concurring with Part I and dissenting from Part II.
I concur with the holding of Part I of Justice Sullivan's opinion for the Court, that Indiana's Medicaid abortion coverage restrictions do not violate the requirements of Collins v. Day, 644 N.E.2d 72 (Ind.1994), and thus do not violate Article 1, Section 28 of the Indiana Constitution.
The Indiana Privileges and Immunities Clause, Article 1, Section 28 of the Indiana Constitution, clearly permits enactment of laws that provide "disparate treatment" for different classes where the legislation is "reasonably related to inherent characteristics which distinguish the unequally treated classes." Collins, 644 N.E.2d at 80.
The Court correctly acknowledges that "the State's justifications of unavailability of federal financial participation, interest in protecting fetal life, fiscal policy, and administrative efficiency," and the uniform applicability of the Medicaid abortion benefit to all who qualify, are sufficient to sustain the constitutionality of the classification. Sullivan opin. at 257.
I believe it preferable, however, to address the specific classifications that were identified by the plaintiffs-appellees and trial court as receiving unequal treatment: (1) indigent men and women who need *261treatment (other than abortion) which is medically necessary to preserve their health, and (2) indigent pregnant women needing to terminate their pregnancy to preserve and protect their health but whose pregnancies do not threaten their lives and were not the result of rape or incest. These two asserted classifications do not contrast the persons entitled to receive Medicaid abortions with those ineligible. Rather, they compare the treatment received by persons entitled to Medicaid benefits provided for non-abortion medical services with those seeking Medicaid-funded abortions. These two classifications receive different treatment in that the medical services for the second are limited to exelude abortions except in narrow circumstances. This disparate treatment is clearly related to the inherent characteristic that distinguishes the unequally treated classes: namely, the medical treatment in the second classification, abortion, requires the termination of fetal life. The legislative decision to impose restrictions upon Medicaid-funded abortions is obviously and reasonably related to whether the medical services involve the termination of fetal life. Thus, even using the classifications identified by the trial court and the appellees, the Indiana Medicaid abortion restrictions do not violate Section 28.
I dissent, however, from Part II and the Conclusion of the Court's opinion, which appears to condition the holding in Part I by judicially expanding Indiana's Medicaid abortion coverage to require the state to provide abortion benefits clearly not intended by the Indiana General Assembly.
Under Part II, the Indiana Medicaid program must now begin paying for abortions for Medicaid-eligible women whose pregnancies create a "serious risk of substantial and irreversible impairment of a major bodily function," even though the pregnancy does not present a threat to the woman's life. Sullivan opin. at 257. I believe that this conclusion and its rationale are erroneous.
The majority in Part II of Justice Sullivan's opinion purports to apply Collins but does so only by framing and then comparing its own two "classifications" of Medicaid-eligible pregnant women: (1) those for whom abortions are necessary to preserve their lives or where their pregnancies were caused by rape and incest, and (2) those who seek abortions for all other reasons, particularly the subset consisting of pregnant women whose pregnancies present a serious, but not life-threatening, risk of substantial and irreversible impairment of a major bodily function. Having combined in a single classification both those abortions needed to preserve the life of a pregnant woman and those abortions for pregnancies resulting from rape and incest, the majority in Part II then questions and dismisses the validity of the independent factors that reasonably relate to each sub-classification by observing that these factors are not applicable in common to both sub-classifications. Upon this highly questionable premise, the majority then declares that the factors supporting each sub-classgification are the same or their differences "too insubstantial" to justify different treatment. With this rhetorical device, Part II disregards the protection of fetal life, and the medical, moral, social, and ethical concerns that properly distinguish and justify the restrictions on Medicaid abortions.
