Humphreys v. Clinic for Women, Inc.

Attorneys for Appellant Attorneys for Appellee

Steve Carter Mary Hoeller

Attorney General of Indiana Indianapolis, Indiana

Thomas M. Fisher Bebe J. Anderson
Special Counsel New York, New York

Office of Attorney General Bridgitte Amiri
Indianapolis, Indiana New York, New York

Attorneys For Amici Curiae Attorneys For Amicus
Curiae

Members of the Indiana Legislature Indiana Civil
Liberties Union, Inc.

Bruce A. Stuard Kenneth J. Falk

Elwood, Indiana Indianapolis, Indiana

Paul Benjamin Linton Jacquelyn Bowie Suess
Northbrook, Illinois Indianapolis, Indiana

Indiana Right to Life Committee, Inc.
James Bopp Jr.
Terre Haute, Indiana

Richard Coleson
Terre Haute, Indiana
____________________________________________________________________________
__

In the
Indiana Supreme Court
_________________________________

No. 49S00-0011-CV-714

Katherine Humphreys, Secretary,
Indiana Family & Social Services
Administration,

Appellant (Defendant below),
v.
Clinic for Women, Inc., Women’s
Pavilion, Inc., Ulrich G. Klopfer,
D.O., And Martin Haskell, M.D.,
Appellees (Plaintiffs
below).
_________________________________

Appeal from the Marion Superior Court, No. 49D12-9908-MI-1137
The Honorable Susan Macey Thompson, Judge
_________________________________

On Direct Appeal
_________________________________

September 24, 2003

Sullivan, Justice.

Indiana's Medicaid program will pay for a poor woman to have an
abortion but only if necessary to preserve her life or if rape or incest
caused her pregnancy. The plaintiffs in this case argue, and the trial
court held, that Medicaid must pay for any abortion that is medically
necessary, citing the Indiana Constitution's requirement that privileges or
immunities cannot be granted to a citizen or class of citizens that do not
equally belong to all citizens on the same terms.

For the reasons set forth in this opinion in part I under
“Discussion,” I believe that this provision of the Indiana Constitution
does not require Medicaid to pay for all abortions that are medically
necessary. Chief Justice Shepard and Justice Dickson join in this part of
this opinion.

However, for the reasons set forth in this opinion in part II under
“Discussion,” I also conclude that, so long as the Indiana Medicaid program
pays for abortions to preserve the lives of pregnant women and where rape
or incest cause pregnancy, it must also pay for abortions in cases of
pregnancies that create for pregnant women serious risk of substantial and
irreversible impairment of a major bodily function. Justices Boehm and
Rucker join in this part of this opinion.

Background

In 1965, Congress established the Medicaid program, a joint federal-
state program that pays for some health care costs of low-income people, by
amending Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v.
Under the Medicaid program, the federal government reimburses participating
states for the health care services provided pursuant to the state’s
medical assistance or Medicaid plan. Id. at §§ 1396a(a)(10), 1396d(a).
States are not required to participate in the Medicaid program but states
that choose to participate must conform their Medicaid program to federal
Medicaid law. Id. at § 1396a(a).

In 1973, the Supreme Court held that the Due Process Clause of the
Fourteenth Amendment protected, to a certain extent, the freedom of a woman
to terminate a pregnancy. Roe v. Wade, 410 U.S. 113 (1973).

In 1976, Congress first adopted legislation, referred to as the “Hyde
Amendment” for its author, Representative Henry J. Hyde, that prohibits the
federal government from reimbursing states under the Medicaid program for
abortions except where a woman would be placed “in danger of death unless
an abortion is performed” or where “the pregnancy is the result of an act
of rape or incest.” Pub. L. No. 106-113, §§ 508-509, 113 Stat. 1501, 1501A-
274(1999). Although the provisions of the Hyde Amendment have varied from
time to time, this is the language of the prohibition and exception in
effect today.[1]

In 1977, the Supreme Court held that the constitutional right to
abortion recognized in Roe v. Wade did not include an entitlement to
Medicaid payments that were not medically necessary. Maher v. Roe, 432
U.S. 464, 470 (1977). In 1980, the Supreme Court was faced with a
challenge to the constitutionality of the Hyde Amendment, i.e., whether
Congress could prohibit the use of federal Medicaid funds to reimburse
states for medically necessary abortions. The court held that the Hyde
Amendment did not violate either the Due Process or the Equal Protection
Clauses of the Fourteenth Amendment. Harris v. McRae, 448 U.S. 297 (1980).

Any state that participates in the Medicaid program must cover those
abortions for which federal funds are available. Zbaraz v. Quern, 596 F.2d
196, 201 (7th Cir. 1979), cert. denied, 448 U.S. 907 (1980). Nevertheless,
“[a] participating state is free, if it so chooses, to include in its
Medicaid plan those medically necessary abortions for which federal
reimbursement is unavailable…” Harris, 448 U.S. at 309.

Indiana participates in the federal Medicaid program and is bound by
all of its requirements. Ind. Code § 12-15-1-1. The Indiana Medicaid
program provides low-income Hoosier citizens with virtually all non-
experimental, medically necessary health care, including some services for
which federal reimbursement is not available. See e.g., Ind. Code § 12-15-
5-1(18) (providing coverage for nonmedical nursing care given in accordance
with tenants and practices of a recognized church); cf. 42 C.F.R. §
440.170(b) (restricting federal funding for such institutions to those
organized pursuant to Section 501(c)(3) of the Internal Revenue Code).
Indiana Medicaid covers inpatient hospital services, physicians’ services,
and outpatient hospital or clinic services for all recipients and provides
a full range of reproductive health care for Medicaid-eligible men. Ind.
Code § 12-15-5-1. Covered services must be “medically reasonable and
necessary” and are required to be provided to Medicaid recipients in a
uniformly equitable manner. Ind. Code § 12-15-1-10. Indiana Medicaid
defines a “medically reasonable and necessary service” as one that “meets
current professional standards commonly held to be applicable to the case.”
Ind. Admin. Code tit. 405, r. 5-2-17(2001). However, in the case of
abortion services, the program defines an abortion as necessary (and
therefore covered under the program) only if “performed to preserve the
life of the pregnant woman or in other circumstances if the abortion is
required to be covered by Medicaid under federal law,” e.g., where the
pregnancy was caused by rape or incest. Ind. Code § 12-15-5-1(17); [2]
Ind. Code § 16-34-1-2; [3] Ind. Admin. Code tit. 405, r. 5-28-7.[4]

The plaintiffs in this case, Clinic for Women, Inc., Women’s
Pavilion, Inc., Ulrich G. Klopfer, D.O., and Martin Haskell, M.D.,
challenge the constitutionality of these two statutes and this regulation.
The plaintiffs contend that the statutes’ and regulation’s collective
prohibition on the use of state Medicaid funds to pay for abortions
violates the Equal Privileges and Immunities Clause of Art. I, § 23, as
well as Art I, §§ 1 and 12, of the Indiana Constitution.[5]

After hearing oral argument of the parties, the trial court granted
the plaintiff’s motion for summary judgment and denied the state’s cross-
motion for summary judgment, ruling that the challenged statutes and
regulation violated Art. I, § 23. The trial court did not address
plaintiffs’ Art. I, § 1 and 12, claims and they are not before us here.

Article I, § 23, of the Indiana Constitution reads as follows:

The General Assembly shall not grant to any citizen, or class of
citizens, privileges or immunities which, upon the same terms, shall
not equally belong to all citizens.

From at least 1971 until about nine years ago, this court analyzed claims
under the state Equal Privileges and Immunities Clause using the same
techniques as those employed by the United States Supreme Court to analyze
claims under the Equal Protection Clause of the Fourteenth Amendment. See
Collins v. Day, 644 N.E.2d 72, 75 (Ind. 1994). In Collins, this court
jettisoned the use of federal equal protection analytical methodology to
claims alleging violations of Art. I, § 23, and held that such claims
should be analyzed using a different standard. Id. That standard was
summarized as follows:

Article 1, Section 23 of the Indiana Constitution imposes two
requirements upon statutes that grant unequal privileges or immunities
to differing classes of persons. First, the disparate treatment
accorded by the legislation must be reasonably related to inherent
characteristics which distinguish the unequally treated classes.
Second, the preferential treatment must be uniformly applicable and
equally available to all persons similarly situated. Finally, in
determining whether a statute complies with or violates Section 23,
courts must exercise substantial deference to legislative discretion.

Id. at 80. Indiana courts have made frequent use of the Collins standard
since its promulgation, including the trial court here.

The trial court found that the ban on funding abortions contained in
the challenged statutes and regulation failed both prongs of the Collins
standard summarized supra.

