Women's Health Center of WV, et al. v. Panepinto, et al. (dissenting)
Annotate this Case
Women's Health Center of West Virginia, Inc. v. Panepinto
Nos. 21924, 21925 and 21926
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 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." Committee to Defend Reprod. Rights v. Myers, 625 P.2d 779,
780, 172 Cal. Rptr. 866, 867 (1981). However, unlike the majority,
I conclude that W. Va. Code, 9-2-11 [1993] does not violate the
West Virginia Constitution.
The Supreme Court of Michigan was faced with the same
issue in Doe v. Dept. of Social Services, 487 N.W.2d 166 (Mich.
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.See footnote 1
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, 53 L. Ed. 2d at 494.
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, 53 L. Ed. 2d
at 495 (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, 65 L. Ed. 2d at 804 (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, supra, and Maher, supra, in detail. Doe points
out that with this issue there are two levels at which an equal
protection analysis can take place.See footnote 2
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, 53 L. Ed. 2d at 492-93 (citations omitted).
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. at 173, citing Roe v. Wade, 410 U.S. at 162, 93 S. Ct.
at 731, 35 L. Ed. 2d at 182 (1973). 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 Supreme Court
of Michigan disagreed and held that the equal protection clause in
the state constitution provided the same protection as its federal
counterpart and applied the same analysis the United States Supreme
Court had to the issue. Like the Supreme Court of Michigan I find
that the more sound approach to this issue is to follow the
analysis provided by the Supreme Court of the United States.
However, unlike Doe, the majority, in the case before us,
found that the West Virginia Constitution provides greater
protection than the United States Constitution. The rationale of
the majority is that "the common benefit clause of article III,
section 3 of the West Virginia Constitution imposes an 'obligation
upon state government . . . to preserve its neutrality when it
provides a vehicle' for the exercise of constitutional rights."
Women's Health Center of West Virginia, Inc. v. Panepinto, Nos.
21924, 21925, 21926, slip op. at 14, ___ W. Va. ___, ___, ___
S.E.2d ___, ___ (filed December 17, 1993) (citing United Workers v.
Parsons, 172 W. Va. 386, 398, 305 S.E.2d 343, 354 (1983)). Based
on the above premise, the majority went on to hold that once the
government provides medical care to an indigent woman it must do so
in a neutral manner, and that funding childbirth but not abortion
in some circumstances was not neutral.
Although not clear, it appears that the majority applied
a strict scrutiny analysis. The majority made a two-fold finding.
The first is that W. Va. Code, 9-2-11 [1993], impinges upon a
woman's fundamental right to an abortion since as a practical
matter an indigent woman would not have the freedom to choose an
abortion. Within this analysis, the majority found that if the
government does not equally fund two competing fundamental rights,
then it is infringing upon one of those fundamental rights. The
second is that W. Va. Code, 9-2-11 [1993], infringes upon a woman's
fundamental right to safety found in article III, section 1 of the
West Virginia Constitution.
I recognize that this Court has previously held that the
West Virginia Constitution, in rare circumstances, affords a higher
degree of protection than the United States Constitution does.
However, the case before us does not present a need for such
protection. In fact, the majority's adoption of the "neutrality in
funding" principle could have a profound adverse impact on the
indigent or others who seek government assistance. The frightening
effect of the majority's reasoning will be to chill government aid
since it would be virtually impossible financially to fund all
competing fundamental rights equally.
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 government could create no
entitlement without also creating an equal and
opposite entitlement. Under such a scheme of
government, the role of the judiciary would be
to police neutrality in legislation,
steadfastly striking down any legislation that
expressed an idea, contained a thought, or
took a position on the issues that matter
most. Only legislation consisting of dull
gray matter would survive.
Doe, 487 N.W.2d at 185 (Levin, J., concurring).See footnote 3
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 article III, section 1 of the West Virginia Constitution, is
without merit. W. Va. Code, 9-2-11 [1993], in relevant part,
specifically states that funds will be provided for an abortion if
a physician determines in his best clinical judgment that 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.
It is apparent that the legislature did consider the woman's
psychological and physiological safety when drafting W. Va. Code,
9-2-11 [1993].
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 (1960). 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[.]" W. Va. Code, 16-2F-1 [1984], in relevant
part. Even though the above legislative finding of fact concerns
minors, it is equally applicable to the issue before this Court.
Therefore, this Court may not ignore the legislature's
determination that abortions may pose a threat to a woman's safety.
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 legislative 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
W. Va. Code, 9-2-11 [1993] is unwise, not the judiciary. As we
recently stated, "the judiciary may not sit as a superlegislature
to judge the wisdom or desirability of legislative policy
determinations made in areas that neither affect fundamental rights
nor proceed along suspect lines." Tony P. Sellitti Construction
Co. v. Caryl, 185 W. Va. 584, 593, 408 S.E.2d 336, 345 (1991),
cert. den., ___ U.S. ___, 112 S. Ct. 969, 117 L. Ed. 2d 135 (1992)
(citing City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 2517, 49 L. Ed. 2d 511, 517 (1976)).
W. Va. Code, 9-2-11 [1993] does not trample on a
constitutional right. It does not prevent a woman from exercising
her fundamental right to choose an abortion. The majority has
chosen to cast aside well-established legal principles to reach its
conclusion. The holding will have limited precedential value
because the majority will not be able to adhere to the result of
the neutrality in funding issue when it comes up in other contexts.
Accordingly, based on the above discussion, I respectfully dissent.
I am authorized to state that Chief Justice Brotherton joins me in
this dissent.
Footnote: 1 1The 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.' M.C.L. §
400.109a; M.S.A. § 16.490(19a).
Doe, 487 N.W.2d at 169.
Footnote: 2 2In Lewis v. Canaan Valley Resorts, Inc., 185 W. Va.
684, 691, 408 S.E.2d 634, 641 (1991) this Court pointed out that
there are three types of equal protection analyses:
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.
Footnote: 3 3The United States Supreme Court has noted that "our
cases have recognized that the Due Process Clauses generally
confer no affirmative right to governmental aid, even where such
aid may be necessary to secure life, liberty, or property
interests of which the government itself may not deprive the
individual." DeShaney v. Winnebago County Dept. of Social
Services, 489 U.S. 189, 196, 109 S. Ct. 998, 1003, 103 L. Ed. 2d 249, 259 (1989).
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