Doe v. Department of Social Services

487 N.W.2d 166, 439 Mich. 650

• Court: Michigan Supreme Court
• Decided: June 9, 1992
• Docket: Docket Nos. 91092, 91093, (Calendar No. 12)
• Status: Published

Opinions

Griffin, J.

A statute which became law as the result of a vote of the people of Michigan prohibits the use of public funds to pay for an abortion unless the abortion is necessary to save the mother’s life. We are required to decide whether that statute, § 109a of the Social Welfare Act,¹ violates the equal protection guarantee of the Michigan Constitution.² The trial court, following related decisions of the United States Supreme Court, found no constitutional violation.³ A divided panel of the Court of Appeals then reversed. The majority found that Michigan’s Equal Protection Clause offers greater protection than its federal counterpart⁴ and that § 109a impinges upon a state right to an abortion; thus, the majority concluded that § 109a does violate the Equal Protection Clause of the Michigan Constitution.⁵

In reviewing the decision of the Court of Appeals, we emphasize the limited scope of the question presented. This case does not concern a woman’s right under the federal constitution to choose to terminate her pregnancy. That right, articulated for the first time in Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973), reh den 410 US 959 (1973), is not, nor could it be, restricted by our decision today. Rather, this case concerns whether § 109a exceeds the limits of equal protection established by our state constitution. We conclude that it does not and reverse the decision of the Court of Appeals.

I

As the result of an initiative petition, a legislative proposal which became § 109a was placed before, and adopted by, the Legislature in 1987.⁶ Thereafter, in response to a referendum petition, the measure was submitted to the electorate and approved by the voters in the 1988 election.⁷ Section 109a amended the Social Welfare Act, which provides authority for Michigan’s participation in the Medicaid program.⁸ Jointly funded by the federal government and state governments that choose to participate,⁹ the Medicaid program provides reimbursement for medical services to needy persons.

The costs of nearly all medically appropriate services required by qualified participants are reimbursed through the Medicaid program. One exception is reimbursement for abortion. In 1976, Congress passed the first of the so-called Hyde Amendments,¹⁰ which prohibited the use of federal funds to pay for the costs of an abortion under the Medicaid program unless the abortion was necessary to save the life of the pregnant woman.¹¹ After federal funding for Medicaid abortions was withdrawn, Michigan provided one hundred percent of the funds required until § 109a became effective. Section 109a provides:

Notwithstanding any other provision of this act, an abortion shall not be a service provided with public funds to a recipient of welfare benefits, whether through a program of medical assistance, general assistance, or categorical assistance or through any other type of public aid or assistance program, unless the abortion is necessary to save the life of the mother. It is the policy of this state to prohibit the appropriation of public funds for the purpose of providing an abortion to a person who receives welfare benefits unless the abortion is necessary to save the life of the mother. [MCL 400.109a; MSA 16.490(19a).]

This lawsuit was filed against two state officials responsible for administration of the Medicaid program.¹² At the time of the filing of their complaint, plaintiffs Jane Doe and her mother, Nancy Doe,¹³ were indigent women eligible to receive medical assistance through the state’s Medicaid program. Their complaint alleged that Jane Doe, then fifteen years old, had become pregnant when she was raped in January 1989. Nancy Doe requested medical assistance for a first trimester abortion for her daughter to protect her daughter’s physiological and psychological health. According to the complaint, Jane Doe had been affected periodically by an unspecified seizure disorder, and it was feared that her pregnancy would aggravate the disorder. In addition, both Jane Doe and her mother believed that an abortion would reduce the emotional trauma associated with the pregnancy. However, neither the plaintiffs nor Jane Doe’s physician represented that an abortion was necessary to save Jane Doe’s life.

In accordance with § 109a, the Michigan Department of Social Services refused to pay for the requested abortion. That refusal prompted this lawsuit. In the complaint, plaintiffs maintained that § 109a violates the Michigan Constitution, specifically its Equal Protection, Due Process, and Civil Rights Clauses, as well as a claimed right to privacy. As relief, plaintiffs sought a declaratory judgment and a permanent injunction prohibiting enforcement of § 109a.

After minimal discovery, defendants filed a motion for summary disposition.¹⁴ The trial court, relying on People v Bricker, 389 Mich 524; 208 NW2d 172 (1973), and citing two United States Supreme Court cases, Harris v McRae, 448 US 297; 100 S Ct 2671; 65 L Ed 2d 784 (1980), reh den 448 US 917 (1980), and Maher v Roe, 432 US 464; 97 S Ct 2376; 53 L Ed 2d 484 (1977), ruled that § 109a does not violate the Michigan Constitution. Thus, it granted the motion for summary disposition and dismissed the suit.¹⁵ Thereafter, a divided panel of the Court of Appeals reversed, 187 Mich App 493; 468 NW2d 862 (1991), and this Court then granted leave to appeal. 437 Mich 1047 (1991).