The first prong of the Collins test requires that "where the
Legislature singles out one person or class of persons to receive a
privilege or immunity not equally provided to others, such classification
must be based upon distinctive, inherent characteristics which rationally
distinguish the unequally treated class, and the disparate treatment
accorded by the legislation must be reasonably related to such
distinguishing characteristics." Id. at 78-79. The trial court started its
analysis of this prong with the proposition that the "Medicaid program is a
government program through which a benefit -- government payment for
medically necessary treatment -- is provided to indigent Hoosiers." (Supp.
R. 8.) "However," the trial court continued, "that benefit is not provided
equally to all indigent Hoosiers -- women who, for medical reasons, need to
terminate their pregnancy in order to preserve and protect their health did
not receive that funding benefit. Under the Indiana Medicaid program,
indigent men and indigent pregnant women who need treatment (other than
abortion) which is medically necessary to preserve their health are singled
out for a benefit which is denied to indigent pregnant women needing to
terminate their pregnancy to preserve and protect their health.” (Supp. R.
8.)

The second prong of the Collins analysis requires that the
preferential treatment "be uniformly applicable and equally available to
all persons similarly situated." Collins, 644 N.E.2d at 80. Here the
trial court found that "[a]ll Medicaid-eligible pregnant women are
similarly situated in that all may require, from time to time, an array of
medically necessary treatment to protect and preserve their health." But,
under the challenged Medicaid statutes and regulations, "Medicaid coverage
of needed medical services is not ‘uniformly applicable and equally
available’ to those similarly situated. Pregnant women who require a
medically necessary abortion to preserve their health will not receive
state funding while pregnant women who require other types of medically
necessary treatment will receive state funding.” (Supp. R. 9.)

Under Collins, legislative discretion is accorded substantial
deference. Collins, 644 N.E.2d at 80-81. The trial court identified the
State's interests claimed to be served by the challenged statutes and
regulation as potential life, administrative simplicity, and cost
containment. But it found these justifications insufficient.

[P]ursuing the goal of promoting fetal life at the expense of
preserving the health of women who need to terminate their pregnancy
for medical reasons contravenes the purpose of the Medicaid program,
which is designed to enable indigent Hoosiers to obtain medically
necessary treatment. The State's asserted interest in administrative
simplicity and cost containment also do not justify the funding ban.
First, the goal of achieving administrative simplicity in itself can
never serve as a sufficient goal to justify depriving some citizens of
privileges accorded others. Second, the goal of cost containment is
also not reasonably related to the funding ban. Abortions are less
expensive than the costs associated with childbirth. Moreover,
preventing a Medicaid-eligible woman from terminating her pregnancy to
protect and preserve her health will necessarily mean that she will
have increased health problems that the Indiana Medicaid program must
cover. Cost containment is not served by the funding ban and cannot
be the basis to depriving some citizens of a privilege accorded
others.

(Supp. R. 10.)

The State appealed the judgment directly to our Court pursuant to
Ind. Appellate Rule 4(A)(1)(b).[6]

Our Court has been informed in this matter by a substantial number of
decisions from sister courts on similar claims under their respective state
constitutions, including some with constitutional provisions the same as
our Equal Privileges and Immunities Clause. Many of these are identified
and discussed in an excellent law journal article, Melanie D. Price, The
Privacy Paradox: The Divergent Paths of the United States Supreme Court
and State courts on the Issue of Sexuality, 33 Ind. L. Rev. 863, 875-879
(2000).

The Court also appreciates the assistance of amicus curiae Indiana
Civil Liberties Union, Inc., Indiana Right to Life Committee, Inc., and
twelve members of the Indiana General Assembly (Senators Frank Mrvan, Jr.,
Kent Adams, David C. Ford, Allie V. Craycraft, Jr., and R. Michael Young,
and Representatives Gary L. Cook, Jeffrey A. Thompson, P. Eric Turner,
James Russell Buck, Dennis K. Kruse, and Jerry L. Denbo), and their
respective counsel.

Discussion

I

The Equal Privileges and Immunities Clause of Art. I, § 23, of the
Indiana Constitution states, “The General Assembly shall not grant to any
citizen, or class of citizens, privileges or immunities, which, upon the
same terms, shall not equally belong to all citizens.”

Article I, Section 23 of the Indiana Constitution imposes two
requirements upon statutes that grant unequal privileges or immunities
to differing classes of persons. First, the disparate treatment
accorded by the legislation must be reasonably related to inherent
characteristics which distinguish the unequally treated classes.
Second, the preferential treatment must be uniformly applicable and
equally available to all person similarly situated.

Collins, 644 N.E.2d at 80. In determining whether a statute complies with
or violates this provision, the Court shows substantial deference to the
discretion of the Legislature in attempting to “balance the competing
interest involved,” and the Legislature’s basis in creating the
distinction. Id. To resolve conflicts between the state constitution and
a challenged statute, this Court has stated that “the better course is to
construe or reconstrue the statute in such a way as to further the purpose
of the legislature without offending the Indiana Constitution.” Van Dusen
v. Stotts, 712 N.E.2d 491, 496 (Ind. 1999).

Under the first prong of the Collins test, any “disparate treatment
accorded by the legislation must be reasonably related to inherent
characteristics which distinguish the unequally treated classes.” Collins,
644 N.E.2d at 80.

Where the legislature singles out one person or class of persons to
receive a privilege or immunity not equally provided to others, such
classification must be based upon distinctive, inherent
characteristics which rationally distinguish the unequally treated
class, and the disparate treatment accorded by the legislation must be
reasonably related to such distinguishing characteristics.

Id. at 78-79.

Before we can determine whether the legislative classification under
the first prong of Collins is permissible, we need to identify the
legislative classification at issue. The parties here define the relevant
classification differently. The plaintiffs contend (and the trial court
agreed) that the legislative classification at issue places (1) “indigent
men and indigent women who need treatment (other than abortion) which is
medically necessary to preserve their health” into a class for which the
necessary treatment is provided, and (2) “indigent pregnant women needing
to terminate their pregnancy to preserve and protect their health” into a
class for which the necessary treatment is not provided. (Supp. R. 8.)
The State argues that the relevant classification is between (1) “medically
necessary services and supplies” for which federal Medicaid reimbursement
at some level is available (a class that includes abortions to save a
woman’s life and where pregnancy resulted from rape or incest) and (2)
medically necessary services and supplies for which it is not (a class that
includes all other medically necessary abortions). Br. of Appellants at
14.

In McIntosh v. Melroe Co., Justice Boehm examined the way in which
the legislative classification at issue in the first prong of Collins is to
be determined:

Although Collins itself uses the word "inherent" to describe the
characteristic that defines the class, this cannot be equated with
"innate" characteristics of members of the class. The worker's
compensation scheme [the statute at issue in Collins], like the
Product Liability Act [the statute at issue in McIntosh], turns on the
characteristics of the employers, not the injured workers. Similarly,
under the Product Liability Act, everyone may potentially recover for
an injury from a product not yet ten years old, and everyone injured
from an older product is barred. It is the claim, not any innate
characteristic of the person, that defines the class.

729 N.E.2d 972, 981 (Ind. 2000). We think the claim here, reduced to its
essentials, is that some Medicaid-eligible pregnant women in Indiana are
entitled to Medicaid-financed medically necessary abortions and others are
not. We think this “claim … defines the class:” (1) Medicaid-eligible
pregnant women who seek to terminate their pregnancies in order to preserve
their lives or where their pregnancies resulted from rape or incest are in
a class where Medicaid pays for their abortions; and (2) Medicaid-eligible
pregnant women who seek to terminate their pregnancies for any other
medically necessary reason are in a class where Medicaid will not pay for
their abortions. Although this formulation of the classification at issue
differs somewhat from those advanced by the parties, we believe it
sufficiently similar to each that their arguments against and in favor of
the classifications retain their full force.

As already discussed, in analyzing the constitutional permissibility
of the classification identified, we "accord considerable deference to the
manner in which the legislature has balanced the competing interest
involved." Collins, 644 N.E.2d at 80 (citing Johnson v. St. Vincent Hosp.,
273 Ind. 374, 404-05, 404 N.E.2d 585, 604 (1980)). Indeed, we frequently
recite that the challenger to the constitutionality of the legislative
scheme bears the burden "to negative every conceivable basis which might
have supported the classification." Johnson, 273 Ind. at 392, 404 N.E.2d
at 597. In Collins, we quoted from an earlier opinion of this Court in
this regard:

Legislative classification becomes a judicial question only where the
lines drawn appear arbitrary or manifestly unreasonable. So long as
the classification is based upon substantial distinctions with
reference to the subject matter, we will not substitute our judgment
for that of the legislature; nor will we inquire into the legislative
motives prompting such classification.

Collins, 644 N.E.2d at 80 (quoting Chaffin v. Nicosia, 261 Ind. 698, 701,
310 N.E.2d 867, 869 (1974).

