Humphreys v. Clinic for Women, Inc.

Attorneys for Appellant Attorneys for Appellee

Steve Carter Mary Hoeller

Attorney General of Indiana Indianapolis, Indiana

Thomas M. Fisher Bebe J. Anderson

Special Counsel New York, New York

Office of Attorney General Bridgitte Amiri

Indianapolis, Indiana New York, New York

Attorneys For Amici Curiae Attorneys For Amicus

Curiae

Members of the Indiana Legislature Indiana Civil

Liberties Union, Inc.

Bruce A. Stuard Kenneth J. Falk

Elwood, Indiana Indianapolis, Indiana

Paul Benjamin Linton Jacquelyn Bowie Suess

Northbrook, Illinois Indianapolis, Indiana

Indiana Right to Life Committee, Inc.

James Bopp Jr.

Terre Haute, Indiana

Richard Coleson

Terre Haute, Indiana

____________________________________________________________________________

__

In the

Indiana Supreme Court

_________________________________

No. 49S00-0011-CV-714

Katherine Humphreys, Secretary,

Indiana Family & Social Services

Administration,

Appellant (Defendant below),

v.

Clinic for Women, Inc., Women’s

Pavilion, Inc., Ulrich G. Klopfer,

D.O., And Martin Haskell, M.D.,

Appellees (Plaintiffs

below).

_________________________________

Appeal from the Marion Superior Court, No. 49D12-9908-MI-1137

The Honorable Susan Macey Thompson, Judge

_________________________________

On Direct Appeal

_________________________________

September 24, 2003

Sullivan, Justice.

Indiana's Medicaid program will pay for a poor woman to have an

abortion but only if necessary to preserve her life or if rape or incest

caused her pregnancy. The plaintiffs in this case argue, and the trial

court held, that Medicaid must pay for any abortion that is medically

necessary, citing the Indiana Constitution's requirement that privileges or

immunities cannot be granted to a citizen or class of citizens that do not

equally belong to all citizens on the same terms.

For the reasons set forth in this opinion in part I under

“Discussion,” I believe that this provision of the Indiana Constitution

does not require Medicaid to pay for all abortions that are medically

necessary. Chief Justice Shepard and Justice Dickson join in this part of

this opinion.

However, for the reasons set forth in this opinion in part II under

“Discussion,” I also conclude that, so long as the Indiana Medicaid program

pays for abortions to preserve the lives of pregnant women and where rape

or incest cause pregnancy, it must also pay for abortions in cases of

pregnancies that create for pregnant women serious risk of substantial and

irreversible impairment of a major bodily function. Justices Boehm and

Rucker join in this part of this opinion.

Background

In 1965, Congress established the Medicaid program, a joint federal-

state program that pays for some health care costs of low-income people, by

amending Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v.

Under the Medicaid program, the federal government reimburses participating

states for the health care services provided pursuant to the state’s

medical assistance or Medicaid plan. Id. at §§ 1396a(a)(10), 1396d(a).

States are not required to participate in the Medicaid program but states

that choose to participate must conform their Medicaid program to federal

Medicaid law. Id. at § 1396a(a).

In 1973, the Supreme Court held that the Due Process Clause of the

Fourteenth Amendment protected, to a certain extent, the freedom of a woman

to terminate a pregnancy. Roe v. Wade, 410 U.S. 113 (1973).

In 1976, Congress first adopted legislation, referred to as the “Hyde

Amendment” for its author, Representative Henry J. Hyde, that prohibits the

federal government from reimbursing states under the Medicaid program for

abortions except where a woman would be placed “in danger of death unless

an abortion is performed” or where “the pregnancy is the result of an act

of rape or incest.” Pub. L. No. 106-113, §§ 508-509, 113 Stat. 1501, 1501A-

274(1999). Although the provisions of the Hyde Amendment have varied from

time to time, this is the language of the prohibition and exception in

effect today.[1]

In 1977, the Supreme Court held that the constitutional right to

abortion recognized in Roe v. Wade did not include an entitlement to

Medicaid payments that were not medically necessary. Maher v. Roe, 432

U.S. 464, 470 (1977). In 1980, the Supreme Court was faced with a

challenge to the constitutionality of the Hyde Amendment, i.e., whether

Congress could prohibit the use of federal Medicaid funds to reimburse

states for medically necessary abortions. The court held that the Hyde

Amendment did not violate either the Due Process or the Equal Protection

Clauses of the Fourteenth Amendment. Harris v. McRae, 448 U.S. 297 (1980).

Any state that participates in the Medicaid program must cover those

abortions for which federal funds are available. Zbaraz v. Quern, 596 F.2d

196, 201 (7th Cir. 1979), cert. denied, 448 U.S. 907 (1980). Nevertheless,

“[a] participating state is free, if it so chooses, to include in its

Medicaid plan those medically necessary abortions for which federal

reimbursement is unavailable…” Harris, 448 U.S. at 309.

Indiana participates in the federal Medicaid program and is bound by

all of its requirements. Ind. Code § 12-15-1-1. The Indiana Medicaid

program provides low-income Hoosier citizens with virtually all non-

experimental, medically necessary health care, including some services for

which federal reimbursement is not available. See e.g., Ind. Code § 12-15-

5-1(18) (providing coverage for nonmedical nursing care given in accordance

with tenants and practices of a recognized church); cf. 42 C.F.R. §

440.170(b) (restricting federal funding for such institutions to those

organized pursuant to Section 501(c)(3) of the Internal Revenue Code).

Indiana Medicaid covers inpatient hospital services, physicians’ services,

and outpatient hospital or clinic services for all recipients and provides

a full range of reproductive health care for Medicaid-eligible men. Ind.

Code § 12-15-5-1. Covered services must be “medically reasonable and

necessary” and are required to be provided to Medicaid recipients in a

uniformly equitable manner. Ind. Code § 12-15-1-10. Indiana Medicaid

defines a “medically reasonable and necessary service” as one that “meets

current professional standards commonly held to be applicable to the case.”

Ind. Admin. Code tit. 405, r. 5-2-17(2001). However, in the case of

abortion services, the program defines an abortion as necessary (and

therefore covered under the program) only if “performed to preserve the

life of the pregnant woman or in other circumstances if the abortion is

required to be covered by Medicaid under federal law,” e.g., where the

pregnancy was caused by rape or incest. Ind. Code § 12-15-5-1(17); [2]

Ind. Code § 16-34-1-2; [3] Ind. Admin. Code tit. 405, r. 5-28-7.[4]

The plaintiffs in this case, Clinic for Women, Inc., Women’s

Pavilion, Inc., Ulrich G. Klopfer, D.O., and Martin Haskell, M.D.,

challenge the constitutionality of these two statutes and this regulation.

The plaintiffs contend that the statutes’ and regulation’s collective

prohibition on the use of state Medicaid funds to pay for abortions

violates the Equal Privileges and Immunities Clause of Art. I, § 23, as

well as Art I, §§ 1 and 12, of the Indiana Constitution.[5]

After hearing oral argument of the parties, the trial court granted

the plaintiff’s motion for summary judgment and denied the state’s cross-

motion for summary judgment, ruling that the challenged statutes and

regulation violated Art. I, § 23. The trial court did not address

plaintiffs’ Art. I, § 1 and 12, claims and they are not before us here.

Article I, § 23, of the Indiana Constitution reads as follows:

The General Assembly shall not grant to any citizen, or class of

citizens, privileges or immunities which, upon the same terms, shall

not equally belong to all citizens.

From at least 1971 until about nine years ago, this court analyzed claims

under the state Equal Privileges and Immunities Clause using the same

techniques as those employed by the United States Supreme Court to analyze

claims under the Equal Protection Clause of the Fourteenth Amendment. See

Collins v. Day, 644 N.E.2d 72, 75 (Ind. 1994). In Collins, this court

jettisoned the use of federal equal protection analytical methodology to

claims alleging violations of Art. I, § 23, and held that such claims

should be analyzed using a different standard. Id. That standard was

summarized as follows:

Article 1, Section 23 of the Indiana Constitution imposes two

requirements upon statutes that grant unequal privileges or immunities

to differing classes of persons. First, the disparate treatment

accorded by the legislation must be reasonably related to inherent

characteristics which distinguish the unequally treated classes.

Second, the preferential treatment must be uniformly applicable and

equally available to all persons similarly situated. Finally, in

determining whether a statute complies with or violates Section 23,

courts must exercise substantial deference to legislative discretion.

Id. at 80. Indiana courts have made frequent use of the Collins standard

since its promulgation, including the trial court here.

The trial court found that the ban on funding abortions contained in

the challenged statutes and regulation failed both prongs of the Collins

standard summarized supra.