II

Our state constitution declares that "[n]o person shall be denied the equal protection of the laws . . . .”¹⁶ The wording of the parallel clause in the federal constitution is almost identical. It provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws.”¹⁷ In this case, plaintiffs complain that § 109a accords unequal treatment between two classes of Medicaid-qualified, pregnant women — those who choose childbirth and those who choose abortion. The women who choose childbirth receive reimbursement for medical expenses related to childbirth, while those who choose abortion receive no reimbursement for the expenses related to abortion. Of course, it is well established that even if a law treats groups of people differently, it will not necessarily violate the guarantee of equal protection. Neither constitution has been interpreted to require "absolute equality.” San Antonio Independent School Dist v Rodriguez, 411 US 1, 24; 93 S Ct 1278; 36 L Ed 2d 16 (1973), reh den 411 US 959 (1973). Likewise, it is well established that the equal protection guarantee is not a source of substantive rights or liberties; rather, it is a measure of our constitution’s tolerance of government classification schemes. Id., 411 US 58 (Stewart, J., concurring).

Thus, when legislation is challenged as violative of the equal protection guarantee under either constitution, it is subjected to judicial scrutiny to determine whether the goals of the legislation justify the differential treatment it authorizes. As the Court of Appeals panel concedes, in deciding such cases the appellate courts of this state have employed a mode of analysis similar to that which has been developed by the United States Supreme Court. 187 Mich App 510.¹⁸ Generally speaking, legislation challenged on equal protection grounds is accorded a presumption of constitutionality, and it is reviewed by applying a rational basis standard. Shavers v Attorney General, 402 Mich 554, 613; 267 NW2d 72 (1978). Under that standard, a statute will not be struck down if the classification scheme it creates is rationally related to a legitimate governmental purpose. Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975).

On the other hand, in two situations the equal protection guarantee is less tolerant of legislation that creates a classification scheme — when the classification is based upon suspect factors (such as race, national origin, or ethnicity), or when the legislation that creates the classification impinges upon the exercise of a fundamental right. Plyler v Doe, 457 US 202, 216-217; 102 S Ct 2382; 72 L Ed 2d 786 (1982), reh den 458 US 1131 (1982). In these situations, a higher standard of review, strict scrutiny, is applied. A statute reviewed under this strict standard will be upheld only if the state demonstrates that its classification scheme has been precisely tailored to serve a compelling governmental interest. Id.¹⁹

III

While recognizing that plaintiffs base their case on the state constitution, we believe a brief review of the reasoning that underlies related decisions of the United States Supreme Court is instructive. In a series of cases, that Court has held that the Hyde Amendment and state statutes which restrict Medicaid funding of abortions do not violate the equal protection guarantee of the federal constitution.

In Maher, the Court upheld a Connecticut statute that limited state funding to medically necessary abortions performed during the first trimester of pregnancy.²⁰ A few years later, in Harris, the Court reaffirmed Maher and validated a version of the Hyde Amendment that allowed Medicaid abortion funding only when the mother’s life was in danger or when she had become pregnant as the result of rape or incest.²¹ Finally, in Williams v Zbaraz, 448 US 358; 100 S Ct 2694; 65 L Ed 2d 831 (1980), the Court upheld an Illinois statute that mirrors § 109a; it provided Medicaid funding for abortion only when the woman’s life was threatened by the pregnancy.

Under its analysis, the Maher Court first determined that indigent women desiring abortions did not constitute a suspect class. After noting that no such suspect class had been recognized in earlier decisions, id. at 470-471,²² the Court found that the challenged legislation did not create a suspect classification even though the effect of the legislation fell upon those who could not pay: "[T]his Court has never held that financial need alone identifies a suspect class for purposes of equal protection analysis.” Id. at 471. Thus, the Court turned to the question whether the statute impinged upon the exercise of a fundamental right.

The underlying fundamental right was the right of privacy as articulated in Roe v Wade, supra. In Beal v Doe, 432 US 438, 454; 97 S Ct 2366; 53 L Ed 2d 464 (1977), the Court declared that the right of privacy in the federal constitution includes "the abortion decision.” However, in Maher, the nature and scope of the right established in Roe was clarified. The Court said, "Roe did not declare an unqualified 'constitutional right to an abortion,’ as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy.” Maher, 432 US 473-474. The decision’s focus then shifted to the effect of the government’s refusal to fund an abortion on the woman’s freedom to choose. It concluded that a refusal by government to provide funding for an abortion did not interfere with the right of a woman to choose an abortion:

The Connecticut regulation places no obstacles— absolute or otherwise — in the pregnant woman’s path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut’s decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there. [Id. at 474.]

The United States Supreme Court has held in other cases that a legislature’s election not to fund the exercise of a fundamental right does not impinge upon that right, Regan v Taxation with Representation, 461 US 540; 103 S Ct 1997; 76 L Ed 2d 129 (1983).²³ For example, private schools, though constitutionally permitted, have never been entitled to support from the state under the Equal Protection Clause: "It is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid.” Norwood v Harrison, 413 US 455, 462; 93 S Ct 2804; 37 L Ed 2d 723 (1973).

