# Right to Choose v. Byrne

> Supreme Court of New Jersey · August 18, 1982 · 91 N.J. 287

URL: https://www.frixlaw.com/law-library/cases/9749725

## Case

- **Full name:** Right to Choose: E. M., P. B., A. C., D. T., E. R., on Behalf of E., a Minor, and D. C. on Behalf of K., a Minor, All on Behalf of Themselves and All Others Similarly Situated; Edward S. Milner, Jr., M. D.; New Jersey Welfare Rights Organization, and New Jersey Religious Coalition for Abortion Rights, Plaintiffs-Respondents and Cross-Appellants, v. Brendan T. Byrne, Governor, State of New Jersey; John J. Degnan, Attorney General, State of New Jersey; Ann Klein, Commissioner, Department of Human Services, State of New Jersey; G. Thomas Riti, Director, Division of Human Services, State of New Jersey; Thomas M. Russo, Acting Director, Division of Medical Assistance and Health Services, Department of Human Services, State of New Jersey, and Joanne E. Finley, Commissioner, Department of Health, State of New Jersey, Defendants-Appellants and Cross-Respondents, and John T. Scully, M. D., F.A.C.S., as Guardian on Behalf of Those Conceived but Unborn Herein and on Behalf of Others Similarly Situated; Dominic A. Introcaso, M. D., F.A.C.O.G.; Anthony P. Despirito, M. D., F.A.A.P.; The New Jersey Right to Life Committee; The Student Ad Hoc Committee Against the War in Vietnam, and New Jersey Concerned Taxpayers, an Association, Intervenors-Respondents
- **Court:** Supreme Court of New Jersey
- **Decided:** August 18, 1982
- **Citations:** 91 N.J. 287; 450 A.2d 925; 1982 N.J. LEXIS 2187
- **Precedential status:** Published
- **Opinion:** Concurring in part by Pashman
- **Judges:** Pollock, Pashman, O'Hern
- **Cited by:** 208 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9749725

## How later opinions describe it (automated extraction)

- holding the equal protection clause of the State Constitution prohibited restricting state Medicaid funding of abortions to only those abortions necessary to preserve the life of the mother, in spite of the United States Supreme Court's decision in Harris v. McRae, 448 U.S. 29…
- holding that restriction of Medicaid funding to those abortions that are “necessary to save the life of the mother” violates equal protection guarantee of New Jersey Constitution although same restriction does not violate United States Constitution
- holding that prohibiting use of state Medicaid funds to pay for abortion services "can be understood only as an attempt to achieve with carrots what government is forbidden to achieve with sticks"
- holding the right to life, liberty, and pursuit of happiness includes privacy and the right to choose to have an abortion
- holding, based on Roe, that "at no point in pregnancy may [the state's interest in protection of potential life] outweigh the superior interest in the life and health of the mother"

## Opinion text

PASHMAN, J.,
concurring in part and dissenting in part.
I concur in the opinion of the Court insofar as it holds that the State Constitution forbids the State from jeopardizing the health and liberty of poor women by failing to fund medically *319 necessary abortions. However, I fail to understand why this Court limits its holding to therapeutic abortions. Its reasoning is equally applicable to elective, or non-therapeutic, abortions. Because I accept the Court’s reasoning, I believe that the State Constitution requires the State to fund all abortions, including elective abortions, for women who could not otherwise afford them. On that issue I dissent.
I
The right to choose whether or not to bear a child is partly grounded on the constitutional right to health. 1 Ante at 303-304. There is no question that the statute at issue here severely endangers the health of many people in this state. It has the purpose and effect of discouraging abortions, even when pregnancy may result in serious and lasting damage to the mother’s health. The majority correctly concludes that the countervailing state interest in potential life cannot justify this immediate infliction of harm on our citizens.
Nonetheless, the majority inexplicably holds that^only therapeutic abortions necessary to preserve the mother’s health are “medically necessary” and therefore within the scope of the legislative funding of medical services for the poor. It therefore concludes that the Legislature may constitutionally deny funding for elective abortions that are not required for “health” reasons. Ante at 312.
