(concurring). Jane and Nancy Doe concede, for the purposes of this lawsuit, that 1987 PA 59, adding § 109a of the Social Welfare Act,1 insofar as it proscribes the use of public funds to pay for an elective abortion, is in the main constitutional — possibly ninety to ninety-nine percent constitutional.
Doe and her amici curiae supporters claim that § 109a is nevertheless unconstitutional insofar as it proscribes the use of public funds to provide a “medically indicated” abortion for an indigent woman.
A
While there is evidence that pregnancy represents for some women a serious and long-term threat to their health unless they have an abortion, and thus that an abortion is medically indicated for such women, the record is silent concerning the number of indigent women that might *683justifiably seek a medically indicated abortion as distinguished from an elective abortion.
In ordinary litigation, when the record is silent, a court attributes the failure of proof to one of the parties and enters judgment accordingly, or, on occasion, remands the case for the taking of additional evidence. If this were an ordinary case, however, it would have been dismissed as moot when Doe obtained an abortion. This is not ordinary litigation.
The parties, having failed to provide evidence concerning the number of women that might justifiably seek a medically indicated abortion, as distinguished from an elective abortion, it is, I think, appropriate, in order to put the issue presented in perspective, to attempt to determine what is truly at stake for indigent women for whom an abortion is medically indicated.
B
The Department of Social Services projected that in fiscal year 1990,2 eighty percent (15,200) of the estimated 19,000 women who, before the enactment of § 109a would have been eligible for a Medicaid-funded abortion, would, although public funding had been withdrawn, nevertheless obtain an abortion — as did Doe after this lawsuit was commenced._
*684If having a baby posed a serious and long-term threat to the health of as many as 1,900 (ten percent of the 19,000) indigent pregnant women a year, the amount required to pay for abortions, at the dss payment rate of $318, would approximate $600,000 annually.3
A survey that sought to determine why women have abortions indicates that fewer than ten percent of the women who chose to have an abortion did so because having a baby posed a serious and long-term threat to their health. The survey reports that seven percent responded that concern for their "own health” contributed to their decision to have an abortion, but only "53 percent of those having an abortion because of a health problem said that a doctor had told them that their condition would be made worse by being pregnant.”4 It therefore appears that an abortion may be medically indicated for less than four percent of the 19,000, or less than 800 indigent pregnant women a year, and that, consequently, the amount involved is less than $300,000 annually.
It appears5 that private funds or donated services approaching $4,000,000 a year may be available to pay for elective and medically indicated *685abortions for indigent women. This should be sufficient to provide an abortion to all indigent women for whom an abortion is medically indicated6— whether the amount required is $300,000 a year or as much as $1,000,000 a year. I conclude therefore that there is a substantial question whether women for whom an abortion is medically indicated are in fact — having in mind available sources of funding alternative to government funding — medically indigent.
It also appears that there are many practical obstacles facing a woman in obtaining an elective or medically indicated abortion.7 Obtaining funds *686to pay for an abortion may be the least of the obstacles, or, in reality, no substantial obstacle for the relatively few indigent women for whom an abortion is medically indicated.
C
If there were a clearly established constitutional right to a publicly funded abortion, it would, of course, be of no moment that an abortion is obtainable from private charitable sources. The asserted entitlement, however, is, on the contrary, without any well-established support in the precedents.8
This Court is truly being asked to break new ground by providing a judicial remedy to rectify a legislative decision to withdraw funding for a component (medical service for an abortion) of a larger program (general medical service under Medicaid). Doe and amici curiae assert this is justified because the alternatives facing indigent women denied public funds to pay for a medically indicated abortion are so dire that this Court, to avoid the injustice that the Equal Protection Clause was designed to avoid, must intervene and hold to be invidiously discriminatory the challenged classification of indigent pregnant women between those for whom medical service will be fully provided if they carry a baby to term and those in need of medical service for a medically indicated abortion.
*687Since Doe and amici curiae place such stress on the plight of an indigent woman in desperate need of a medically indicated abortion, and the dissenters place such stress on the burden of Doe’s right to an abortion represented by the denial of funding, the availability of private funding and donated services is, I believe, a relevant consideration in deciding whether judicial intervention is warranted.
