¶ 47. (dissenting). I dissent. The certified issue in this case is the constitutionality of Wis. Stat. § 893.55(l)(b), which bars medical malpractice actions commenced more than five years after the date of the alleged act or omission, without regard to the date of discovery. While I believe that the statute produces a regrettably harsh result in this case, I nevertheless conclude that the plaintiffs have failed to demonstrate beyond a reasonable doubt that § 893.55(l)(b): 1) deprives the plaintiffs of their procedural or substantive due process rights; 2) deprives the plaintiffs of equal protection of the laws; or 3) violates Article I, § 9 of the Wisconsin Constitution. I also reject the assertion in Justice Bablitch's concurrence that § 893.55 does not apply to negligent diagnosis claims. Accordingly, I would affirm the decision of the circuit court.
I. Due Process
f 48. I begin by addressing due process because the lead opinion relies primarily on a procedural due process analysis in reaching its conclusion that § 893.55(l)(b) is unconstitutional "as applied." A court must assess the following three factors when measuring the sufficiency of the procedural protections provided by the State: 1) the risk of an erroneous deprivation of the property interest through the procedure used; 2) the probable value of additional procedural safeguards; and 3) the governmental interest, including the function involved and physical, administrative, and fiscal burdens that additional procedural require*69ments would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
¶ 49. The lead opinion errs at the very outset of its due process analysis by assuming that the plaintiffs have a constitutionally recognized and protected property interest. In this case, Cheryl Makos and her family did not discover that they were injured by the 1985 misdiagnosis until after the original biopsy was reexamined in 1994 and found to be malignant. As such, the discovery rule delayed the accrual of the plaintiffs' cause of action until after they discovered, or in the exercise of reasonable diligence should have discovered, the existence of their injury and that the defendant, Dr. Bodemer, probably caused their injury. See, e.g., Clark v. Erdmann, 161 Wis. 2d 428, 445-46, 468 N.W.2d 18 (1991). There is no dispute that § 893.55(1)(b) extinguished the plaintiffs' claims in 1990, well before the plaintiffs' discovery would have triggered the accrual of a cause of action, and possibly before the plaintiffs were even injured. Thus, the statute at issue deprived the plaintiffs of an as yet unaccrued cause of action against the defendants.
¶ 50. Neither the United States Supreme Court nor this court has ever held that an unaccrued cause of action is a constitutionally protected property interest. In fact, case law demonstrates that the Due Process Clause takes no notice when a legislature alters or extinguishes an unaccrued cause of action. Where a cause of action has yet to accrue, the Supreme Court has held that due process principles do not prevent the creation of new causes of action or the abolition of old ones to attain proper legislative objectives. Silver v. Silver, 280 U.S. 117, 122 (1929).
¶ 51. In Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995), this court used a substantive due *70process analysis to invalidate legislation which created a retroactive cap on medical malpractice liability.1 However, before doing so, the court established that the claimants' cause of action had accrued prior to the effective date of the liability cap. On that basis, the Martin court concluded that the claimants had a substantive right to the unlimited damages allowed under state law at the time that their cause of action accrued. Id. at 199, 206. The Martin court considered accrual a condition precedent to the recognition of a cause of action as a constitutionally protected property right. See also Hunter v. School Dist. of Gale-Ettrick-Trem-pealeau, 97 Wis. 2d 435, 445-46, 293 N.W.2d 515 (1980) (collecting cases establishing that a cause of action is a vested property right entitled to due process protection only if it has accrued); Mathis v. Eli Lilly & Co., 719 F.2d 134, 141 (6th Cir. 1983) ("In tort claims, there is no cause of action and therefore no vested property right in the claimant upon which to base a due process challenge until injury occurs").
¶ 52. In this case, § 893.55(l)(b) extinguishes an unaccrued cause of action, which is a nonvested property right. Hunter, 97 Wis. 2d at 446. Because their unaccrued cause of action was extinguished before it *71ever became a property right, the plaintiffs have no basis upon which to rest a due process challenge.
