dissenting as to Part I.
For the reasons given below, I respectfully dissent from Part I of the majority opinion. Twelve of the seventeen state courts that have considered the issue in published opinions have concluded that denial of benefits to indigent women for medically necessary abortions is a violation of their state constitution.1 Under prevailing *265constitutional doctrine in this state, I would reach the same result.
There is no doubt that a pregnant woman has the right to elect an abortion as set forth in Roe v. Wade, 410 U.S. 113, 98 S.Ct. 705, 85 L.Ed.2d 147 (1978). There is no doubt that the State may elect to have a Medicaid program or not to have one. And there is no doubt that the State may elect to fund medical procedures for the indigent without providing the same benefit to all citizens. Finally, it is plain on the face of the Medicaid statute that by restricting abortion benefits to those necessary to prevent death of the mother or to terminate pregnancies generated by rape or incest, the Indiana Medicaid program seeks to provide different benefits for some abortions than it does for other "medically necessary" procedures.
The plaintiffs here posit their claim as a constitutionally impermissible distinction arising from Medicaid's refusal to fund medically necessary abortions for certain indigent women while providing benefits for all other indigents in need of medical treatment. The plaintiffs are entitled to frame their own complaint, so this different treatment is the issue presented in this case. Plaintiffs do not base their challenge on a comparison of funding for pregnancies arising from rape or incest or threatening the woman's life to funding for other abortions. It therefore seems to me that the Indiana constitutional issue presented by this case is simply stated: is it permissible under Article I, Section 28 for the State to provide funding for medically necessary treatment for indigents generally, but to refuse it for medically necessary abortions unless the mother's life is at stake or the pregnancy results from rape or incest? I conclude it is not, as to those pregnancies for which the federal constitution guarantees the woman the right to make the election to terminate her pregnancy.
Under I. Equal Privileges the Indiana Constitution
The plaintiff's constitutional challenge to this legislation is based solely on the Equal Privileges Clause found in Article I, Seetion 23 of the Indiana Constitution. The test for constitutionality under that clause is established in Collins v. Day, 644 N.E.2d 72 (Ind.1994), and is accurately recited by the majority:
First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. Finally, in determining whether a statute complies with or violates Section 23, courts must exercise substantial deference to legislative discretion.
Id. at 80.
Although the Collins formulation is often described as a "two-pronged" test, it really breaks down into three components because the first "prong" establishes two requirements: 1) the classification must be based on "characteristics" that "rationally distinguish the unequally treated class", and 2) the "disparate treatment" must be "reasonably related" to the characteristics that define the class. I think this means, *266in simple terms, that the class must be defined by a characteristic that is not arbitrary or otherwise impermissible and that the difference in legislative treatment must be reasonably related to the difference between the classes. The second "prong" of Collins imposes a third test: everyone who is in fact in the class (Le., everyone who shares the defining characteristic) must be treated alike, and everyone who is not in the class must be treated alike. As we noted in McIntosh v. Melroe Co., 729 N.E.2d 972 (Ind.2000), the "characteristic" that defines the legislative class is not necessarily innate (e.g., race, national origin). It may be a mutable characteristic that the same person may have as of a given time, but lack at others (e.g., people who are over age sixty-two can elect to receive Social Security benefits, but are ineligible before attaining that age; a corporation with seventy-five or fewer shareholders can elect to be taxed more or less as a partnership, but is ineligible with seventy-six shareholders). Or, as in McIntosh, the classification may be based on a sequence of events (persons injured by products in use for over ten years have no claim under the Product Liability Act).2 And so on.
Here the relevant characteristics defining the class generally entitled to Medicaid benefits are indigence and desire for a medically necessary treatment. In Section 28 terms, the Medicaid statute confers a privilege on those persons. The plaintiffs here are indigent and seek reimbursement for procedures that are "medically necessary" as that term is used in the Medicaid statute. The State refuses to pay because the requested medical treatment would terminate a pregnancy that is neither life endangering nor the result of rape or incest. Therefore, the defining characteristic of the classification of citizens this legislation draws is those women who are (1) requesting a medically necessary abortion and (2) otherwise eligible for Medicaid benefits but (8) whose pregnancy is neither life endangering nor a result of rape or incest. The result is that this legislation confers a privilege by providing benefits to indigents requiring medically necessary treatment, but withholds that privilege from poor women in need of medically necessary abortions to terminate a pregnancy that is neither life threatening nor originated by rape or incest. The statute thus sets up a scheme for funding abortions that is different from that for funding for all other medical treatment.