It not having been established that indigent women do not have access to private funding or donated services even for a medically indicated abortion, I am unpersuaded that this Court can properly be asked to attempt to articulate a principled basis — I have attempted to do so without success — for distinguishing the plight of an indigent woman for whom an abortion is medically indicated from the plight of a man or woman, formerly on general welfare assistance, who has been evicted from shelter in the winter, without the means of acquiring adequate shelter or food, put at risk of freezing or starving to death and physical assault on the streets, and entirely dependent on private charity because unable to obtain employment.9
i
The Due Process Clause secures to a woman reproductive freedom during at least the first trimester of a pregnancy, and may also secure to her such a liberty interest to obtain, without governmental interference, a medically indicated abor*688tion beyond the first trimester of a pregnancy. This right has been described as a fundamental right.
It is not contended, however, that a woman has a fundamental right to a governmentally funded abortion. It is claimed rather that because the federal and state governments appropriate large sums to provide medical care through the Medicaid program for indigent persons, such as Doe, the failure to provide funds to pay for medically indicated abortions is violative of the Equal Protection Clause. It is contended that while the Legislature is not obliged to provide medical care for indigent persons, that having established the Medicaid program, which includes prenatal and gynecological medical care for indigent women, it cannot discriminate, consistent with the Equal Protection Clause, against indigent women who desire to exercise their fundamental right to have an abortion by denying them, in contradistinction from indigent men and women generally, and pregnant women in particular, medical care requisite to obtaining a medically indicated abortion.
The question presented is thus whether the Equal Protection Clause requires the Legislature to provide funds to pay for a medically indicated abortion for an indigent woman because the Legislature has funded a program of comprehensive medical care for indigent men and women.
A
I have signed the opinion of the Court, and join in reversal of the Court of Appeals because there is no precedent for construing the Equal Protection Clause as empowering the judiciary to require *689legislative funding of a program,10 or component of a comprehensive program excepting only state court decisions11 that, in the context of the Medicaid abortion controversy, read the Equal Protection Clause to so require. The argument predicated on those state court decisions begs the question presentéd; clearly this Court cannot legitimately decide that the Equal Protection Clause so requires in this context simply because other state courts have so required.12
B
The decisions of the United States Supreme Court relied on in one of the two dissenting opinions13 concern the constitutionality of eligibility criteria for programs that the Congress had chosen to fund. The Court, in those cases, held that durational residency14 and availability-for-work-on-the-*690Sabbath15 eligibility criteria for entitlement to governmental benefits were invalid as violative of the constitutional rights, for one group of cases to travel, and in another to observe one’s religious beliefs.
Those decisions would be in point if § 109a sought to penalize indigent women who have an abortion by denying them access to medical benefits or other welfare benefits.16 As stated by the United States Supreme Court in Harris v McRae, 448 US 297, 317, n 19; 100 S Ct 267;. 65 L Ed 2d 784 (1980), reh den 448 US 917 (1980): "A substantial constitutional question would arise if Congress had attempted to withhold all Medicaid benefits from an otherwise eligible candidate simply because that candidate had exercised her constitutionally protected freedom to terminate her pregnancy by abortion.”17
*691Those decisions are not, however, in point because § 109a does not penalize an indigent woman who has an abortion by denying her access either to medical or other welfare benefits. An indigent woman who has had an abortion is entitled to all the medical benefits that any other indigent man or woman might claim, including, it would appear, any medical care that might be required in consequence of her having had an abortion.18
Case law holding that even though the Congress or the Legislature may not be constitutionally required to provide funds for a particular program, when it chooses to do so the eligibility criteria must be consistent with other constitutional limitations, does not support the claim that the Legislature may not eliminate a component of a larger program, or that it must provide funds for a component of a larger program.
Section 109a does not establish an unconstitutional eligibility criterion. It does not deny to any woman access to medical benefits that other persons are entitled to receive. Rather, § 109a provides that a particular benefit, funding of abortions, is no longer to be provided. There is no eligibility criterion by which any woman can obtain a publicly funded abortion. This is not like the cases cited in the dissenting opinion, where the Congress had funded a program, but sought, or a state legislature had sought, to deny some persons access to the program who otherwise would be *692eligible to participate in the program by the establishment of eligibility criteria that the court found to be violative of a constitutional limitation.