¶ 53. Even if I were to assume that the plaintiffs' unaccrued cause of action was a property right warranting constitutional protection, which I do not, the United States Supreme Court has already held that procedural due process considerations generally will not invalidate State-created substantive defenses:
Of course, the State remains free to create substantive defenses or immunities for use in adjudication. . . . The Court held as much [when]. . .it upheld a California statute granting officials immunity from certain types of state tort claims. We acknowledged that the grant of immunity arguably did deprive the plaintiffs of a protected property interest. But they were not thereby deprived of property without due process, just as a welfare recipient is not deprived of due process when the legislature adjusts benefit levels. In each case, the legislative determination provides all the process that is due[, for] it remain [s] true that the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational. . . .[I]t may well be that a substantive immunity defense, like an element of the tort claim itself, is merely one aspect of the State's definition of that property interest.
Logan v. Zimmerman Brush Co., 455 U.S. 422, 432-33 (1982) (citations and internal quotation marks omitted). The due process guarantees under the Wisconsin Constitution track those under the Federal Constitution. Reginald D. v. State, 193 Wis. 2d 299, 307, 533 N.W.2d 181 (1995). The procedural component of the *72Fourteenth Amendment's Due Process Clause does not require any more process than the legislature has given in enacting § 893.55(l)(b). I therefore conclude that the statute in no way abridges the plaintiffs' procedural due process rights.
¶ 54. In truth, this case has little to do with procedural due process. As I read the lead opinion, no number of hearings or other additional procedural safeguards would save the statute at issue in this case. Rather, the lead opinion's quarrel with the statute is ultimately rooted in a disagreement with the legislature over the propriety of immunizing health care providers from the "long tail" liability associated with certain types of medical malpractice. Essentially, the lead opinion objects on "fundamental fairness" grounds to any time period limitation on the discovery rule. However, "fundamental fairness" is a hollow invocation when it is unaccompanied by an analysis of the substantive due process considerations underpinning the phrase.
¶ 55. This court is generally ill-equipped as an institution to second guess a legislative grant of immunity which attempts to address economic threats to services important to the public. As a rule, such a legislative enactment "does not violate substantive due process if it bears a rational relationship to the underlying legislative purpose." Szarzynski v. YMCA, Camp Minikani, 184 Wis. 2d 875, 889, 517 N.W.2d 135 (1994); see also Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 83-4 (1978) (holding that "legislative effort [s] to structure and accommodate the burdens and benefits of economic life" do not violate due process unless "the legislature has acted in an arbitrary or irrational manner") (citation and internal quotation marks omitted).
*73¶ 56. There are at least three reasons for concluding that § 893.55(l)(b) does, in fact, vindicate legitimate legislative goals. First, the statute encourages participation in the health care profession by giving finality to health care providers who would otherwise face prolonged and uncertain liability. Second, by limiting certain types of "long tail" liability, § 893.55(l)(b) enhances the insurability of health care providers. Finally, by encouraging participation in the health care profession and reducing "long tail" liability, the statute secures affordable, quality health care for the citizens of Wisconsin.
¶ 57. I cannot conclude that the legislature has acted "arbitrarily" or "irrationally" in placing a five-year limit on the accrual of a medical malpractice cause of action. The legislature created § 893.55 in response to the medical malpractice crisis of the 1970's. See Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex. L. Rev. 759, 759-60 (1977). As the lead opinion notes, the 1976 staff paper prepared for the Malpractice Committee of the Wisconsin Legislative Council estimated that 98.9% of adult claimants and 95% of child claimants file medical malpractice claims within five years of the occurrence of the alleged negligence. Lead op. at 49 n. 7.
¶ 58. The staff report suggests that the five-year limit on commencement of a suit would negatively affect only a small percentage of malpractice claims. The legislature had to balance the interests of that small percentage of claimants against the interests served by the enactment of the five-year statute of repose. In balancing the interests, the legislature apparently concluded that public policy was best served by cutting off medical malpractice claims not *74commenced within five years of the act giving rise to the claim. While such a decision may be disagreeable and even harsh, it is rationally related to the legitimate goal of relieving health care providers of perpetual malpractice liability.
¶ 59. In summary, because the plaintiffs' unac-crued cause of action is not a vested property right, there is no due process basis for challenging § 893.55(l)(b). Furthermore, even assuming arguendo that the plaintiffs' unaccrued cause of action does constitute a property right warranting due process protection, I conclude that the plaintiffs are owed no more procedural protections than the legislature has given in determining to enact § 893.55(l)(b), and that the statute is rationally related to a legitimate legislative purpose. I therefore find that § 893.55(l)(b) does not violate the plaintiffs' due process rights.