The first prong of the Collins test requires that "where the

Legislature singles out one person or class of persons to receive a

privilege or immunity not equally provided to others, such classification

must be based upon distinctive, inherent characteristics which rationally

distinguish the unequally treated class, and the disparate treatment

accorded by the legislation must be reasonably related to such

distinguishing characteristics." Id. at 78-79. The trial court started its

analysis of this prong with the proposition that the "Medicaid program is a

government program through which a benefit -- government payment for

medically necessary treatment -- is provided to indigent Hoosiers." (Supp.

R. 8.) "However," the trial court continued, "that benefit is not provided

equally to all indigent Hoosiers -- women who, for medical reasons, need to

terminate their pregnancy in order to preserve and protect their health did

not receive that funding benefit. Under the Indiana Medicaid program,

indigent men and indigent pregnant women who need treatment (other than

abortion) which is medically necessary to preserve their health are singled

out for a benefit which is denied to indigent pregnant women needing to

terminate their pregnancy to preserve and protect their health.” (Supp. R.

8.)

The second prong of the Collins analysis requires that the

preferential treatment "be uniformly applicable and equally available to

all persons similarly situated." Collins, 644 N.E.2d at 80. Here the

trial court found that "[a]ll Medicaid-eligible pregnant women are

similarly situated in that all may require, from time to time, an array of

medically necessary treatment to protect and preserve their health." But,

under the challenged Medicaid statutes and regulations, "Medicaid coverage

of needed medical services is not ‘uniformly applicable and equally

available’ to those similarly situated. Pregnant women who require a

medically necessary abortion to preserve their health will not receive

state funding while pregnant women who require other types of medically

necessary treatment will receive state funding.” (Supp. R. 9.)

Under Collins, legislative discretion is accorded substantial

deference. Collins, 644 N.E.2d at 80-81. The trial court identified the

State's interests claimed to be served by the challenged statutes and

regulation as potential life, administrative simplicity, and cost

containment. But it found these justifications insufficient.

[P]ursuing the goal of promoting fetal life at the expense of

preserving the health of women who need to terminate their pregnancy

for medical reasons contravenes the purpose of the Medicaid program,

which is designed to enable indigent Hoosiers to obtain medically

necessary treatment. The State's asserted interest in administrative

simplicity and cost containment also do not justify the funding ban.

First, the goal of achieving administrative simplicity in itself can

never serve as a sufficient goal to justify depriving some citizens of

privileges accorded others. Second, the goal of cost containment is

also not reasonably related to the funding ban. Abortions are less

expensive than the costs associated with childbirth. Moreover,

preventing a Medicaid-eligible woman from terminating her pregnancy to

protect and preserve her health will necessarily mean that she will

have increased health problems that the Indiana Medicaid program must

cover. Cost containment is not served by the funding ban and cannot

be the basis to depriving some citizens of a privilege accorded

others.

(Supp. R. 10.)

The State appealed the judgment directly to our Court pursuant to

Ind. Appellate Rule 4(A)(1)(b).[6]

Our Court has been informed in this matter by a substantial number of

decisions from sister courts on similar claims under their respective state

constitutions, including some with constitutional provisions the same as

our Equal Privileges and Immunities Clause. Many of these are identified

and discussed in an excellent law journal article, Melanie D. Price, The

Privacy Paradox: The Divergent Paths of the United States Supreme Court

and State courts on the Issue of Sexuality, 33 Ind. L. Rev. 863, 875-879

(2000).

The Court also appreciates the assistance of amicus curiae Indiana

Civil Liberties Union, Inc., Indiana Right to Life Committee, Inc., and

twelve members of the Indiana General Assembly (Senators Frank Mrvan, Jr.,

Kent Adams, David C. Ford, Allie V. Craycraft, Jr., and R. Michael Young,

and Representatives Gary L. Cook, Jeffrey A. Thompson, P. Eric Turner,

James Russell Buck, Dennis K. Kruse, and Jerry L. Denbo), and their

respective counsel.

Discussion

I

The Equal Privileges and Immunities Clause of Art. I, § 23, of the

Indiana Constitution states, “The General Assembly shall not grant to any

citizen, or class of citizens, privileges or immunities, which, upon the

same terms, shall not equally belong to all citizens.”

Article I, Section 23 of the Indiana Constitution imposes two

requirements upon statutes that grant unequal privileges or immunities

to differing classes of persons. First, the disparate treatment

accorded by the legislation must be reasonably related to inherent

characteristics which distinguish the unequally treated classes.

Second, the preferential treatment must be uniformly applicable and

equally available to all person similarly situated.

Collins, 644 N.E.2d at 80. In determining whether a statute complies with

or violates this provision, the Court shows substantial deference to the

discretion of the Legislature in attempting to “balance the competing

interest involved,” and the Legislature’s basis in creating the

distinction. Id. To resolve conflicts between the state constitution and

a challenged statute, this Court has stated that “the better course is to

construe or reconstrue the statute in such a way as to further the purpose

of the legislature without offending the Indiana Constitution.” Van Dusen

v. Stotts, 712 N.E.2d 491, 496 (Ind. 1999).

Under the first prong of the Collins test, any “disparate treatment

accorded by the legislation must be reasonably related to inherent

characteristics which distinguish the unequally treated classes.” Collins,

644 N.E.2d at 80.

Where the legislature singles out one person or class of persons to

receive a privilege or immunity not equally provided to others, such

classification must be based upon distinctive, inherent

characteristics which rationally distinguish the unequally treated

class, and the disparate treatment accorded by the legislation must be

reasonably related to such distinguishing characteristics.

Id. at 78-79.

Before we can determine whether the legislative classification under

the first prong of Collins is permissible, we need to identify the

legislative classification at issue. The parties here define the relevant

classification differently. The plaintiffs contend (and the trial court

agreed) that the legislative classification at issue places (1) “indigent

men and indigent women who need treatment (other than abortion) which is

medically necessary to preserve their health” into a class for which the

necessary treatment is provided, and (2) “indigent pregnant women needing

to terminate their pregnancy to preserve and protect their health” into a

class for which the necessary treatment is not provided. (Supp. R. 8.)

The State argues that the relevant classification is between (1) “medically

necessary services and supplies” for which federal Medicaid reimbursement

at some level is available (a class that includes abortions to save a

woman’s life and where pregnancy resulted from rape or incest) and (2)

medically necessary services and supplies for which it is not (a class that

includes all other medically necessary abortions). Br. of Appellants at

14.

In McIntosh v. Melroe Co., Justice Boehm examined the way in which

the legislative classification at issue in the first prong of Collins is to

be determined:

Although Collins itself uses the word "inherent" to describe the

characteristic that defines the class, this cannot be equated with

"innate" characteristics of members of the class. The worker's

compensation scheme [the statute at issue in Collins], like the

Product Liability Act [the statute at issue in McIntosh], turns on the

characteristics of the employers, not the injured workers. Similarly,

under the Product Liability Act, everyone may potentially recover for

an injury from a product not yet ten years old, and everyone injured

from an older product is barred. It is the claim, not any innate

characteristic of the person, that defines the class.

729 N.E.2d 972, 981 (Ind. 2000). We think the claim here, reduced to its

essentials, is that some Medicaid-eligible pregnant women in Indiana are

entitled to Medicaid-financed medically necessary abortions and others are

not. We think this “claim … defines the class:” (1) Medicaid-eligible

pregnant women who seek to terminate their pregnancies in order to preserve

their lives or where their pregnancies resulted from rape or incest are in

a class where Medicaid pays for their abortions; and (2) Medicaid-eligible

pregnant women who seek to terminate their pregnancies for any other

medically necessary reason are in a class where Medicaid will not pay for

their abortions. Although this formulation of the classification at issue

differs somewhat from those advanced by the parties, we believe it

sufficiently similar to each that their arguments against and in favor of

the classifications retain their full force.

As already discussed, in analyzing the constitutional permissibility

of the classification identified, we "accord considerable deference to the

manner in which the legislature has balanced the competing interest

involved." Collins, 644 N.E.2d at 80 (citing Johnson v. St. Vincent Hosp.,

273 Ind. 374, 404-05, 404 N.E.2d 585, 604 (1980)). Indeed, we frequently

recite that the challenger to the constitutionality of the legislative

scheme bears the burden "to negative every conceivable basis which might

have supported the classification." Johnson, 273 Ind. at 392, 404 N.E.2d

at 597. In Collins, we quoted from an earlier opinion of this Court in

this regard:

Legislative classification becomes a judicial question only where the

lines drawn appear arbitrary or manifestly unreasonable. So long as

the classification is based upon substantial distinctions with

reference to the subject matter, we will not substitute our judgment

for that of the legislature; nor will we inquire into the legislative

motives prompting such classification.

Collins, 644 N.E.2d at 80 (quoting Chaffin v. Nicosia, 261 Ind. 698, 701,

310 N.E.2d 867, 869 (1974).

The plaintiffs contend that even this deferential standard of review

is violated by the statutory and regulatory scheme challenged here.