II. Equal Protection Under the Federal Constitution
In order to understand the higher standard demanded by the state constitution, it is important to review the basis of the holding that the federal constitution does not prevent the states from imposing this condition on funding for indigent medical care. In Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), the United States Supreme Court, in a 5-4 *267decision, established that federal equal protection doctrine did not prohibit the federal government from enacting a federal statute, the Hyde Amendment, that denies federal reimbursement for the procedures at issue here. In reaching that conclusion, the majority relied on prevailing federal equal protection doctrine. The only Equal Protection Clause in the federal constitution is found in the Fourteenth Amendment which imposes limitations on state legislation, but does not apply to federal statutes. Indeed, until 1954, it was accepted dogma that there was no equal protection doctrine applicable to federal legislation. Kenneth L. Karst, The Fifth Amendment Guarantee of Equal Protection, 55 N.C. L.Rev. 541, 542 (1971); see, eg., Detroit Bank v. United States, 317 U.S. 329, 337, 63 S.Ct. 297, 87 L.Ed. 304 (1943). The Supreme Court for the first time found equal protection applicable to a federal law in a companion case to Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954) addressed segregation in the schools of the District of Columbia. Because the District of Columbia was a federal enclave and not a state, the Fourteenth Amendment did not apply. The Supreme Court unanimously held that the Due Process Clause of the Fifth Amendment required no less than the Equal Protection Clause of the Fourteenth Amendment, finding it "unthinkable" that the federal government could impose distinctions that the Constitution forbids to the states. By the mid 1970's, it had become accepted that the equal protection doctrine developed under the Fourteenth Amendment with respect to state laws applied equally to federal legislation. Seq, e.9., Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).3 It was within this legal framework that Harris upheld the federal Hyde Amendment in 1980.
The four-Justice majority in Harris first found that the Hyde Amendment did not itself "impinge on a right or liberty protected by the [federal] Constitution." Id. at 322, 100 S.Ct. 2671. This was based on the conclusion, in addressing claims under the federal Due Process Clause, that although there is a federal constitutional right to elect an abortion under Roe v. Wade, there is no federal constitutional right to receive funding for an abortion.
Because no federal constitutional right was impinged, and indigent pregnant women were not a suspect class, the majority in Harris evaluated the federal equal protection claim under the standard taken from McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 398 (1961): the classification must be sustained unless it "rests on grounds wholly irrelevant to the achievement of [any legitimate governmental] objective." Harris 448 U.S. at 322, 100 S.Ct. 2671 (brackets in original). The majority recognized a legitimate governmental interest in protecting human life by "subsidizing the medical expenses of indigent women who carry their pregnancies to term while not subsidizing the comparable expenses of women who undergo abortions." Id. at 325, 100 S.Ct. 2671. Accordingly, the Harris majority held that nothing in the federal equal protection doctrine prevents a state from refusing to fund medically necessary abortions for indigent women. The majority thus relied on the prevailing "rationality" test for federal equal protection: a legislative classification requires only "a rational relationship to any legitimate governmen*268tal interest." John E. Nowak & Ronald D. Rotunda, Constitutional Law § 14.8, at 644 (6th ed. 2000).
Four Justices dissented in Harris, taking the view that the Hyde Amendment and its consequent state implementations imposed an impermissible burden on the exercise of a woman's constitutionally protected right to choose. For that reason, some of the dissenters did not address the federal equal protection claims raised in that case. Justice Marshall, however, did find both due process and equal protection violations in a scheme that provides government funding for one choice, but not for the other, when the right to make that election is itself constitutionally protected. In addition to placing an impermissible burden on the exercise of a constitutionally protected right in violation of the federal Due Process Clause, Justice Marshall concluded that the classification effected by the statute did not pass the federal equal protection test formulated by the majority. In his view, the asserted governmental interest-protection of human life-was not rational as that term is used in equal protection doctrine because it is, as a matter of federal constitutional law, subordinate to the individual women's "interest in preserving their lives and health by obtaining medically necessary treatment." Harris, 448 U.S. at 346, 100 S.Ct. 2701.
I agree that the Harris majority identified a legitimate governmental interest in promotion of human life. This is a factor supporting the policy found in both the federal Hyde Amendment and the Indiana statute at issue here. The state has a second valid consideration in its concern for public expenditures. The federal government has elected not to participate in funding of medical procedures to terminate these pregnancies. The result is the state bears all of any cost, not merely approximately thirty-eight percent. The parties cite various studies suggesting that funding abortion would have a financial impact of zero or even a positive effect on total federal and state Medicaid expenses. This conclusion is based on comparisons to the cost of delivering the child and bearing its subsequent health-care costs. Thus, the federal decision to deny benefits may indeed rely solely on social policy, not financial considerations. However on this ree-ord I cannot conclude that the State's claimed financial concerns are a sham. Evaluation of that factor is therefore a matter for the legislature. Given that the federal scheme embodied in the Hyde Amendment treats these pregnancies differently than it does all other medically necessary procedures, plaintiffs have not established that it is fiscally irrational for the state legislature to refuse to underwrite the entire expense rather than the sixty-two percent it bears for all other medical expenses. As the majority points out, the legislature is entitled to substantial deference in drawing lines where judgment is required in balancing competing interests. For both these reasons, I agree that under the rationality test adopted by the Harris majority, which requires only some minimal governmental interest in the absence of a suspect class or a directly infringed constitutional right, no federal equal protection violation is to be found. But both the analysis and the result are different under the Indiana Constitution.