II. Equal Protection 2
¶ 60. I also reject the plaintiffs' assertion that § 893.55(l)(b) denies them equal protection of the laws. Because the statute does not implicate "fundamental rights" or "suspect classifications," the rational basis test applies. See Kukor v. Grover, 148 Wis. 2d 469, 495, 436 N.W.2d 568 (1989). The statute "must be sustained *75unless it is patently arbitrary and bears no rational relationship to a legitimate government interest." State v. McManus, 152 Wis. 2d 113, 131, 447 N.W.2d 654 (1989) (citation and internal quotation marks omitted).
¶ 61. Substantive due process and equal protection analysis have much in common. I have already determined under a substantive due process analysis that § 893.55(1)(b) bears a rational relationship to the eminently reasonable legislative goal of maintaining the continued quality of health care and the economic vitality of the health care industry. Under equal protection analysis, there must be a rational relationship between the disparity in treatment resulting under a statute and a legitimate governmental objective. See State v. Post, 197 Wis. 2d 279, 319, 541 N.W.2d 115 (1995).
f 62. Under the rational basis test, the classifications achieved by a statute are scrutinized under "a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classification is neither possible nor necessary." Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314 (1976). A statute does not violate equal protection merely because its classifications are "imperfect," lack "mathematical nicety," or "result[] in some inequity." Schweiker v. Wilson, 450 U.S. 221, 234 (1981). As long as the classification scheme chosen by our legislature rationally advances a proper objective, "we must disregard the existence of other methods of allocation that we, as individuals, perhaps would have preferred." Id.
¶ 63. The "health care provider" classification is a reasonable one. This court has already determined *76that legislative action affecting medical malpractice is justified by the distinct nature of the field. State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 509, 261 N.W.2d 434 (1978). It follows that the "health care provider" classification, composed of medical malpractice defendants, is reasonably constituted. Additionally, the class is susceptible to expansion as circumstantially warranted. See, e.g., Clark, 161 Wis. 2d at 439 (holding that a podiatrist is a "health care provider" under § 893.55); Ritt v. Dental Care Associates, S.C., 199 Wis. 2d 48, 543 N.W.2d 852 (Ct. App. 1995) (holding that a dentist is a "health care provider" under § 893.55).
¶ 64. Unlike the plaintiffs, I do not find it constitutionally significant that the term "health care provider" omits blood banks and pharmaceutical and medical device companies. See Doe v. American Nat'l Red Cross, 176 Wis. 2d 610, 616-17, 500 N.W.2d 264 (1993). Section 893.55(1)(b) is addressed to a crisis affecting the provision of health care, and provides a degree of immunity from tort claims to those who diagnose, treat, or care for patients. As we noted in Doe, blood banks and pharmaceutical and medical device companies take no part in diagnosing, treating, or caring for patients. Id. They are therefore not part of the crisis that § 893.55(l)(b) was intended to partially ameliorate. This distinction, recognized by this court in Doe, is rationally related to the goal of limiting the "long tail" liability of those who actually provide health care to patients.
¶ 65. Section § 893.55(1)(b) does not suffer the classification infirmities recognized in Kallas Millwork Corp. v. Square D Co., 66 Wis. 2d 382, 225 N.W.2d 454 (1975), and Funk v. Wollin Silo & Equipment, Inc., 148 Wis. 2d 59, 435 N.W.2d 244 (1989). In both Kallas and Funk, this court invalidated on equal protection *77grounds limitations statutes dealing with actions arising from improvements to real estate. Funk described the fundamental flaw in both versions of the statute:
Much of our decision herein is a matter of stare decisis based on Kallas. We invalidated the predecessor of this statute because no reasonable distinction could be found between the builders in the protected class and others like materialmen and owners who were not protected by the statute. As pointed out above, furnishers of materials and land surveyors have now been included in the protected class. No doubt, this reduces the under-inclusiveness of the statute, but owners or occupants who may be liable to suit by third parties as the result of design defects or construction errors or omission are not in the protected class.
148 Wis. 2d at 73. Thus, the statutes at issue in Kallas and Funk violated equal protection by granting, without a rational basis, the benefit of a limitation period to one group while denying the same benefit to a similarly situated group.
