Paul STAM, Jr.
v.
The STATE of North Carolina; James B. Hunt, Jr., Individually and in his official capacity as Governor of the State of North Carolina; Rufus Edmisten, in his official capacity as Attorney General of the State of North Carolina; Sara Morrow, Individually and in her official capacity as Secretary of the Department of Human Resources of the State of North Carolina; North Carolina Department of Human Resources; Robert Ward, Individually and in his official capacity as Director of the Division of Social Services of the Department of Human Resources of the State of North Carolina; Social Services Commission; James Wight, Individually and in his official capacity as Director of the Wake County Department of Social Services; Wake County, a body politic.
No. 7910SC546.
Court of Appeals of North Carolina.
June 17, 1980.*339 Plaintiff appellant pro se.
Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Steven M. Shaber, Raleigh, for the State of North Carolina, appellee.
Michael R. Ferrell, County Atty., Raleigh, for Wake County, appellee.
PARKER, Judge.
Initially, plaintiff contends that the use of state tax monies for the funding of elective abortions through the State Abortion Fund is unconstitutional because a human fetus is a "person" within the meaning of Article I, Sections 1 & 19 of the North Carolina Constitution and is therefore entitled to the constitutional protections of those sections. We note at the outset that there is no federal constitutional requirement that a state provide funding for elective abortions. Maher v. Roe, 432 U.S. 464, 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977). Thus, the narrow question which plaintiff has initially raised on this appeal is whether the North Carolina Constitution affords constitutional protection to fetal life such that the state may not provide funds for the performance of medically unnecessary abortions.
Article I, § 1 of the Constitution of North Carolina provides:
The equality and rights of persons. We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.
Article I, § 19 provides in part:
Law of the land; equal protection of the laws. No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.
Although it is basic that constitutional guaranties should be liberally construed, see, Allred v. Graves, 261 N.C. 31, 134 S.E.2d 186 (1964), it is equally basic that such guaranties are not to be construed as absolute or without limitations. In interpreting the meaning of a word or phrase used in a constitutional provision, our courts have often attempted to ascertain the intention of those by whom the constitution was adopted. Elliott v. Board of Equalization, 203 N.C. 749, 166 S.E. 918 (1932); Collie v. Commissioners, 145 N.C. 170, 59 S.E. *340 44 (1907). Also, the courts of this State have looked to interpretations of similar words or phrases in the U.S. Constitution. Although decisions of the Supreme Court of the United States construing federal constitutional provisions are not binding on our courts in interpreting cognate provisions in the North Carolina Constitution, they are, nonetheless, highly persuasive. Watch Co. v. Brand Distributors, 285 N.C. 467, 206 S.E.2d 141 (1974). Having considered both the probable intent of the framers of our Constitution, as well as the U.S. Supreme Court's interpretation of the similar wording in the Federal Constitution, we hold that a fetus is not a "person" within the meaning of Article I, §§ 1 and 19 of the Constitution of North Carolina.
The intention of those by whom our Constitution was drafted should be determined by looking "to the history, general spirit of the times, and the prior and the then existing law . . . ." Perry v. Stancil, 237 N.C. 442, 444, 75 S.E.2d 512, 514 (1953). The "Law of the Land" clause was originally adopted as Section 12 of the Declaration of Rights which, by Section 44 of the Constitution of 1776 of North Carolina, was incorporated as a part of the State Constitution. Originally, the section protected a "freeman" only; however, in 1868 that limited protection was extended to protect a "person." In the same year, 1868, Article I, § 1 was newly added to reinforce the right of "all men" to life. The 1946 revisions amended the Constitution to the extent of substituting the word "person" for "men" in Article I, § 1, as well as in other sections of our Constitution. See Gardner, "The Continuous Revision of Our State Constitution," 36 N.C.L.Rev. 297 (1958). Historical precedent persuades us that it was not the intent of those who drafted the Constitution to protect the unborn in the full constitutional sense. Although there is some dispute on the issue, the general conclusion of legal scholars is that abortion of an unborn child was not homicide at common law, and that consensual abortion was no crime at all. See, e. g., Means, "The Phoenix of Abortional Freedom: Is a Penumbral or Ninth Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?," 17 New York Law Forum 335 (1971); Note, "The Law and the Unborn Child: The Legal and Logical Inconsistencies," 46 Notre Dame Lawyer 349 (1971).