The plaintiffs contend that even this deferential standard of review
is violated by the statutory and regulatory scheme challenged here.
Calling the classification "manifestly unreasonable," Br. of Appellees at
21, they argue that the

…classes of persons granted and denied the privilege are inherently
the same in ways that relate directly to the subject matter of the
Medicaid legislation: they are low-income, such that they meet the
Medicaid eligibility requirements, and they seek medical care for
which they have a medical need. What distinguishes between the two is
that the members of the group denied the privilege have health
conditions which cause them to need an abortion to preserve their
health, while members of the class granted the privilege have health
conditions which cause them to need medical care other than abortion
to preserve their health. However, that difference does not relate to
the subject matter of the Medicaid statutes. In fact, denying funding
to a woman whose health will deteriorate if she does not have an
abortion runs directly counter to the subject matter of the
legislation.

Id. at 19.

The State offers four justifications for the classification.

First, the State argues that the unavailability of federal financial
participation means that it would not be "fiscally prudent and rational"
and that it would otherwise be "administrative[ly] inconvenien[t]" for the
State to pay for abortions that are not eligible for federal reimbursement.
Br. of Appellants at 14, 15.

Second, the State argues that it has a "valid and compelling"
interest in protecting fetal life, quoting from this court's decision in
Cheaney v. State, 259 Ind. 138, 147, 285 N.E.2d 265, 270 (1972), cert.
denied, 410 U.S. 991 (1973).[7] The State quotes from Harris v. McRae for
support in pressing its point that "limiting government funding for
abortion is a rational means for indicating the government's interest in
protecting fetal life." Br. of Appellants at 17 (quoting Harris, 448 U.S.
at 325).

Third, in addition to the fiscal and administrative efficiency
dimensions of the federal funding argument made supra, the State advances
additional fiscal and administrative justifications for the classification.
It argues that a more liberal system of government payments for abortion
"will result in more of that activity" and "may have a dramatic impact on
the State's future tax base." Its broader point here is that the
allocation of Medicaid spending is a fiscal policy determination for the
legislative and executive branches. Br. of Appellants at 18-19.

The plaintiffs respond that the State should not be entitled to offer
justifications for the classification extraneous to the purpose of the
Medicaid program itself. "If the State's position is accepted, the
Legislature could insulate any discriminatory statute from constitutional
challenge by simply claiming that it serves multiple purposes. Thus, the
State could withhold any and all government benefits from women who have
had abortions, irrespective of the subject matter or goal of the statute at
issue. For example, the State could grant free tuition to state
universities to all its citizens except for those who have had an abortion,
on the grounds that the statute furthers the State's interest in protecting
fetal life." Br. of Appellees at 21.

We appreciate the point plaintiffs make but think it only has force
if our determination is binary. To the contrary, Collins, its precursors,
and its progeny all indicate that we look at the Legislature’s "balancing
of the competing interest involved." See American Legion Post No. 113 v.
State, 656 N.E.2d 1190, 1192 (Ind. Ct. App. 1995) (citing Collins, 644
N.E.2d at 80 (citing Johnson, 273 Ind. at 404-05, 404 N.E.2d at 604)),
trans. denied.

In balancing the interests here, we have given careful attention to
the evidence presented by the plaintiffs in the trial court demonstrating a
number of different health risks faced by pregnant women with respect to
which an abortion is medically necessary. In support of their motion for
summary judgment, the plaintiffs submitted the affidavit of Dr. Jane
Hodgson, a physician specializing in obstetrics and gynecology and an
expert in the field. Dr. Hodgson testified that many women confront
serious health risk when pregnant. Hypertension complicates about 8-10% of
pregnancies. Hypertensive pregnant women are at a higher risk for
cerebrovascular accidents (strokes), abruptio placentae (premature
separation of the placenta from the uterus), and disseminated
intravasscular coagulation (a severe bleeding disorder). Dr. Hodgson
further testified that pregnancy-induced diabetes occurs in approximately 1-
3% of pregnancies. Women with preexisting diabetes have ten times the risk
of pregnancy-related death than do non-diabetic women. Diabetes-associated
retinopathy (eye disease) or nephropathy (kidney disease) often worsen
significantly during pregnancy. Dr. Hodgson added that pregnancy
jeopardizes the health of a woman with advanced coronary artery disease or
severe impairment of the heart valve, and all pregnant women with heart
disease have a higher risk of congestive heart failure, cardiac infections,
and arrhythmia (abnormal heart rhythms). The health of a pregnant woman is
seriously impaired when she suffers from chronic renal failure, myasthenia
gravis, or pulmonary embolism from a previous pregnancy. Pregnant women
with lupus may experience aggravation of their disease.

Dr. Hodgson also testified that pregnant women with sickle cell
anemia experience more frequent and more severe crises, especially in
bones, infections such as pneumonia and urinary tract infections,
increasingly severe anemia, congestive heart failure, and pulmonary
complications such as embolus. Other conditions exacerbated by pregnancy
include asthma, arthritis, inflammatory bowel disease, gall bladder
disease, liver disease, and epilepsy. Dr. Hodgson added that when cancer
threatens a pregnant woman’s life, the pregnancy puts further strain on the
woman’s health, and may require a suspension of cancer treatment because of
harm to the fetus from such treatments. Thus, if treatment of the disease
requires radiation or chemotherapy, a choice must be made between the
health of the patient and the fetus, since these forms of therapy are
likely to result in fetal malformation or death. Pregnancy may accelerate
the condition of women with malignant breast tumors that are estrogen
receptor positive. Dr. Hodgson’s testimony was bolstered by the other
affidavits submitted by the plaintiffs from Dr. Judith Belsky and Dr.
William Mudd Haskell.

The question for this Court is whether the Legislature may prohibit
the State from paying for an abortion for a Medicaid-eligible pregnant
woman facing any of these health risks while at the same time it authorizes
the State to pay for an abortion to preserve the life of a Medicaid-
eligible pregnant woman or where the pregnancy was caused by rape or
incest. We find the State’s justifications of unavailability of federal
financial participation, interest in protecting fetal life, fiscal policy,
and administrative efficiency sufficient to sustain the constitutionality
of the classification under the first prong of the Collins test. We are in
no position to deny plaintiffs’ argument that the statutes and regulation
at issue impose significant financial, physical, and emotional hardship on
many low-income Hoosier women. But we hold that the State’s justifications
for the classification do not rise to the level of being “arbitrary or
manifestly unreasonable.” Collins, 644 N.E.2d at 80 (quoting Chaffin, 261
Ind. at 701, 310 N.E.2d at 869).

The second prong of the Collins test requires that the "privileged"
legislative classification "be open to any and all persons who share the
inherent characteristics which distinguish and justify the classification,
with the special treatment accorded to any particular classification
extended equally to all such persons." Collins, 644 N.E.2d at 79.

The trial court found this aspect of Collins violated because
"[p]regnant women who require a medically necessary abortion to preserve
their health will not receive state funding while those who require other
types of medically necessary treatment will receive state funding." (Supp.
R. 9.) We believe the State is correct when it responds that, because the
plaintiffs "challenge not the provision of Medicaid benefits to indigent
people generally, but rather the deprivation of Medicaid benefits to some
who seek abortions, it is clearer to frame the issue as whether that
deprivation is uniformly applicable to all who share the inherent
characteristics that justify the classification." Brief of Appellants at
23. We find the requirement of the second prong of Collins met because
Medicaid will pay for abortions for all persons in the classification of
Medicaid eligible pregnant women seeking to terminate their pregnancies to
preserve their life or where the pregnancy resulted from rape or incest.

II

A statute that is constitutional on its face may be unconstitutional
as applied to a particular plaintiff. See Martin v. Richey, 711 N.E.2d
1273, 1284-85 (Ind. 1999) (holding Indiana Medical Malpractice Act statute
of limitations constitutional on its face but unconstitutional as applied
to plaintiffs whose medical condition and the nature of the asserted
malpractice make it unreasonable to expect that they could discover the
asserted malpractice and resulting injury within the limitations period);
City of Fort Wayne v. Cameron, 267 Ind. 329, 334, 370 N.E.2d 338, 341
(1977) (holding Indiana Tort Claims Act notice requirement constitutional
on its face but unconstitutional as applied to plaintiffs whose mental and
physical incapacity render them unable to comply with the notice
requirement). For the reasons set forth below, we believe that the statute
and regulations challenged here are unconstitutional as applied to Medicaid-
eligible pregnant women whose pregnancies “create serious risk of
substantial and irreversible impairment of a major bodily function.”[8]

Article I, § 23, of our Constitution prohibits a statute from
providing disparate treatment to different classes of persons if the
disparate treatment is not reasonably related to inherent characteristics
that distinguish the unequally treated classes. McIntosh, 729 N.E.2d at
981; Martin, 711 N.E.2d at 1280; Collins, 644 N.E.2d at 80. We believe
that the characteristics that distinguish Medicaid-eligible pregnant women
whose pregnancies create serious risk of substantial and irreversible
impairment of a major bodily function to be virtually indistinguishable
from the characteristics of women for whose abortions the State does pay.
To the extent there is a distinction, it is too insubstantial to be
sustained by the State’s justifications.