¶ 66. The under-inclusiveness problems present in Kallas and Funk are absent in the instant case. No such defect exists in this case, because, with one notable exception, § 893.55(l)(b) applies across the board to those providing health care to patients.3 I therefore *78conclude that the statute's classification of medical malpractice defendants does not violate equal protection.
f 67. The plaintiffs next argue that the classification of medical malpractice claimants is not rational. For example, they note that two victims of identical negligent acts are treated differently under the statute, since the one who commences a suit within five years of the negligent act will be allowed to proceed, while the other will be barred if he or she commences a suit after the five-year period. I cannot conclude that such a time-based classification is irrational, since by their nature, every statute of limitations and statute of repose must make such a distinction. I conclude that the statute at issue makes a rational distinction between claimants commencing an action within five years and those filing after five years.
¶ 68. I also reject the plaintiffs' assertion that treating medical malpractice claimants differently from other tort claimants violates equal protection. This court has previously considered and rejected such an argument, Strykowski, 81 Wis. 2d at 507-9, and I see no reason to depart from precedent.
¶ 69. In sum, the distinctions created by § 893.55(l)(b) do not suffer classification infirmities, and are rationally related to a legitimate legislative objective. I therefore conclude that § 893.55(l)(b) does not violate the constitutional guarantee of equal protection of the laws.
III. Article I, §9 of the Wisconsin Constitution
The Lead Opinion
¶ 70. The plaintiffs assert, and the lead opinion concludes, that § 893.55(l)(b) violates the "remedy for *79wrongs" section of the Wisconsin Constitution. Citing Kallas, 66 Wis. 2d at 384, 393. Article I, § 9 of the Wisconsin Constitution provides:
Remedy for wrongs. Section 9. Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.
I conclude that precedent establishes that § 893.55(l)(b) does not violate Wis. Const. art. I, § 9.
¶ 71. This court has previously elucidated the meaning of the "remedy for wrongs" clause:
That section, though of great importance in our jurisprudence, is primarily addressed to the right of persons to have access to the courts and to obtain justice on the basis of the law as it in fact exists. No legal rights are conferred by this portion of the Constitution.
Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173, 189, 290 N.W.2d 276 (1980) (footnote omitted). The Mulder court emphasized that its prior Wis. Const. art. I, § 9 analysis in Kallas stood for no more than the proposition that the "remedy for wrongs" section might have "possible application. . .where a remedy is sought for a 'legislatively recognized right.'" Mulder, 95 Wis. 2d at 189-90 n.3 (emphasis in original).
¶ 72. In the present case, the lead opinion presumably acknowledges that the legislature does not recognize a right to commence a medical malpractice action more than five years after a health care provider's allegedly negligent act or omission. Undaunted, *80the lead opinion nevertheless concludes that Wis. Const. art. I, § 9 invalidates § 893.55(1)(b).
¶ 73. The lead opinion attempts, but fails, to distinguish this court's decision in CLL Assocs. v. Arrowhead Pacific Corp., 174 Wis. 2d 604, 497 N.W.2d 115 (1993). In CLL, we held that § 893.43, the six-year statute of limitations for contract actions, does not violate Wis. Const. art. I, § 9. Under § 893.43, a contract cause of action accrues at the moment of breach, rather than at the moment that the injured party discovers the breach. CLL, 174 Wis. 2d at 607. The plaintiff in CLL complained that the effect of the statute was to cut off a cause of action before the plaintiff could have discovered the underlying injury, in violation of the right to a remedy under Wis. Const, art. I, § 9. This court rejected the plaintiffs Wis. Const, art. I, § 9 challenge, concluding that the "remedy for wrongs" provision was not violated merely "because the limitations period expired before CLL discovered its injury." CLL, 174 Wis. 2d at 614.
¶ 74. In the lead opinion's view, CLL is distinguishable on the following basis:
CLL involved a statute of limitations while this case involves a statute of repose. These are distinct legal concepts that deserve to be treated as such. Because we recognize the legal distinction between a statute of limitations and a statute of repose, we find CLL inapplicable to the case at bar.
Lead op. at 51-52 (footnote omitted). However, CLL itself demonstrates that the lead opinion's distinction between statutes of limitations and repose for purposes of Wis. Const, art. I, § 9, is infirm.