Proper application of Collins to the majority's classifications would seem to require that the first one be separated into its two independent components: (a) pregnancies for which abortions are necessary to preserve the life of the pregnant woman, and (b) pregnancies resulting from rape or incest. As between those *262abortions necessary to preserve the life of the pregnant woman and the majority's "substantial and irreversible impairment" subclass, the access to Medicaid-funded abortions for the former is clearly and reasonably related to the inherent difference that distinguishes the classes-the risk of the woman's death without an abortion. It is the legislature's prerogative to balance its interest in preserving fetal life with its interest in not placing the mother at risk of death. Likewise, as between abortions in pregnancies resulting from rape or incest and those in the "substantial and irreversible impairment" subclass, the access to Medicaid-funded abortions for the former is obviously related to the inherent difference distinguishing the classes-whether the pregnancy was caused by eriminal conduct. It is neither arbitrary nor manifestly unreasonable for the legislature to conclude that the medical, moral, social, and ethical implications of a compelled pregnancy under these circumstances outweighs the government's interest in the preservation of fetal life. Furthermore, as to both subclasses ("risk of death" and "rape or incest"), the access to Medicaid-funded abortions that are denied to the "substantial and irreversible impairment" classification is reasonably related to the fact that the federal government reimbursement is not available for the latter. Such fiscal considerations by the legislature are within the considerable legislative discretion accorded under Collins.
The legitimate reasons that separately justify the Medicaid program's funding for abortions needed to preserve a woman's life and its funding for abortions where the pregnancy results from rape or incest cannot be neutralized by declaring these two groups merged into the same classification, and then finding their independent separate justifications thereby inconsequential because they do not simultaneously apply to both "risk of death" and "rape or incest" abortions.
Despite the requirement of Collins that we show substantial deference to the discretion of the legislature, the majority in Part II of Justice Sullivan's opinion disregards the clear and unequivocal language and intent of the Indiana General Assembly. Indiana Code section 16-34-1-2 explicitly declares: "Neither the state nor any political subdivision of the state may make a payment from any fund under its control for the performance of an abortion unless the abortion is necessary to preserve the life of the pregnant woman." The effect of Part II is to nullify this legislative limitation and to substantially expand the obligation of the Indiana Medicaid program to henceforth fund abortions for medical conditions that are not needed to save the mother's life.
An examination of Indiana Code section 16-34 et seq. makes clear that the legislature clearly intended and articulated a deliberate distinction between the two classes of women. Some statutes use broader language that is not limited to situations in which a pregnant woman is at risk of death. For example, section 16-34-2-1(a)(8)(C) criminalizes abortion performed after viability of the fetus unless the abortion is "necessary to prevent a substantial permanent impairment of the life or physical health of the pregnant woman." (emphasis added). Section 16-34-2-1.1 requires that certain information be given to a woman at least eighteen hours before an abortion except in the case of a medical emergency, which is defined in Indiana Code section 16-18-2-228.5 as a condition that "necessitates the immediate termination of [a woman's] pregnancy to avert her death or for which a delay would create serious risk of substantial and irreversible impairment of a major bodily function." Section 16-84-2-1.2 requires *263that an abortion provider inform a woman facing a medical emergency of the medical indications supporting the provider's judgment that an abortion is necessary to prevent the mother's death or "a substantial and irreversible impairment of a major bodily function." Section 16-84-2-8(a) states that all abortions performed after viability shall be performed in a hospital having premature birth intensive care units unless compliance would result in "an increased risk to the life or health of the mother." (emphasis added). Subsection (b) requires there to be in attendance a second physician who shall care for a child born alive as a result of an abortion unless "compliance would result in an increased risk to the life or kealth of the mother." (emphasis added). In other statutes, however, it is clear that the legislature intended provisions or exceptions to apply only to women whose lives are in danger. Indiana Code section 16-84-2-1(a)(1)(B) states that, "if in the judgment of the physician the abortion is necessary to preserve the life of the woman, her consent is not required." (emphasis added). Indiana Code section 16-34-2-1(b) prohibits partial birth abortions unless a physician reasonably believes that it is necessary to save the woman's life and no other medical
The fact that certain sections apply when a woman faces risk of death or impairment of a major bodily function, such as section 16-34-2-1.1, while other sections apply omly when she faces risk of death, such as sections 16-34-2-1(b) and 16-34-1-2, indicates that the legislature's choice of language was precise and deliberate, demonstrating that the legislature intended to identify and treat differently these distinct classes of women with respect to the different statutory provisions.
