(dissenting). The question before us is whether an otherwise qualified indigent fifteen-year-old, who became pregnant as the result of a rape, may be denied benefits for a first-trimester abortion necessary to preserve her health. I agree with Justice Mallett’s conclusion that benefits may not be denied. I write separately to briefly address my reasons for this result and the more narrow remedy I believe appropriate.
This Court has proceeded cautiously in declaring rights under our constitution that differ from those enumerated by the United States Supreme Court, People v Catania, 427 Mich 447; 398 NW2d 343 (1986). We have explicitly recognized the right to do so. Reist v Bay Circuit Judge, 396 Mich 326; 241 NW2d 55 (1976) (an indigent parent is entitled to counsel on appeal from a decision terminating parental rights); Delta Charter Twp v Dinolfo, 419 *707Mich 253; 351 NW2d 831 (1984) (an ordinance prohibiting unrelated persons from living together was violative of the Due Process Clause of Michigan’s Constitution);1
The high priority accorded in Michigan to equal protection, art 1, § 2, to equality of benefits, art 1, § 1, and to protection of health, art 4, § 51, counsel rejection of the analysis in Harris v McRae, 448 US 297; 100 S Ct 2671; 65 L Ed 2d 784 (1980), reh den 448 US 917 (1980).2 I would conclude that the statute burdens a fundamental right under the Michigan Constitution by selectively denying benefits for first-trimester, medically necessary abortions.3 The statute in question, unlike any in our jurisprudence, selectively focuses on one of two choices of a constitutionally protected decision and penalizes the exercise of the disfavored option, requiring women to sacrifice their medical needs in the first trimester of pregnancy to the interest of the state in potential life.
It is beyond dispute that Roe v Wade, 410 US *708113, 163-164; 93 S Ct 705; 35 L Ed 2d 147 (1973), reh den 410 US 959 (1973), established a right to be free from state interference in an abortion decision, at least before the end of the first trimester, and held that even when the state’s interest in potential life is compelling, "it may go so far as to proscribe abortion . . . except when it is necessary to preserve the life or health of the mother.”4 (Emphasis added.) In Doe v Bolton, 410 US 179, 193, 195, 197; 93 S Ct 739; 35 L Ed 2d 201 (1973), the Court invalidated a "hospital requirement . . . [that] fails to exclude the first trimester of pregnancy,” an accreditation requirement not imposed on any other medical procedure apart from abortion, and a statutory requirement of approval by a hospital committee, because "[t]he woman’s right to receive medical care in accordance with her licensed physician’s best judgment and the physician’s right to administer it are substantially limited by this statutorily imposed overview.”5
In my view, the statute does not survive analysis under our state constitution, first, because the protection of health lies at the core of the interest identified in Roe v Wade, second, because implementation of the right is within the protection provided by Doe v Bolton, and, finally, because withholding a medically necessary benefit when virtually all other medically necessary health care benefits are provided is a coercive burden on exercise of the protected right.
*709Simply stated, because Roe v Wade squarely holds that state interference is unreasonable if it attaches a greater importance to the interest in potential life than to the interest in protecting the mother’s health, Harris v McRae is wrong, if Roe v Wade is right. While the state has no obligation to fund private choice, when the state opts to fund medical procedures concerning pregnancy for indigent women, it may not penalize the disfavored option by conditioning the receipt of the benefit on waiver of the protected right.6
The United States Supreme Court decisions in Maher v Roe, 432 US 464; 97 S Ct 2376; 53 L Ed 2d 484 (1977), Harris v McRae, supra, and Williams v Zbaraz, 448 US 358; 100 S Ct 2694; 65 L Ed 2d 831 (1980), rest on the assumption that the right established in Roe is a negative right to be let alone. From this assumption, it follows that the baseline for measuring whether the enactment in question is coercive is whether it constitutes a burden on the right to choose.7
*710In Maher, supra at 474-475, ns 8-9, the Court rejected the conclusion of the district court that a state statute excluding medicaid-funded benefits for a nontherapeutic abortion infringed on a fundamental interest, characterizing the right involved as the freedom to decide whether to terminate a pregnancy. The Court distinguished Sherbert v Verner, 374 US 398; 83 S Ct 1790; 10 L Ed 2d 965 (1963), and Shapiro v Thompson, 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1969), on the apparent basis that because those cases had withdrawn benefits as a "consequence” of conduct, they were more analogous to penalties on the exercise of constitutional rights.