Calling the classification "manifestly unreasonable," Br. of Appellees at

21, they argue that the

…classes of persons granted and denied the privilege are inherently

the same in ways that relate directly to the subject matter of the

Medicaid legislation: they are low-income, such that they meet the

Medicaid eligibility requirements, and they seek medical care for

which they have a medical need. What distinguishes between the two is

that the members of the group denied the privilege have health

conditions which cause them to need an abortion to preserve their

health, while members of the class granted the privilege have health

conditions which cause them to need medical care other than abortion

to preserve their health. However, that difference does not relate to

the subject matter of the Medicaid statutes. In fact, denying funding

to a woman whose health will deteriorate if she does not have an

abortion runs directly counter to the subject matter of the

legislation.

Id. at 19.

The State offers four justifications for the classification.

First, the State argues that the unavailability of federal financial

participation means that it would not be "fiscally prudent and rational"

and that it would otherwise be "administrative[ly] inconvenien[t]" for the

State to pay for abortions that are not eligible for federal reimbursement.

Br. of Appellants at 14, 15.

Second, the State argues that it has a "valid and compelling"

interest in protecting fetal life, quoting from this court's decision in

Cheaney v. State, 259 Ind. 138, 147, 285 N.E.2d 265, 270 (1972), cert.

denied, 410 U.S. 991 (1973).[7] The State quotes from Harris v. McRae for

support in pressing its point that "limiting government funding for

abortion is a rational means for indicating the government's interest in

protecting fetal life." Br. of Appellants at 17 (quoting Harris, 448 U.S.

at 325).

Third, in addition to the fiscal and administrative efficiency

dimensions of the federal funding argument made supra, the State advances

additional fiscal and administrative justifications for the classification.

It argues that a more liberal system of government payments for abortion

"will result in more of that activity" and "may have a dramatic impact on

the State's future tax base." Its broader point here is that the

allocation of Medicaid spending is a fiscal policy determination for the

legislative and executive branches. Br. of Appellants at 18-19.

The plaintiffs respond that the State should not be entitled to offer

justifications for the classification extraneous to the purpose of the

Medicaid program itself. "If the State's position is accepted, the

Legislature could insulate any discriminatory statute from constitutional

challenge by simply claiming that it serves multiple purposes. Thus, the

State could withhold any and all government benefits from women who have

had abortions, irrespective of the subject matter or goal of the statute at

issue. For example, the State could grant free tuition to state

universities to all its citizens except for those who have had an abortion,

on the grounds that the statute furthers the State's interest in protecting

fetal life." Br. of Appellees at 21.

We appreciate the point plaintiffs make but think it only has force

if our determination is binary. To the contrary, Collins, its precursors,

and its progeny all indicate that we look at the Legislature’s "balancing

of the competing interest involved." See American Legion Post No. 113 v.

State, 656 N.E.2d 1190, 1192 (Ind. Ct. App. 1995) (citing Collins, 644

N.E.2d at 80 (citing Johnson, 273 Ind. at 404-05, 404 N.E.2d at 604)),

trans. denied.

In balancing the interests here, we have given careful attention to

the evidence presented by the plaintiffs in the trial court demonstrating a

number of different health risks faced by pregnant women with respect to

which an abortion is medically necessary. In support of their motion for

summary judgment, the plaintiffs submitted the affidavit of Dr. Jane

Hodgson, a physician specializing in obstetrics and gynecology and an

expert in the field. Dr. Hodgson testified that many women confront

serious health risk when pregnant. Hypertension complicates about 8-10% of

pregnancies. Hypertensive pregnant women are at a higher risk for

cerebrovascular accidents (strokes), abruptio placentae (premature

separation of the placenta from the uterus), and disseminated

intravasscular coagulation (a severe bleeding disorder). Dr. Hodgson

further testified that pregnancy-induced diabetes occurs in approximately 1-

3% of pregnancies. Women with preexisting diabetes have ten times the risk

of pregnancy-related death than do non-diabetic women. Diabetes-associated

retinopathy (eye disease) or nephropathy (kidney disease) often worsen

significantly during pregnancy. Dr. Hodgson added that pregnancy

jeopardizes the health of a woman with advanced coronary artery disease or

severe impairment of the heart valve, and all pregnant women with heart

disease have a higher risk of congestive heart failure, cardiac infections,

and arrhythmia (abnormal heart rhythms). The health of a pregnant woman is

seriously impaired when she suffers from chronic renal failure, myasthenia

gravis, or pulmonary embolism from a previous pregnancy. Pregnant women

with lupus may experience aggravation of their disease.

Dr. Hodgson also testified that pregnant women with sickle cell

anemia experience more frequent and more severe crises, especially in

bones, infections such as pneumonia and urinary tract infections,

increasingly severe anemia, congestive heart failure, and pulmonary

complications such as embolus. Other conditions exacerbated by pregnancy

include asthma, arthritis, inflammatory bowel disease, gall bladder

disease, liver disease, and epilepsy. Dr. Hodgson added that when cancer

threatens a pregnant woman’s life, the pregnancy puts further strain on the

woman’s health, and may require a suspension of cancer treatment because of

harm to the fetus from such treatments. Thus, if treatment of the disease

requires radiation or chemotherapy, a choice must be made between the

health of the patient and the fetus, since these forms of therapy are

likely to result in fetal malformation or death. Pregnancy may accelerate

the condition of women with malignant breast tumors that are estrogen

receptor positive. Dr. Hodgson’s testimony was bolstered by the other

affidavits submitted by the plaintiffs from Dr. Judith Belsky and Dr.

William Mudd Haskell.

The question for this Court is whether the Legislature may prohibit

the State from paying for an abortion for a Medicaid-eligible pregnant

woman facing any of these health risks while at the same time it authorizes

the State to pay for an abortion to preserve the life of a Medicaid-

eligible pregnant woman or where the pregnancy was caused by rape or

incest. We find the State’s justifications of unavailability of federal

financial participation, interest in protecting fetal life, fiscal policy,

and administrative efficiency sufficient to sustain the constitutionality

of the classification under the first prong of the Collins test. We are in

no position to deny plaintiffs’ argument that the statutes and regulation

at issue impose significant financial, physical, and emotional hardship on

many low-income Hoosier women. But we hold that the State’s justifications

for the classification do not rise to the level of being “arbitrary or

manifestly unreasonable.” Collins, 644 N.E.2d at 80 (quoting Chaffin, 261

Ind. at 701, 310 N.E.2d at 869).

The second prong of the Collins test requires that the "privileged"

legislative classification "be open to any and all persons who share the

inherent characteristics which distinguish and justify the classification,

with the special treatment accorded to any particular classification

extended equally to all such persons." Collins, 644 N.E.2d at 79.

The trial court found this aspect of Collins violated because

"[p]regnant women who require a medically necessary abortion to preserve

their health will not receive state funding while those who require other

types of medically necessary treatment will receive state funding." (Supp.

R. 9.) We believe the State is correct when it responds that, because the

plaintiffs "challenge not the provision of Medicaid benefits to indigent

people generally, but rather the deprivation of Medicaid benefits to some

who seek abortions, it is clearer to frame the issue as whether that

deprivation is uniformly applicable to all who share the inherent

characteristics that justify the classification." Brief of Appellants at

23. We find the requirement of the second prong of Collins met because

Medicaid will pay for abortions for all persons in the classification of

Medicaid eligible pregnant women seeking to terminate their pregnancies to

preserve their life or where the pregnancy resulted from rape or incest.

II

A statute that is constitutional on its face may be unconstitutional

as applied to a particular plaintiff. See Martin v. Richey, 711 N.E.2d

1273, 1284-85 (Ind. 1999) (holding Indiana Medical Malpractice Act statute

of limitations constitutional on its face but unconstitutional as applied

to plaintiffs whose medical condition and the nature of the asserted

malpractice make it unreasonable to expect that they could discover the

asserted malpractice and resulting injury within the limitations period);

City of Fort Wayne v. Cameron, 267 Ind. 329, 334, 370 N.E.2d 338, 341

(1977) (holding Indiana Tort Claims Act notice requirement constitutional

on its face but unconstitutional as applied to plaintiffs whose mental and

physical incapacity render them unable to comply with the notice

requirement). For the reasons set forth below, we believe that the statute

and regulations challenged here are unconstitutional as applied to Medicaid-

eligible pregnant women whose pregnancies “create serious risk of

substantial and irreversible impairment of a major bodily function.”[8]

Article I, § 23, of our Constitution prohibits a statute from

providing disparate treatment to different classes of persons if the

disparate treatment is not reasonably related to inherent characteristics

that distinguish the unequally treated classes. McIntosh, 729 N.E.2d at

981; Martin, 711 N.E.2d at 1280; Collins, 644 N.E.2d at 80. We believe

that the characteristics that distinguish Medicaid-eligible pregnant women

whose pregnancies create serious risk of substantial and irreversible

impairment of a major bodily function to be virtually indistinguishable

from the characteristics of women for whose abortions the State does pay.

