Right to Choose v. Byrne

O’HERN, J.,

dissenting.

“To declare a statute unconstitutional is a judicial power to be delicately exercised.” Harvey v. Essex County Board of Freeholders, 30 N.J. 381, 388 (1959). A legislative act should not be declared void unless its repugnancy to the Constitution is clear beyond a reasonable doubt. Gangemi v. Berry, 25 N.J. 1, 10 (1957). I cannot dispel that reasonable doubt and dissent.

I.

The United States Supreme Court, faced with the precise issue presented here, held that there was no impediment in the United States Constitution to a similar legislative pattern. Harris v. McRae, 448 U.S. 297 , 100 S.Ct. 2701 , 65 L.Ed.2d 784 (1980). That alone should give cause for doubt. This Court concedes that supremacy to interpret the federal Constitution but bases its decision on the equal protection guarantee in the state Constitution. Heretofore we have generally said that the “bur *334 den of mounting a successful challenge on equal protection grounds under the state Constitution [under stated circumstances] ... is no different from that which prevails under the federal Constitution.” McKenney v. Byrne, 82 N.J. 304, 317 (1980). We now depart from that principle.

Of course, New Jersey is not bound in interpreting its constitutional guarantees to federal interpretations of comparable provisions. State v. Hunt, 91 N.J. 338 (1982); State v. Alston, 88 N.J. 211 (1981); State v. Schmid, 84 N.J. 535 (1980). Those cases have dealt with specific rights textually guaranteed by the New Jersey Constitution. Here we deal not with a textually guaranteed right, but with a principle of legal analysis.

A concept of equal protection is implicit in Art. I, par. 1 of the New Jersey Constitution, which guarantees the natural and inalienable rights of enjoying life and liberty, of acquiring and possessing property, and of pursuing and obtaining happiness. Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 79 (1978). Elaborate analytical structures have been created to guide courts in the application of this seemingly simple concept, giving rise to the observation that we have constructed a “veil of tiers.” Matthews v. Atlantic City, 84 N.J. 153 , 175 (1980) (Clifford, J., dissenting). Some commentators have argued that these confusions of equality arise from the concept’s concealing the real nature of the substantive rights it incorporates by reference. Westen, “The Empty Idea of Equality,” 95 Harv.L.Rev. 537, 579 (1982). That is precisely the point that Justice White made in his concurrence in Harris v. McRae. He wrote of the dissent there:

The argument has a certain internal logic, but it is not legally sound. The constitutional right recognized in Roe v. Wade was the right to choose to undergo an abortion without coercive interference by the government. As the Court points out, Roe v. Wade did not purport to adjudicate a right to have abortions funded by the government, but only to be free from unreasonable official interference with private choice. [ 448 U.S. at 327 , 100 S.Ct. at 2693 , 65 L.Ed.2d at 811 ],

The right at stake here is the right to be let alone in an area involving “the most intimate .of human activities and relation *335 ships.” See State v. Saunders, 75 N.J. 200 , 212 (1980). It is the antithesis of that right to involve other segments of society in that moral choice.

A more fundamental premise should lead the Court to adhere to the United States Supreme Court’s view on this deeply divisive issue. When the issue at stake touches upon the national identity, we would be wise to yield to the judgment of the Supreme Court. “[I]n enforcing the federal Constitution ... the Court is the voice of the more encompassing national community.” Gibbons, “Constitutional Adjudication,” 56 N.Y.U.L. Rev. 260, 275 (1981). The right that this Court supports has been shaped and defined under the federal Constitution. Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973). National disunity about an issue so similar in each community cannot be productive in the long view. Though having a surface appeal, the doctrine of independent state grounds would here cause “closing of the avenues to peaceful and democratic conciliation of our social and economic conflicts,” a concern that strongly motivated Justice Stewart, the writer of Harris v. McRae. Sandalow, “Potter Stewart,” 95 Harv.L.Rev. 6, 10 (1981).

II.