In Harris v McRae, a closely divided Court extended the Maher analysis to uphold funding restrictions for medically necessary abortions, once again distinguishing Shapiro and Sherbert on the basis that a refusal to fund protected activity "without more” cannot be equated with the imposition of a "penalty” on that activity. 448 US 317, n 19. The Court concluded that the government’s funding choice involved only a failure to act, rather than affirmative conduct "place[ing] . . . obstacle[s] in the path,” Harris at 315, of the exercise of the right. This approach can be characterized as legally reinforcing the "special vulnerability of women,” even at the risk of their health.8
Thus, Maher and Harris avoided the holdings in Roe and Doe v Bolton by recharacterizing the *711right in question from the right to be free from state interference in the decision to terminate a pregnancy to a right to be free of unduly burdensome interference in choosing whether to terminate or continue a pregnancy. This recharacterization set the stage for differentiating the abortion issue from decisions that invalidated the conditioning of governmental benefits on the exercise of fundamental rights.9 In my view, however, the statute involves not simply a failure to extend benefits, but the government’s withdrawal of already extended benefits to medical care during pregnancy. Moreover, the purported indirectness of the effect was not a significant factor in Sherbert, or other benefit cases.10 Further, the assumption that the statute is less coercive than those considered in Sherbert and Shapiro is problematic. Given the fact that there was no serious inquiry regarding the alternatives available to the plaintiffs in Harris, the difference in results appears explainable only in terms of the Court’s differential ranking of the rights involved.11
This is not a situation in which a state’s neutral, generally applicable law, indirectly burdens a fundamental right.12 This is a case in which the state selectively and intentionally funds one protected option while withdrawing funds from the other, pressuring the right to select the disfavored op*712tion. The decision in Harris is inconsistent13 with those benefit cases in which the Court has guarded against government overreaching to preserve preferred liberties.14
One would expect to see no protection provided where recipient benefits are endangered merely because of circumstances unrelated to the reasons for the state’s action as in Sherbert, supra. But because the statute upheld in Harris is actually more coercive than the statutes invalidated in Sherbert and Shapiro v Thompson,15 or the statute upheld in Employment Div, Dep’t of Human Resources v Smith, 494 US 872; 110 S Ct 1595; 108 L Ed 2d 876 (1990), the Supreme Court has not "coherently articulated the values at stake in conditions statutes.”16 Failinger, An offer she can’t *713refuse: When fundamental rights and conditions of government benefits collide, 31 Vill L R 833, 835 (1986).
Because I believe that the statute intrudes on the constitutionally protected decision, I need only observe further that a statute that makes serious health damage to the mother a more attractive alternative than abortion does not rationally promote the government’s interest in encouraging normal childbirth, under either strict or intermediate scrutiny. The only rationale advanced — to discourage medical procedures otherwise necessary to preserve the health of the mother — would justify the total elimination of the right recognized in Roe v Wade. Indeed, in Harris, Solicitor General Wade McCree acknowledged that the logic of the Court’s position would justify denial of funding even if abortion was the only life-saving procedure available. Id. at 354.
