissent from the majority opinion because I believe that a state is not required to provide funding to enable a woman to exercise her right to have an abortion. Like the majority, I agree that the question before the Court “does not turn on the morality or immorality of abortion, and most decidedly
The Supreme Court of Michigan was faced with the same issue in Doe v. Dept. of Social Services, 439 Mich. 650, 487 N.W.2d 166 (1992) and concluded that the Michigan Medicaid statute which funded childbirth, but not abortion unless the abortion was medically necessary to save the mother‘s life, does not violate the equal protection clause in the Michigan Constitution.1 I find the analysis of the Supreme Court of Michigan to be persuasive. Therefore, I will follow the Supreme Court of Michigan‘s analysis in my dissent.
As the majority points out and as the Supreme Court of Michigan notes, the Supreme Court of the United States has analyzed this very issue in a series of cases. In Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) the Supreme Court of the United States upheld a Connecticut statute which limited state funding for abortions to medically necessary abortions performed during the first trimester of pregnancy. In reaching its conclusion the Supreme Court of the United States acknowledged that Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) gave a woman the right under the federal constitution to choose an abortion. However, in Maher the Supreme Court of the United States clarified the Roe decision:
Roe did not declare an unqualified ‘constitutional right to an abortion,’ . . . . Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. It 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, 432 U.S. at 473-74, 97 S.Ct. at 2382. The Court in Maher explained that “[t]here is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.” Id. at 475, 97 S.Ct. at 2383 (footnote omitted).
In Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), the Supreme Court of the United States held that the Hyde Amendment, which placed federal restrictions on Medicaid funds for abortions except in a limited number of circumstances, did not violate the establishment clause in the First Amendment nor the equal protection clause of the Fifth Amendment of the United States Constitution. In reaching its conclusion the Supreme Court of the United States noted that
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 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.
Id. at 316-17, 100 S.Ct. at 2688 (citing Maher, supra).
The Supreme Court of Michigan in Doe, supra, discussed the Supreme Court of the United States’ equal protection analysis found in Harris and Maher in detail. Doe points out that with this issue there are two levels at which an equal protection analysis can take place.2 Ordinarily, the legislation must be rationally related to a legitimate governmental purpose. However, if the legislation creates a classification which is based on suspect factors or prevents the exercise of a fundamental right, then the legislation must be analyzed with strict scrutiny. This analysis, although ignored by the majority, is not foreign to this Court. E.g., Gibson v. W.Va. Dept. of Highways, 185 W.Va. 214, 406 S.E.2d 440 (1991); Means v. Sidiropolis, 184 W.Va. 514, 401 S.E.2d 447 (1990); Courtney v. State Dept. of Health, 182 W.Va. 465, 470, 388 S.E.2d 491, 496 (1989); and Israel v. West Virginia Secondary Schools Activities Commission, 182 W.Va. 454, 388 S.E.2d 480 (1989).
The Supreme Court of the United States determined that strict scrutiny did not apply to the issue. In Maher, the Supreme Court of the United States pointed out that “this Court has never held that financial need alone identifies a suspect class for purposes of equal protection analysis.” Maher, 432 U.S. at 471, 97 S.Ct. at 2381. Furthermore, the Supreme Court of Michigan pointed out that “[t]he 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[.]” Doe, 487 N.W.2d at 172 (citing Regan v. Taxation with Representation, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983) and footnote omitted). Therefore, the Supreme Court of the United States found that the failure to fund abortions did not interfere with an indigent woman‘s fundamental right to choose an abortion. See Maher, supra.
Since strict scrutiny is not applicable, then the legislation needs only to be rationally related to a legitimate governmental interest. As Doe, supra, points out, even the Roe decision acknowledges that the state does have an “important and legitimate interest . . . in protecting the potentiality of human life.” Id., 487 N.W.2d at 173, citing Roe v. Wade, 410 U.S. at 162, 93 S.Ct. at 731. In fact, the Supreme Court of the United States 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, 432 U.S. at 474, 97 S.Ct. at 2382.
Id. Therefore, the Supreme Court of the United States concluded that the legislation which refused to fund abortions except in limited circumstances was rationally related to a legitimate governmental interest. See Maher, supra, and Harris, supra.
In Doe, supra, the court below had found that the Michigan Constitution provided greater protection under its equal protection clause than its federal counterpart. The Su-
However, unlike Doe, the majority, in the case before us, found that the
Although not clear, it appears that the majority applied a strict scrutiny analysis. The majority made a two-fold finding. The first is that
I recognize that this Court has previously held that the
For instance, in syllabus point 3, in relevant part, of Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979) this Court held that an education is a “fundamental, constitutional right in this State.” Does this mean that the state government must fund private schools since it funds public schools? If the majority holds to its position, the answer is yes. The majority‘s reliance on the neutrality in funding principle could logically authorize private religious and non-religious schools to seek and obtain equal funding for the exercise of their fundamental right to education. Norwood v. Harrison, 413 U.S. 455, 462, 93 S.Ct. 2804, 2809, 37 L.Ed.2d 723, 729 (1973) points out the difficulties of the majority‘s position: “It is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid.” (quoted in Doe, 487 N.W.2d at 172).