The challenged statutory and regulatory scheme here provides disparate
treatment to different classes of persons: Medicaid (1) will pay for
abortions where necessary to preserve the life of the pregnant woman or
where the pregnancy was caused by rape or incest but (2) will not pay for
any other abortions. Thus the Constitution requires that the disparate
treatment be reasonably related to inherent characteristics that
distinguish the “preserve the life, rape, or incest” classification from
the “any other abortions” classification. Within this “any other
abortions” classification is a subset consisting of abortions where the
pregnancies create for Medicaid-eligible women a serious risk of
substantial and irreversible impairment of a major bodily function.

The State’s argument is that there are “inherent characteristics …
reasonably related to permissible legislative goals” that justify Medicaid-
funded abortions where necessary to preserve the life of the pregnant woman
or where the pregnancy was caused by rape or incest. Br. of Appellants at
17. This is because “[a]bortions in those circumstances raise problems and
concerns that abortions in other circumstances do not.” Id. Although it
does not elaborate, the State says that these problems are the result of
certain “medical, moral, social, and ethical concerns” that “do not arise
in other abortion cases.” Id. at 18.

That is, the State says that providing Medicaid-financed abortions is
reasonably related to the “inherent characteristics” that distinguish the
“preserve the life, rape, or incest” classification from the “any other
abortions” classification (and, therefore, makes the distinction
constitutionally permissible). Those inherent characteristics are the
“medical, moral, social, and ethical concerns” raised by the “preserve the
life, rape, or incest” classification that are not raised by the “any other
abortions” classification.

It is clear that the inherent characteristics of the “preserve the
life, rape, or incest” classification do not require that the life of the
pregnant woman be at stake. This classification includes abortions where
the pregnancy was caused by rape or incest where there is no inherent
threat to life. But if the “medical, moral, social, and ethical concerns”
that justify Medicaid-funded abortions do not require that the life of the
pregnant woman be at stake, what are the inherent characteristics that
distinguish the abortions permitted by the “preserve the life, rape, or
incest” classification from cases where the pregnant woman faces
substantial and irreversible impairment of a major bodily function? The
medical, moral, social, and ethical concerns are the same or at least the
differences too insubstantial to be sustained by the State’s
justifications.

The application of the challenged statute and regulations to pregnant
women who face substantial and irreversible impairment of a major bodily
function is significant because the Legislature itself has identified it
for special treatment in the State abortion control statute. For that
purpose, the Legislature has treated in exactly the same way cases where
the life of the pregnant woman is at stake and cases where the woman faces
substantial and irreversible impairment of a major bodily function.
Indiana law forbids an abortion to be performed in Indiana unless the
pregnant woman consents following specified disclosures provided to her at
least 18 hours before the abortion is performed. Ind. Code §16-34-2-1.1.
However, the Legislature has exempted from these disclosure and waiting
period cases where “the medical condition of a pregnant woman …
necessitates the immediate termination of her pregnancy to avert her death
or for which a delay would create serious risk of substantial and
irreversible impairment of a major bodily function.” Ind. Code §§ 16-18-2-
223.5 (emphasis supplied) & 16-34-2-1.1; A Woman's Choice-East Side Women's
Clinic v. Newman, 671 N.E.2d 104, 111 (Ind. 1996) (“severe-but-temporary
conditions in which an abortion is not the medically necessary treatment
are not covered by the exception”).

The fact that the Legislature has treated as a single classification
in the abortion control statute “abortions for which a delay would create
serious risk of substantial and irreversible impairment of a major bodily
function” and abortions necessary to preserve the pregnant woman’s life
reinforces our conclusion that the inherent characteristics of these cases
(when combined with abortions where the pregnancy was caused by rape or
incest) are so similar that disparate treatment is not justified under
Medicaid. McIntosh, 729 N.E.2d at 981; Martin, 711 N.E.2d at 1280;
Collins, 644 N.E.2d at 80. We find the challenged statute and regulations
unconstitutional as applied to Medicaid-eligible women whose pregnancies
create serious risk of substantial and irreversible impairment of a major
bodily function. So long as the Indiana Medicaid program pays for
abortions for Medicaid-eligible women where necessary to preserve the life
of the pregnant woman or where the pregnancy was caused by rape or incest,
we hold that it must pay for abortions for Medicaid-eligible women whose
pregnancies create serious risk of substantial and irreversible impairment
of a major bodily function.[9]

Conclusion

It is the judgment of the Court that the challenged Medicaid statutes
and regulation do not violate the Equal Privileges and Immunities Clause of
the Indiana Constitution and are, therefore, constitutional except that, so
long as the Indiana Medicaid program pays for abortions to preserve the
lives of pregnant women and where pregnancies are caused by rape or incest,
it must also pay for abortions for Medicaid-eligible women whose
pregnancies create serious risk of substantial and irreversible impairment
of a major bodily function. The trial court is reversed in part and
affirmed in part.

Shepard, C. J., and Dickson, J., concur in Part I and dissent
from Part II.
Boehm and Rucker, JJ., dissent from Part I and concur in Part
II.
Shepard, C.J., concurs and dissents with separate opinion.
Dickson, J., concurs and dissents with separate opinion.
Boehm, J., concurs and dissents with separate opinion in which
Rucker, J., concurs.

Shepard, Chief Justice, concurring and dissenting.

I join in Part I of Justice Sullivan’s opinion, but not in Part II,
which I think produces the wrong result.

A former colleague of ours once told us in conference (but never took
occasion to say in writing) that for all the jurisprudential effort put
into devising standards for trial and appellate review, the most that any
articulated standard can achieve is to “tell the judge what mood to be in
as he or she approaches a topic.” Various standards tell us to be strict
or liberal, deferential or non-deferential, to name a few.

The Court correctly announces the standard applicable to the present
case. It is that the judiciary should defer to the lines drawn by the
General Assembly and Governors Bowen and Bayh unless they are “arbitrary or
manifestly unreasonable.” Slip op. at 15, citing Collins v. Day, 644
N.E.2d 72, 80 (Ind. 1994).

I cannot say that the decisions made on the very difficult topic of
public payments for abortion, made by Indiana’s elected representatives
(and for that matter by the Congress and President Carter) are so arbitrary
and unreasonable that they are unconstitutional.

DICKSON, Justice, concurring with Part I and dissenting from Part II.

I concur with the holding of Part I of Justice Sullivan's opinion for
the Court, that Indiana's Medicaid abortion coverage restrictions do not
violate the requirements of Collins v. Day, 644 N.E.2d 72 (Ind. 1994), and
thus do not violate Article 1, Section 23 of the Indiana Constitution.

The Indiana Privileges and Immunities Clause, Article 1, Section 23
of the Indiana Constitution, clearly permits enactment of laws that provide
"disparate treatment" for different classes where the legislation is
"reasonably related to inherent characteristics which distinguish the
unequally treated classes." Collins, 644 N.E.2d at 80.

The Court correctly acknowledges that "the State's justifications of
unavailability of federal financial participation, interest in protecting
fetal life, fiscal policy, and administrative efficiency," and the uniform
applicability of the Medicaid abortion benefit to all who qualify, are
sufficient to sustain the constitutionality of the classification.
Sullivan slip opin. at 14.

I believe it preferable, however, to address the specific
classifications that were identified by the plaintiffs-appellees and trial
court as receiving unequal treatment: (1) indigent men and women who need
treatment (other than abortion) which is medically necessary to preserve
their health, and (2) indigent pregnant women needing to terminate their
pregnancy to preserve and protect their health but whose pregnancies do not
threaten their lives and were not the result of rape or incest. These two
asserted classifications do not contrast the persons entitled to receive
Medicaid abortions with those ineligible. Rather, they compare the
treatment received by persons entitled to Medicaid benefits provided for
non-abortion medical services with those seeking Medicaid-funded abortions.
These two classifications receive different treatment in that the medical
services for the second are limited to exclude abortions except in narrow
circumstances. This disparate treatment is clearly related to the inherent
characteristic that distinguishes the unequally treated classes: namely,
the medical treatment in the second classification, abortion, requires the
termination of fetal life. The legislative decision to impose
restrictions upon Medicaid-funded abortions is obviously and reasonably
related to whether the medical services involve the termination of fetal
life. Thus, even using the classifications identified by the trial court
and the appellees, the Indiana Medicaid abortion restrictions do not
violate Section 23.

I dissent, however, from Part II and the Conclusion of the Court's
opinion, which appears to condition the holding in Part I by judicially
expanding Indiana's Medicaid abortion coverage to require the state to
provide abortion benefits clearly not intended by the Indiana General
Assembly.