C
Nor does Act 59 ordain an unconstitutional gender-based classification. It is simply a truism that only women can become pregnant, and, thus, only women can seek or obtain an abortion. Similarly, while women are now eligible for military service, only men have been subject to the draft.19
There is no constitutional principle that makes or constitutes all legislation that affects only one sex suspect, especially legislation concerning a subject matter that, by the laws of nature, can only affect one sex.
II
Were this Court to rule that funding of a comprehensive program of welfare assistance disables the Legislature from eliminating a component of that program where (i) the legislative motivation is based in some part on a moral judgment, and (ii) eliminating funding seriously burdens exercise by indigent persons of a fundamental right, lawyers would have a basis for asserting a new cause of action in behalf of candidates for welfare assistance generally.
The rights to shelter and food are at least as fundamental as the right to medical services for a medically indicated abortion. The Due Process Clause protects the right to seek shelter and food from unreasonable governmental interference, at *693least to the same extent that it protects the right to seek reasonable medical assistance. But the Due Process Clause, no more so for the fundamental rights to shelter and food than the fundamental right to seek medical service, does not oblige government to relieve the burdens of poverty. While one may have a fundamental right to shelter, food, and medical service free of unreasonable governmental restrictions, one does not have the right to demand that government provide free shelter, free food, or free medical services.
The modern welfare state does, indeed, provide such services for many in the indigent population. But the allocation of such services has never been thought to be justiciable. To be sure, if the government decides to establish a program for the benefit of poor persons, it may not establish eligibility criteria violative of constitutional limitations on the power of government. But the Equal Protection Clause has not been thought to endow the judiciary with the power to supervise the allocation of public funds or to require that neutral principles be announced, to be enforced by the judiciary, to assure that the government governs fairly.
III
The legislative decision to provide funds for the medical expenses of childbirth does not impermissibly burden the right to choose abortion. Otherwise a great many federal and state actions would be subject to constitutional challenge. Both the state and federal governments have enacted laws and programs designed to aid the institution of marriage. The Internal Revenue Code provides benefits to married persons. The state has passed laws against adultery and bigamy. Marriage gives *694one spouse legal rights in the property of the other.
There is also a right to choose not to marry, which is as equally fundamental as the right to marry. But the state provides no benefits, no entitlements, to facilitate the exercise of that choice. And no one can truthfully contend that the state unconstitutionally burdens the right not to marry by promoting the competing value, marriage.
But if the state chooses to alleviate the effects of poverty on pregnant women by funding medical care for childbirth, how can it not fund medical care for the alternative to childbirth, abortion? Should not the state respect both of these competing values equally?
Perhaps an enlightened state would choose to do so. The constitution does not, however, require the state to govern wisely or even fairly. And though it may be unfair for the state to take sides on an issue about which so many people feel so strongly, it is not unlawful for the state to do so. The government may not interfere with or prohibit the right to choose abortion; it need not support it with public funds even though it does support with public funds the competing value of childbirth.
One of the purposes for which a people institutes government is to express value choices, to develop societal norms, about the way in which people should exercise their freedom. The act of governing requires those who govern to make value choices.
Indeed, the entire concept of government neutrality on the abortion/childbirth issue is fallacious. The government must embrace one position or another. It is at least fair argument to say that the government would promote abortion by providing funding even for a medically indicated abortion. Such funding would offend those who oppose *695abortion as much as the contrary result offends those who favor choice. In short, there is no middle ground. The decision to promote "choice” is as much an expression of values as the decision to promote childbirth.
Even it if were possible for the state to maintain neutrality with respect to fundamental rights, such neutrality would not result in sound governance. Indeed, the logical result would be no governance at all. Nearly every state and federal program would be subject to challenge. It will always be possible to argue that an entitlement created by the state promotes one bundle of fundamental rights at the expense of another. A requirement of neutrality would mean that the government could create no entitlement without also creating an equal and opposite entitlement. Under such a scheme of government, the role of the judiciary would be to police neutrality in legislation, steadfastly striking down any legislation that expressed an idea, contained a thought, or took a position on the issues that matter most. Only legislation consisting of dull gray matter would survive.