To the extent there is a distinction, it is too insubstantial to be

sustained by the State’s justifications.

The challenged statutory and regulatory scheme here provides disparate

treatment to different classes of persons: Medicaid (1) will pay for

abortions where necessary to preserve the life of the pregnant woman or

where the pregnancy was caused by rape or incest but (2) will not pay for

any other abortions. Thus the Constitution requires that the disparate

treatment be reasonably related to inherent characteristics that

distinguish the “preserve the life, rape, or incest” classification from

the “any other abortions” classification. Within this “any other

abortions” classification is a subset consisting of abortions where the

pregnancies create for Medicaid-eligible women a serious risk of

substantial and irreversible impairment of a major bodily function.

The State’s argument is that there are “inherent characteristics …

reasonably related to permissible legislative goals” that justify Medicaid-

funded abortions where necessary to preserve the life of the pregnant woman

or where the pregnancy was caused by rape or incest. Br. of Appellants at

17. This is because “[a]bortions in those circumstances raise problems and

concerns that abortions in other circumstances do not.” Id. Although it

does not elaborate, the State says that these problems are the result of

certain “medical, moral, social, and ethical concerns” that “do not arise

in other abortion cases.” Id. at 18.

That is, the State says that providing Medicaid-financed abortions is

reasonably related to the “inherent characteristics” that distinguish the

“preserve the life, rape, or incest” classification from the “any other

abortions” classification (and, therefore, makes the distinction

constitutionally permissible). Those inherent characteristics are the

“medical, moral, social, and ethical concerns” raised by the “preserve the

life, rape, or incest” classification that are not raised by the “any other

abortions” classification.

It is clear that the inherent characteristics of the “preserve the

life, rape, or incest” classification do not require that the life of the

pregnant woman be at stake. This classification includes abortions where

the pregnancy was caused by rape or incest where there is no inherent

threat to life. But if the “medical, moral, social, and ethical concerns”

that justify Medicaid-funded abortions do not require that the life of the

pregnant woman be at stake, what are the inherent characteristics that

distinguish the abortions permitted by the “preserve the life, rape, or

incest” classification from cases where the pregnant woman faces

substantial and irreversible impairment of a major bodily function? The

medical, moral, social, and ethical concerns are the same or at least the

differences too insubstantial to be sustained by the State’s

justifications.

The application of the challenged statute and regulations to pregnant

women who face substantial and irreversible impairment of a major bodily

function is significant because the Legislature itself has identified it

for special treatment in the State abortion control statute. For that

purpose, the Legislature has treated in exactly the same way cases where

the life of the pregnant woman is at stake and cases where the woman faces

substantial and irreversible impairment of a major bodily function.

Indiana law forbids an abortion to be performed in Indiana unless the

pregnant woman consents following specified disclosures provided to her at

least 18 hours before the abortion is performed. Ind. Code §16-34-2-1.1.

However, the Legislature has exempted from these disclosure and waiting

period cases where “the medical condition of a pregnant woman …

necessitates the immediate termination of her pregnancy to avert her death

or for which a delay would create serious risk of substantial and

irreversible impairment of a major bodily function.” Ind. Code §§ 16-18-2-

223.5 (emphasis supplied) & 16-34-2-1.1; A Woman's Choice-East Side Women's

Clinic v. Newman, 671 N.E.2d 104, 111 (Ind. 1996) (“severe-but-temporary

conditions in which an abortion is not the medically necessary treatment

are not covered by the exception”).

The fact that the Legislature has treated as a single classification

in the abortion control statute “abortions for which a delay would create

serious risk of substantial and irreversible impairment of a major bodily

function” and abortions necessary to preserve the pregnant woman’s life

reinforces our conclusion that the inherent characteristics of these cases

(when combined with abortions where the pregnancy was caused by rape or

incest) are so similar that disparate treatment is not justified under

Medicaid. McIntosh, 729 N.E.2d at 981; Martin, 711 N.E.2d at 1280;

Collins, 644 N.E.2d at 80. We find the challenged statute and regulations

unconstitutional as applied to Medicaid-eligible women whose pregnancies

create serious risk of substantial and irreversible impairment of a major

bodily function. So long as the Indiana Medicaid program pays for

abortions for Medicaid-eligible women where necessary to preserve the life

of the pregnant woman or where the pregnancy was caused by rape or incest,

we hold that it must pay for abortions for Medicaid-eligible women whose

pregnancies create serious risk of substantial and irreversible impairment

of a major bodily function.[9]

Conclusion

It is the judgment of the Court that the challenged Medicaid statutes

and regulation do not violate the Equal Privileges and Immunities Clause of

the Indiana Constitution and are, therefore, constitutional except that, so

long as the Indiana Medicaid program pays for abortions to preserve the

lives of pregnant women and where pregnancies are caused by rape or incest,

it must also pay for abortions for Medicaid-eligible women whose

pregnancies create serious risk of substantial and irreversible impairment

of a major bodily function. The trial court is reversed in part and

affirmed in part.

Shepard, C. J., and Dickson, J., concur in Part I and dissent

from Part II.

Boehm and Rucker, JJ., dissent from Part I and concur in Part

II.

Shepard, C.J., concurs and dissents with separate opinion.

Dickson, J., concurs and dissents with separate opinion.

Boehm, J., concurs and dissents with separate opinion in which

Rucker, J., concurs.

Shepard, Chief Justice, concurring and dissenting.

I join in Part I of Justice Sullivan’s opinion, but not in Part II,

which I think produces the wrong result.

A former colleague of ours once told us in conference (but never took

occasion to say in writing) that for all the jurisprudential effort put

into devising standards for trial and appellate review, the most that any

articulated standard can achieve is to “tell the judge what mood to be in

as he or she approaches a topic.” Various standards tell us to be strict

or liberal, deferential or non-deferential, to name a few.

The Court correctly announces the standard applicable to the present

case. It is that the judiciary should defer to the lines drawn by the

General Assembly and Governors Bowen and Bayh unless they are “arbitrary or

manifestly unreasonable.” Slip op. at 15, citing Collins v. Day, 644

N.E.2d 72, 80 (Ind. 1994).

I cannot say that the decisions made on the very difficult topic of

public payments for abortion, made by Indiana’s elected representatives

(and for that matter by the Congress and President Carter) are so arbitrary

and unreasonable that they are unconstitutional.

DICKSON, Justice, concurring with Part I and dissenting from Part II.

I concur with the holding of Part I of Justice Sullivan's opinion for

the Court, that Indiana's Medicaid abortion coverage restrictions do not

violate the requirements of Collins v. Day, 644 N.E.2d 72 (Ind. 1994), and

thus do not violate Article 1, Section 23 of the Indiana Constitution.

The Indiana Privileges and Immunities Clause, Article 1, Section 23

of the Indiana Constitution, clearly permits enactment of laws that provide

"disparate treatment" for different classes where the legislation is

"reasonably related to inherent characteristics which distinguish the

unequally treated classes." Collins, 644 N.E.2d at 80.

The Court correctly acknowledges that "the State's justifications of

unavailability of federal financial participation, interest in protecting

fetal life, fiscal policy, and administrative efficiency," and the uniform

applicability of the Medicaid abortion benefit to all who qualify, are

sufficient to sustain the constitutionality of the classification.

Sullivan slip opin. at 14.

I believe it preferable, however, to address the specific

classifications that were identified by the plaintiffs-appellees and trial

court as receiving unequal treatment: (1) indigent men and women who need

treatment (other than abortion) which is medically necessary to preserve

their health, and (2) indigent pregnant women needing to terminate their

pregnancy to preserve and protect their health but whose pregnancies do not

threaten their lives and were not the result of rape or incest. These two

asserted classifications do not contrast the persons entitled to receive

Medicaid abortions with those ineligible. Rather, they compare the

treatment received by persons entitled to Medicaid benefits provided for

non-abortion medical services with those seeking Medicaid-funded abortions.

These two classifications receive different treatment in that the medical

services for the second are limited to exclude abortions except in narrow

circumstances. This disparate treatment is clearly related to the inherent

characteristic that distinguishes the unequally treated classes: namely,

the medical treatment in the second classification, abortion, requires the

termination of fetal life. The legislative decision to impose

restrictions upon Medicaid-funded abortions is obviously and reasonably

related to whether the medical services involve the termination of fetal

life. Thus, even using the classifications identified by the trial court

and the appellees, the Indiana Medicaid abortion restrictions do not

violate Section 23.

I dissent, however, from Part II and the Conclusion of the Court's

opinion, which appears to condition the holding in Part I by judicially

expanding Indiana's Medicaid abortion coverage to require the state to

provide abortion benefits clearly not intended by the Indiana General

Assembly.