*320 I disagree. There is no medically valid distinction between therapeutic abortions and so-called elective abortions. When a woman is forced to bear a child against her will, a wide variety of physical and psychological injuries can result. I know of no definition of health which does not take these into account. Further, the pregnancy itself is a medical condition which impairs women in a wide variety of ways; moreover, childbirth always carries a risk to a woman’s health or even life. There is no basis for concluding that any abortion performed after consultation with a physician is not medically necessary. This Court has specifically held that there is no medically valid distinction between therapeutic and elective abortions. See Doe v. Bridgeton Hospital Ass’n, Inc., 11 N.J. 478, 489 (1976). I see no reason to depart from that position.
The constitutional right to an abortion does not encompass merely the freedom to choose an abortion to protect the mother’s health; it includes the freedom to obtain medical help to terminate the pregnancy for any reason. It is now well settled that elective abortions are included in this constitutional guarantee. As Justice Blackmun explained in Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), the constitution protects the freedom of women to choose abortions for a variety of reasons.
Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation, [id. at 153, 93 S.Ct. at 727 , 35 L.Ed.2d at 177 ]
This Court has also acknowledged the constitutional right to choose an elective abortion. Justice Schreiber wrote in Doe v. Bridgeton Hospital Ass’n, Inc., 71 N.J. at 490;
To interpret this act to empower a non-sectarian non-profit hospital to refuse to permit its facilities to be used for elective abortions would clearly constitute *321 state action... The federal constitutional right to an abortion during the first trimester is now well-settled... For the state to frustrate that right by its action would be violative of the constitutional guarantee, [citations omitted; emphasis added]
Given that the constitution protects the freedom of individuals to choose elective abortions, I am genuinely perplexed by the majority’s conclusion that such abortions are not “medically necessary” services. Pregnant women who do not want to carry the fetus to term will undoubtedly be surprised to learn that an abortion is not a medically necessary procedure. Moreover, this Court has previously held that there is no medically valid distinction that justifies statutory discrimination between elective and therapeutic abortions. In Doe v. Bridgeton Hospital we said that:
Neither the trial court nor the defendants have suggested that the regulations [allowing therapeutic abortions and] prohibiting elective abortions were adopted to further any medical standards. Medically there is no valid distinction which justifies permission to utilize hospital facilities and equipment for therapeutic, but not elective abortions. [71 N.J. at 489]
There is likewise no medically valid distinction that justifies funding therapeutic but not elective abortions. See Beal v. Doe, 432 U.S. 438, 453-54 , 97 S.Ct. 2366, 2375-76 , 53 L.Ed.2d 464, 477 (1977) (Brennan, J., dissenting) (“there is certainly no affirmative policy justification of the State that aids the Court’s construction of necessary medical services as not including medical services rendered in performing elective abortions”). In either case, abortion is a medically necessary procedure; it is the only possible medical procedure for treating the woman’s condition of pregnancy in the manner she chooses. Justice Brennan has explained:
Pregnancy is unquestionably a condition requiring medical services... Treatment for the condition may involve medical procedures for its termination, or medical procedures to bring the pregnancy to term, resulting in a live birth. Abortion and childbirth, when stripped of the sensitive moral arguments surrounding the abortion controversy, are simply two alternative medical methods of dealing with pregnancy.... [Beal v. Doe, 432 U.S. at 449 , 97 S.Ct. at 2373 , 53 L.Ed.2d at 475 (Brennan, J., dissenting) (citations omitted) ]
A pregnant woman cannot go on living the same kind of life she had before she became pregnant; she is forced to make a *322 medical decision between two alternative procedures. The failure to choose one of them means that she will inevitably have to undergo the other. It is therefore a mistake to assume that an abortion that is not required for the mother’s health is not a medically necessary procedure. Childbirth is not the necessary medical response to pregnancy. It is only one of two alternatives. Abortion is the only medical option for a pregnant woman who does not want to give birth.