Under Part II, the Indiana Medicaid program must now begin paying for
abortions for Medicaid-eligible women whose pregnancies create a "serious
risk of substantial and irreversible impairment of a major bodily
function," even though the pregnancy does not present a threat to the
woman's life. Sullivan slip opin. at 15. I believe that this conclusion
and its rationale are erroneous.

The majority in Part II of Justice Sullivan's opinion purports to
apply Collins but does so only by framing and then comparing its own two
"classifications" of Medicaid-eligible pregnant women: (1) those for whom
abortions are necessary to preserve their lives or where their pregnancies
were caused by rape and incest, and (2) those who seek abortions for all
other reasons, particularly the subset consisting of pregnant women whose
pregnancies present a serious, but not life-threatening, risk of
substantial and irreversible impairment of a major bodily function. Having
combined in a single classification both those abortions needed to preserve
the life of a pregnant woman and those abortions for pregnancies resulting
from rape and incest, the majority in Part II then questions and dismisses
the validity of the independent factors that reasonably relate to each sub-
classification by observing that the these factors are not applicable in
common to both sub-classifications. Upon this highly questionable premise,
the majority then declares that the factors supporting each sub-
classification are the same or their differences "too insubstantial" to
justify different treatment. With this rhetorical device, Part II
disregards the protection of fetal life, and the medical, moral, social,
and ethical concerns that properly distinguish and justify the restrictions
on Medicaid abortions.

Proper application of Collins to the majority's classifications would
seem to require that the first one be separated into its two independent
components: (a) pregnancies for which abortions are necessary to preserve
the life of the pregnant woman, and (b) pregnancies resulting from rape or
incest. As between those abortions necessary to preserve the life of the
pregnant woman and the majority's "substantial and irreversible impairment"
subclass, the access to Medicaid-funded abortions for the former is clearly
and reasonably related to the inherent difference that distinguishes the
classes—the risk of the woman's death without an abortion. It is the
legislature's prerogative to balance its interest in preserving fetal life
with its interest in not placing the mother at risk of death. Likewise, as
between abortions in pregnancies resulting from rape or incest and those in
the "substantial and irreversible impairment" subclass, the access to
Medicaid-funded abortions for the former is obviously related to the
inherent difference distinguishing the classes—whether the pregnancy was
caused by criminal conduct. It is neither arbitrary nor manifestly
unreasonable for the legislature to conclude that the medical, moral,
social, and ethical implications of a compelled pregnancy under these
circumstances outweighs the government's interest in the preservation of
fetal life. Furthermore, as to both subclasses ("risk of death" and "rape
or incest"), the access to Medicaid-funded abortions that are denied to the
"substantial and irreversible impairment" classification is reasonably
related to the fact that the federal government reimbursement is not
available for the latter. Such fiscal considerations by the legislature
are within the considerable legislative discretion accorded under Collins.

The legitimate reasons that separately justify the Medicaid program's
funding for abortions needed to preserve a woman's life and its funding for
abortions where the pregnancy results from rape or incest cannot be
neutralized by declaring these two groups merged into the same
classification, and then finding their independent separate justifications
thereby inconsequential because they do not simultaneously apply to both
"risk of death" and "rape or incest" abortions.

Despite the requirement of Collins that we show substantial deference
to the discretion of the legislature, the majority in Part II of Justice
Sullivan's opinion disregards the clear and unequivocal language and intent
of the Indiana General Assembly. Indiana Code section 16-34-1-2 explicitly
declares: "Neither the state nor any political subdivision of the state may
make a payment from any fund under its control for the performance of an
abortion unless the abortion is necessary to preserve the life of the
pregnant woman." The effect of Part II is to nullify this legislative
limitation and to substantially expand the obligation of the Indiana
Medicaid program to henceforth fund abortions for medical conditions that
are not needed to save the mother's life.

An examination of Indiana Code section 16-34 et seq. makes clear that
the legislature clearly intended and articulated a deliberate distinction
between the two classes of women. Some statutes use broader language that
is not limited to situations in which a pregnant woman is at risk of death.
For example, section 16-34-2-1(a)(3)(C) criminalizes abortion performed
after viability of the fetus unless the abortion is "necessary to prevent a
substantial permanent impairment of the life or physical health of the
pregnant woman." (emphasis added). Section 16-34-2-1.1 requires that
certain information be given to a woman at least eighteen hours before an
abortion except in the case of a medical emergency, which is defined in
Indiana Code section 16-18-2-223.5 as a condition that "necessitates the
immediate termination of [a woman's] pregnancy to avert her death or for
which a delay would create serious risk of substantial and irreversible
impairment of a major bodily function." Section 16-34-2-1.2 requires that
an abortion provider inform a woman facing a medical emergency of the
medical indications supporting the provider's judgment that an abortion is
necessary to prevent the mother's death or "a substantial and irreversible
impairment of a major bodily function." Section 16-34-2-3(a) states that
all abortions performed after viability shall be performed in a hospital
having premature birth intensive care units unless compliance would result
in "an increased risk to the life or health of the mother." (emphasis
added). Subsection (b) requires there to be in attendance a second
physician who shall care for a child born alive as a result of an abortion
unless "compliance would result in an increased risk to the life or health
of the mother." (emphasis added). In other statutes, however, it is clear
that the legislature intended provisions or exceptions to apply only to
women whose lives are in danger. Indiana Code section 16-34-2-1(a)(1)(B)
states that, "if in the judgment of the physician the abortion is necessary
to preserve the life of the woman, her consent is not required." (emphasis
added). Indiana Code section 16-34-2-1(b) prohibits partial birth
abortions unless a physician reasonably believes that it is necessary to
save the woman's life and no other medical procedure is sufficient.

The fact that certain sections apply when a woman faces risk of death
or impairment of a major bodily function, such as section 16-34-2-1.1,
while other sections apply only when she faces risk of death, such as
sections 16-34-2-1(b) and 16-34-1-2, indicates that the legislature's
choice of language was precise and deliberate, demonstrating that the
legislature intended to identify and treat differently these distinct
classes of women with respect to the different statutory provisions.

In Part II, the majority imports the language of its new definition
from Indiana Code section 16-18-2-223.5. This provision does not address
any term used in the statute restricting eligibility for taxpayer-funded
abortions, I.C. § 16-34-1-2, but rather provides an exception to the
informed consent requirements of Indiana's general abortion law in cases of
"medical emergency," which it defines as a condition that "complicates the
medical condition of a pregnant woman so that it necessitates the immediate
termination of her pregnancy to avert her death or for which a delay would
create serious risk of substantial and irreversible impairment of a major
bodily function." I.C. § 16-18-2-223.5. In A Woman's Choice – East Side
Women's Clinic v. Newman, 671 N.E.2d 104, 109 (Ind. 1996), this Court
construed this "medical emergency" definition to permit a physician to
dispense with the informed consent provisions whenever the doctor concluded
that an abortion was medically necessary in the doctor's clinical judgment
based on "all relevant factors pertaining to a woman's health." By its
importation of this language, the majority improperly scuttles the present
restrictions in the Indiana Medicaid program's abortion coverage and
appears to imply that Medicaid-eligible women may henceforth receive
abortions at taxpayer expense in any case supported by the clinical
judgment of a doctor based upon the woman's health factors, irrespective of
whether she is at risk of death.

The majority's alarming expansion of the coverage is exacerbated by
the fact that it imposes upon Indiana's Medicaid program the requirement to
fund not only abortions necessary to prevent substantial and irreversible
impairment of a major bodily function, but also abortions necessary to
prevent even serious risk of the same. Plaintiffs claim in their brief
that hypertension (high blood pressure) complicates approximately 8% – 10%
of pregnancies, and that "[a]lthough in most cases serious harm to health
can be averted, hypertensive pregnant women are at higher risk for
cerebrovascular accidents (strokes), abruptio placentae (premature
separation of the placenta from the uterus), and disseminated intravascular
coagulation (a severe bleeding disorder)." Br. of Appellees at 5-6
(emphasis added). Plaintiffs also discuss the risks pregnancy can have on
women with diabetes, including retinopathy (eye disease, including
blindness) and nephropathy (kidney disease), a fourfold increase in the
likelihood of pre-eclampsia or eclampsia and hypertensive diseases, and a
tenfold increase in the risk of pregnancy-related death. Other conditions
potentially necessitating abortion, according to the plaintiffs, are cancer
that requires radiation or chemotherapy, and sickle cell anemia, which can
cause "severe crises (especially in bones), infections such as pneumonia[,]
. . . increasingly severe anemia, congestive heart failure, and pulmonary
complications such as embolus." Br. of Appellees at 7. Plaintiffs admit
that "[w]hile these conditions may not always be life threatening, they can
seriously and permanently compromise a woman's health." Br. of Appellees
at 7 (emphasis added). Under Justice Sullivan's expanded definition, these
conditions arguably may now warrant coverage under Indiana's Medicaid
abortion coverage.