The first reported case in which our Supreme Court applied the common law of abortion was State v. Slagle, 82 N.C. 653 (1880), in which it was held that it was a misdemeanor to administer a noxious drug to a pregnant woman with intent to produce an abortion. Upon later hearing of the same case, reported in 83 N.C. 630 (1880), the Court adopted the view of the courts of Pennsylvania: "It is not the murder of a living child which constitutes the offence (sic), but the destruction of gestation by wicked means and against nature. The moment the womb is instinct with embryo life and gestation has begun, the crime may be perpetrated." 83 N.C. at 632. It is apparent, then, that even though held to be a crime under the common law as adopted by this state, the crime was not murder, the taking of a person's life, but the destruction of the potentiality of life and, as such, merely a misdemeanor. Even when the crime of abortion was made a statutory offense in this State in 1881, it carried a maximum punishment of ten years imprisonment with a fine. 1881 Sess. Laws, c. 351, s. 1.
Neither is there any indication in the history of the civil law in this State that the fetus was ever regarded in the complete sense as a "person" prior to birth. This is not to say that the state did not accord certain rights and protections to the unborn child in anticipation of its eventual birth and capacity to exercise the full rights of a "person." At common law, a child en ventre sa mere could not acquire property by deed. Dupree v. Dupree, 45 N.C. 164 (1853). Such a child could, however, take by will contingent upon his live birth. Barringer v. Cowan, 55 N.C. 436 (1856); see also, Mackie v. Mackie, 230 N.C. 152, 52 S.E.2d 352 (1949). As early as 1809 the North Carolina Supreme Court recognized that after-born *341 children were entitled to a distributive share of an intestate's estate. Hill v. Moore, 5 N.C. 233 (1809). The common law as to deeds was changed by N.C.Rev.Code Ch. 43, § 4 (1854) which provided that an unborn infant in esse "shall be deemed a person capable of taking by deed of other writing, any estate whatever in the same manner as if he were born." (Emphasis added). In discussing the modern successor to that statute, G.S. 41-5, our Supreme Court stated:
It seems clear to us that G.S. 41-5 gives to an unborn infant the same capacity to take property by "deed or other writing," as such infant has under the law governing its right to take by inheritance or devise. . . . By a legal fiction or indulgence, a legal personality is imputed to an unborn child as a rule of property for all purposes beneficial to the infant after his birth, but not for purposes working to his detriment. The interest taken by the child at birth dates back to the time of conception or to the later originating of the title, and cannot be defeated by intermediate proceedings to which he was not a party." (Emphasis added).
Mackie v. Mackie, supra at 154-55, 52 S.E.2d at 354.
The view expressed in Mackie, that an unborn child may be a "person" for some purposes, is qualified in one significant respect: Live birth, the event which the "legal fiction" anticipates, is a condition precedent to the exercise of the property rights of the child en ventre sa mere. The rule of Deal v. Sexton, 144 N.C. 157, 56 S.E. 691 (1907), that an inheritance or estate of such a child may not be destroyed by judicial proceedings to which it was neither a party nor represented by a guardian ad litem is not inconsistent with the view that a fetus was not historically a "person" within the term's full legal meaning. In that case, the living heirs sought partition of a decedent's land prior to the birth of a child of decedent who was at the time of decedent's death en ventre sa mere. The court indulged, just as the court in the later Mackie case did, in the legal fiction which treats the unborn child as if a person in anticipation of the most common end result of human pregnancy, live birth.