We must also keep in mind that poor women who are denied funds for abortions may feel compelled to undergo the substantial risk of a self-induced abortion or a cheap illegal abortion by an unqualified person. Harris v. McRae, 448 U.S. 297, 346 , 100 S.Ct. 2701 , 2710, 65 L.Ed.2d 784, 823 (1980) (Marshall, J., dissenting). Justice Marshall has warned that “[i]f funds for an abortion are unavailable, a poor woman may feel that she is forced to obtain an illegal abortion that poses a serious threat to her health and even her life.” Beal v. Doe, 432 U.S. at 458 , 97 S.Ct. at 2396 , 53 L.Ed.2d at 480 (Marshall, J., dissenting). This reason alone compels the conclusion that elective abortions are medically necessary services.
I would hold that elective abortions are medically necessary services. The constitutional right to an abortion includes the freedom to choose the desired medical response to pregnancy free from unwarranted government interference. Since the Legislature has provided for medical services for the poor, elective abortions are as much entitled to funding as therapeutic abortions.
II
Even if one could accept the idea that elective abortions are not medically necessary procedures, one must still conclude that the legislative funding of childbirth but not abortion coerces individuals to give up their liberty to exercise a fundamental constitutional right. The majority acknowledges that the constitutional right of privacy includes the liberty to choose be *323 tween childbirth and abortion. Ante at 303, 306. It tacitly acknowledges, as it must, that this right includes the freedom to terminate a pregnancy for reasons unrelated to the mother’s health. For example, the majority notes that individuals have the freedom to choose whether to bear a child who will suffer from a genetic defect. Ante at 304. Moreover, the majority admits that by granting funds for childbirth while denying them for abortions, the state impermissibly interferes with that free choice. The majority explains:
In recent years, moreover, a body of law has developed in New Jersey acknowledging a woman’s right to choose whether to carry a pregnancy to full-term or to undergo an abortion... Thus, the statute impinges upon the fundamental right of a woman to control her body and destiny. That right encompasses one of the most intimate decisions in human experience, the choice to terminate a pregnancy or bear a child. This intensely personal decision is one that should be made by a woman in consultation with trusted advisers, such as her doctor, but without undue government interference. In this case, however, the State admittedly seeks to influence the decision between abortion and childbirth. Indeed, it concedes that, for a woman who cannot afford either medical procedure, the statute skews the decision in favor of childbirth at the expense of the mother’s health... Statutes such as N.J.S.A. 30:4D-6.1 “can be understood only as an attempt to achieve with carrots what the government is forbidden to achieve with sticks.” L. Tribe, American Constitutional Law, § 15-10 at 933 n.77 (1978). [Ante at 303, 306, 308]
If this is so, and I believe it is, then there is no reason whatsoever to limit the government’s obligation to funding abortions necessary to protect the mother’s health. The argument that the state has chosen to fund only medical services necessary to preserve health is beside the point. The state may not use discriminatory funding to induce poor women to choose childbirth over abortion. As Justice Brennan observed, “[t]his disparity in funding by the State clearly operates to coerce indigent pregnant women to bear children they would not other wise choose to have...” Maher v. Roe, 432 U.S. 464, 483 , 97 S.Ct. 2376, 2387 , 53 L.Ed.2d 484, 500 (1977) (Brennan, J., dissenting). Indeed, that is its sole purpose. This is impermissible not merely because it endangers the health of our citizens, but because it interferes with the freedom to choose. The majority’s conclusion that the state must fund only therapeutic abor *324 tions contradicts its own assertions that this statute impermissibly interferes with the protected decision-making process.
The majority refuses to face squarely the fact that the constitutional right to an abortion is broader than the right to protect one’s health. The majority consistently presents the issue as if the only individual interest involved is the right of individuals to protect their health. See, e.g., ante at 306 (“The funding restriction gives priority to potential life at the expense of maternal health”). Yet it is clear that this is not the only individual interest involved. Roe v. Wade established a right to an abortion for any reason. 410 U.S. at 153 , 93 S.Ct. at 726 . Once this is clearly acknowledged, it is evident that discriminatory funding of childbirth but not abortion unconstitutionally coerces poor individuals to give up their freedom to terminate the pregnancy.