Thus Justice Sullivan's opinion, while purporting in Part I to find
the enacted limitations on Medicaid abortion coverage constitutionally
valid, nevertheless in Part II has the effect of granting almost all the
relief sought by the plaintiffs in this case. In judicially repealing the
express legislative pronouncement that state and local government funds
cannot be used to pay for any abortion unless necessary to preserve the
mother's life, the majority establishes a potentially ever-expanding set of
medical conditions that may be transformed into entitlements for state-
funded abortions for which there will be no federal Medicaid reimbursement.
This is blatantly contrary to the intentions of both the Indiana General
Assembly that enacted Indiana Code section 16-34-1-2 and Governor Evan Bayh
who signed the bill into law.

For these reasons I dissent from Part II of Justice Sullivan's
opinion. The fact that the Indiana Medicaid program does not pay for
abortions in cases of "pregnancies that create for pregnant women serious
risk of substantial and irreversible impairment of a major bodily function"
does not render the challenged statute and regulations unconstitutional as
applied.

Boehm, Justice, dissenting as to Part I.

For the reasons given below, I respectfully dissent from Part I of the
majority opinion. Twelve of the seventeen state courts that have
considered the issue in published opinions have concluded that denial of
benefits to indigent women for medically necessary abortions is a violation
of their state constitution.[10] Under prevailing constitutional doctrine
in this state, I would reach the same result.

There is no doubt that a pregnant woman has the right to elect an
abortion as set forth in Roe v. Wade, 410 U.S. 113 (1973). There is no
doubt that the State may elect to have a Medicaid program or not to have
one. And there is no doubt that the State may elect to fund medical
procedures for the indigent without providing the same benefit to all
citizens. Finally, it is plain on the face of the Medicaid statute that by
restricting abortion benefits to those necessary to prevent death of the
mother or to terminate pregnancies generated by rape or incest, the Indiana
Medicaid program seeks to provide different benefits for some abortions
than it does for other “medically necessary” procedures.

The plaintiffs here posit their claim as a constitutionally
impermissible distinction arising from Medicaid’s refusal to fund medically
necessary abortions for certain indigent women while providing benefits for
all other indigents in need of medical treatment. The plaintiffs are
entitled to frame their own complaint, so this different treatment is the
issue presented in this case. Plaintiffs do not base their challenge on a
comparison of funding for pregnancies arising from rape or incest or
threatening the woman’s life to funding for other abortions. It therefore
seems to me that the Indiana constitutional issue presented by this case is
simply stated: is it permissible under Article I, Section 23 for the State
to provide funding for medically necessary treatment for indigents
generally, but to refuse it for medically necessary abortions unless the
mother’s life is at stake or the pregnancy results from rape or incest? I
conclude it is not, as to those pregnancies for which the federal
constitution guarantees the woman the right to make the election to
terminate her pregnancy.

I. Equal Privileges Under the Indiana Constitution

The plaintiff’s constitutional challenge to this legislation is based
solely on the Equal Privileges Clause found in Article I, Section 23 of the
Indiana Constitution. The test for constitutionality under that clause is
established in Collins v. Day, 644 N.E.2d 72 (Ind. 1994), and is accurately
recited by the majority:

First, the disparate treatment accorded by the legislation must be
reasonably related to inherent characteristics which distinguish the
unequally treated classes. Second, the preferential treatment must be
uniformly applicable and equally available to all persons similarly
situated. Finally, in determining whether a statute complies with or
violates Section 23, courts must exercise substantial deference to
legislative discretion.

Id. at 80.

Although the Collins formulation is often described as a “two-pronged”
test, it really breaks down into three components because the first “prong”
establishes two requirements: 1) the classification must be based on
“characteristics” that “rationally distinguish the unequally treated
class”, and 2) the “disparate treatment” must be “reasonably related” to
the characteristics that define the class. I think this means, in simple
terms, that the class must be defined by a characteristic that is not
arbitrary or otherwise impermissible and that the difference in legislative
treatment must be reasonably related to the difference between the classes.
The second “prong” of Collins imposes a third test: everyone who is in
fact in the class (i.e., everyone who shares the defining characteristic)
must be treated alike, and everyone who is not in the class must be treated
alike. As we noted in McIntosh v. Melroe Co., 729 N.E.2d 972 (Ind. 2000),
the “characteristic” that defines the legislative class is not necessarily
innate (e.g., race, national origin). It may be a mutable characteristic
that the same person may have as of a given time, but lack at others (e.g.,
people who are over age sixty-two can elect to receive Social Security
benefits, but are ineligible before attaining that age; a corporation with
seventy-five or fewer shareholders can elect to be taxed more or less as a
partnership, but is ineligible with seventy-six shareholders). Or, as in
McIntosh, the classification may be based on a sequence of events (persons
injured by products in use for over ten years have no claim under the
Product Liability Act).[11] And so on.

Here the relevant characteristics defining the class generally
entitled to Medicaid benefits are indigence and desire for a medically
necessary treatment. In Section 23 terms, the Medicaid statute confers a
privilege on those persons. The plaintiffs here are indigent and seek
reimbursement for procedures that are “medically necessary” as that term is
used in the Medicaid statute. The State refuses to pay because the
requested medical treatment would terminate a pregnancy that is neither
life endangering nor the result of rape or incest. Therefore, the defining
characteristic of the classification of citizens this legislation draws is
those women who are (1) requesting a medically necessary abortion and (2)
otherwise eligible for Medicaid benefits but (3) whose pregnancy is neither
life endangering nor a result of rape or incest. The result is that this
legislation confers a privilege by providing benefits to indigents
requiring medically necessary treatment, but withholds that privilege from
poor women in need of medically necessary abortions to terminate a
pregnancy that is neither life threatening nor originated by rape or
incest. The statute thus sets up a scheme for funding abortions that is
different from that for funding for all other medical treatment.
II. Equal Protection Under the Federal Constitution

In order to understand the higher standard demanded by the state
constitution, it is important to review the basis of the holding that the
federal constitution does not prevent the states from imposing this
condition on funding for indigent medical care. In Harris v. McRae, 448
U.S. 297 (1980), the United States Supreme Court, in a 5-4 decision,
established that federal equal protection doctrine did not prohibit the
federal government from enacting a federal statute, the Hyde Amendment,
that denies federal reimbursement for the procedures at issue here. In
reaching that conclusion, the majority relied on prevailing federal equal
protection doctrine. The only Equal Protection Clause in the federal
constitution is found in the Fourteenth Amendment which imposes limitations
on state legislation, but does not apply to federal statutes. Indeed,
until 1954, it was accepted dogma that there was no equal protection
doctrine applicable to federal legislation. Kenneth L. Karst, The Fifth
Amendment Guarantee of Equal Protection, 55 N.C. L. Rev. 541, 542 (1971);
see, e.g., Detroit Bank v. United States, 317 U.S. 329, 337 (1943). The
Supreme Court for the first time found equal protection applicable to a
federal law in a companion case to Brown v. Board of Education, 347 U.S.
483 (1954). Bolling v. Sharpe, 347 U.S. 497 (1954) addressed segregation
in the schools of the District of Columbia. Because the District of
Columbia was a federal enclave and not a state, the Fourteenth Amendment
did not apply. The Supreme Court unanimously held that the Due Process
Clause of the Fifth Amendment required no less than the Equal Protection
Clause of the Fourteenth Amendment, finding it “unthinkable” that the
federal government could impose distinctions that the Constitution forbids
to the states. By the mid 1970’s, it had become accepted that the equal
protection doctrine developed under the Fourteenth Amendment with respect
to state laws applied equally to federal legislation. See, e.g., Buckley
v. Valeo, 424 U.S. 1, 93 (1976).[12] It was within this legal framework
that Harris upheld the federal Hyde Amendment in 1980.

The four-Justice majority in Harris first found that the Hyde
Amendment did not itself “impinge on a right or liberty protected by the
[federal] Constitution.” Id. at 322. This was based on the conclusion, in
addressing claims under the federal Due Process Clause, that although there
is a federal constitutional right to elect an abortion under Roe v. Wade,
there is no federal constitutional right to receive funding for an
abortion.