¶ 75. The CLL court concluded that § 893.43, a statute of limitations, does not violate Wis. Const. art. *81I, § 9, by extinguishing a claimant's cause of action before the claimant discovers the injury. As support for its conclusion, the CLL court cited Halverson v. Tydrich, 156 Wis. 2d 202, 456 N.W.2d 852 (Ct. App. 1990), which held that § 893.55(1)(b), the very statute of repose at issue in this case, also does not violate Wis. Const. art. I, § 9. CLL, 174 Wis. 2d at 614. Indeed, CLL unequivocally endorsed the Halverson analysis of Wis. Const. art. I, § 9. Id. at 616 ("The reasoning in Halver-son applies to the instant case").
¶ 76. Under the CLL analysis, this court considers statutes of limitations and repose to be interchangeable for purposes of Wis. Const. art. I, § 9. The lead opinion in this case must disown its own reasoning and citations to authority in CLL in order to achieve the desired result in this case. The effect is a sub silentio overruling of this court's decision in CLL and the court of appeals' decision in Halverson. I conclude that the reasoning of CLL and Halverson is sound and applies in the instant case.
¶ 77. As I understand the lead opinion, a statute of repose is unconstitutional if it places any time period limitation on the accrual of a cause of action, because it is unfair to "close the doors of the courtroom" before a claimant could reasonably discover his or her injury. Since all statutes of repose create such a time limitation on accrual, it appears that the lead opinion would invalidate all statutes of repose. Furthermore, because the lead opinion's distinction between statutes of limitations and repose is hollow, today's decision carries grave implications for any statute which places any time limit on the discovery rule.
*82¶ 78. Under CLL, § 893.51(1)4 is presumably constitutional, since "[d]etermining when a cause of action accrues for statute of limitations purposes is a policy decision, not an issue of constitutional dimension." CLL, 174 Wis. 2d at 614. Yet, the effect on a claimant under § 893.51(1) is no different than under § 893.55(1)(b) — the claimant loses the ability to bring a cause of action that he or she has no reason to know existed. Under the lead opinion's reasoning, this fact would appear to render § 893.51(1) unconstitutional.
¶ 79. I do not believe that constitutional guarantees rise or fall on empty legal distinctions. Whether it is labeled a statute of limitations or repose, the result is the same in both cases — the ability to commence an action is extinguished before the claimant could reasonably discover his or her injury. For that reason, consistent with CLL and Halverson, I conclude that Wis. Const. art. I, § 9, does not prevent the legislature from enacting legislation which extinguishes an unac-crued cause of action for medical malpractice.
¶ 80. It is crucial to note that the lead opinion's repeated statement that § 893.55(l)(b) is only unconstitutional "as applied" disguises the true scope of its decision. If the lead opinion's reasoning were correct, there is no possible conclusion other than that the statute of repose is unconstitutional on its face. This is so because the reasoning of the lead opinion would *83require that the statute of repose be found unconstitutional in every case in which a claimant discovers a cause of action more than five years after the negligent act or omission. See United States v. Salerno, 481 U.S. 739, 754 (1987) (noting that a statute is facially unconstitutional when "no set of circumstances exists under which the [statute] would be valid"). The lead opinion's reasoning renders unconstitutional this statute of repose, and arguably renders unconstitutional all statutes of repose. See Wis. Stat. §§ 893.37, 893.59, 893.66(1). If this is what the lead opinion intends to do, then it should be acknowledged and clearly stated.
Justice Crooks' Concurrence
¶ 81. Justice Crooks' concurrence, which is premised solely on Wis. Const. art. I, § 9, merely expands on the lead opinion's erroneous analysis of the same constitutional provision. Essentially, the concurrence concludes that § 893.55(1)(b) violates Wis. Const. art. I, § 9 because: 1) a remedy for medical malpractice existed at common law; 2) the legislature barred Makos' medical malpractice claim without providing a "reasonable alternative"; and 3) no "overpowering public necessity" justified the legislature's action, because the medical malpractice crisis ended when the legislature enacted Chapter 655. Justice Crooks' concurrence at 64-65.1 disagree.