Under Part II, the Indiana Medicaid program must now begin paying for

abortions for Medicaid-eligible women whose pregnancies create a "serious

risk of substantial and irreversible impairment of a major bodily

function," even though the pregnancy does not present a threat to the

woman's life. Sullivan slip opin. at 15. I believe that this conclusion

and its rationale are erroneous.

The majority in Part II of Justice Sullivan's opinion purports to

apply Collins but does so only by framing and then comparing its own two

"classifications" of Medicaid-eligible pregnant women: (1) those for whom

abortions are necessary to preserve their lives or where their pregnancies

were caused by rape and incest, and (2) those who seek abortions for all

other reasons, particularly the subset consisting of pregnant women whose

pregnancies present a serious, but not life-threatening, risk of

substantial and irreversible impairment of a major bodily function. Having

combined in a single classification both those abortions needed to preserve

the life of a pregnant woman and those abortions for pregnancies resulting

from rape and incest, the majority in Part II then questions and dismisses

the validity of the independent factors that reasonably relate to each sub-

classification by observing that the these factors are not applicable in

common to both sub-classifications. Upon this highly questionable premise,

the majority then declares that the factors supporting each sub-

classification are the same or their differences "too insubstantial" to

justify different treatment. With this rhetorical device, Part II

disregards the protection of fetal life, and the medical, moral, social,

and ethical concerns that properly distinguish and justify the restrictions

on Medicaid abortions.

Proper application of Collins to the majority's classifications would

seem to require that the first one be separated into its two independent

components: (a) pregnancies for which abortions are necessary to preserve

the life of the pregnant woman, and (b) pregnancies resulting from rape or

incest. As between those abortions necessary to preserve the life of the

pregnant woman and the majority's "substantial and irreversible impairment"

subclass, the access to Medicaid-funded abortions for the former is clearly

and reasonably related to the inherent difference that distinguishes the

classes—the risk of the woman's death without an abortion. It is the

legislature's prerogative to balance its interest in preserving fetal life

with its interest in not placing the mother at risk of death. Likewise, as

between abortions in pregnancies resulting from rape or incest and those in

the "substantial and irreversible impairment" subclass, the access to

Medicaid-funded abortions for the former is obviously related to the

inherent difference distinguishing the classes—whether the pregnancy was

caused by criminal conduct. It is neither arbitrary nor manifestly

unreasonable for the legislature to conclude that the medical, moral,

social, and ethical implications of a compelled pregnancy under these

circumstances outweighs the government's interest in the preservation of

fetal life. Furthermore, as to both subclasses ("risk of death" and "rape

or incest"), the access to Medicaid-funded abortions that are denied to the

"substantial and irreversible impairment" classification is reasonably

related to the fact that the federal government reimbursement is not

available for the latter. Such fiscal considerations by the legislature

are within the considerable legislative discretion accorded under Collins.

The legitimate reasons that separately justify the Medicaid program's

funding for abortions needed to preserve a woman's life and its funding for

abortions where the pregnancy results from rape or incest cannot be

neutralized by declaring these two groups merged into the same

classification, and then finding their independent separate justifications

thereby inconsequential because they do not simultaneously apply to both

"risk of death" and "rape or incest" abortions.

Despite the requirement of Collins that we show substantial deference

to the discretion of the legislature, the majority in Part II of Justice

Sullivan's opinion disregards the clear and unequivocal language and intent

of the Indiana General Assembly. Indiana Code section 16-34-1-2 explicitly

declares: "Neither the state nor any political subdivision of the state may

make a payment from any fund under its control for the performance of an

abortion unless the abortion is necessary to preserve the life of the

pregnant woman." The effect of Part II is to nullify this legislative

limitation and to substantially expand the obligation of the Indiana

Medicaid program to henceforth fund abortions for medical conditions that

are not needed to save the mother's life.

An examination of Indiana Code section 16-34 et seq. makes clear that

the legislature clearly intended and articulated a deliberate distinction

between the two classes of women. Some statutes use broader language that

is not limited to situations in which a pregnant woman is at risk of death.

For example, section 16-34-2-1(a)(3)(C) criminalizes abortion performed

after viability of the fetus unless the abortion is "necessary to prevent a

substantial permanent impairment of the life or physical health of the

pregnant woman." (emphasis added). Section 16-34-2-1.1 requires that

certain information be given to a woman at least eighteen hours before an

abortion except in the case of a medical emergency, which is defined in

Indiana Code section 16-18-2-223.5 as a condition that "necessitates the

immediate termination of [a woman's] pregnancy to avert her death or for

which a delay would create serious risk of substantial and irreversible

impairment of a major bodily function." Section 16-34-2-1.2 requires that

an abortion provider inform a woman facing a medical emergency of the

medical indications supporting the provider's judgment that an abortion is

necessary to prevent the mother's death or "a substantial and irreversible

impairment of a major bodily function." Section 16-34-2-3(a) states that

all abortions performed after viability shall be performed in a hospital

having premature birth intensive care units unless compliance would result

in "an increased risk to the life or health of the mother." (emphasis

added). Subsection (b) requires there to be in attendance a second

physician who shall care for a child born alive as a result of an abortion

unless "compliance would result in an increased risk to the life or health

of the mother." (emphasis added). In other statutes, however, it is clear

that the legislature intended provisions or exceptions to apply only to

women whose lives are in danger. Indiana Code section 16-34-2-1(a)(1)(B)

states that, "if in the judgment of the physician the abortion is necessary

to preserve the life of the woman, her consent is not required." (emphasis

added). Indiana Code section 16-34-2-1(b) prohibits partial birth

abortions unless a physician reasonably believes that it is necessary to

save the woman's life and no other medical procedure is sufficient.

The fact that certain sections apply when a woman faces risk of death

or impairment of a major bodily function, such as section 16-34-2-1.1,

while other sections apply only when she faces risk of death, such as

sections 16-34-2-1(b) and 16-34-1-2, indicates that the legislature's

choice of language was precise and deliberate, demonstrating that the

legislature intended to identify and treat differently these distinct

classes of women with respect to the different statutory provisions.

In Part II, the majority imports the language of its new definition

from Indiana Code section 16-18-2-223.5. This provision does not address

any term used in the statute restricting eligibility for taxpayer-funded

abortions, I.C. § 16-34-1-2, but rather provides an exception to the

informed consent requirements of Indiana's general abortion law in cases of

"medical emergency," which it defines as a condition that "complicates the

medical condition of a pregnant woman so that it necessitates the immediate

termination of her pregnancy to avert her death or for which a delay would

create serious risk of substantial and irreversible impairment of a major

bodily function." I.C. § 16-18-2-223.5. In A Woman's Choice – East Side

Women's Clinic v. Newman, 671 N.E.2d 104, 109 (Ind. 1996), this Court

construed this "medical emergency" definition to permit a physician to

dispense with the informed consent provisions whenever the doctor concluded

that an abortion was medically necessary in the doctor's clinical judgment

based on "all relevant factors pertaining to a woman's health." By its

importation of this language, the majority improperly scuttles the present

restrictions in the Indiana Medicaid program's abortion coverage and

appears to imply that Medicaid-eligible women may henceforth receive

abortions at taxpayer expense in any case supported by the clinical

judgment of a doctor based upon the woman's health factors, irrespective of

whether she is at risk of death.

The majority's alarming expansion of the coverage is exacerbated by

the fact that it imposes upon Indiana's Medicaid program the requirement to

fund not only abortions necessary to prevent substantial and irreversible

impairment of a major bodily function, but also abortions necessary to

prevent even serious risk of the same. Plaintiffs claim in their brief

that hypertension (high blood pressure) complicates approximately 8% – 10%

of pregnancies, and that "[a]lthough in most cases serious harm to health

can be averted, hypertensive pregnant women are at higher risk for

cerebrovascular accidents (strokes), abruptio placentae (premature

separation of the placenta from the uterus), and disseminated intravascular

coagulation (a severe bleeding disorder)." Br. of Appellees at 5-6

(emphasis added). Plaintiffs also discuss the risks pregnancy can have on

women with diabetes, including retinopathy (eye disease, including

blindness) and nephropathy (kidney disease), a fourfold increase in the

likelihood of pre-eclampsia or eclampsia and hypertensive diseases, and a

tenfold increase in the risk of pregnancy-related death. Other conditions

potentially necessitating abortion, according to the plaintiffs, are cancer

that requires radiation or chemotherapy, and sickle cell anemia, which can

cause "severe crises (especially in bones), infections such as pneumonia[,]

. . . increasingly severe anemia, congestive heart failure, and pulmonary

complications such as embolus." Br. of Appellees at 7. Plaintiffs admit

that "[w]hile these conditions may not always be life threatening, they can

seriously and permanently compromise a woman's health." Br. of Appellees

at 7 (emphasis added). Under Justice Sullivan's expanded definition, these

conditions arguably may now warrant coverage under Indiana's Medicaid

abortion coverage.