Thus, viewing the common law which was in existence in 1776 when the "Law of the Land" clause became part of our Constitution, and early statutory enactments in existence in 1868 when Article I, § 1 was adopted, as well as considering later judicial interpretations of the rights of the unborn, we find no historical indication that the constitutional protections of those sections were intended to extend to the unborn child. This Court is, of course, aware that our State Constitution is an organic document, and that the interpretation of its language is subject to change to include new things and new conditions of the same class as those specified which were not known or contemplated when it was adopted. Purser v. Ledbetter, 227 N.C. 1, 40 S.E.2d 702 (1946). Clearly, the state of medical knowledge concerning fetal development is now far more advanced than at the time the State Constitution was adopted in the eighteenth century and amended in the nineteenth century. If the fact of biological life were the sole consideration here, plaintiff's argument would not fail, yet the reasons are compelling why that fact should not control. If the word "person" in Article I, §§ 1 and 19 were now broadened in meaning to include the fetus, such interpretation would indirectly conflict with our federal Constitution. Bound as the courts of this state would be by the U.S. Supreme Court's holding in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), that a woman has a substantive due process right to choose whether to have an abortion in the first trimester of pregnancy without any state interference, a fetus could be a "person" within the meaning of Article I, §§ 1 & 19 whose life could be protected from state funding of abortions, but whose life could not be protected in any manner inconsistent with the mother's right under Roe. Also, such an interpretation could have troublesome future implications. The State Abortion Fund at present only provides funding for medically unnecessary abortions. 10 NCAC 42W.0001(3). Medically *342 necessary abortions, those defined as necessary to save the life of the mother, to prevent severe and long-lasting physical health damage, or to terminate a pregnancy caused by reported rape or incest, are currently funded by the federal government. Should Congress ever elect to terminate such funding, a construction of the State Constitution which includes fetuses as "persons" would operate as an absolute bar to state assistance for abortions necessary to save the life of the mother or to terminate pregnancy caused by rape or incest.
Apart from historical and practical considerations, we are also guided by the decision of the U.S. Supreme Court in Roe v. Wade, supra. The phrase "The Law of the Land," used in Article I, § 19, of the Constitution of North Carolina, is synonymous with "Due Process of Law." Watch Co. v. Brand Distributors, supra. In Roe v. Wade the U.S. Supreme Court held that the word "person," as used in the Fourteenth Amendment due process clause, does not include the unborn. In reaching that holding, the Court discussed in detail the background of the treatment of the unborn in light of ancient philosophy, the common law, and American statutory law through the nineteenth century. The Court's conclusion, based on such detailed considerations, as well as our own consideration of the historical background of the law in our own State, persuades us that the word "person" should not have broader meaning in the State Constitution than it has in the U.S. Constitution. Our ruling in the present case in no way implies that the unborn child is to be accorded no rights at all. The General Assembly may, in recognition of the potentiality of life, continue to grant the rights and privileges to the unborn which it chooses. We hold only that the protections of Article I, §§ 1 & 19 do not extend to the fetus so as to prohibit the funding here at issue.
Plaintiff next contends that the appropriation and expenditure of state tax monies for elective abortions violates Article V, § 5 of the N.C. Constitution. That section provides:
Every act of the General Assembly levying a tax shall state the special object to which it is to be applied, and it shall be applied to no other purpose.
The funds appropriated for the funding of abortions for indigents are derived from taxes levied under Chapter 105 of the General Statutes. While certain of the taxes imposed are subject to use for special limited purposes, e. g. G.S. 105-164.2 (sales and use tax for the support of the public school system), G.S. 105-435 (fuel tax for the use of the state highways), most of the taxes levied in Chapter 105 are subject only to G.S. 105-1 which provides in part:
The purpose of this Subchapter shall be to raise and provide revenue for the necessary uses and purposes of the government and State of North Carolina . . . .