In Part II, the majority imports the language of its new definition from Indiana Code section 16-18-2-228.5. This provision does not address any term used in the statute restricting eligibility for taxpayer-funded abortions, I.C. § 16-834-1-2, but rather provides an exception to the informed consent requirements of Indiana's general abortion law in cases of "medical emergency," which it defines as a condition that "complicates the medical condition of a pregnant woman so that it necessitates the immediate termination of her pregnancy to avert her death or for which a delay would create serious risk of substantial and irreversible impairment of a major bodily function." I.C. § 16-18-2-2283.5. In A Woman's Choice-East Side Women's Clinic v. Newman, 671 N.E.2d 104, 109 (Ind.1996), this Court construed this "medical emergency" definition to permit a physician to dispense with the informed consent provisions whenever the doctor concluded that an abortion was medically necessary in the doctor's elinical judgment based on "all relevant factors pertaining to a woman's health." By its importation of this language, the majority improperly scuttles the present restrictions in the Indiana Medicaid program's abortion coverage and appears to imply that Medicaid-eligible women may henceforth receive abortions at taxpayer expense in any case supported by the clinical judgment of a doctor based upon the woman's health factors, irrespective of whether she is at risk of death.
The majority's alarming expansion of the coverage is exacerbated by the fact that it imposes upon Indiana's Medicaid program the requirement to fund not only abortions necessary to prevent substantial and irreversible impairment of a major bodily function, but also abortions necessary to prevent even serious risk of the same. Plaintiffs claim in their brief that hypertension (high blood pressure) complicates approximately 8%-10% of pregnancies, and that "(allthough in most cases *264serious harm to health can be averted, hypertensive pregnant women are at higher risk for cerebrovascular accidents (strokes), abruptio placentae (premature separation of the placenta from the uterus), and disseminated intravascular coagulation (a severe bleeding disorder)." Br. of Appellees at 5-6 (emphasis added). Plaintiffs also discuss the risks pregnancy can have on women with diabetes, including retinopathy (eye disease, including blindness) and nephropathy (kidney. disease), a fourfold increase in the likelihood of pre-eclampsia or eclampsia and hypertensive diseases, and a tenfold increase in the risk of pregnancy-related death. Other conditions potentially necessitating abortion, according to the plaintiffs, are cancer that requires radiation or chemotherapy, and sickle cell anemia, which can cause "severe crises (especially in bones), infections such as pneumonial,] ... increasingly severe anemia, congestive heart failure, and pulmonary complications such as embolus." Br. of Appellees at 7. Plaintiffs admit that "[wlhile these conditions may not always be life threatening, they can seriously and permanently compromise a woman's health." Br. of Appellees at 7 (emphasis added). Under Justice Sullivan's expanded definition, these conditions arguably may now warrant coverage under Indiana's Medicaid abortion coverage.
Thus Justice Sullivan's opinion, while purporting in Part I to find the enacted limitations on Medicaid abortion coverage constitutionally valid, nevertheless in Part II has the effect of granting almost all the relief sought by the plaintiffs in this case. In judicially repealing the express legislative pronouncement that state and local government funds cannot be used to pay for any abortion unless necessary to preserve the mother's life, the majority establishes a potentially ever-expanding set of medical conditions that may be transformed into entitlements for state-funded abortions for which there will be no federal Medicaid reimbursement. This is blatantly contrary to the intentions of both the Indiana General Assembly that enacted Indiana Code section 16-34-1-2 and Governor Evan Bayh who signed the bill into law. ,
For these reasons I dissent from Part II of Justice Sullivan's opinion. The fact that the Indiana Medicaid program does not pay for abortions in cases of "pregnancies that create for pregnant women serious risk of substantial and irreversible impairment of a major bodily function" does not render the challenged statute and regulations unconstitutional as applied.