Because no federal constitutional right was impinged, and indigent
pregnant women were not a suspect class, the majority in Harris evaluated
the federal equal protection claim under the standard taken from McGowan v.
Maryland, 366 U.S. 420 (1961): the classification must be sustained unless
it “rests on grounds wholly irrelevant to the achievement of [any
legitimate governmental] objective.” Harris, 448 U.S. at 322 (brackets in
original). The majority recognized a legitimate governmental interest in
protecting human life by “subsidizing the medical expenses of indigent
women who carry their pregnancies to term while not subsidizing the
comparable expenses of women who undergo abortions.” Id. at 325.
Accordingly, the Harris majority held that nothing in the federal equal
protection doctrine prevents a state from refusing to fund medically
necessary abortions for indigent women. The majority thus relied on the
prevailing “rationality” test for federal equal protection: a legislative
classification requires only “a rational relationship to any legitimate
governmental interest.” John E. Nowak & Ronald D. Rotunda, Constitutional
Law §14.3, at 644 (6th ed. 2000).

Four Justices dissented in Harris, taking the view that the Hyde
Amendment and its consequent state implementations imposed an impermissible
burden on the exercise of a woman’s constitutionally protected right to
choose. For that reason, some of the dissenters did not address the
federal equal protection claims raised in that case. Justice Marshall,
however, did find both due process and equal protection violations in a
scheme that provides government funding for one choice, but not for the
other, when the right to make that election is itself constitutionally
protected. In addition to placing an impermissible burden on the exercise
of a constitutionally protected right in violation of the federal Due
Process Clause, Justice Marshall concluded that the classification effected
by the statute did not pass the federal equal protection test formulated by
the majority. In his view, the asserted governmental interest—protection
of human life—was not rational as that term is used in equal protection
doctrine because it is, as a matter of federal constitutional law,
subordinate to the individual women’s “interest in preserving their lives
and health by obtaining medically necessary treatment.” Harris, 448 U.S.
at 346.

I agree that the Harris majority identified a legitimate governmental
interest in promotion of human life. This is a factor supporting the
policy found in both the federal Hyde Amendment and the Indiana statute at
issue here. The state has a second valid consideration in its concern for
public expenditures. The federal government has elected not to participate
in funding of medical procedures to terminate these pregnancies. The result
is the state bears all of any cost, not merely approximately thirty-eight
percent. The parties cite various studies suggesting that funding abortion
would have a financial impact of zero or even a positive effect on total
federal and state Medicaid expenses. This conclusion is based on
comparisons to the cost of delivering the child and bearing its subsequent
health-care costs. Thus, the federal decision to deny benefits may indeed
rely solely on social policy, not financial considerations. However on
this record I cannot conclude that the State’s claimed financial concerns
are a sham. Evaluation of that factor is therefore a matter for the
legislature. Given that the federal scheme embodied in the Hyde Amendment
treats these pregnancies differently than it does all other medically
necessary procedures, plaintiffs have not established that it is fiscally
irrational for the state legislature to refuse to underwrite the entire
expense rather than the sixty-two percent it bears for all other medical
expenses. As the majority points out, the legislature is entitled to
substantial deference in drawing lines where judgment is required in
balancing competing interests. For both these reasons, I agree that under
the rationality test adopted by the Harris majority, which requires only
some minimal governmental interest in the absence of a suspect class or a
directly infringed constitutional right, no federal equal protection
violation is to be found. But both the analysis and the result are
different under the Indiana Constitution.

III. The Plaintiffs’ Claim Under the Indiana Constitution

The Indiana constitutional provision that the plaintiffs invoke is not
equal protection, but rather the Equal Privileges Clause found in Article
I, Section 23. It provides: “The General Assembly shall not grant to any
citizen, or class of citizens, privileges or immunities, which, upon the
same terms, shall not equally belong to all citizens.” As Collins pointed
out, Article I, Section 23 of the Indiana Constitution is quite different
in both its language and its meaning from the federal Equal Protection
Clause whose doctrines governed the United States Supreme Court majority in
Harris. By demanding that legislative privileges be dispensed “equally”,
and plainly applying to treatment of Indiana’s own citizens, it also
differs significantly from the Privileges and Immunities Clause of the
Fourteenth Amendment. The Equal Privileges Clause was found in the Indiana
Constitution well before 1868 when the Fourteenth Amendment introduced both
the Equal Protection Clause and the Privileges and Immunities Clause into
the United States Constitution. Some regarded the Privileges and
Immunities Clause, not either the Equal Protection or Due Process Clause,
to be the primary guarantor of individual rights against state intrusion.
Nowak & Rotunda, Constitutional Law § 14.1 at 632. The federal Privileges
and Immunities Clause prohibits state laws that “abridge the privileges or
immunities of citizens of the United States” but makes no mention of
“equal” treatment. The Slaughterhouse Cases, 83 U.S. 36 (1872), promptly
held this provision to apply only to state laws that discriminate in favor
of their own citizens and against outsiders. Thus, the federal Privileges
and Immunities Clause was rendered a dead letter as a limitation on a
state’s ability to restrict rights of its own citizens. That result was
based in large part on the view that the Fourteenth Amendment “was not
intended to displace the critical role of the states as protectors of their
own citizens.” Lawrence H. Tribe, Constitutional Law §14 at 10 (3d ed.
2000). Thus, for over a century,[13] the Privileges and Immunities Clause
of the Federal Constitution was thought to defer to its counterparts in
state constitutions. It is the Indiana Equal Privileges Clause that is in
issue here, and for the reasons explained below, I believe it requires more
than either the Equal Protection Clause or the Privileges and Immunities
Clause of the Fourteenth Amendment. In the course of establishing its
standard for constitutional legislative classifications under the Indiana
Equal Privileges Clause, Collins explicitly rejected the federal equal
protection approach of degrees of scrutiny. Collins, 644 N.E.2d at 80.
Rather, “[t]he protections assured by Section 23 apply fully, equally, and
without diminution to prohibit any and all improper grants of unequal
privileges or immunities, including not only those grants involving suspect
classes or impinging upon fundamental rights but other such grants as
well.” Id. at 80. Thus, all claims of unequal privilege are evaluated
under the test described in Part I of this opinion.

The method chosen—denial of funding—undoubtedly meets the requirement
that the legislation be related to the goal of promoting human life. But I
believe the legislation fails the Collins requirement that the
classification be reasonably related to the legislative objectives. The
plaintiffs point to other measures, such as denying scholarships at
universities to women who elect abortions, that they contend might also be
justified in the name of deterring abortions, if the State’s Medicaid
statutes are upheld. Although these hypothetical examples are not before
us today, in general I think they raise the issue whether the disparate
treatment is “reasonably related” to the defining characteristic, and not
whether the class is defined by a permissible characteristic.

Under Collins, as Justice Sullivan points out, the reasonableness of
the relationship between the classification and the legislative objective
turns on a balancing test. The woman’s right under the Constitution of the
United States to elect an abortion is established by Roe v. Wade,
irrespective of the origin of the pregnancy or whether her life is
threatened by carrying the fetus to term. The U.S. Supreme Court in Roe
held, “the State in promoting its interest in the potentiality of human
life may, if it chooses, regulate, and even proscribe, abortion except
where it is necessary, in appropriate medical judgment, for the
preservation of the life or health of the mother.” Roe, 411 U.S. at 164-
65. Thus, the right to choose is not absolute, but the interest of the
State in promoting childbirth is constitutionally subordinate to the
woman’s right to choose to protect her life and her health. As explained
above, under Harris, federal equal protection doctrine would permit the
State to deny funding even if its interest—promotion of human life—is
offset and outweighed by other interests as long as the legislation
disadvantages no suspect classification and impinges no fundamental right.
But the Indiana Constitution is rife with provisions asserting the primacy
of individual rights. The 1851 Constitution, like its 1816 predecessor,
begins with a Bill of Rights and only later turns to provisions
establishing the branches of government. The Bill of Rights starts with
Article 1, Section 1, which borrows from the Declaration of Independence in
asserting rights to life, liberty and pursuit of happiness. This emphasis
on individual rights reflected the strong populist sentiment prevailing at
the 1851 convention, which essentially carried out the agenda set in 1816.
See Price v. State, 622 N.E.2d 954, 962 n.11 (Ind. 1993). In the same
vein, the Indiana Equal Privileges Clause elevates individual rights by
requiring more than some recognized governmental interests before
legislation can override the interests of the individual. Thus, under
Collins a “rational relationship to any legitimate governmental interest”
is not enough to carry the day. Under the balancing test of our state
constitution, the governmental interests must outweigh those of the private
citizen before a statute may deny a privilege granted to others. Under
this standard, when faced with the federal constitutional right of a woman
to choose to protect her health, the State’s interests fail to carry that
burden.

This case presents a classic confrontation between individual rights
and the will of the majority as reflected in legislation. The law at issue
here affects only women who are indigent and desire a medically necessary
procedure. The effect of the statute is to impose a financial penalty on a
woman’s election to exercise her constitutionally guaranteed right to
choose. Of course, as a practical matter, this financial obstacle may
result in delays that complicate the woman’s medical condition, and often
may force the result of a choice that is for the woman alone to make. The
State thus seeks to impose its choice upon the woman to whom that decision
is constitutionally reserved. By so choosing, the State seeks to
prioritize the interest it advances over the woman’s right to choose.
Whether the State seeks to advance its interest by criminalizing abortions,
as it no longer can do, or by creating legislation that penalizes the
exercise of that right, either is, as a matter of constitutional
priorities, an unreasonable balance. As such, this legislation imposes an
unreasonable classification and is invalid under Collins.