Ill
I would go still further. The freedom to choose whether or not to bear a child is of such fundamental importance that I believe our Constitution affirmatively requires funding for abortions for women 2 who choose them and cannot otherwise afford them. The freedom to act is meaningless if it is not coupled with the ability to effectively enjoy that freedom. This Court has previously recognized that
a woman possesses a constitutional right to decide whether her fetus should be aborted... Public policy now supports .. . the proposition that she not be impermissibly denied a meaningful opportunity to make that decision. [Berman v. Allan, 80 N.J. 421, 431-32 (1979) ]
No “meaningful opportunity” to choose can exist for poor women in the absence of funding. “[F]or women eligible for Medicaid — poor women — denial of a Medicaid-funded abortion is equivalent to denial of legal abortion altogether.” Harris v. *325 McRae, 448 U.S. at 338 , 100 S.Ct. at 2706 , 65 L.Ed.2d at 818 (1980) (Marshall, J., dissenting).
I agree with the majority that, by funding childbirth but not abortion, the state has interfered with the freedom to choose between them by actively making one alternative more attractive than the other. Yet even if the Legislature chose to fund neither childbirth nor abortion, the impermissible coercion would remain. Poor women who cannot afford abortions simply cannot obtain them in the absence of funding. Such women would be compelled to carry the fetus to term even if the state did not fund childbirth. This is because, as a practical matter, most physicians will not perform abortions unless they are going to be paid. Yet when a woman goes into labor, a hospital does not bar its doors and force her to deliver on the front steps. To this extent, it is irrelevant that the Legislature has chosen to fund childbirth; the failure to fund abortion for the poor in any case is tantamount to an absolute prohibition.
For a doctor who cannot afford to work for nothing, and a woman who cannot afford to pay him, the State’s refusal to fund an abortion is as effective an “interdiction” of it as would ever be necessary. [Singleton v. Wulff, 428 U.S. 106 , 118-19 n.7, 96 S.Ct. 2868 , 2876 n.7, 49 L.Ed.2d 826 , 836 n.7 (1976)]
The individual interest protected by the constitutional freedom to choose an abortion is of great magnitude. It includes the liberty to control one’s body and to determine the “direction of [one’s] life.” Beal v. Doe, 432 U.S. at 458-59, 97 S.Ct. at 2397 , 53 L.Ed.2d at 480 (Marshall, J., dissenting). The inability to exercise this fundamental freedom can have grievous consequences. As Justice Marshall noted:
The governmental benefits at issue here, while perhaps not representing large amounts of money for any individual, are nevertheless of absolutely vital importance in the lives of the recipients. The right of every woman to choose whether to bear a child is, as Roe v. Wade held, of fundamental importance. An unwanted child may be disruptive and destructive of the life of any woman, but the impact is felt most by those too poor to ameliorate those effects. If funds for an abortion are unavailable, a poor woman may feel that she is forced to obtain an illegal abortion that poses a serious threat to her health and even her life... If she refuses to take this risk, and undergoes the pain and danger of state-financed pregnancy and childbirth, she may well give up all chance of escaping the cycle of poverty. Absent day-care facilities, she will be forced into *326 full-time child care for years to come; she will be unable to work so that her family can break out of the welfare system or the lowest income brackets. If she already has children, another infant to feed and clothe may well stretch the budget past the breaking point. All chance to control the direction of her own life will have been lost. [Id.]
Because the freedom to choose an abortion is so fundamental to one’s personhood, it is a liberty that our Constitution affords the highest protection. And it is undisputed that the poor, as well as the rich, are entitled to this constitutional freedom. Yet it is ludicrous to assert that in the absence of funding, poor women who cannot afford abortions have the samé freedom to choose between abortion and childbirth as do women who can afford either option. We- must not allow the appearance of equal freedom to obscure the reality of its denial. “The strong do what they can,” wrote Thucydides, “and the weak suffer what they must.” The poor must sometimes act out of necessity rather than free choice. As Anatole France remarked, “the law, in its majestic equality, forbids the rich and poor alike from sleeping under bridges, begging in the streets and stealing bread.” Freedom in poverty exists only for saints.