¶ 82. I do not believe that Wis. Const, art. I, § 9 stands as an obstacle to the legislative alteration or abolition of common law rights of action. One commentator on the subject is worth quoting at length, for he amply refutes the notion that Wis. Const, art. I, § 9 exists as anything more than a constitutional guarantee of judicial independence:
*84The historical origins of the open courts clause do not support the proposition that it was intended to be a "remedies" clause, as that term is used today. Courts which seek to prohibit legislatures from limiting existing remedies through duly enacted legislation must find the source of their authority somewhere other than the open courts clause of their state constitutions.
An open courts clause analysis consistent with the origins of the provision should focus not on whether the legislature has abolished a "remedy" but on whether the challenged action compromises the judiciary as an independent branch of government. . . . [W]hen the legislature clearly expresses its desire to limit the remedies available, the court should be especially cautious before striking down such a law, lest the open courts clause be used to undermine the very separation of powers which the provision was intended to foster....
The common law has always evolved to meet changing circumstances and should continue to do so. It is quite another thing to suggest that the open courts clause requires a remedy for every right or, put another way, that it forbids the legislature from altering or even abolishing remedies through duly enacted legislation.
Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or. L. Rev. 1279, 1316-17 (1995) (emphasis in original) (hereinafter Origins of the Open Courts Clause).
¶ 83. The concurrence apparently believes that the statute of repose was not aimed at the medical malpractice crisis of the 1970s because it was created four years after the enactment of Chapter 655. Justice Crooks' concurrence at 65. I am not sure what rele-*85vanee the chronology of the two statutory enactments has to the legislative purpose underlying them. However, I am certain that the legislature was not required to address every facet of the medical malpractice crisis with Chapter 655.
¶ 84. The medical malpractice crisis was not created in a day, and the legislature was not required to solve it all at once in Chapter 655. Indeed, the medical malpractice crisis did not vanish overnight with the enactment of Chapter 655. I therefore conclude that the concurrence lacks a basis for implying that § 893.55 was not justified by the "overpowering public necessity" of addressing the medical malpractice crisis.
¶ 85. I also do not find illuminative the concurrence's citation to foreign jurisdictions which have struck down medical malpractice statutes of repose under state constitutional provisions analogous to Wis. Const. art. I, § 9. Justice Crooks' concurrence at 65-66. The case law dealing with "open courts" clauses similar to Wis. Const. art. I, § 9 is in a state of "total disarray." Origins of the Open Courts Clause, 74 Or. L. Rev. at 1282 (citing David Schuman, The Right to a Remedy, 65 Temp. L. Rev. 1197, 1203 (1992)). I see no need to wade into the morass.
¶ 86. In his concurrence, Justice Crooks repeats the lead opinion's error by attempting to distinguish CLL. The concurrence states that "although it may not violate art. I, § 9 to bar a contract claim before the injured party knew or should have known of the injury.. .the same reasoning does not necessarily apply to a tort cause of action." Justice Crooks' concurrence at 66 (citation omitted). This contrived distinction between contract and tort actions, which was flatly rejected by CLL, destroys any merit that the concur*86rence's three-step Wis. Const. art. I, § 9 analysis might have possessed.
¶ 87. The common law recognized a breach of contract cause of action; the statute at issue in CLL, § 893.43, extinguished an undiscovered breach of contract claim without providing any "reasonable alternative"; and no "overpowering public necessity" was even asserted in CLL for the legislature's action. Thus, under the concurrence's own analysis, the statute at issue in CLL should have been declared violative of Wis. Const, art. I, § 9. There is simply no principled basis for concluding on the one hand that the CLL statute does not violate Wis. Const, art. I, § 9, but on the other hand that the statute at issue here does. The two statutes must stand or fall together because their effect is identical.
¶ 88. The CLL court did not recognize a contract/tort distinction for purposes of its Wis. Const. art. I, § 9 analysis. It concluded that § 893.43 does not violate Wis. Const. art. I, § 9 by extinguishing an undiscovered contract cause of action. In marshaling authority for its conclusion, the CLL court cited Hal-verson. In Halverson, the court of appeals held that the very statute at issue in this case did not violate Wis. Const, art. I, § 9 by extinguishing a tort claim for medical malpractice. The CLL court also cited Yotvat v. Roth, 95 Wis. 2d 357, 369-70 (Ct. App. 1980), which involved an action for wrongful death resulting from negligent diagnosis. Consistent with the CLL court's citation to Halverson and Yotvat, I conclude that the Wis. Const, art. I, § 9 analysis is the same for both contract and tort causes of action.