Justice Sullivan concludes that indigent women whose pregnancy risks
serious and permanent impairment of a major bodily function may not be
denied Medicaid benefits. Those women are a subset of all indigents in
need of medically necessary procedures. Accordingly, I concur in Part II
of Justice Sullivan’s opinion, though it does not grant all of the relief
to which I believe the plaintiffs are entitled.

Rucker, J., concurs.

-----------------------
[1] The Hyde Amendment has never had the status of permanent law but
instead has been attached annually to legislation appropriating funds for
certain departments of the federal government for a given fiscal year or
has been adopted as a stand-alone joint resolution. The full version of
the Hyde Amendment in effect on the date this lawsuit was filed states:
“Sec. 508. (a) None of the funds appropriated under this Act, and
none of the funds in any trust funds are appropriated under this Act shall
be expended for any abortion.
(b) None of the funds appropriated under this Act, and none of the
funds in any trust fund to which funds are appropriated under this Act,
shall be expended for health benefits coverage that includes coverage of
abortion.
(c) The term “health benefits coverage” means the package of services
covered by a managed care provider or organization pursuant to a contract
or other arrangement.
Sec. 509 (a) The limitations established in the preceding section
shall not apply to an abortion
(1) if the pregnancy is the result of an act of rape or incest; or
(2) in the case where a woman suffers from a physical disorder,
physical injury, or physical illness, including a life-endangering physical
condition caused by or arising from the pregnancy itself, that would, as
certified by a physician, place the woman in danger of death unless an
abortion is performed.
(b) Nothing in the preceding section shall be construed as
prohibiting the expenditure by a State, locality, entity, or private person
of State, local, or private funds (other than a State’s or locality’s
contribution of Medicaid matching funds).
(c) Nothing in the preceding section shall be construed as
restricting the ability of any managed care provider from offering abortion
coverage or the ability of a State or locality to contract separately with
such a provider for such coverage with State funds (other than a State’s or
locality’s contribution of Medicaid matching funds). Consolidated
Appropriations Act of 2000, Pub.L. No. 106-113, §§ 508-509, 113 Stat. 1501,
1501A-274 (1999).
[2] “Except as provided in IC 12-15-2-12, IC 12-15-6, and IC 12-15-21, the
following services and supplies are provided under Medicaid: (17) Family
planning services except the performance of abortions.” Ind. Code § 12-15-
5-1.
[3] “Neither the state nor any political subdivision of the state may make
a payment from any fund under its control for the performance of an
abortion unless the abortion is necessary to preserve the life of the
pregnant woman.” Ind. Code § 16-34-1-2.
[4] “Medicaid reimbursement is available for abortions only if performed to
preserve the life of the pregnant woman or in other circumstances if the
abortion is required to be covered by Medicaid under federal law.
Termination of an ectopic pregnancy is not considered an abortion. All
appropriate documentation must be attached to the claim and to claims for
directly related services before reimbursement shall be made.” Ind. Admin.
Code tit. 405, r. 5-28-7 (2001).
[5] “We declare, that all people are created equal; that they are endowed
by their creator with certain inalienable rights; that among these are
life, liberty, and the pursuit of happiness; that all free governments are,
and of right ought to be, founded on their authority, and instituted for
their peace, safety, and well-being. For the advancement of these ends,
the people have, at all times, an indefeasible right to alter and reform
their government.” Art. I, § 1.
“All courts shall be open; and every person, for injury done to him in his
person, property, or reputation, shall have remedy by due course of law.
Justice shall be administered freely, and without purchase; completely, and
without denial; speedily, and without delay.” Art. I, § 12.
[6] “The Supreme Court shall have mandatory and exclusive jurisdiction over
the following cases: . . . Appeals of Final Judgments declaring a state or
federal statute unconstitutional in whole or in part.” Ind. Appellate Rule
4(A)(1)(b).
[7] Cheaney v. State, decided about six months prior to Roe v. Wade,
rejected (over the dissent of Justice DeBruler) a federal constitutional
challenge to Indiana's criminal abortion statute.
[8] The quoted language is from Ind. Code § 16-18-2-223.5 (1998), the State
abortion control statute, discussed infra.
[9] The State, in addition to its arguments on Art I, § 23, sought summary
judgment on two additional grounds.
First, it argued that the plaintiffs were barred from the relief they
sought by Ind. Code § 12-15-5-2, which prohibits Indiana Medicaid from
funding any service for which the federal government does not provide
reimbursement. The trial court found, first, that one statute cannot save
another found to be unconstitutional, and second, that the State does not
strictly abide by the statute because the Indiana Medicaid program covers
services for which federal financial participation is unavailable.
The State also argued that the Separation of Functions clause of Art.
III, § 1, of the Indiana Constitution barred the court from granting the
relief that the plaintiffs requested. The trial court found that if the
challenged enactments violate the state Constitution, the Court could grant
relief even if doing so means that state funds will be spent in a manner
not explicitly approved of by the Legislature. “The Court has the power to
shape appropriate remedies and the Legislature has a duty to appropriate
funds to meet its constitutional obligations.” (Supp. R. 12 (quoting State
v. Monfort, 723 N.E.2d 407, 413 (Ind. 2000).))
While we do not necessarily agree with the trial court’s reasoning, we
affirm as to these issues. We believe the course of these proceedings
effectively placed Ind. Code § 12-15-5-2 at issue. And as to the
separation of powers issue, we believe that the general and open-ended
nature of the Medicaid appropriation, combined with the limited relief
provided, does not tread impermissibly upon the Legislature’s appropriation
prerogatives.
[10] Planned Parenthood v. Perdue, 28 P.3d 904 (Alaska 2001); Simat Corp.
v. Arizona Health Care Cost Containment Sys. Admin., 56 P.3d 28 (Ariz.
2002); Comm. to Defend Reprod. Rights v. Myers, 625 P.2d 779 (Cal. 1981);
Doe v. Maher, 515 A.2d 134 (Conn. Super. Ct. 1986); Roe v. Harris, 917 P.2d
403 (Idaho 1996); Doe v. Wright, No. 91 Ch. 1958, slip op. (Ill. Cir. Ct.
Dec. 2, 1994), leave to file late appeal denied, No. 78512 (Ill. Feb. 28,
1995); Moe v. Sec’y of Admin. & Fin., 417 N.E.2d 387 (Mass. 1981); Women of
Minnesota v. Gomez, 542 N.W.2d 17 (Minn. 1995); Right to Choose v. Byrne,
450 A.2d 925 (N.J. 1982); New Mexico Right to Choose/NARAL v. Johnson, 975
P.2d 841 (N.M. 1998); Planned Parenthood Ass’n. v. Dep’t of Human Res., 663
P.2d 1247 (Or. Ct. App. 1983), aff’d on other grounds, 687 P.2d 785 (Or.
1984); Women’s Health Ctr. Of West Virginia, Inc. v. Panepinto, 446 S.E.2d
658 (W.Va. 1993). But see Renee B. v. Fla. Agency for Health Care Admin.,
790 So.2d 1036 (Fla. 2001); Doe v. Dep’t of Social Servs., 487 N.W.2d 166
(Mich. 1992); Rosie J. v. North Carolina Dep’t of Human Res., 491 S.E.2d
535 (N.C. 1997); Fischer v. Department of Pub. Welfare, 502 A.2d 114 (Pa.
1985); Bell v. Low Income Women of Tex., 95 S.W.3d 253 (Tex. 2002).
[11] In some sense, the claim asserted under the Equal Privileges Clause
always defines the class because it sets forth the plaintiff’s theory, and
therefore presumably defines the class that is claimed to be unequally
treated. However, I do not agree with the majority that “this claim
defines the class” as that term is used in McIntosh. The issue in that
case was whether the statute of repose in the Product Liability Act
violated Article I, Section 23 by shutting off claims based on products in
use over ten years before the event giving rise to the plaintiff’s injury.
In saying that the “claim . . . defines the class,” McIntosh referred to
the claim of the plaintiffs in the underlying product liability case, not
to the claim of unconstitutionality. In other words, the claim that
defined the class was the claim that the plaintiff was injured by a product
more than ten years old, not the claim that the statute of repose violated
the Indiana Constitution.
[12] For an account of this journey, which includes a few detours, see
generally Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 219 (1995).

[13] Only at the end of the twentieth century did the federal Privileges
and Immunities Clause emerge from the shadows to which the Slaughterhouse
Cases banished it, and its future remains at best uncertain. Saenz v. Roe,
526 U.S. 489 (1999).