IV
The government must express some set of values if it is to govern at all. How then in a democracy are the values of the government to be identified and articulated, and what is the proper role of the judiciary with respect to those value choices? In most cases, such value choices must be made by the overtly political branches of government, the legislative and executive, and not the judicial branch.
In cooperation with the federal government, Michigan provides a set of medical benefits to the *696indigent population. Presumably, these medical benefits will go only to those indigent persons whose medical condition warrants. Because the resources of the federal and Michigan governments are not limitless, choices must be made concerning the extent and level of benefits provided by the program. The decision to include one benefit while excluding another necessarily reflects some value choice. Perhaps the value will be economic utility. But ideas of economic utility, at least in the absence of a market, are notoriously subjective. Somebody has to decide whether we are better off paying for heart transplants for all who need them but cannot pay or spending resources on inoculations for indigent school children. Either choice would be defensible. Neither can be made without reference to some system of human values.
It is not the role of the judiciary to decide the values that properly may be taken into account in making such choices. Because what is involved is the identification and articulation of societal norms, the task should be left largely to the representative branches of government.
The judicial branch depends for the enforcement of its judgments upon the will of the executive and legislative branches and ultimately upon the will and confidence of the citizenry. That confidence is eroded when the judiciary is perceived to be acting politically by substituting the political judgment of the majority of the Court for the political judgment of the majority of the people as expressed at the election booth. Judicial power is most forcefully asserted when a court refrains from arrogating to itself decisions properly entrusted to the other branches of government or to the people.
It may be unfair to deprive only indigent women of the funds to terminate pregnancy, particularly *697when it is precisely such women who are likely to need medical care for pregnancy termination most urgently to preserve their physical well-being or, at least, to preserve their opportunity to decide for themselves the course of their lives. But the people of Michigan and the Legislature have decided otherwise, and I do not find a basis in the Michigan Constitution to reverse that result. I therefore concur in the judgment of the Court holding that § 109a does not violate the Equal Protection Clause.
MCL 400.1 et seq.; MSA 16.401 et seq.
The projection is set forth in an exhibit introduced during the testimony of the Director of the dss who said that the department estimated that the enactment of § 109a would have the following program effect:
In FY 1990, termination of Medicaid abortion coverage will result in:
20% of the 19,000 Medicaid abortions will be carried to term.
An additional 3,800 Medicaid deliveries.
1,000 additional afdc cases.
If ten percent is too high, the amount involved may be closer to $200,000 or $300,000. On the other hand, if having a baby poses a serious long-term health risk to as many as fifteen or twenty percent of women who become pregnant, the amount involved might be closer to $1,000,000.
Torres & Forrest, Why do women have abortions? 20 Family Planning Perspectives, No. 4 (July/Aug 1988), pp 169 ff. This study was done under the auspices of the Alan Guttmacher Institute and was conducted in 1987. I have been advised that this is the latest survey available.
On the basis of the dss payment rate of $318 an abortion, and the dss’s projection that eighty percent of the 19,000 women — who before § 109a became law would have qualified for a Medicaid abortion— would obtain an abortion in FY 1990 with privately provided funds or donated services.
Absent evidence that private funding sources are devoted in the main to pay for elective abortions, one would suppose that such funds are at least as available for a medically indicated abortion as for an elective abortion.
In light of the stress placed by Doe and her amici curiae supporters on the plight of a woman faced with a long-term threat to her health for whom an abortion is medically indicated, one would think that if there is a need to prioritize resources, a woman for whom an abortion is medically indicated would have some priority.
At this moment, abortion is not available in 83% of America’s counties, home to nearly a third of American women of childbearing age. For reasons of professional pride, or fear, or economic pressure, doctors have backed away from the procedure even where it remains available.
. . . America is entering new moral and political territory, rough and uncharted, but lit by the phosphor of righteous certainties. And as the combatants square off with their irreconcilable notions of life and liberty, the middle ground, what there is of it, promises to become scorched earth.