In certain cases, courts have required states to fund the exercise of fundamental constitutional rights and liberties. In Boddie v. Connecticut, 401 U.S. 371 , 91 S.Ct. 780 , 28 L.Ed.2d 113 (1971), the Supreme Court invalidated the requirement of the payment of court fees and costs that restricted the ability of indigents to get a divorce. The Court reasoned that “the right to due process reflects a fundamental value in our American constitutional system.” Id. at 374 , 91 S.Ct. at 784 , 28 L.Ed.2d at 117 . The denial of access to the courts effectively denied poor persons the meaningful “opportunity” to obtain a divorce. Id. at 380-81 , 91 S.Ct. at 787-88 , 28 L.Ed.2d at 120-21 . The Court held that a state could not prevent citizens from exercising a fundamental right merely because it resulted in costs to the state. Id. See also Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed.2d 891 (1956) (holding that indigents must be provided with a free copy of trial transcripts and appellate counsel); In the Matter of the Guardianship of Felicia Dotson, 72 N.J. 112 , *327 367 A.2d 1160 (1976) (free transcript on appeal from a proceeding involuntarily terminating parental rights).
These few cases notwithstanding, it would be disingenuous to deny that this argument is essentially new. While courts have aggressively sought to protect individuals from undue governmental interference in their legal liberties, courts have traditionally shied away from enforcing the right of citizens to effectively enjoy these liberties. The main exception to this practice is the area of procedural due process in which courts have required states to fund constitutional rights to ensure that they can be effectively enjoyed by rich and poor alike. 3
The argument generally advanced to deny the constitutional right to effective enjoyment of fundamental liberties is that government is not responsible for poverty. See, e.g., Harris v. McRae, 448 U.S. at 316 , 100 S.Ct. at 2687-88 , 65 L.Ed.2d at 804 (“although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category”). This distinction must surely not impress the poor person who is told that she has a right but is offered no realistic means to enjoy it. A theoretical right is of no use to a real person. As Justice Blackmun wrote in dissent in Beal v. Doe:
The Court concedes the existence of a constitutional right but denies the realization and enjoyment of that right on the ground that existence and realization are separate and distinct. For the individual woman concerned, indigent and financially helpless .. . the result is punitive and tragic. Implicit in the Court’s holdings is the condescension that she may go elsewhere for her *328 abortion. I find that disingenuous and alarming, almost reminiscent of: “Let them eat cake.” [432 U.S. at 462, 97 S.Ct. at 2398, 53 L.Ed.2d at 483]
Further, it is simply not true that the actions of the state have played no role in creating the poverty in which one-seventh of our citizens are now mired. The state defines and enforces property rights, creates the economic climate in which private enterprise operates, and in myriads of ways effects the economy of the state and the wealth or poverty of its citizens. 4
The failure to fund abortions for women who cannot afford them effectively deprives them of the freedom to choose. Yet the poor are as much entitled to this constitutional liberty as the rich. To effectively vindicate that right, we have no choice but to hold that the Constitution requires funding.
IV
The majority notes its disagreement with my conclusion that the New Jersey Constitution affirmatively obligates the state to give poor persons a meaningful opportunity to exercise their freedom to choose whether or not to bear a child. Ante at 307 n.5. However, the majority opinion fails entirely to address my other two arguments: first, that elective abortions are in fact medically necessary services, and second, that discriminatory funding of childbirth but not abortion coerces poor women into waiving their constitutional right to terminate the pregnancy.
As to the first argument, I can only repeat the obvious. For a pregnant woman who does not wish to carry the fetus to term, an abortion is a medically necessary service. To hold the opposite is to fly in the face of current medical knowledge and *329 practice, and to suggest that although medicine has developed two alternative responses for pregnant women who are rich, government can manage only one option for those who are poor.
As to the second argument, I can only reemphasize that the constitutional right to an abortion includes the freedom to choose an abortion for any reason. The majority correctly recognizes that the interest in potential life never outweighs the individual interest in the health of the mother. Ante at 306. However, it fails to note that in the first six months of the pregnancy, the individual interest in freedom to terminate the pregnancy for any reason outweighs the state interest in potential life. Roe v. Wade, 410 U.S. at 160, 163 , 93 S.Ct. at 730, 731 , 35 L.Ed.2d at 181, 182-83 . It is therefore misleading to compare the state interest in potential life to the individual interest in health; this states the countervailing individual interest too narrowly.