III. The Plaintiffs' Claim Under the Indiana Constitution
The Indiana constitutional provision that the plaintiffs invoke is not equal protection, but rather the Equal Privileges Clause found in Article I, Section 28. It provides: "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." As Collins pointed out, Arti*269cle I, Section 28 of the Indiana Constitution is quite different in both its language and its meaning from the federal Equal Protection Clause whose doctrines governed the United States Supreme Court majority in Harris By demanding that legislative privileges be dispensed "equally", and plainly applying to treatment of Indiana's own citizens, it also differs significantly from the Privileges and Immunities Clause of the Fourteenth Amendment. The Equal Privileges Clause was found in the Indiana Constitution well before 1868 when the Fourteenth Amendment introduced both the Equal Protection Clause and the Privileges and Immunities Clause into the United States Constitution. Some regarded the Privileges and Immunities Clause, not either the Equal Protection or Due Process Clause, to be the primary guarantor of individual rights against state intrusion. Nowak & Rotunda, Constitutional Law § 14.1 at 632. The federal Privileges and Immunities Clause prohibits state laws that "abridge the privileges or immunities of citizens of the United States" but makes no mention of "equal" treatment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 86, 21 L.Ed. 394 (1872), promptly held this provision to apply only to state laws that discriminate in favor of their own citizens and against outsiders. Thus, the federal Privileges and Immunities Clause was rendered a dead letter as a limitation on a state's ability to restrict rights of its own citizens. That result was based in large part on the view that the Fourteenth Amendment "was not intended to displace the critical role of the states as protectors of their own citizens." Lawrence H. Tribe, Constitutional Law § 14 at 10 (Bd ed. 2000). Thus, for over a century,4 the Privileges and Immunities Clause of the Federal Constitution was thought to defer to its counterparts in state constitutions. It is the Indiana Equal Privileges Clause that is in issue here, and for the reasons explained below, I believe it requires more than either the Equal Protection Clause or the Privileges and Immunities Clause of the Fourteenth Amendment. In the course of establishing its standard for constitutional legislative classifications under the Indiana Equal Privileges Clause, Collins explicitly rejected the federal equal protection approach of degrees of serutiny. Collins, 644 N.E.2d at 80. Rather, "(tlhe protections assured by Section 23 apply fully, equally, and without diminution to prohibit any and all improper grants of unequal privileges or immunities, including not only those grants involving suspect classes or impinging upon fundamental rights but other such grants as well." Id. at 80. Thus, all claims of unequal privilege are evaluated under the test described in Part I of this opinion.
The method chosen-denial of funding-undoubtedly meets the requirement that the legislation be related to the goal of promoting human life. But I believe the legislation fails the Collins requirement that the classification be reasonably related to the legislative objectives. The plaintiffs point to other measures, such as denying scholarships at universities to women who elect abortions, that they contend might also be justified in the name of deterring abortions, if the State's Medicaid statutes are upheld. Although these hypothetical examples are not before us today, in general I think they raise the issue whether the disparate treatment is "reasonably related" to the defining character*270istic, and not whether the class is defined by a permissible characteristic.
Under Collins, as Justice Sullivan points out, the reasonableness of the relationship between the classification and the legislative objective turns on a balancing test. The woman's right under the Constitution of the United States to elect an abortion is established by Roe v. Wade, irrespective of the origin of the pregnancy or whether her life is threatened by carrying the fetus to term. The U.S. Supreme Court in Roe held, "the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Roe, 410 U.S. at 164-65, 93 S.Ct. 705. Thus, the right to choose is not absolute, but the interest of the State in promoting childbirth is constitutionally subordinate to the woman's right to choose to protect her life and her health. As explained above, under Harris federal equal protection doctrine would permit the State to deny funding even if its interest-promotion of human life-is offset and outweighed by other interests as long as the legislation disadvantages no suspect classification and impinges no fundamental right. But the Indiana Constitution is rife with provisions asserting the primacy of individual rights. The 1851 Constitution, like its 1816 predecessor, begins with a Bill of Rights and only later turns to provisions establishing the branches of government. The Bill of Rights starts with Article 1, Section 1, which borrows from the Declaration of Independence in asserting rights to life, liberty and pursuit of happiness. This emphasis on individual rights reflected the strong populist sentiment prevailing at the 1851 convention, which essentially carried out the agenda set in 1816. See Price v. State, 622 N.E.2d 954, ' 962 n. 11 (Ind.1998). In the same vein, the Indiana Equal Privileges Clause elevates individual rights by requiring more than some recognized governmental interests before legislation can override the interests of the individual, Thus, under Collins a "rational relationship to any legitimate governmental interest" is not enough to carry the day. Under the balancing test of our state constitution, the governmental interests must outweigh those of the private citizen before a statute may deny a privilege granted to others. Under this standard, when faced with the federal constitutional right of a woman to choose to protect her health, the State's interests fail to carry that burden.
