characterizing decision whether to bear child as “hold[ing] a particularly important place in the history of the right of privacy” and finding “something approaching consensus” on right to refuse unwanted infringement of bodily integrity
How later courts described this case
- characterizing decision whether to bear child as “hold[ing] a particularly important place in the history of the right of privacy” and finding “something approaching consensus” on right to refuse unwanted infringement of bodily integrity
- holding that funding restrictions violate fundamental right to privacy under Massachusetts constitution
- impairment of fundamental right of choice assessed by balancing state interest against pregnant woman's interest
- Dissenting Opinion of Mr. Chief Justice Hennessy
Written by the judges who cited it.
The opinion
*661 Hennessey, C.J.
(dissenting). I dissent. I do not subscribe to the opinion of the majority of the court that the legislation violates the guarantee of due process implicit in art. 10 of the Massachusetts Declaration of Rights. Nor do I believe that the legislation contravenes either the equal protection provision or the Equal Rights Amendment of our State Constitution.
The constitutional arguments of the plaintiffs are rooted in Wade, which held that the liberty protected by the United States Constitution includes the freedom of a woman to decide whether to terminate a pregnancy. At the same time, the United States Supreme Court also affirmed in Wade that a State has legitimate interests in protecting the health of the mother, and protecting potential human life. These State interests become more substantial as the woman approaches term until, at viability, usually in the third trimester, the State interest justifies a criminal prohibition against abortion.
The plaintiffs here correctly do not contend that they have a right to public funding of abortions. See Maher v. Roe, 432 U.S. 464 (1977). They also rightly concede the State’s privilege to choose to fund no medical expenses of indigent persons, including expenses associated with pregnancy. They simply contend that the State may not provide for the payment of medically necessary expenses of childbirth, but simultaneously refuse to fund the medically necessary expenses of therapeutic abortion.
The United States Supreme Court, faced with the precise issue presented here, held that there was no impediment in the United States Constitution to congressional funding of childbirth but not of certain abortions. Harris v. McRae, 448 U.S. 297 (1980). The majority’s opinion here, on the contrary, concludes that the legislative action impermissibly burdens a right protected by the guarantee of due process in our Massachusetts Declaration of Rights.
The majority opinion states that it accepts the formulation of rights announced in Wade. In my view, it nevertheless then proceeds to modify and extend the Wade principles. It *662 relies upon a series of precedents which stem from Wade, but all of these cases concern obstacles which intrude on the woman’s freedom of choice. 1 This court has defined, I think correctly, the constitutional principle of Wade as forbidding the State to “interpose material obstacles to the effectuation of” the woman’s decision to terminate her pregnancy during the first trimester. Framingham Clinic, Inc. v. Selectmen of Southborough, 373 Mass. 279, 288 (1977). The majority rely upon that definition in this case, concluding that the decisions of indigent women may well be affected by the disparity in funding, and those decisions will likely favor birth over abortion. It is clear to me that the majority thus equate a financial inducement toward childbirth with an obstacle to a woman’s freedom to choose abortion. The logic fails. It may be an appropriate argument to address to the Legislature, but it is not a valid premise for a conclusion of unconstitutionality. It is also a major departure from Wade and the opinions which have followed that case.
I do not dispute that this court is free in appropriate circumstances to decide that the Massachusetts guarantee of due process is more extensive than its Federal counterpart. 2 *663 Nevertheless, there are the best of reasons in policy and logic why the court should not do so in this case. One of the principles of Wade which the majority profess to accept is the recognition of the State’s interest in the protection of potential life. I think that one effective way in which the State can advance this interest, aside from exercising its limited power to regulate and prohibit abortion, 3 is to provide disparate funding which favors birth over abortion. The majority have now denied that privilege to the State, although the State has not by its legislation erected “obstacles” (in any sense which will find support in Wade, Maher, McRae or Webster’s Dictionary) to a woman’s freedom to choose. Since the State has no constitutional duty to provide medical expenses for abortion or any other medical need, the ease with which an abortion may be obtained remains unchanged by the Legislature’s decision to pay for the necessary medical expenses of childbirth. The conclusion of the majority that the State must be “neutral” ignores, and largely nullifies the State’s long recognized interest in protecting potential life. The majority’s extension of due process is particularly inappropriate in light of the principle that “ [constitutional concerns are greatest when the State attempts to impose its will by force of law; the State’s power to encourage actions deemed to be in the public interest is necessarily far broader.” Maher v. Roe, 432 U.S. 464, 476 (1977).