If the individual interest protected by the constitution includes the freedom to choose an elective abortion, then state funding of childbirth but not abortion impermissibly coerces poor women to give up that choice. Three dissenters in Beal v. Doe argued precisely that. See 432 U.S. at 454, 97 S.Ct. at 2376, 53 L.Ed.2d at 477-78 (Brennan, J., dissenting) (“The Court’s construction can only result as a practical matter in forcing penniless pregnant women to have children they would not have borne if the State had not weighted the scales to make their choice to have abortions substantially more onerous”); Id. at 456, 97 S.Ct. at 2395, 53 L.Ed.2d at 479 (Marshall, J., dissenting) (“The enactments challenged here brutally coerce poor women to bear children whom society will scorn for every day of their lives”); Id. at 462, 97 S.Ct. at 2398, 53 L.Ed.2d at 483 (Black-mun, J., dissenting).
Moreover, in Committee to Defend Reproductive Rights v. Myers, 29 Cal.3d 252 , 625 P.2d 779 , 172 Cal.Rptr. 866 (1981), the California Supreme Court similarly held that “the asserted state interest in protecting fetal life cannot constitutionally claim *330 priority over the woman’s fundamental right to procreative choice.” 625 P.2d at 781 , 172 Cal.Rptr. at 868 . “[T]he state is utilizing its resources to ensure that women who are too poor to obtain medical care on their own will exercise their right of procreative choice only in the manner approved by the state.” Id. at 793, 172 Cal.Rptr. at 880 . This California case is instructive because the court held that the state had the constitutional obligation to fund elective abortions even though Justice Tobriner rejected the contention that the California Constitution affirmatively required the state to fund the exercise of constitutional rights. Id. at 798-99 n.31, 172 Cal.Rptr. at 885 -86 n.31. Justice Tobriner argued that although the state need not fund medical services in the first instance, once it does, it cannot “withhold funds from some eligible persons because they exercise a constitutional right,” id., a right that concededly includes the freedom to choose an elective abortion. Id. at 793, 172 Cal.Rptr. at 880 .
V
I fully agree with the majority that New Jersey citizens have two independent and complementary sources of fundamental rights and liberties: the federal constitution and the state constitution. However, I disagree with the majority on the extent of that independence. The majority believes it is qualified; I believe it is complete. See State v. Hunt, 91 N.J. 338 (1982) (Pashman, J., concurring).
Constitutions limit the power of governments to interfere unduly with the liberty and security of individuals. They also, in certain cases, require government to act affirmatively to enable citizens to effectively enjoy fundamental freedoms. The federal constitution, as interpreted by the United States Supreme Court, defines the rights enjoyed by all citizens of the United States. In that sense, no state constitution could validly permit a state government to act in ways prohibited by the federal constitution. However, the federal constitution has never been inter *331 preted to limit the power of the citizens of the states to adopt state constitutions that define individual freedoms more broadly than the federal constitution.
The majority correctly notes that both this Court and the United States Supreme Court have held that state constitutions may provide greater protection for individual liberties than does the federal constitution. Ante at 290-91. State constitutions do this either by limiting the power of state government more than it is limited by the federal constitution, or by mandating that the state act in ways not required by the federal constitution to enable citizens effectively to exercise fundamental liberties.
Nonetheless, the majority is reluctant to interpret the state constitution’s protection of individual liberties more broadly than the federal constitution. It concludes that state constitutions should be interpreted to provide greater protection for individual liberties only where the text differs from the federal counterpart or there exists a “previously established body of state law [that] leads to a different result.” Ante at 301. In other cases, the majority concludes that the interest in “uniform interpretation of identical constitutional provisions,” ante at 301, should lead a state supreme court to interpret its state constitution in whatever way the federal constitution has been interpreted by the United States Supreme Court.
I disagree. The benefit of uniform federal constitutional rights is not that all citizens in the country are protected to precisely the same degree: it is that there is a certain minimum of liberty and security that may not be infringed by any state government whether or not it possesses its own constitutional protections. Beyond that minimum, states are free to adopt constitutional charters that protect the citizens of that state even further from oppression by state government.