On the merits I disagree with the Court’s Equal Protection analysis. “Absent infringement of a fundamental right or discrimination against a suspect class, equal protection is not denied if the legislative classification is reasonable and bears a rational relationship to a legitimate governmental objective.” Rubin v. Glaser, 83 N.J. 299, 309 (1980). The majority concedes that we do not deal here with a suspect class. “[Pjurposeful discrimination is ‘the condition that offends the Constitution,’ ” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, at 274 , 99 S.Ct. 2282 at 2293 , 60 L.Ed.2d 870 (1979), quoting Swann v. Charlotte-Mecklenberg Board of Education, 402 U.S. 1, 16 , 91 S.Ct. 1267, 1276 , 28 L.Ed.2d 554 (1971), for the “central *336 purpose of the Equal Protection Clause ... is the prevention of official conduct discriminating on the basis of race.” Washington v. Davis, 426 U.S. 229, 239 , 96 S.Ct. 2040, 2047 , 48 L.Ed.2d 597 (1976). There is no evidence of discriminatory purpose here. The landmark cases in Equal Protection have always focused upon disparate treatment of the individual. Brown v. Board of Education, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954). (separate education based on color); Shapiro v. Thompson, 394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1969) (one-year residency requirement for receipt of welfare benefits); Memorial Hosp. v. Maricopa Cty., 415 U.S. 250 , 94 S.Ct. 1076 , 39 L.Ed.2d 306 (1974) (county medical benefits limited to one-year residents); Plyler v. Doe, - U.S. -, 102 S.Ct. 2382 , 72 L.Ed.2d 786 (1982) (education denied to aliens).

The Equal Protection Clause directs that “all persons similarly circumstanced shall be treated alike.” F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 [ 40 S.Ct. 560, 562 , 64 L.Ed. 989 ] (1920). But so too, “The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. [Plyler v. Doe,-U.S.-,-, 102 S.Ct. 2382, 2394 , 72 L.Ed.2d 786 (1982) ].

The subject of the legislation is not the person of the recipient but the nature of the claimed medical service. There is no disguised attempt to single out a class. Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 (1886).

As to infringement of a fundamental right, the essence of the right — to be let alone, has not been infringed. That the Legislature has chosen to subsidize free public education has never been held to infringe upon the constitutional right of parents to send their child to a school of their choice, Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925), or to require government to subsidize the individual’s election to attend the chosen school. To translate the limitation on governmental power to interfere in this matter of personal choice into an affirmative funding obligation is an unprecedented result. Maher v. Roe, 432 U.S. 464 , 97 S.Ct. 2376 , 53 L.Ed.2d 484 (1977).

The Court’s final task is to deal with the question of whether the classification is reasonable and bears a rational relationship *337 to a legitimate governmental objective. In the last analysis, the question comes down to whether it is irrational to distinguish between life and health.

I cannot say that such a classification is irrational. To be unable to distinguish these two is to misunderstand one of the central mysteries of existence. Justice Proctor, citing Theocritus, once reminded us that “[f]or the living there is hope, but for the dead there is none.” Gleitman v. Cosgrove, 49 N.J. 22, 30 (1967). 1 Few would seriously doubt the difference.

No particular viewpoint is represented in that conclusion. The members of the Supreme Court who recognized this distinction were not ideologues. Three of those in the Harris v. McRae majority had held in Roe v. Wade that the liberty protected by the Fourteenth Amendment included a freedom of personal choice in certain matters of family life including the freedom of a woman to decide whether to terminate a pregnancy. But they recognized as legitimate a governmental classification of benefits that recognized an interest in life.

We cannot resolve the imponderable mysteries that divide theologian, scholar and judge. We need only recognize that there is a rational classification here to be made by lawmakers.

III.

I hold no brief for the view that poor women, especially the minority women making up most of the Medicaid rolls, should not have the same effective moral choice as other women in our society. There is an essential unfairness in such an economic system. But they should have the same choice as well to send their children to private preparatory schools or to own suburban homes that would aid them and their families in breaking through the barriers of neglect. Yet,

*338 [in Robinson v. Cahill] the Court was justifiably hesitant to ground its holding upon the equal protection clause. As noted in deciding that case, “the equal protection clause may be unmanageable if it is called upon to supply categorical answers to the vast area of human needs, choosing those which must be met and a single basis upon which the State must act. 62 N.J. at 492.” [Abrahams v. Civ. Serv. Comm., 65 N.J. 61, 79 (1974) ].

Dealing with the root of the problem is the obvious answer. In the meantime, judges will continue to struggle with such constitutional clauses when relied upon as a source of access to governmental benefits expenditures.

For affirmance as modified — Chief Justice WILENTZ and Justices CLIFFORD, SCHREIBER, HANDLER and POLLOCK —5.

Concurring in part; dissenting in part — Justice PASHMAN— 1.

Dissenting — Justice O’HERN — 1.

The cause of action disallowed in Gleitman was later allowed in part. Berman v. Allan, 80 N.J. 421 (1979). The point remains the same.