Thus Justice Sullivan's opinion, while purporting in Part I to find

the enacted limitations on Medicaid abortion coverage constitutionally

valid, nevertheless in Part II has the effect of granting almost all the

relief sought by the plaintiffs in this case. In judicially repealing the

express legislative pronouncement that state and local government funds

cannot be used to pay for any abortion unless necessary to preserve the

mother's life, the majority establishes a potentially ever-expanding set of

medical conditions that may be transformed into entitlements for state-

funded abortions for which there will be no federal Medicaid reimbursement.

This is blatantly contrary to the intentions of both the Indiana General

Assembly that enacted Indiana Code section 16-34-1-2 and Governor Evan Bayh

who signed the bill into law.

For these reasons I dissent from Part II of Justice Sullivan's

opinion. The fact that the Indiana Medicaid program does not pay for

abortions in cases of "pregnancies that create for pregnant women serious

risk of substantial and irreversible impairment of a major bodily function"

does not render the challenged statute and regulations unconstitutional as

applied.

Boehm, Justice, dissenting as to Part I.

For the reasons given below, I respectfully dissent from Part I of the

majority opinion. Twelve of the seventeen state courts that have

considered the issue in published opinions have concluded that denial of

benefits to indigent women for medically necessary abortions is a violation

of their state constitution.[10] Under prevailing constitutional doctrine

in this state, I would reach the same result.

There is no doubt that a pregnant woman has the right to elect an

abortion as set forth in Roe v. Wade, 410 U.S. 113 (1973). There is no

doubt that the State may elect to have a Medicaid program or not to have

one. And there is no doubt that the State may elect to fund medical

procedures for the indigent without providing the same benefit to all

citizens. Finally, it is plain on the face of the Medicaid statute that by

restricting abortion benefits to those necessary to prevent death of the

mother or to terminate pregnancies generated by rape or incest, the Indiana

Medicaid program seeks to provide different benefits for some abortions

than it does for other “medically necessary” procedures.

The plaintiffs here posit their claim as a constitutionally

impermissible distinction arising from Medicaid’s refusal to fund medically

necessary abortions for certain indigent women while providing benefits for

all other indigents in need of medical treatment. The plaintiffs are

entitled to frame their own complaint, so this different treatment is the

issue presented in this case. Plaintiffs do not base their challenge on a

comparison of funding for pregnancies arising from rape or incest or

threatening the woman’s life to funding for other abortions. It therefore

seems to me that the Indiana constitutional issue presented by this case is

simply stated: is it permissible under Article I, Section 23 for the State

to provide funding for medically necessary treatment for indigents

generally, but to refuse it for medically necessary abortions unless the

mother’s life is at stake or the pregnancy results from rape or incest? I

conclude it is not, as to those pregnancies for which the federal

constitution guarantees the woman the right to make the election to

terminate her pregnancy.

I. Equal Privileges Under the Indiana Constitution

The plaintiff’s constitutional challenge to this legislation is based

solely on the Equal Privileges Clause found in Article I, Section 23 of the

Indiana Constitution. The test for constitutionality under that clause is

established in Collins v. Day, 644 N.E.2d 72 (Ind. 1994), and is accurately

recited by the majority:

First, the disparate treatment accorded by the legislation must be

reasonably related to inherent characteristics which distinguish the

unequally treated classes. Second, the preferential treatment must be

uniformly applicable and equally available to all persons similarly

situated. Finally, in determining whether a statute complies with or

violates Section 23, courts must exercise substantial deference to

legislative discretion.

Id. at 80.

Although the Collins formulation is often described as a “two-pronged”

test, it really breaks down into three components because the first “prong”

establishes two requirements: 1) the classification must be based on

“characteristics” that “rationally distinguish the unequally treated

class”, and 2) the “disparate treatment” must be “reasonably related” to

the characteristics that define the class. I think this means, in simple

terms, that the class must be defined by a characteristic that is not

arbitrary or otherwise impermissible and that the difference in legislative

treatment must be reasonably related to the difference between the classes.

The second “prong” of Collins imposes a third test: everyone who is in

fact in the class (i.e., everyone who shares the defining characteristic)

must be treated alike, and everyone who is not in the class must be treated

alike. As we noted in McIntosh v. Melroe Co., 729 N.E.2d 972 (Ind. 2000),

the “characteristic” that defines the legislative class is not necessarily

innate (e.g., race, national origin). It may be a mutable characteristic

that the same person may have as of a given time, but lack at others (e.g.,

people who are over age sixty-two can elect to receive Social Security

benefits, but are ineligible before attaining that age; a corporation with

seventy-five or fewer shareholders can elect to be taxed more or less as a

partnership, but is ineligible with seventy-six shareholders). Or, as in

McIntosh, the classification may be based on a sequence of events (persons

injured by products in use for over ten years have no claim under the

Product Liability Act).[11] And so on.

Here the relevant characteristics defining the class generally

entitled to Medicaid benefits are indigence and desire for a medically

necessary treatment. In Section 23 terms, the Medicaid statute confers a

privilege on those persons. The plaintiffs here are indigent and seek

reimbursement for procedures that are “medically necessary” as that term is

used in the Medicaid statute. The State refuses to pay because the

requested medical treatment would terminate a pregnancy that is neither

life endangering nor the result of rape or incest. Therefore, the defining

characteristic of the classification of citizens this legislation draws is

those women who are (1) requesting a medically necessary abortion and (2)

otherwise eligible for Medicaid benefits but (3) whose pregnancy is neither

life endangering nor a result of rape or incest. The result is that this

legislation confers a privilege by providing benefits to indigents

requiring medically necessary treatment, but withholds that privilege from

poor women in need of medically necessary abortions to terminate a

pregnancy that is neither life threatening nor originated by rape or

incest. The statute thus sets up a scheme for funding abortions that is

different from that for funding for all other medical treatment.

II. Equal Protection Under the Federal Constitution

In order to understand the higher standard demanded by the state

constitution, it is important to review the basis of the holding that the

federal constitution does not prevent the states from imposing this

condition on funding for indigent medical care. In Harris v. McRae, 448

U.S. 297 (1980), the United States Supreme Court, in a 5-4 decision,

established that federal equal protection doctrine did not prohibit the

federal government from enacting a federal statute, the Hyde Amendment,

that denies federal reimbursement for the procedures at issue here. In

reaching that conclusion, the majority relied on prevailing federal equal

protection doctrine. The only Equal Protection Clause in the federal

constitution is found in the Fourteenth Amendment which imposes limitations

on state legislation, but does not apply to federal statutes. Indeed,

until 1954, it was accepted dogma that there was no equal protection

doctrine applicable to federal legislation. Kenneth L. Karst, The Fifth

Amendment Guarantee of Equal Protection, 55 N.C. L. Rev. 541, 542 (1971);

see, e.g., Detroit Bank v. United States, 317 U.S. 329, 337 (1943). The

Supreme Court for the first time found equal protection applicable to a

federal law in a companion case to Brown v. Board of Education, 347 U.S.

483 (1954). Bolling v. Sharpe, 347 U.S. 497 (1954) addressed segregation

in the schools of the District of Columbia. Because the District of

Columbia was a federal enclave and not a state, the Fourteenth Amendment

did not apply. The Supreme Court unanimously held that the Due Process

Clause of the Fifth Amendment required no less than the Equal Protection

Clause of the Fourteenth Amendment, finding it “unthinkable” that the

federal government could impose distinctions that the Constitution forbids

to the states. By the mid 1970’s, it had become accepted that the equal

protection doctrine developed under the Fourteenth Amendment with respect

to state laws applied equally to federal legislation. See, e.g., Buckley

v. Valeo, 424 U.S. 1, 93 (1976).[12] It was within this legal framework

that Harris upheld the federal Hyde Amendment in 1980.

The four-Justice majority in Harris first found that the Hyde

Amendment did not itself “impinge on a right or liberty protected by the

[federal] Constitution.” Id. at 322. This was based on the conclusion, in

addressing claims under the federal Due Process Clause, that although there

is a federal constitutional right to elect an abortion under Roe v. Wade,

there is no federal constitutional right to receive funding for an

abortion.

Because no federal constitutional right was impinged, and indigent

pregnant women were not a suspect class, the majority in Harris evaluated

the federal equal protection claim under the standard taken from McGowan v.

Maryland, 366 U.S. 420 (1961): the classification must be sustained unless

it “rests on grounds wholly irrelevant to the achievement of [any

legitimate governmental] objective.” Harris, 448 U.S. at 322 (brackets in

original). The majority recognized a legitimate governmental interest in

protecting human life by “subsidizing the medical expenses of indigent

women who carry their pregnancies to term while not subsidizing the

comparable expenses of women who undergo abortions.” Id. at 325.