The definition of state constitutional rights is bound up with federal constitutional rights only to the extent that no state constitution could validly allow state action that would contra *332 vene individual liberties guaranteed by the federal constitution. However, the federal constitution in no way limits state constitutions from going further. Because this is so, there should be no presumption that the guarantees of the state constitution are identical to those given the federal constitution by the United States Supreme Court. While the interpretation of federal constitutional rights is instructive and helpful in defining state constitutional rights, it is no more than that. The state constitution is completely independent of the federal constitution in this sense.
There may of course be powerful policy reasons for interpreting certain specific state constitutional guarantees to be identical to their federal counterparts. However, there is no basis in constitutional law for presuming that the state constitution parallels the federal constitution. The state constitution must be interpreted separately from the federal constitution unless there are good reasons of policy to establish a uniform interpretation.
I therefore reject the majority’s assertion that state constitutions should be interpreted to provide greater protection for liberty than the federal constitution only where there exists a previously established body of state law to that effect. Why should this matter? That previous body of state law was created by interpretation of the state constitution itself by our state courts. The United States Supreme Court, by defining liberties in a more limited manner, cannot prevent future decisions by state supreme courts that interpret state constitutions to go further. If this were true, the Supreme Court would effectively be the final arbiter, not only of federal constitutional law, but of much state constitutional law. Yet both the Supreme Court and this Court have consistently rejected this position.
I would hold that the New Jersey Constitution provides our state citizens with a fully independent source of protection of fundamental rights and liberties. This means that we should *333 not presume the United States Supreme Court interpretations of the federal constitution dispose of the state constitutional issue. Our state constitution must be interpreted on its own merits, and the liberties it protects are in no way limited by the extent to which they are protected by the federal constitution.
I agree that policy reasons may justify a uniform interpretation of the state and federal constitutions. See State v. Hunt, 91 N.J. at 338 (Pashman, J., concurring). Nonetheless, this Court remains the final arbiter of the meaning of the state constitution. We cannot relieve ourselves of that obligation by deferring to the decisions of another court. There is simply no court to which we can defer. The citizens of New Jersey have adopted a constitution that ensures their liberties independent of the federal law. The New Jersey Constitution is not an empty gesture. It is the bedrock of liberty in this State. We must uphold it.
Unlike the majority, I would affirm Judge Furman’s ruling that the right to health is fundamental under the State Constitution. See ante at 304. I cannot conclude that the interest in health is accorded merely a “high priority” by our Constitution; it is a fundamental individual right. Indeed, there is no significant difference between the right to health and the right to life itself. May the state actively impair the health of its citizens in the absence of a state interest of overwhelming importance? To ask the question is to answer it. The state may not do anything that jeopardizes the health of our citizens unless its actions are necessary to achieve a compelling state interest.
I believe our Constitution also affirmatively requires funding for childbirth to permit effective enjoyment of the fundamental right of procreative choice.
But see Schneider v. Irvington, 308 U.S. 147 , 60 S.Ct. 146 , 84 L.Ed. 155 (1939), in which the Court held that a town could not constitutionally prohibit citizens from exercising their freedom of speech merely because their distribution of handbills in a public area would result in costs to the town in cleaning up. “Any burden imposed upon the city authorities'in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press.” Id. at 162 , 60 S.Ct. at 151 , 84 L.Ed. at 165 . In effect, the Court held that the municipality had an affirmative constitutional obligation to fund the exercise of the right of free speech under these circumstances.
The interrelationship between law and the distribution of income and wealth is a staple of legal literature. E.g., Kennedy and Michelman, “Are Property and Contract Efficient?” 8 Hofstra L.Rev. 711 (1980); Cohen, “The Basis of Contract,” 46 Harv.L.Rev. 553 (1933); Cohen, “Property and Sovereignty,” 13 Cornell L.Q. 8 (1927); Hale, “Property and Distribution in a Supposedly Non-Coercive State,” 38 Pol.Sci.Q. 470 (1923); Hale, “Bargaining, Duress, and Economic Liberty,” 43 Colum.L.Rev. 603 (1943).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9749725. Public record. Not legal advice.