¶ 89. The concurrence makes a further baseless distinction. Citing Strykowski, 81 Wis. 2d at 509, the concurrence determines that Wis. Const. art. I, § 9 is *87not only more solicitous of tort actions than of contract actions, but it is particularly concerned with tort claims alleging medical malpractice. Justice Crooks' concurrence at 66-67. The concurrence's reliance on Strykowski is misplaced, however, because Strykowski stands for the proposition that the unique nature of medical malpractice claims makes them amenable to legislative alteration, whereas the concurrence believes that the nature of medical malpractice claims prevents the legislature from altering them.
¶ 90. For the foregoing reasons, I conclude that the concurrence, like the lead opinion, has erroneously determined that § 893.55(1)(b) violates art. I, § 9 of the Wisconsin Constitution.
IV. Negligent Diagnosis Claims Under § 893.55
¶ 91. In his concurrence, Justice Bablitch concludes that a negligent diagnosis is not treatment for purposes of § 893.55, and that the statute is therefore inapplicable to this case. The concurrence's determination is flawed for several reasons.
¶ 92. First, recent decisions of this court have rejected the distinction relied upon by Justice Bablitch. For example, in Doe, 176 Wis. 2d at 616-17, this court determined that blood banks are not "health care providers" for purposes of invoking § 893.55. A unanimous court stated that:
The Red Cross is not involved in the diagnosis, treatment or care of patients as are podiatrists. The Red Cross is not licensed to practice medicine by the state of Wisconsin or any medical examining board. . . . [W]e reject the Red Cross' argument that this case is similar to claims against radiologists or pathologists who have no direct patient contact but fall within the scope of sec. 893.55. The Red Cross is *88not involved in diagnosing and recommending treatment for patients as are radiologists and pathologists.
Id. I submit that Justice Bablitch's view that diagnosing physicians fall outside of § 893.55 is utterly at odds with .Doe.
¶ 93. Furthermore, this court concluded only two terms ago that misdiagnosis and treatment are indistinguishable for purposes of the informed consent statute:
Certainly, procedures which are purely diagnostic in nature are not excluded from sec. 448.30's reach. . . .The distinction between diagnostic and medical treatments is not in and of itself significant to an analysis of informed consent.
See Martin, 192 Wis. 2d at 175. Indeed, both parties agreed at oral argument that it would be inconsistent with Martin to hold in this case that § 893.55 does not cover negligent diagnosis. I find unpersuasive the concurrence's attempt to distinguish Martin.
¶ 94. Second, the court of appeals squarely addressed this issue just last year:
The standard medical malpractice jury instruction, WIS JI-CIVIL 1023, does not specifically instruct as to negligent diagnosis. However, diagnosis is considered "care and treatment."
Finley v. Culligan, 201 Wis. 2d 611, 622, 548 N.W.2d 854 (Ct. App. 1996) (citing Miller v. Kim, 191 Wis. 2d 187, 198, 528 N.W.2d 72 (Ct. App. 1995).
¶ 95. Third, by removing diagnosing physicians from the protection of § 893.55, the concurrence would create a statutory classification scheme which may violate equal protection. It is difficult to discern a rational *89basis for treating diagnosing health care providers differently from other health care providers. The concurrence makes no attempt to justify the disparate treatment of health care providers achieved under its reading of § 893.55. In avoiding the constitutional basis for the lead opinion's decision, the concurrence would merely substitute a real constitutional problem for the one imagined by the lead opinion, and would overrule three recent cases in the process.
¶ 96. Finally, while the concurrence finds the legislative history of the informed consent statute significant, it takes no notice of the Judicial Council Committee note accompanying Wis. Stat. § 893.55. The note states without limitation that:
This section has been created to precisely set out the time periods within which an action to recover damages for medical malpractice must be commenced. The time provisions apply to any health care provider in Wisconsin.
Sub. (1) contains the general time limitations for commencing a malpractice action. The subsection requires that such an action be commenced not later than 3 years from the event constituting the malpractice or not more than one year from the time the malpractice is discovered by the patient or should have been discovered by the patient. The patient has either the 3-year general time period or the one-year time period from the date of discovery, whichever is later. Subsection (1) further provides that in no event may a malpractice action be commenced later than 6 [5] years from the date of the alleged act or omission.