More importantly, the government has always enacted laws which encourage one right as opposed to a competing right. For instance, many state governments have enacted legislation which benefits marriage. See Doe, supra (Levin, J., concurring). However, a person has just as much of a right to choose to be single; yet, governments do not accord the same benefits to the single person as they do to the married couple.
The majority‘s concept of government neutrality in the case before us would make most government aid or lack thereof unconstitutional:
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 govern-
ment 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.
Doe, 487 N.W.2d at 185 (Levin, J., concurring).3 Obviously, this is not what the constitutional framers had in mind when they drafted the state constitution.
Additionally, the safety argument of the majority, based on
(i) A medical emergency that so complicates a pregnancy as to necessitate an immediate abortion to avert the death of the mother or for which a delay will create grave peril of irreversible loss of major bodily function or an equivalent injury to the mother: Provided, That an independent physician concurs with the physician‘s clinical judgment; or
(ii) Clear clinical medical evidence that the fetus has severe congenital defects or terminal disease or is not expected to be delivered; or
(2) The individual is a victim of incest or the individual is a victim of rape when the rape is reported to a law-enforcement agency.
It is apparent that the legislature did consider the woman‘s psychological and physiological safety when drafting
Moreover, we have stated that “[a] fact once determined by the legislature, and made the basis of a legislative act, is not thereafter open to judicial investigation.” Syl. pt. 4, State ex rel. W.Va. Housing and Development Fund v. Copenhaver, 153 W.Va. 636, 171 S.E.2d 545 (1969). In chapter 16 of the West Virginia Code, which is entitled “Parental Notification of Abortions Performed on Unemancipated Minors,” the legislature found that “the medical, emotional and psychological consequences of abortion are serious and of indeterminate duration, particularly when the patient is immature[.]”
Abortion is an emotionally charged issue. Therefore, as long as the government does not interfere with a woman‘s right to choose an abortion, the decisions regarding the funding for abortions should be left to the legislature. As we have previously stated, “[i]t is not the province of the courts to make or supervise legislation, and a statute may not, under the guise of interpretation, be modified, revised, amended, distorted, remodeled, or rewritten[.]” State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 145, 107 S.E.2d 353, 358 (1959) (citation omitted). See also syl. pt. 1, Consumer Advocate Division of the Public Service Commission v. Public Service Commission, 182 W.Va. 152, 386 S.E.2d 650 (1989).
Additionally, this Court has consistently recognized that whenever possible statutes should be found to be constitutional:
‘In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legis-
lative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt.’ Point 1 Syllabus, State ex rel. Appalachian Power Company v. Gainer, 149 W.Va. 740 [143 S.E.2d 351].
Syl. pt. 3, State ex rel. W.Va. Housing Development Fund, supra. Whether or not the government should fund abortions and/or childbirth for the indigent woman is a matter of legislative policy. The legislature is the proper forum for debating whether
446 S.E.2d 672
Albert Coerte VOORHEES,
Plaintiff-Appellee,
v.
GUYAN MACHINERY COMPANY, a West Virginia corporation and Robert Shell, Jr., Defendants-Appellants.
No. 21693.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 19, 1994.
Decided March 24, 1994.
Notes
(a) No funds from the medicaid program accounts may be used to pay for the perfor- The Supreme Court of Michigan noted that the relevant language found in § 109a of the Social Welfare Act provides:
‘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.’
First, when a suspect classification, such as race, or a fundamental, constitutional right, such as speech, is involved, the legislation must survive ‘strict scrutiny,’ that is, the legislative classification must be necessary to obtain a compelling state interest . . . . Second, a so-called intermediate level of protection is accorded certain legislative classifications, such as those which are gender-based, and the classifications must serve an important governmental objective and must be substantially related to the achievement of that objective . . . . [H]owever, this ‘middle-tier’ equal protection analysis is ‘substantially equivalent’ to the ‘strict scrutiny’ test stated immediately above . . . .
Third, all other legislative classifications . . . are subjected to the least level of scrutiny, the traditional equal protection concept that the legislative classification will be upheld if it is reasonably related to the achievement of a legitimate state purpose.
(citations omitted). Although there are technically three levels of equal protection analyses in West Virginia, in the case before us only two need to be considered.
‘[N]one of the funds provided by this joint resolution [Medicaid funding] shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest when such rape or incest has been reported promptly to a law enforcement agency or public health service.’
Harris, 448 U.S. at 302, 100 S.Ct. at 2680 (quoting from the version of the Hyde amendment in effect for fiscal year 1980, Pub.L. No. 96-123, § 109, 93 Stat. 926). The current Hyde Amendment reads:
None of the funds contained in this Act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term. Pub.L. No. 102-170, § 203, 105 Stat. 1126 (1992).