The intervening defendant acknowledges that the statute is not neutral. The governmental purpose is to enforce the discouragement of all abortions that do not threaten the life of the mother. This case thus presents a conflict between two fundamental principles — whether one’s body shall be the source of another life, even at the expense of health, and "a command that is no less fundamental [that] an innocent life may not be taken *714except to save the life of another.”17 The state has no obligation to fund private choice. It may reward choices that promote its interest. However, when the state opts to fund medical procedures concerning pregnancy for indigent women, it may not condition the benefits on waiver of the right in a manner that conflicts with the health of the mother.18
For the reasons stated, I concur in Justice Mallett’s result, but would narrow the remedy to hold that the statute may not be applied to women who seek first-trimester abortions necessary to preserve medical health.19
See also Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975) (plurality opinion holding the guest passenger exception unconstitutional as violative of the Equal Protection Clause of the Michigan Constitution after the United States Supreme Court upheld a similar statute challenged pursuant to the Fourteenth Amendment), and Traverse City School Dist v Attorney General, 384 Mich 390; 185 NW2d 9 (1971) (a proposal barring nonpublic school students from shared time and auxiliary services at public schools was deemed to deny equal protection and burden the free exercise of religion).
This conclusion has been endorsed by virtually every state court confronted with the question. See Committee to Defend Reproductive Rights v Myers, 29 Cal 3d 252; 172 Cal Rptr 866; 625 P2d 779 (1981), Doe v Maher, 40 Conn Supp 394; 515 A2d 134 (1986), Moe v Secretary of Administration & Finance, 382 Mass 629; 417 NE2d 387 (1981), Right to Choose v Byrne, 91 NJ 287; 450 A2d 925 (1982), and Hope v Perales, 150 Misc 2d 985; 571 NYS2d 972 (1991).
Although the claim in question has been characterized as positing the recipient’s right vis-á-vis that of a nonviable fetus (The Detroit Chapter of National Organization of Women of Michigan, amicus curiae, p 16), the plaintiff’s complaint alleges that "a first trimester abortion is medically necessary . . . .”
It is widely speculated that the life expectancy of Roe is questionable. However, the State of Michigan is bound by that decision. Whether we would separately recognize the right if Roe were overturned is a different question.
As Justice O’Connor has noted, the Court’s disapproval of these requirements was clearly based “on the fact that the State did not impose them on any other medical procedure . . . .” Akron v Akron Center for Reproductive Health, 462 US 416, 465, n 9; 103 S Ct 2481; 76 L Ed 2d 687 (1983) (O’Connor, J., dissenting).
Bob Jones Univ v United States, 461 US 574; 103 S Ct 2017; 76 L Ed 2d 157 (1983), does not provide authority to the contrary. In Bob Jones, the Court approved an Internal Revenue Service policy that eliminated the school’s tax-exempt status because it maintained a racially discriminatory admissions policy. The Court did not conclude that the elimination of a previously offered benefit could never constitute a burden. Rather, the Court noted that not all burdens are unconstitutional before concluding that the state’s compelling interest in eradicating racial discrimination in education overrode any burden that denial of the tax benefits placed on the petitioners’ exercise of their religion. Id. at 603-604.
The funding cases provide part of the theoretical basis for the undue burden method of analysis in the abortion context first articulated by Justice O’Connor in Akron v Akron Center for Reproductive Health, n 5 supra at 452-453. Justice O’Connor also suggested in Akron and in Planned Parenthood Ass’n v Ashcroft, 462 US 476; 103 S Ct 2517; 76 L Ed 2d 733 (1983), that health regulations throughout pregnancy may never constitute undue burdens. I do not here have need to question Justice O’Connor’s view that the interest in maternal health and potential for life is extant throughout pregnancy, or the view that the broad rationale of Roe was overstated. However, she "has yet to suggest a substitute for trimesters,” regarding regulations *710that seek to preserve potential life. Estrich & Sullivan, Abortion politics: Writing for an audience of one, 138 U Pa L R 119, 141 (1989). Nor has Justice O’Connor or a majority of the United States Supreme Court ever said that all regulations that further the interest in potential life are "automatically compelling.” Id. at 145. As both the authors and Justice Scalia in Webster v Reproductive Health Services, 492 US 490, 536-537; 109 S Ct 3040; 106 L Ed 2d 410 (1989), observe, there is a logical contradiction between Justice O’Connor’s description of possible viability and the survival of Roe.
Tribe, American Constitutional Law (2d ed), § 15-10, p 1355.
The plaintiff here is being deprived of something that is hers, her health, just as surely as the Sabbatarian in Sherbert was deprived of unemployment benefits because of her refusal to accept work.