Plaintiff contends that because the administrative rules, 10 NCAC 42W.0001 et seq. specify that medically necessary abortions are not reimbursable through the State Abortion Fund, a fortiori, the appropriation of funds for abortions cannot be for the necessary uses and purposes of the State of North Carolina. To say, as plaintiff does, that pregnancy itself creates no necessity for an abortion, is not to answer the legal issue involved. There is clearly no doubt that the appropriation of funding for other medical services is a legitimate and proper use of state tax monies to aid the poorer citizens of North Carolina. Because there is adequate funding available through Medicaid for medically necessary abortions, the General Assembly, by establishing a fund for elective abortions, has chosen to bridge the gap in coverage to ensure that low-income women have a meaningful opportunity to exercise their constitutional choice to terminate their pregnancies. While there is no doubt that a state may choose to influence a woman's abortion decision, Maher v. Roe, supra, by funding childbirth but not abortion, it is clear that if funding for childbirth could be considered a "necessary use and purpose of government," abortion funding is equally so. Admittedly, the State's interest in funding childbirth may *343 be that of encouraging proper medical care to ensure the health of both mother and child, as well as to encourage childbirth itself, both certainly necessary uses and purposes of the government. Equally so, the State's interest in funding elective abortion may be that of ensuring, if an indigent woman chooses abortion, that her health is protected through her ability to obtain competent professional medical care.
Plaintiff's final contention on this appeal is that the expenditure of public funds by Wake County for elective abortions is ultra vires. The record discloses that the public funds expended by Wake County in 1978-79 included both state funds disbursed through the county department of social services and supplemental county funds derived from local tax revenues.
We consider first the question of the lawfulness of Wake County's use of state funds for this purpose. As an agent of the State, the County has no inherent power, but may exercise only those powers prescribed by statute and those necessarily implied by law. Insurance Co. v. Guilford County, 225 N.C. 293, 34 S.E.2d 430 (1945). In administering state funds appropriated by the General Assembly for the State Abortion Fund, the County has acted pursuant to the administrative rules governing the Fund, 10 NCAC 42W.0001 et seq. Thus, whether the County has power to administer these funds appropriated for elective abortions depends upon whether these rules were enacted pursuant to statutorily granted authority. The rules in question state in part that they were enacted pursuant to G.S. 143B-153. That statute creates the Social Services Commission of the Department of Human Resources and authorizes and empowers the Commission to adopt rules and regulations "under and not inconsistent with the laws of the State necessary to carry out the provisions and purposes of this Article." Subsection (7) of G.S. 143B-153 provides a broad grant of power to the Commission to adopt "rules and regulations consistent with the provisions of this Chapter," as an addition to the specific grants of rule-making power in subsections (1) through (6).
The purposes of the Article referred to in G.S. 143B-153, Article 3 of Ch. 143B, are stated in G.S. 143B-137 to be:
It shall be the duty of the Department to provide the necessary management, development of policy, and establishment and enforcement of standards for the provision of services in the fields of general and mental health and rehabilitation with the basic goal being to assist all citizensas individuals, families, and communitiesto achieve and maintain an adequate level of health, social and economic well-being and dignity.
Plaintiff contends on this appeal that the rules in question are not neither consistent with state law nor "necessary" to carry out the above-stated purposes. In support of his contention that the regulations are inconsistent with state law, plaintiff relies on G.S. 130-254 which, in recognition of the high mortality rate among unborn children of mothers from low socioeconomic backgrounds, mandates the establishment of programs to improve perinatal care. That the State has decided on the one hand to provide care to low-income pregnant women who choose to bear children in the interests of promoting the birth of healthy children is in no way inconsistent with its decision to ensure proper medical care for those low-income women who choose to exercise their constitutionally protected right to terminate their pregnancies. Neither are the Rules inconsistent with provisions of G.S. 108-61 which adopt the provisions of the federal Social Security Act. It is true that the Social Security Act only provides funds for medically necessary abortions and that § 210 of the 1978 Departments of Labor and Health, Education, and Welfare Appropriations Act, Public Law 95-480, 92 Stat. 1567, prohibits federal funding of medically unnecessary abortions; however, nothing in the statute either expressly or impliedly prohibits the states from providing such funds.