¶ 97. As is apparent from the committee note, the legislative history supports the proposition that the legislature intended that § 893.55 apply generally to *90medical malpractice claims, with no exception for medical malpractice actions predicated on negligent diagnosis.
¶ 98. For all of these reasons, I conclude that negligent diagnosis is treatment for purposes of § 893.55.
Conclusion
¶ 99. I conclude that the plaintiffs have failed to demonstrate beyond a reasonable doubt that § 893.55(l)(b) is unconstitutional. The lead opinion believes that it is unfair to the plaintiffs to extinguish a cause of action before it even arises. I agree. The lead opinion is of the opinion that it is bad public policy to do so. I agree. However, I disagree with the lead opinion because it fails to provide an analysis which can sustain a conclusion that the statute is unconstitutional. We are left, therefore, with the lead opinion's determination of what constitutes good public policy versus the legislature's determination of what constitutes good public policy.
¶ 100. The institutional legitimacy of the judiciary is at a low ebb when a court errs by substituting its "better" public policy vision for the one enacted by the legislature. The lead opinion has committed such an error by mistaking its conception of sound public policy for a constitutional mandate.
¶ 101. In addition, the lead opinion and the concurrence by Justice Crooks have erred in determining that § 893.55(l)(b) violates Wis. Const. art. I, § 9. Prior case law demonstrates that Wis. Const, art. I, § 9 creates no rights and does not preclude the legislature from altering or extinguishing an undiscovered cause of action. For purposes of Wis. Const. art. I, § 9 analysis, the distinctions made by the concurrence between contract, tort, and medical malpractice claims are *91baseless. The concurrence also lacks a basis for asserting that because the legislature enacted laws in 1975 in an attempt to address the medical malpractice crisis, it could not have been similarly motivated four years later when it enacted the § 893.55(l)(b) statute of repose. I conclude that Wis. Const. art. I, § 9 does not prevent the legislature from setting a five-year time limit on the commencement of medical malpractice actions.
¶ 102. Finally, I conclude that Justice Bablitch's concurrence is premised on a legal theory not raised in either the circuit court, the court of appeals, the petition for review, or the briefs to this court. The theory was rejected by both parties at oral argument before this court, and is contrary to precedent, the language of the statute, and the statute's legislative history. I therefore also reject it.
¶ 103. For the foregoing reasons, I respectfully dissent.
¶ 104. I am authorized to state that Chief Justice Shirley S. Abrahamson joins this opinion.
The lead opinion concedes that Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995), involved a substantive due process analysis. Lead op. at 47. However, reliance on substantive due process requires the lead opinion to inquire whether the legislation has a proper purpose, and whether the statutory means of effectuation bear a rational relationship to the purpose. Szarzynski v. YMCA, Camp Minikani, 184 Wis. 2d 875, 889, 517 N.W.2d 135 (1994). Because the lead opinion has declined to engage in such an inquiry, its substantive due process "analysis" begins and ends with the conclusory statement that § 893.55(l)(b) is "fundamentally unfair."
The equal protection provisions of the Wisconsin Constitution parallel those guaranteed under the Fourteenth Amendment to the United States Constitution. Reginald D. v. State, 193 Wis. 2d 299, 307, 533 N.W.2d 181 (1995). The plaintiffs make the argument that § 893.55(1)(b) constitutes "special privilege legislation." Because equal protection analysis subsumes the question of whether a statute impermissibly confers special privileges on a class, I treat both issues under equal protection. See Christoph v. Chilton, 205 Wis. 418, 421, 237 N.W. 134 (1931).
As the plaintiffs note, § 893.55(3) removes the five-year limit on discovery of foreign objects that have been left in a patient's body. However, this is hardly an arbitrary subclassifi-cation of health care providers, for it is reasonable that § 893.55 would carve out exceptions to the five-year period of repose for those acts or omissions that the legislature has determined are particularly egregious. See also § 893.55(2) (providing an exception to the five-year repose period when a health care provider conceals his or her injurious act or omission).
Wis. Stat. § 893.51(1) states that actions for the wrongful taking of personal property must be commenced within six years after a cause of action accrues. The statute also provides that such a cause of action accrues at the time that the property is taken. The Judicial Council Committee note accompanying the statute makes explicit the legislature's intent that the cause of action accrue without regard to a claimant's knowledge of the wrongful taking.