concurring. I concur with the holding of the Court today that Planned Parenthood is not entitled to reimbursement for the cost of performing elective abortions on New Jersey residents at an out-of-state clinic prior to the January 22, 1973 decisions of the United States Supreme .Court in Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) and Doe v. Bolton, 410 U. S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973). Planned Parenthood would be entitled to reimbursement only if a retroactive application of the Roe and Doe decisions were indicated by the facts of this case. However, no such indication is present. Plaintiff had received notice that New Jersey Medicaid did not reimburse for abortion services on or about June 5, 1972, the date that Planned Parenthood was declared eligible as an out-of-state provider of health services for New Jersey residents.1 At the time the services were *56rendered by plaintiff, it is difficult to see how any reasonable 'expectation of reimbursement from New Jersey Medicaid could have existed.
In State v. Nash, 64 N. J. 464 (1974), this Court enumerated the following considerations for utilization in determining whether retroactivity is to be accorded a court decision declaring constitutional principles:
. . . (1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice. This weighing process has generally been followed in New Jersey.
[64 N. J. at 471]
In applying these considerations to the instant factual situation, it is clear that retroactivity is undesirable. Both the State and the insurer relied on the assumption that reimbursement was not permitted and plaintiff had notice of that fact. I also note that the abortions are an accomplished fact. Thus, lack of retroactivity will not harm the indigent women who have obtained them.
Although concurring with the majority’s decision in this case, I feel obligated to add that this holding should not be interpreted to apply to reimbursement for elective abortions in the post-Roe era. In fact, Planned Parenthood has been reimbursed for abortions that were done after Roe. Furthermore, the Court’s decision should in no way be construed as a judicial sanctioning of the validity of N. J. S. A. 30:4D-6.1, L. 1975, c. 261, § 1, effective December 18, *571975, which prohibits payments for termination of a woman’s pregnancy for any reason except where it is medically necessary to save her life. This is a question for another day. Neither should the recent decision of the United States Supreme Court in Maher v. Roe,- U. S. -, 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977) be considered as dispositive of the equal protection issue under the New Jersey Constitution.
The protections emanating from N. J. Const. (1947), Art. I, par. 1, can be broader than those in the United States Constitution.2 Robinson v. Cahill, 62 N. J. 473 (1973), cert. den. 414 U. S. 976, 94 S. Ct. 292, 38 L. Ed. 2d 219 (1973). As the late Chief Jüstice Weintraub pointed out in Rolinson, when deciding an equal protection issue, the United *58States Supreme Court often has different considerations in mind than would a state court.
The question whether the equal protection demand of our State Constitution is offended remains for us to decide. Conceivably a State Constitution could be more demanding. For one thing, there is absent the prinicple of federalism which cautions against too expansive a view of a federal constitutional limitation upon the power and opportunity of the several States to cope with their own problems in the light of their own circumstances. The majority in Rodriguez [San Antonio School District v. Rodriguez, 411 U. S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973)] expressly noted that ‘every claim arising under the Equal Protection Clause has implications for the relationship between national and state power under our federal system,’ adding that ‘it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State’ (93 S. Ct. at 1302).
[62 N. J. at 490-91]
Moreover, Mr. Justice Brennan has recently encouraged state courts to make their own analysis of the extent of rights and protections afforded by state constitutional provisions which seemingly parallel provisions of the Bill of Eights and subsequent Constitutional amendments.
This pattern of state court decisions puts to rest the notion that state constitutional provisions were adopted to mirror the federal Bill of Rights. The lesson of history is otherwise; indeed, the drafters of the federal Bill of Rights drew upon corresponding provisions in the various state constitutions. Prior to the adoption of the federal constitution, each of the rights eventually recognized in the federal Bill of Rights had previously been protected in one or more state constitutions. And prior to the adoption of the fourteenth amendment, these state bills of rights, independently interpreted, were the primary restraints on state action since the federal Bill of Rights had been held inapplicable.