Further, that the rules governing administration of the State Abortion Fund provide only for abortions not strictly medically *344 necessary does not imply that such rules are not "necessary" to carry out the purposes of the Department of Human Resources as required by G.S. 143B-153. The provision of funding for elective abortions fulfills the purpose stated in G.S. 143B-137 of providing services "in the fields of general and mental health," and the promulgation of administrative rules under G.S. 143B-153 satisfies the requirement of "necessity" in that it provides standards without which the State Abortion Fund could not lawfully be administered. Thus, because the rules empowering counties to apply state funds for elective abortions were duly adopted pursuant to an express grant of statutory authority, plaintiff's argument that the County was without power to use state funds is without merit.
The second issue concerning the county is the lawfulness of the expenditure of its own funds derived from local taxation. Any power which the county has to expend funds to supplement those provided by the State Abortion Fund is granted under G.S. 153A-149. G.S. 153A-149(c)(30) provides that a county may levy property taxes with a rate limitation "to provide for the public welfare through the maintenance and administration of public assistance programs not required by Chapters 108 and 111 of the General Statutes". In turn, G.S. 153A-149(b)(8) authorizes the levy of taxes by counties without restriction as to rate or amount "[t]o provide for public assistance required by Chapters 108 and 111 of the General Statutes." G.S. 153A-149(g) limits the power to tax otherwise conferred in G.S. 153A-149 as follows:
This section [G.S. 153A-149] does not authorize any county to undertake any program, function, joint undertaking, or service not otherwise authorized by law. It is intended only to authorize the levy of property taxes within the limitations set out herein to finance programs, functions, or services authorized by other portions of the General Statutes or by local acts.
The levy of taxes and the expenditure of county revenues to fund a program of elective abortions for indigent women does not fall within the category of programs required by Chapters 108 and 111 of the General Statutes. Thus, G.S. 153A-149(b)(8) is inapplicable in the present case. Chapter 111 is intended to provide solely for aid to the blind. Although G.S. 108-59 requires the establishment of programs of "medical assistance" funded by federal, State, and county appropriations, G.S. 108-60 limits the use of funds to payment of medical expenses for eligible persons "when it is essential to the health and welfare of such person that such care be provided." (emphasis added).
We consider, therefore, whether taxation by the county and expenditure of funds for elective abortions for indigents is authorized by the language of G.S. 153A-149(c)(30), and if so, whether the program of funding those abortions is "authorized by other portions of the General Statutes" as required by G.S. 153A-149(g). As to the first issue, we hold that the levy of taxes with a rate limitation for this purpose is authorized by G.S. 153A-149(c)(30), because the taxation is for the purpose of providing a program of public assistance not required by Chapters 108 and 111 of the General Statutes, but which, like those required by Chapter 108, is directed to the problems of poverty. See Hughey v. Cloninger, 297 N.C. 86, 253 S.E.2d 898 (1979). Further, the undertaking of the social service through the use of county funds is authorized by "other portions of the General Statutes" as required by G.S. 153A-149(g). G.S. 153A-255 provides:
Each county shall provide social services programs pursuant to Chapter 108 and Chapter 111 and may otherwise undertake, sponsor, organize, engage in, and support other social service programs intended to further the health, welfare, education, safety, comfort, and convenience of its citizens.
The grant of power in this provision is sufficiently broad to permit the county to sponsor and support the program established by the State Abortion Fund through the levy of taxes and the expenditure of county funds.
*345 The judgment appealed from is
Affirmed.
MORRIS, C. J., and ROBERT M. MARTIN, J., concur.