concurring in part and dissenting in part:
Section 150.40 of the emergency rules changes the regulation covering payment for inpatient hospital services and provides that, under the General Assistance Medical Program, hospital bills will be paid only up to $500 per admission, with “the client being financially responsible for costs over this amount up to an amount the Department would otherwise pay according to its rates. ***” I consider that the effect of section 150.40 is to violate the constitutional assurances of equal protection.
The plaintiffs contend that the distinction drawn under section 150.40 is between recipients who are seriously ill or injured and require inpatient hospital care and those whose medical problems are not sufficiently severe to require hospitalization or to require only the briefest of hospitalization and only perfunctory care not exceeding a cost of $500. In summary and unconvincing fashion the majority dismisses this argument, observing simply that if there is some reasonable basis for the classification there has not been a constitutional violation. The majority then says that the extent of budgetary limitations is not for us to decide and that the extent has been not unreasonably determined by the General Assembly and the Governor.
The Supreme Court has considered that typically subsistence payments and welfare benefits are to be regarded as general economic and social welfare measures which are to be reviewed only under the rational-relationship test. (Dandridge v. Williams (1970), 397 U.S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153.) That is, the court will inquire only as to whether the classifications have a rational relationship to a purpose or end of government which is not constitutionally prohibited.
I consider, however, that here we have a subject that goes beyond a classification merely of economic and social welfare. I believe that in the case of persons with injuries so severe or illnesses so grave that hospitalization is required to preserve life or to attempt to restore physical well-being a fundamental right — to life itself — is affected and that the State’s interest in creating the classification must be compelling in order to be sustained. The classification should be subject to “strict scrutiny.” I believe that here this court should not defer automatically to the classification decision by the legislative and executive branches but should require a showing that the governmental end or purpose under section 150.40 has a value so compelling as to justify this unequal treatment of injured and sick persons. What is the governmental end here? It is only to conserve funds for hospitalizations until July 1, 1983. I cannot believe that this end has a value that overrides or justifies what often will be a life-threatening discrimination against the seriously ill and injured. Too, it was not necessary to effect revenue savings by this particular means. Constitutionally proper means could have been employed as they were through other actions taken by the Governor under the Emergency Budget Act and which are approved today by this court.
Even if one accepts the majority’s position that the minimal scrutiny test, that is, the rational-relationship test, should be the standard, I do not consider there is a rational or reasonable basis for discriminating against the seriously injured or ill and favoring those with less than serious conditions. Reasonableness would require that persons whose illnesses or injuries were life threatening or serious would be preferred for medical care. It seems a distortion of the natural order of values to treat those with minor complaints and turn away the gravely ill and injured. Determination of the classification here has been solely on the basis of expense reduction. I suggest that the classification is solely pragmatic, is arbitrary, and violates the guarantees of equal protection.
The plight of the ill and injured requiring hospitalization which will ensue is not imagined but real. It is common knowledge that city and county health facilities throughout our State are already overburdened. As this dissent is written, a Chicago newspaper describes Cook County Hospital as “financially beleaguered” and reports that officials are unsure how they are going to meet the March 30 payroll. It is unrealistic to assume that those requiring hospitalization can be cared for at public hospitals.
I would also note that it has been pointed out (Nowak, Rotunda and Young, Constitutional Law 683 (1978); Tribe, Constitutional Law sec. 16-48, at 1117-18 (1978)) that despite a formal adherence in welfare cases to the rational standard by the Supreme Court, there has been careful review of classifications affecting poor persons. In United States Department of Agriculture v. Moreno (1973), 413 U.S. 528, 37 L. Ed. 2d 782, 93 S. Ct. 2821, the court held that a provision in the Food Stamp Act that made any household containing persons who were unrelated ineligible for food stamps violated the equal protection component of the fifth amendment’s due process clause. In United States Department of Agriculture v. Murry (1973), 413 U.S. 508, 37 L. Ed. 2d 767, 93 S. Ct. 2832, the court held invalid a section of the Food Stamp Act that contained an “irrebuttable presumption” that disqualified a household from benefits where a member who was over 18 years of age had been claimed as a tax dependent by a nonmember of the household in the previous year.
Tribe on Constitutional Law (sec. 16—48, at 1117 (1978)), in discussing the Moreno and Murry decisions, states that the Supreme Court employed a “heightened standard of evenhandedness in dealing with the poor.”
The majority here, applying the minimal-scrutiny or rational-relationship test does not undertake any review whatever of the classification. It simply says that the question of the extent of permissible budgetary limitations is not for the judiciary to decide and that the question, in-eluding limiting hospitalizations, has been satisfactorily determined by the General Assembly and by the Governor. This constitutes an arbitrary acceptance of an arbitrary classification under section 150.40. The discrimination against the ill and injured needing hospitalization is invidious.
Finally, I would observe that while the human values involved here are beyond calculation, the expense which will be avoided through section 150.40 for the 150-day life of the Emergency Budget Act is relatively negligible, considering the total amount to be reserved under the Act. I would uphold the Act’s constitutionality, as the majority has done, but I would declare that section 150.40 of the emergency rules is violative of equal protection.