The essential point I am making, of course, is not that the United States Supreme Court is necessarily wrong in its interpretation of the Federal Constitution, or that ultimate constitutional truths invariably come prepackaged in the dissents, including my own, from decisions of the Court. It is simply that the decisions of the Court are not dispositive of questions regarding rights guaranteed by counterpart provisions of state law. Accordingly, such decisions are not mechanically applicable to state law issues, and *59state court judges and the members of the bar seriously err if they so treat them. Rather, state court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guideposts when interpreting counterpart state guarantees. I suggest to the bar that, although in the past it might have been safe for counsel to raise only federal constitutional issues in state courts, plainly it would be most unwise these days not also to raise the state constitutional questions.
* # £ * ♦ ' »}« 4»
Every believer in our concept of federalism, and I am a devout believer, must salute this development in our state courts. * * * [Federalism] must necessarily be furthered significantly when state courts thrust themselves into a position of prominence in the struggle to protect the people of our nation from governmental intrusions on their freedoms.
[William .T. Brennan, Jr.,
“State Constitutions and the Protection of Individual. Rights,” 90 Harv. L. R. 489, 501-03 (Jan. 1977) ; footnotes omitted.]
The proposition that the equal protection guarantees of the Fourteenth Amendment and those in the New Jersey Constitution are not coterminous became fact in Robinson v. Cahill, supra, when Chief Justice Weintraub refused to adopt the federal two-tier test with respect to fundamental rights.3 He found the fundamental right doctrine to be un definable in any useful sense, noting that property rights are just as explicitly or implicitly guaranteed in the Con*60stitution as are the rights found to be fundamental, yet are nowhere accorded such an exalted status. 62 N. J. at 492. Likewise, the Chief Justice found little in the cases to indicate which state interests are “compelling.” Id. He concluded that
. . . [n\\echanical approaches to the delicate problem of judicial intervention under either the equal protection or the due process clauses may only divert a court from the meritorious issue or delay consideration of it. Ultimately, a court must weigh the nature of the restraint or the denial ■ against the apparent public justification, and decide lohether the State action is arbitrary. In that process, if the circumstances sensibly so require, the court may call upon the State to demonstrate the existence of a sufficient public need for the restraint or the denial. * * *
[Id.; emphasis added]
Thus, as was noted in Taxpayers Association of Weymouth Tp. v. Weymouth Tp., 71 N. J. 249 (1976), New Jersey has adopted the two-tiered analysis only with regard to “suspect criteria.” 71 N. J. at 285. Conversely,
. . . [w]here an important personal right is affected by governmental action, this Court often requires the public authority to demonstrate a greater ‘public need’ than is traditionally required in construing the federal constitution. Specifically, it must be shown that there is an ‘appropriate governmental interest suitably furthered by the differential treatment.’ [citations omitted] Even under more traditional approaches, New Jersey has always required a real and substantial relationship between the classification and the governmental interest which it purportedly serves, [citations omitted]
[71 N. J. at 286-87]
In Maher v. Roe, supra, the Supreme Court held that Roe v. Wade, supra, did not declare an unqualified constitutional right to an abortion.
Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. It implies no limitation on the authority of a state to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.
[- U. S. at --, 97 S. Ct. at 2382, 53 L. Ed. 2d at 494]
*61Mr; Justice Powell found a rational basis for the state regulation providing funds for therapeutic abortions and for. care incident to childbirth, but denying funds for elective, abortions. The state was found to have a strong interest in protecting the potential life of the fetus.- U. S. at-, 97 S. Ct. at 2385, 53 L. Ed. 2d at 497. The effect of the challenged regulation would be to ban Medicaid abortions for the poor. I have serious doubts as to the constitutionality of such a prohibition. It may well violate the equal protection guarantees inherent in Art. I, par. 1 of the New Jersey Constitution by making an irrational distinction between groups of pregnant women.
This ease is not a proper vehicle for deciding whether the equal protection guarantees in the New Jersey Constitution include the right to decide whether to carry a pregnancy to term unburdened by the intrusion of state economic incentives designed to induce desired behavior. However, it is noteworthy that with respect to significant rights, 'New Jersey’s version of equal protection may be more exacting than the traditional rational basis test used in federal cases when a non-fundamental interest is affected. In fact, Chief Justice Weintraub’s formulation in Robinson v. Cahill, ante at pp. 59-60 of 75 N. J. (Pashman, J., concurring) is much closer to Mr. Justice Marshall’s suggested equal protection standard announced in his dissent in Beal v. Doe,- U. S. -, 97 S. Ct. 2366, 53 L. Ed. 2d 464 (1977), than it is to a rational basis test. Justice Marshall advocates repudiation of the two-tier equal protection analysis.