This case presents a classic confrontation between individual rights and the will of the majority as reflected in legislation. The law at issue here affects only women who are indigent and desire a medically necessary procedure. The effect of the statute is to impose a financial penalty on a woman's election to exercise her constitutionally guaranteed right to choose. Of course, as a practical matter, this financial obstacle may result in delays that complicate the woman's medical condition, and often may force the result of a choice that is for the woman alone to make. The State thus seeks to impose its choice upon the woman to whom that decision is constitutionally reserved. By so choosing, the State seeks to prioritize the interest it advances over the woman's right to choose. Whether the State seeks to advance its interest by criminalizing abortions, as it no longer can do, or by creating legislation that penalizes the exercise of that right, either is, as a matter of constitutional priorities, an unreasonable balance. As such, this legislation imposes an unreasonable classification and is invalid under Collins.
Justice Sullivan concludes that indigent women whose pregnancy risks serious and permanent impairment of a major bodily *271function may not be denied Medicaid benefits. Those women are a subset of all indigents in need of medically necessary procedures. Accordingly, I1 concur in Part II of Justice Sullivan's opinion, though it does not grant all of the relief to which I believe the plaintiffs are entitled.
RUCKER, J., concurs.. Perdue v. Planned Parenthood, 28 P.3d 904 (Alaska 2001); Simat Corp. v. Arizona Health Care Cost Containment Sys., 203 Ariz. 454, 56 P.3d 28 (2002); Comm. to Defend Reprod. Rights v. Myers, 29 Cal.3d 252, 172 Cal.Rptr. 866, 625 P.2d 779 (1981); Doe v. Maher, 40 Conn.Supp. 394, 515 A.2d 134 (1986); Roe v. Harris, 128 Idaho 569, 917 P.2d 403 (1996); Doe v. Wright, No. 91 Ch. 1958, slip op. (Ill.Cir.Ct. Dec. 2, 1994), leave to file late appeal denied, No. 78512 (Ill. Feb. 28, 1995); Moe v. Sec'y of Admin. & Fin., 382 Mass. 629, 417 N.E.2d 387 (1981); Women of Minnesota v. Gomez, 542 N.W.2d 17 (Minn.1995); Right to Choose v. Byrne, 91 N.J. 287, 450 A.2d 925 (1982); New Mexico Right to Choose/NARAL v. Johnson, 126 N.M. 788, 975 P.2d 841 (1998); Planned Parenthood Ass'n. v. Dep't of Human Res., 63 Or.App. 41, 663 P.2d 1247 (1983), aff'd on other grounds, 297 Or. 562, *265687 P.2d 785 (1984); Women's Health Ctr. Of West Virginia, Inc. v. Panepinto, 191 W.Va. 436, 446 S.E.2d 658 (1993). But see Renee B. v. Fla. Agency for Health Care Admin., 790 So.2d 1036 (Fla.2001); Doe v. Dep't of Social Servs., 439 Mich. 650, 487 N.W.2d 166 (1992); Rosie J. v. North Carolina Dep't of Human Res., 347 N.C. 247, 491 S.E.2d 535 (1997); Fischer v. Department of Pub. Welfare, 509 Pa. 293, 502 A.2d 114 (1985); Bell v. Low Income Women of Tex., 95 S.W.3d 253 (Tex.2002).
. In some sense, the claim asserted under the Equal Privileges Clause always defines the class because it sets forth the plaintiff's theory, and therefore presumably defines the class that is claimed to be unequally treated. However, I do not agree with the majority that "'this claim defines the class" as that term is used in McIntosh. The issue in that case was whether the statute of repose in the Product Liability Act violated Article I, Section 23 by shutting off claims based on products in use over ten years before the event giving rise to the plaintiff's injury. In saying that the "claim ... defines the class," Mcelntosh referred to the claim of the plaintiffs in the underlying product liability case, not to the claim of unconstitutionality. In other words, the claim that defined the class was the claim that the plaintiff was injured by a product more than ten years old, not the claim that the statute of repose violated the Indiana Constitution.
. For an account of this journey, which includes a few detours, see generally Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 219, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995).
. Only at the end of the twentieth century did the federal Privileges and Immunities Clause emerge from the shadows to which the Slaughter-House Cases banished it, and its future remains at best uncertain. Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999).