Accordingly, the Harris majority held that nothing in the federal equal

protection doctrine prevents a state from refusing to fund medically

necessary abortions for indigent women. The majority thus relied on the

prevailing “rationality” test for federal equal protection: a legislative

classification requires only “a rational relationship to any legitimate

governmental interest.” John E. Nowak & Ronald D. Rotunda, Constitutional

Law §14.3, at 644 (6th ed. 2000).

Four Justices dissented in Harris, taking the view that the Hyde

Amendment and its consequent state implementations imposed an impermissible

burden on the exercise of a woman’s constitutionally protected right to

choose. For that reason, some of the dissenters did not address the

federal equal protection claims raised in that case. Justice Marshall,

however, did find both due process and equal protection violations in a

scheme that provides government funding for one choice, but not for the

other, when the right to make that election is itself constitutionally

protected. In addition to placing an impermissible burden on the exercise

of a constitutionally protected right in violation of the federal Due

Process Clause, Justice Marshall concluded that the classification effected

by the statute did not pass the federal equal protection test formulated by

the majority. In his view, the asserted governmental interest—protection

of human life—was not rational as that term is used in equal protection

doctrine because it is, as a matter of federal constitutional law,

subordinate to the individual women’s “interest in preserving their lives

and health by obtaining medically necessary treatment.” Harris, 448 U.S.

at 346.

I agree that the Harris majority identified a legitimate governmental

interest in promotion of human life. This is a factor supporting the

policy found in both the federal Hyde Amendment and the Indiana statute at

issue here. The state has a second valid consideration in its concern for

public expenditures. The federal government has elected not to participate

in funding of medical procedures to terminate these pregnancies. The result

is the state bears all of any cost, not merely approximately thirty-eight

percent. The parties cite various studies suggesting that funding abortion

would have a financial impact of zero or even a positive effect on total

federal and state Medicaid expenses. This conclusion is based on

comparisons to the cost of delivering the child and bearing its subsequent

health-care costs. Thus, the federal decision to deny benefits may indeed

rely solely on social policy, not financial considerations. However on

this record I cannot conclude that the State’s claimed financial concerns

are a sham. Evaluation of that factor is therefore a matter for the

legislature. Given that the federal scheme embodied in the Hyde Amendment

treats these pregnancies differently than it does all other medically

necessary procedures, plaintiffs have not established that it is fiscally

irrational for the state legislature to refuse to underwrite the entire

expense rather than the sixty-two percent it bears for all other medical

expenses. As the majority points out, the legislature is entitled to

substantial deference in drawing lines where judgment is required in

balancing competing interests. For both these reasons, I agree that under

the rationality test adopted by the Harris majority, which requires only

some minimal governmental interest in the absence of a suspect class or a

directly infringed constitutional right, no federal equal protection

violation is to be found. But both the analysis and the result are

different under the Indiana Constitution.

III. The Plaintiffs’ Claim Under the Indiana Constitution

The Indiana constitutional provision that the plaintiffs invoke is not

equal protection, but rather the Equal Privileges Clause found in Article

I, Section 23. It provides: “The General Assembly shall not grant to any

citizen, or class of citizens, privileges or immunities, which, upon the

same terms, shall not equally belong to all citizens.” As Collins pointed

out, Article I, Section 23 of the Indiana Constitution is quite different

in both its language and its meaning from the federal Equal Protection

Clause whose doctrines governed the United States Supreme Court majority in

Harris. By demanding that legislative privileges be dispensed “equally”,

and plainly applying to treatment of Indiana’s own citizens, it also

differs significantly from the Privileges and Immunities Clause of the

Fourteenth Amendment. The Equal Privileges Clause was found in the Indiana

Constitution well before 1868 when the Fourteenth Amendment introduced both

the Equal Protection Clause and the Privileges and Immunities Clause into

the United States Constitution. Some regarded the Privileges and

Immunities Clause, not either the Equal Protection or Due Process Clause,

to be the primary guarantor of individual rights against state intrusion.

Nowak & Rotunda, Constitutional Law § 14.1 at 632. The federal Privileges

and Immunities Clause prohibits state laws that “abridge the privileges or

immunities of citizens of the United States” but makes no mention of

“equal” treatment. The Slaughterhouse Cases, 83 U.S. 36 (1872), promptly

held this provision to apply only to state laws that discriminate in favor

of their own citizens and against outsiders. Thus, the federal Privileges

and Immunities Clause was rendered a dead letter as a limitation on a

state’s ability to restrict rights of its own citizens. That result was

based in large part on the view that the Fourteenth Amendment “was not

intended to displace the critical role of the states as protectors of their

own citizens.” Lawrence H. Tribe, Constitutional Law §14 at 10 (3d ed.

2000). Thus, for over a century,[13] the Privileges and Immunities Clause

of the Federal Constitution was thought to defer to its counterparts in

state constitutions. It is the Indiana Equal Privileges Clause that is in

issue here, and for the reasons explained below, I believe it requires more

than either the Equal Protection Clause or the Privileges and Immunities

Clause of the Fourteenth Amendment. In the course of establishing its

standard for constitutional legislative classifications under the Indiana

Equal Privileges Clause, Collins explicitly rejected the federal equal

protection approach of degrees of scrutiny. Collins, 644 N.E.2d at 80.

Rather, “[t]he protections assured by Section 23 apply fully, equally, and

without diminution to prohibit any and all improper grants of unequal

privileges or immunities, including not only those grants involving suspect

classes or impinging upon fundamental rights but other such grants as

well.” Id. at 80. Thus, all claims of unequal privilege are evaluated

under the test described in Part I of this opinion.

The method chosen—denial of funding—undoubtedly meets the requirement

that the legislation be related to the goal of promoting human life. But I

believe the legislation fails the Collins requirement that the

classification be reasonably related to the legislative objectives. The

plaintiffs point to other measures, such as denying scholarships at

universities to women who elect abortions, that they contend might also be

justified in the name of deterring abortions, if the State’s Medicaid

statutes are upheld. Although these hypothetical examples are not before

us today, in general I think they raise the issue whether the disparate

treatment is “reasonably related” to the defining characteristic, and not

whether the class is defined by a permissible characteristic.

Under Collins, as Justice Sullivan points out, the reasonableness of

the relationship between the classification and the legislative objective

turns on a balancing test. The woman’s right under the Constitution of the

United States to elect an abortion is established by Roe v. Wade,

irrespective of the origin of the pregnancy or whether her life is

threatened by carrying the fetus to term. The U.S. Supreme Court in Roe

held, “the State in promoting its interest in the potentiality of human

life may, if it chooses, regulate, and even proscribe, abortion except

where it is necessary, in appropriate medical judgment, for the

preservation of the life or health of the mother.” Roe, 411 U.S. at 164-

65. Thus, the right to choose is not absolute, but the interest of the

State in promoting childbirth is constitutionally subordinate to the

woman’s right to choose to protect her life and her health. As explained

above, under Harris, federal equal protection doctrine would permit the

State to deny funding even if its interest—promotion of human life—is

offset and outweighed by other interests as long as the legislation

disadvantages no suspect classification and impinges no fundamental right.

But the Indiana Constitution is rife with provisions asserting the primacy

of individual rights. The 1851 Constitution, like its 1816 predecessor,

begins with a Bill of Rights and only later turns to provisions

establishing the branches of government. The Bill of Rights starts with

Article 1, Section 1, which borrows from the Declaration of Independence in

asserting rights to life, liberty and pursuit of happiness. This emphasis

on individual rights reflected the strong populist sentiment prevailing at

the 1851 convention, which essentially carried out the agenda set in 1816.

See Price v. State, 622 N.E.2d 954, 962 n.11 (Ind. 1993). In the same

vein, the Indiana Equal Privileges Clause elevates individual rights by

requiring more than some recognized governmental interests before

legislation can override the interests of the individual. Thus, under

Collins a “rational relationship to any legitimate governmental interest”

is not enough to carry the day. Under the balancing test of our state

constitution, the governmental interests must outweigh those of the private

citizen before a statute may deny a privilege granted to others. Under

this standard, when faced with the federal constitutional right of a woman

to choose to protect her health, the State’s interests fail to carry that

burden.

This case presents a classic confrontation between individual rights

and the will of the majority as reflected in legislation. The law at issue

here affects only women who are indigent and desire a medically necessary

procedure. The effect of the statute is to impose a financial penalty on a

woman’s election to exercise her constitutionally guaranteed right to

choose. Of course, as a practical matter, this financial obstacle may

result in delays that complicate the woman’s medical condition, and often

may force the result of a choice that is for the woman alone to make. The

State thus seeks to impose its choice upon the woman to whom that decision

is constitutionally reserved. By so choosing, the State seeks to

prioritize the interest it advances over the woman’s right to choose.