As I have argued before, an equal protection analysis far more in keeping with the actions rather than the words of the Court [citation omitted] carefully weighs three factors — the importance of the governmental benefits denied, the character of the class,-and the asserted state interests.
[- U. S.-, 97 S. Ct. at 2396, 53 L. Ed. 2d at 480]
Therefore, it is arguable that the State Constitution may require a more compelling justification for the disparate *62treatment of pregnant women in the post-Roe v. Wade era, than that which the Supreme, Court accepted in Maher v. Roe.
Pashman, J., concurring in the result.
For affirmance — Chief Justice Hughes, Justices Mountain, Sullivan, Pashman and Schreiber and Judges Conford and Carton — 7.
For reversal — None.
Mr. Paul Anderson, Associate Manager of the Provider Services Division of Prudential, the State’s insurance carrier for Medicaid claims, testified at the hearing that Planned Parenthood, as a certified provider of Medicaid services, was sent a package of materials which would include a New Jersey Health Services Program Newsletter of November 12, 1971. This newsletter indicated that elective abortions would not be funded by the State. Planned Parenthood *56admitted that the newsletter could have been included in the materials received, furthermore, Prudential’s Supervisor for Medicaid Claim Processing, Miss Joanne Cross, noted that she informed Planned Parenthood’s Office Manager for Submission of Medicaid Claims of the policy announced in the newsletter in a June 2, 1972 phone conversation. Mr. Anderson also testified that about a week later, in response to a follow-up telephone call from Planned Parenthood’s Manager, he reiterated the State policy and probably read the newsletter verbatim over the telephone.
New Jersey has no clause in its Constitution directly analogous to the Fourteenth Amendment. However, the Supreme Court of New Jersey has articulated a viable equal protection doctrine bottomed on a number of provisions of N. J. Const. (1947). Article I, par. 1 has most often been referred to as the section requiring equal protection. Taxpayers Assn. of Weymouth Tp. v. Weymouth Tp., 71 N. J. 249, 285 (1976) ; So. Burl. Cty. N.A.A.C.P. v. Tp. of Mt. Laurel, 67 N. J. 151, 174-75 (1975), Robinson v. Cahill, 62 N. J. 473, 482 (1973); Bailey v. Engleman, 56 N. J. 54, 55 (1970); General Public Loan Corp. v. Director, Div. of Taxation, 13 N. J. 393, 401 (1953).
Other provisions of the State Constitution have also been referred to as requiring equal treatment. Art. I, par. 5 was cited in Taxpayers Assn. of Weymouth v. Weymouth Tp., supra 71 N. J. at 285. In General Public Loan Corp. v. Director, Div. of Taxation, supra, 13 N. J. at 401, Art. IV, § 7, pars. 7, 8, 9 were referred to as the group of constitutional provisions constituting equal protection clauses. Art. IV, § 7, par. 7 has been referred to by the Court when dealing with the reasonableness of classifications for legislative purposes. Alfred Vail Mutual Ass’n v. Borough of Shrewsbury, 58 N. J. 40, 52 (1971).
This brief survey of the case law indicates that equal protection rights and the requirement for reasonable classifications germane to a legislative purpose are inherent in many provisions of the N. J. Const. (1947). So pervasive are such expressions that these rights may be termed the most fundamental guarantee of that Constitution. See Robinson v. Cahill, 119 N. J. Super. 40, 48-49 (Law Div. 1972), mod. 62 N. J. 473 (1973).
The federal courts’ approach to equal protection analysis requires an initial determination of the level of scrutiny that given legislation is to be subjected to and only then analyzes the case on its facts. In San Antonio School District v. Rodrigues, 411 U. S. 1, 17, 93 S. Ct. 1278, 36 L. Ed. 2d 16, 33 (1973), the Supreme Court announced that if the legislation operates to the disadvantage of some suspect class or impinges on some fundamental right explicitly or implicitly protected by the Constitution, strict scrutiny is in order. If not, the rational basis test is used. The strict scrutiny test requires the state to show a compelling interest to validate its disparate treatment of like classes. Under the rational basis test, any furthering of a legitimate articulated state purpose will validate the legislation.