Doe v. Wohlgemuth

¶1.(dissenting):

¶2As I view it, the effect of the majority opinion is that the Commonwealth of Pennsylvania is constitutionally unable to limit its expenditures for medical services to those which are medically necessary. I do not agree and respectfully dissent.1

¶3Preliminarily, it must be understood that we are not to determine if the qualified right to obtain an abortion is a fundamental constitutional right. That question has been foreclosed by the United States Supreme Court decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Its invocation here obscures the basic issue — is the State required to pay for an elective, nonmedically necessary abortion when it does not fund other medically non-necessary services.

¶4Insofar as the factual background is concerned, it was made clear at oral argument that the basic issue in this case centers around “elective” abortions, that is, those situations where there is no evidence of harm to the life or to the physical or emotional health of the mother. If those factors were involved, then Pennsylvania would pay for the necessary services and that matter is not at issue here.2 Therefore, the point that I address is the situation where there is no threat to the life or health of the mother and the election of an abortion is *193purely because of personal preference.3 Thus, the question here is not whether the State may prohibit certain categories of abortions by statute or practice. It does not do so. The issue is whether the Constitution has thrust upon Pennsylvania an affirmative burden to pay for an elective abortion because the legislature has decided that the State will pay for those abortions for the indigent arising from medical necessity. My conclusion is in the negative because there is no constitutional requirement that the State must finance the exercise of a “fundamental” right, nor does a classification which distinguishes between medically necessary and non-necessary abortions offend the Equal Protection Clause.

¶5That the State has an affirmative duty to pay for the implementation of fundamental rights is, with certain narrowly carved exceptions, contrary to the weight of constitutional authority. The unusual situation may be typified by Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), requiring that an indigent criminal defendant be furnished with transcripts at State expense. In an analogous situation, Bod-die v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), held that an indigent could not be barred from securing a divorce because of inability to pay State assessed filing fees. To be precise, the State was not required to pay the fees but to forego collecting them.4 The common element to these cases in this carefully limited category is a State “monopoly” on the effective forum, i. e., the courts. It is crucial here that the State has no monopoly on performing abortions and in fact is not in the business to any degree. It is only the money from the State which is at issue and the absence of State funds, on this record, will not absolutely prevent the plaintiffs from obtaining the services which they desire.5 It is important, also, in keeping this case in perspective to realize that there is nothing other than its own desire to be recompensed which prevented the Magee-Womens Hospital from performing these procedures. The State created no obstacle, the hospital did. State money may make it easier and more convenient to obtain an abortion but that is not a legitimate basis for creating a constitutional mandate.

¶6With the exception of the narrow area referred to, it is clear that there is no constitutional requirement that a State must fund fundamental rights. A scrutiny of representative Supreme Court determinations on the “fundamental” right classification, including those in the right of privacy category, demonstrates no corollary of required State subsidy.

¶7While Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969),6 found the right to travel among *194the states to be fundamental, no suggestion has been made that transportation charges for the indigent must be paid by the State.

¶8While a person may have a fundamental right of privacy to have obscene material in his home, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), there have been no serious contentions that the State must furnish such material for the indigent. The fundamental rights of freedom of speech and of the press impose no duty on the State to purchase public address systems or printing presses for those unable to pay for them.

¶9I have elaborated perhaps more than necessary the point that although a right may be classified as “fundamental,” there is no inherent requirement that there be financial implementation by the State. The principle is important here because it is only when a fundamental right is sought to be regulated or restricted that the State must show a compelling interest to justify its action. In applying such a standard to a purely funding situation, I believe the majority errs.7

¶10Absent a fundamental constitutional right basis, the plaintiffs’ claim of denial of equal protection must necessarily be analyzed within the less restrictive requirement of a rational relationship to a legitimate governmental interest. Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1971), Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971), Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).

¶11Simply stated, it is Pennsylvania’s position that it will fund only medically necessary procedures for the poor. The State has not chosen to provide a plan of total, comprehensive, all-encompassing medical care for those who meet the indigency requirements.8 It does not aim to provide such services as may be “elective” or merely desired. While a financial basis for such a broad policy is obvious, another consideration may be the additional strain on limited medical facilities and resources. Nor can we ignore the difficult legislative judgment as to where to draw the line so that the medical services furnished without charge to the indigent are not so grossly disproportionate to those which may be available to those who, while not indigent, have little money to pay for necessary care, let alone electives, after paying for the absolute necessities of life.9

¶12*195Having once established a valid basis for its general policy, e. g., payment for only necessary medical expenses, the State does not violate the Equal Protection Clause if the classification is imperfect, lacks mathematical exactness, or in practice may result in some inequities. Jefferson v. Hackney, supra, Dandrige v. Williams, supra.

¶13While the plaintiffs contend that elective abortions are ultimately less costly than prenatal, delivery, and postnatal services, I do not find this monetary argument convincing. It may be argued just as forcefully that from the.financial standpoint allowing the child to be born will produce a tax paying citizen whose contribution to the State in his lifetime will exceed many times his cost of delivery.

¶14A conspicuous .example of the limited scope of the State’s funding of medical services for the indigent is the refusal to pay for elective cosmetic surgery.10 No one contends that this practice offends the Equal Protection Clause even though such services have been paid by the State in some instances when found to be medically necessary.

¶15Surely, no one can argue seriously that in view of the holding that the right to have an abortion has been found to be a fundamental one, the right to receive plastic surgery is not equally so. There can be no doubt that an attempt by a State to impose criminal sanctions upon those seeking or administering such procedures would be struck down as unconstitutional. And yet that consideration does not transform what is an elective into a medically necessary operation. The majority’s reasoning that dictum in Roe v. Wade, supra, makes all abortions, elective or not, into medically necessary ones is logically and factually erroneous.

¶16In the usual equal protection case the State is presumed to have acted within its constitutional powers, even though in practice some inequality may have resulted. Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1971). A statutory discrimination may not be invalidated if any set of facts may reasonably be conceived to justify it. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1960). It is not every classification but only an invidious one that runs afoul of the Equal Protection Clause. Jefferson v. Hackney, supra.

¶17A classification based on whether a procedure is medically necessary or unnecessary is not invidious. I dissent.