The predicament of women trying to get abortions is harder to distill into a single wrenching image. There are 1.6 million abortions carried out in the U.S. each year, representing almost a fourth of all pregnancies. It is estimated that more than 46% of American women will have had one by the time they are 45. But while there are about 2,500 places around the country that provide abortions — down from a high of 2,908 ten years ago— they are mostly clustered around cities, leaving broad areas of the country unserved. A single clinic serves 24 counties in northern Minnesota. Just one doctor provides abortions in South Dakota. [Lacayo, No matter what happens to Roe v Wade, the doctors who perform abortions and their patients *686face formidable obstacles, Time Magazine, May 4, 1992, pp 27, 28.]
The dissenters rely (see ns 11-13 and accompanying text) on case law holding that the Equal Protection Clause protects against discrimination in establishing eligibility criteria for a program that the Legislature has chosen to fund. Those cases do not support a claim that the Equal Protection Clause requires the Legislature to fund a program because it has funded another program or components of such a program.
See Saxon v Dep’t of Social Services, 191 Mich App 689; 479 NW2d 361 (1991), lv den 439 Mich 880 (1991), declining to provide injunctive relief in a case challenging the elimination of the General Assistance and Job Start programs. The challenge did not indeed include a claim that the elimination of these programs was violative of the Equal Protection Clause.
The United States Supreme Court has required public funding of counsel for indigent defendants in criminal cases under the Sixth Amendment, Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), and this Court has required public funding of counsel for indigent parents where the state moves against them to terminate parental rights. Reist v Bay Circuit Judge, 396 Mich 326; 241 NW2d 55 (1976). The state is not moving against indigent women who seek an abortion.
Right to Choose v Byrne, 91 NJ 287; 450 A2d 925 (1982); Doe v Maher, 40 Conn Supp 394; 515 A2d 134 (1986); Moe v Secretary of Administration & Finance, 382 Mass 629; 417 NE2d 387 (1981); Committee to Defend Reproductive Rights v Myers, 29 Cal 3d 252; 625 P2d 779 (1981).
No precedent is cited in these decisions supportive of a claim that the Equal Protection Clause requires the government to fund a program or a component of a comprehensive program.
Boyle, J., post, p 710, citing Sherbert v Verner, 374 US 398; 82 S Ct 1790; 10 L Ed 2d 965 (1963); Shapiro v Thompson, 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1969). Sherbert and Shapiro, together with Memorial Hosp v Maricopa Co, 415 US 250; 94 S Ct 1076; 39 L Ed 2d 306 (1974), were discussed in the opinion of the Court in Harris v McRae, 448 US 297, 317, n 19; 100 S Ct 2671; 65 L Ed 2d 784 (1980), reh den 448 US 917 (1980).
Memorial Hosp v Maricopa Co and Shapiro v Thompson, supra.
Sherbert v Verner, supra.
The other dissenting opinion argues that MCL 400.40-400.43; MSA 16.440-16.443 would require an indigent woman to report the receipt of private funding for an abortion, and that
[i]f an indigent woman received funds from an outside source to finance an abortion, her total monthly welfare benefits could be proportionately reduced. Id. Because payments are made directly to the provider and no cash allowance is given for medical assistance, she is not even given the choice of waiving other medical necessities in favor of a medically indicated abortion. Consequently, a woman who chooses to have the abortion must forgo housing or care for her family if she wants this medical treatment. [Mallett, J., post, p 702.]
As set forth in Harris v McRae, supra at 317, n 19, a "substantial constitutional question would arise” if the Department of Social Services were to seek to reduce an indigent woman’s welfare benefits because she had an abortion without regard to whether she or someone else paid for the abortion or the medical services were provided without charge.
The invalidity of penalizing an indigent woman for exercise of her constitutional right to have an abortion does not and would not mean that the government must pay for the abortion; the remedy would be to declare the penalty, reduction of welfare benefits, to be invalid.
The Court continued that this would be analogous to Sherbert v Verner:
*691where this Court held that a State may not, consistent with the First and Fourteenth Amendments, withhold all unemployment compensation benefits from a claimant who would otherwise be eligible for such benefits but for the fact that she is unwilling to work one day per week on her Sabbath.
There is no suggestion on this record that a woman who suffered medical complications as a result of an abortion would be denied whatever medical care she might require.
Men who were drafted into service or their families might argue that the draft "legally reinforc[es] the special vulnerability of [men],’ even at the risk of their health [or life].” Boyle, J., post, p 710.