See Failinger, An offer she can’t refuse: When fundamental rights and conditions of government beneSts collide, 31 Vill L R 833, 837, n 11 (1986).
The right involved is not unlimited. That observation, however, begs the question as to whether the state may engage in rights-pressuring activity for the period of time and under the circumstances in which, the freedom from interference has heen held to be fundamental.
Employment Div, Dep’t of Human Resources v Smith, 494 US 872; 110 S Ct 1595; 108 L Ed 2d 876 (1990).
Nor is Harris consistent, as applied to these plaintiffs, with the results of intermediate scrutiny applied in Plyler v Doe, 457 US 202; 102 S Ct 2382; 72 L Ed 2d 786 (1982), reh den 458 US 1131 (1982) (invalidating a statute because it imposed a lifetime hardship on a discrete class not accountable for their disabling status, involving no suspect class or fundamental right). The notion that government has no obligation to save people from the consequences of their own inability to purchase services that those more frugal would be able to purchase is refuted in this context. While we do not deal here with the questionable assumption that all pregnancies are voluntary, that is surely not true of Jane Doe. By operation of this statute, a minor, whose pregnancy results from a rape, is placed in a discrete class and denied medically necessary health care for exercising her right to terminate a pregnancy for which she is ho more accountable than those who were disadvantaged by the classification in Plyler.
This analysis does not call in question the well-established principle that heightened governmental justification is required only when a law burdens a fundamental right to some minimum degree. San Antonio Independent School Dist v Rodriguez, 411 US 1; 93 S Ct 1278; 36 L Ed 2d 16 (1973), reh den 411 US 959 (1973).
Nor do I find persuasive the Court’s distinction of Sherbert as a case that involved denial of benefits, rather than a mere refusal to subsidize. "Whether the State withholds only the special costs of a disfavored option or penalizes the individual more broadly for the manner in which she exercises her choice, it cannot interfere with a constitutionally protected decision through the coercive use of governmental largesse.” Harris v McRae, supra at 336, n 6. (Brennen, J., dissenting.)
Another commentator has put the criticism more bluntly:
*713[T]he abortion funding cases turned on the supposed absence of "coercive” acts .... It is perhaps the worst mistake in current unconstitutional conditions analysis that such flagrant instances of rights-pressuring intent have been immunized on the theory that government has committed no coercive act. [Sullivan, Unconstitutional conditions, 102 Harv 1415, 1500-1501 (1989). See also Perry, Why the Supreme Court was plainly wrong in the Hyde Amendment case: A brief comment on Harris v McRae, 32 Stan L R 1113, 1117-1118 (1980); Tribe, The abortion funding conundrum: Inalienable rights, affirmative duties, and the dilemma of dependence, 99 Harv L R 330 (1985).]
Tribe, n 8 supra, p 1340.
This body of jurisprudence has demonstrated that abstract notions of rights and pigeon holes framed to deal with other problems are less than adequate abstractions for resolving profoundly existential assertions regarding the interest in freedom from subordination of life and health to nascent life, and the competing moral and intellectually honest principle that all human life, fetal and adult, has value. Few decisions prove more difficult than those in which these absolutes stand opposed, and competing rights analysis sheds little light on the responsibilities of the individual claimant to the community, of the claimant to the potential life she carries, or the responsibility of the state to the claimant. Whether the United States Supreme Court will ultimately determine that the state’s interest in protecting potential life is compelling even during the first trimester of pregnancy, it is fair to observe that, women like Jane Doe, "who will inevitably suffer serious physical or emotional injury . . . unless they can abort may legitimately argue that they have considered their responsibilities to others against their own lives [and] may also claim responsible action by the state . . . .” Failinger, supra at 929.
The government may accommodate the interests of those taxpayers holding morally opposed positions to use of tax revenues for these purposes. See Tribe, n 16 supra, p 340, n 38. It may also invest in technology that pushes viability backward toward conception, thus increasing society’s power to act responsibly toward the protection of fetal life.