Whether the State seeks to advance its interest by criminalizing abortions,

as it no longer can do, or by creating legislation that penalizes the

exercise of that right, either is, as a matter of constitutional

priorities, an unreasonable balance. As such, this legislation imposes an

unreasonable classification and is invalid under Collins.

Justice Sullivan concludes that indigent women whose pregnancy risks

serious and permanent impairment of a major bodily function may not be

denied Medicaid benefits. Those women are a subset of all indigents in

need of medically necessary procedures. Accordingly, I concur in Part II

of Justice Sullivan’s opinion, though it does not grant all of the relief

to which I believe the plaintiffs are entitled.

Rucker, J., concurs.

-----------------------

[1] The Hyde Amendment has never had the status of permanent law but

instead has been attached annually to legislation appropriating funds for

certain departments of the federal government for a given fiscal year or

has been adopted as a stand-alone joint resolution. The full version of

the Hyde Amendment in effect on the date this lawsuit was filed states:

“Sec. 508. (a) None of the funds appropriated under this Act, and

none of the funds in any trust funds are appropriated under this Act shall

be expended for any abortion.

(b) None of the funds appropriated under this Act, and none of the

funds in any trust fund to which funds are appropriated under this Act,

shall be expended for health benefits coverage that includes coverage of

abortion.

(c) The term “health benefits coverage” means the package of services

covered by a managed care provider or organization pursuant to a contract

or other arrangement.

Sec. 509 (a) The limitations established in the preceding section

shall not apply to an abortion

(1) if the pregnancy is the result of an act of rape or incest; or

(2) in the case where a woman suffers from a physical disorder,

physical injury, or physical illness, including a life-endangering physical

condition caused by or arising from the pregnancy itself, that would, as

certified by a physician, place the woman in danger of death unless an

abortion is performed.

(b) Nothing in the preceding section shall be construed as

prohibiting the expenditure by a State, locality, entity, or private person

of State, local, or private funds (other than a State’s or locality’s

contribution of Medicaid matching funds).

(c) Nothing in the preceding section shall be construed as

restricting the ability of any managed care provider from offering abortion

coverage or the ability of a State or locality to contract separately with

such a provider for such coverage with State funds (other than a State’s or

locality’s contribution of Medicaid matching funds). Consolidated

Appropriations Act of 2000, Pub.L. No. 106-113, §§ 508-509, 113 Stat. 1501,

1501A-274 (1999).

[2] “Except as provided in IC 12-15-2-12, IC 12-15-6, and IC 12-15-21, the

following services and supplies are provided under Medicaid: (17) Family

planning services except the performance of abortions.” Ind. Code § 12-15-

5-1.

[3] “Neither the state nor any political subdivision of the state may make

a payment from any fund under its control for the performance of an

abortion unless the abortion is necessary to preserve the life of the

pregnant woman.” Ind. Code § 16-34-1-2.

[4] “Medicaid reimbursement is available for abortions only if performed to

preserve the life of the pregnant woman or in other circumstances if the

abortion is required to be covered by Medicaid under federal law.

Termination of an ectopic pregnancy is not considered an abortion. All

appropriate documentation must be attached to the claim and to claims for

directly related services before reimbursement shall be made.” Ind. Admin.

Code tit. 405, r. 5-28-7 (2001).

[5] “We declare, that all people are created equal; that they are endowed

by their creator with certain inalienable rights; that among these are

life, liberty, and the pursuit of happiness; that all free governments are,

and of right ought to be, founded on their authority, and instituted for

their peace, safety, and well-being. For the advancement of these ends,

the people have, at all times, an indefeasible right to alter and reform

their government.” Art. I, § 1.

“All courts shall be open; and every person, for injury done to him in his

person, property, or reputation, shall have remedy by due course of law.

Justice shall be administered freely, and without purchase; completely, and

without denial; speedily, and without delay.” Art. I, § 12.

[6] “The Supreme Court shall have mandatory and exclusive jurisdiction over

the following cases: . . . Appeals of Final Judgments declaring a state or

federal statute unconstitutional in whole or in part.” Ind. Appellate Rule

4(A)(1)(b).

[7] Cheaney v. State, decided about six months prior to Roe v. Wade,

rejected (over the dissent of Justice DeBruler) a federal constitutional

challenge to Indiana's criminal abortion statute.

[8] The quoted language is from Ind. Code § 16-18-2-223.5 (1998), the State

abortion control statute, discussed infra.

[9] The State, in addition to its arguments on Art I, § 23, sought summary

judgment on two additional grounds.

First, it argued that the plaintiffs were barred from the relief they

sought by Ind. Code § 12-15-5-2, which prohibits Indiana Medicaid from

funding any service for which the federal government does not provide

reimbursement. The trial court found, first, that one statute cannot save

another found to be unconstitutional, and second, that the State does not

strictly abide by the statute because the Indiana Medicaid program covers

services for which federal financial participation is unavailable.

The State also argued that the Separation of Functions clause of Art.

III, § 1, of the Indiana Constitution barred the court from granting the

relief that the plaintiffs requested. The trial court found that if the

challenged enactments violate the state Constitution, the Court could grant

relief even if doing so means that state funds will be spent in a manner

not explicitly approved of by the Legislature. “The Court has the power to

shape appropriate remedies and the Legislature has a duty to appropriate

funds to meet its constitutional obligations.” (Supp. R. 12 (quoting State

v. Monfort, 723 N.E.2d 407, 413 (Ind. 2000).))

While we do not necessarily agree with the trial court’s reasoning, we

affirm as to these issues. We believe the course of these proceedings

effectively placed Ind. Code § 12-15-5-2 at issue. And as to the

separation of powers issue, we believe that the general and open-ended

nature of the Medicaid appropriation, combined with the limited relief

provided, does not tread impermissibly upon the Legislature’s appropriation

prerogatives.

[10] Planned Parenthood v. Perdue, 28 P.3d 904 (Alaska 2001); Simat Corp.

v. Arizona Health Care Cost Containment Sys. Admin., 56 P.3d 28 (Ariz.

2002); Comm. to Defend Reprod. Rights v. Myers, 625 P.2d 779 (Cal. 1981);

Doe v. Maher, 515 A.2d 134 (Conn. Super. Ct. 1986); Roe v. Harris, 917 P.2d

403 (Idaho 1996); Doe v. Wright, No. 91 Ch. 1958, slip op. (Ill. Cir. Ct.

Dec. 2, 1994), leave to file late appeal denied, No. 78512 (Ill. Feb. 28,

1995); Moe v. Sec’y of Admin. & Fin., 417 N.E.2d 387 (Mass. 1981); Women of

Minnesota v. Gomez, 542 N.W.2d 17 (Minn. 1995); Right to Choose v. Byrne,

450 A.2d 925 (N.J. 1982); New Mexico Right to Choose/NARAL v. Johnson, 975

P.2d 841 (N.M. 1998); Planned Parenthood Ass’n. v. Dep’t of Human Res., 663

P.2d 1247 (Or. Ct. App. 1983), aff’d on other grounds, 687 P.2d 785 (Or.

1984); Women’s Health Ctr. Of West Virginia, Inc. v. Panepinto, 446 S.E.2d

658 (W.Va. 1993). But see Renee B. v. Fla. Agency for Health Care Admin.,

790 So.2d 1036 (Fla. 2001); Doe v. Dep’t of Social Servs., 487 N.W.2d 166

(Mich. 1992); Rosie J. v. North Carolina Dep’t of Human Res., 491 S.E.2d

535 (N.C. 1997); Fischer v. Department of Pub. Welfare, 502 A.2d 114 (Pa.

1985); Bell v. Low Income Women of Tex., 95 S.W.3d 253 (Tex. 2002).

[11] In some sense, the claim asserted under the Equal Privileges Clause

always defines the class because it sets forth the plaintiff’s theory, and

therefore presumably defines the class that is claimed to be unequally

treated. However, I do not agree with the majority that “this claim

defines the class” as that term is used in McIntosh. The issue in that

case was whether the statute of repose in the Product Liability Act

violated Article I, Section 23 by shutting off claims based on products in

use over ten years before the event giving rise to the plaintiff’s injury.

In saying that the “claim . . . defines the class,” McIntosh referred to

the claim of the plaintiffs in the underlying product liability case, not

to the claim of unconstitutionality. In other words, the claim that

defined the class was the claim that the plaintiff was injured by a product

more than ten years old, not the claim that the statute of repose violated

the Indiana Constitution.

[12] For an account of this journey, which includes a few detours, see

generally Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 219 (1995).

[13] Only at the end of the twentieth century did the federal Privileges

and Immunities Clause emerge from the shadows to which the Slaughterhouse

Cases banished it, and its future remains at best uncertain. Saenz v. Roe,

526 U.S. 489 (1999).