The majority, having decided this case on a due process approach, recognized that there was no necessity to examine the plaintiffs’ assertions that the legislation violates the provision in our State Constitution for equal protection of the laws, and the related provision in the Equal Rights Amendment. I conclude that these arguments, like those addressed to due process, fail. The legislation was not *664 predicated on a suspect classification. The principal incidence of the disparate treatment inherent in the legislation falls upon the indigent. Poverty is not a suspect classification. McRae, supra at 323 . San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973). It remains then, in order to establish constitutionality, to establish only that the legislation is rationally related to a legitimate governmental objective. There clearly is a rational relationship of the legislation to the State’s legitimate interest in protecting potential life of the fetus. The equal protection argument of the plaintiffs fails.
The plaintiffs also are not assisted by the Equal Rights Amendment to the Massachusetts Constitution, which is intended to eliminate gender-based discrimination. This court has not yet fully addressed the question of what, if any, proof of discriminatory intent is required to make out a prima facie showing of discrimination under the Equal Rights Amendment. Cf. School Comm. of Braintree v. Massachusetts Comm’n Against Discrimination, 377 Mass. 424, 429 (1979), and cases cited (involving claims of employment discrimination under G. L. c. 151B, § 4). I find it unnecessary to resolve this question here, because I do not believe this case involves a gender-based classification cognizable under the Equal Rights Amendment. Inescapably, the motive for the challenged legislation lies in opposition to abortion and is based on the State’s valid interest in preserving life. The legislation is directed at abortion as a medical procedure, not at women as a class.
It is clear that the matter in which this court now intrudes is a matter for the Legislature. “It is not the mission of this Court or any other to decide whether the balance of competing interests reflected in [the disparate treatment by the Legislature of childbirth and abortion] is wise social policy. If that were our mission, not every Justice who has subscribed to the judgment of the Court today could have done so.” McRae, supra at 326 .
I would direct the single justice to enter a judgment declaring that the challenged legislation is constitutional in all respects under the Constitution of Massachusetts.
The majority cite the following: “Bellotti v. Baird, 443 U.S. 622 (1979) (requirement of parental consultation and consent or court approval prior to permitting unmarried minors to undergo abortion); Colautti v. Franklin, 439 U.S. 379 (1979) (requirement that physician determine fetal viability prior to performing abortion; imposing criminal and civil sanctions for failure to exercise care to save fetal life); Planned Parenthood v. Danforth, 428 U.S. 52 (1976) (requirement of parental or spousal consent prior to abortion; prohibition of saline abortion after first trimester; imposing civil and criminal sanctions for failure to exercise care to save fetal life); Doe v. Bolton, 410 U.S. 179 (1973) (limiting those hospitals in which abortions could be performed; requiring prior hospital committee approval and concurrence of three doctors that abortion is necessary).”
I suggest that the majority inappropriately rely upon District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648 (1980), as support for their result here. This court in Watson did not rely upon our State Constitution’s guarantee of due process, but its prohibition of cruel or unusual punishment. In finding the death penalty statute unconstitutional, the court relied on, among other things, what it considered to be an indisputable conclusion that the criminal justice system inevitably imposes the *663 death penalty arbitrarily and discriminatorily. Id. at 665-671 . I perceive no similarly persuasive constitutional reasoning to support the majority’s decision in this case.
I trust and assume that one of the principles of Wade which the court accepts is that which permits a limited intrusion by the State into the pregnant woman’s freedom of choice, particularly by the processes of the criminal law and particularly in the third trimester.