Moreover, abortion funding cannot be equated to situations where public funding is required because the government has monopoly control over the means of exercising a fundamental right.²⁴ The government has no monopoly on the performance of abortions or on the means to pay for abortions. Private clinics perform abortions, and, as in Jane Doe’s case, private funds can be made available for that purpose.

In determining that government’s failure to fund abortion does not impinge upon the exercise of a fundamental right, the Harris Court explained, "[I]t simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.” 448 US 316. Just because a pregnant woman may have the right to choose an abortion does not mean that she has a right to have the government pay for it.

Because in these cases the Court found no suspect classification and no impingement upon the exercise of a fundamental right, it applied the rational basis standard of scrutiny, i.e., whether the legislation is rationally related to a legitimate governmental interest. On this point, even the Roe Court acknowledged that the state has an "important and legitimate interest ... in protecting the potentiality of human life.” 410 US 162. And in Beal v Doe, 432 US 446, the Court recognized a "strong and legitimate [state] interest in encouraging normal childbirth.” In explaining the rational basis of a decision by government to provide funding for medically necessary services generally, but not for medically necessary abortions, the Court in Harris said: "Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.” 448 US 325.

Finally, the Court has emphasized that no burden is imposed upon the government to remain neutral regarding abortion: "[The right recognized in Roe] implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.” Maher, 432 US 474. For these and other reasons, the Court has concluded that legislation which provides funding for medical services generally, but not for abortions, is within the limits of the Equal Protection Clause of the federal constitution.

As the Court of Appeals majority in this case candidly conceded,

Clearly, if the issues presented were to be adjudicated under the federal constitution, whether under the Equal Protection or Due Process Clauses of the Fourteenth Amendment, or some "right of privacy” extracted from the First, Third, Fourth or Ninth Amendments, plaintiffs’ challenges to the constitutional validity of [§ 109a] would be rejected. [187 Mich App 522-523.]

IV

We turn now to an examination of the reasoning employed by a majority of the Court of Appeals panel in reaching its contrary conclusion under the Michigan Constitution.

The panel’s analysis begins with a declaration that "our [state] Constitution affords a right to an abortion.” Id. at 508. Then, the panel proceeds to a conclusion, which it considers "dispositive in this case,” that § 109a is violative of the Equal Protection Clause of Const 1963, art 1, § 2. Id. at 510. The panel finds support for its decision in the following propositions: (1) that Michigan’s Equal Protection Clause provides greater protection than the federal Equal Protection Clause, (2) that Michigan courts are free to analyze state constitutional provisions differently than federal courts analyze federal constitutional provisions, and (3) that § 109a impinges upon a fundamental right under the Michigan Constitution, which triggers strict scrutiny.²⁵

In due course, we shall examine, in turn, each of these propositions. First, however, we pause to comment briefly on the assertion that our state constitution includes the right to an abortion.

A

In this appeal, plaintiffs and supporting amici curiae have argued that a state constitutional abortion right should be inferred from previous decisions of this Court and of the Court of Appeals. For example, they rely on Advisory Opinion on Constitutionality of 1975 PA 227, 396 Mich 465, 504-505; 242 NW2d 3 (1976), wherein it was said,

This Court has long recognized privacy to be a highly valued right. De May v Roberts, 46 Mich 160; 9 NW 146 (1881). No one has seriously challenged the existence of a right to privacy in the Michigan Constitution nor does anyone suggest that right to be of any less breadth than the guarantees of the United States Constitution.

The United States Supreme Court has recognized the presence of constitutionally protected "zones of privacy.” Griswold v Connecticut, 381 US 479, 484; 85 S Ct 1678; 14 L Ed 2d 510 (1965); Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973). These zones have been described as being within "penumbras” emanating from specific constitutional guarantees. Often mentioned as a basis of the right to privacy are the 1st, 3rd, 4th, 5th, 9th and 14th Amendments to the United States Constitution. The people of this state have adopted corresponding provisions in art 1 of our Constitution.

Plaintiffs also find support for a state constitutional right to abortion in the Court of Appeals decision in People v Nixon, 42 Mich App 332; 201 NW2d 635 (1972), remanded 389 Mich 809 (1973), On Remand, 50 Mich App 38; 212 NW2d 797 (1973). In Nixon, the Court determined that because Michigan’s criminal abortion statute²⁶ was enacted to protect pregnant women from unsafe abortions, the statute became obsolete as advances in medical technology increased the safety of abortion for pregnant women.

On the other hand, defendants respond that the conclusions drawn by the Court of Appeals in Nixon were dicta and have not been adopted by this Court. Indeed, defendants argue that a subsequent decision of this Court, People v Bricker, supra, overruled Nixon and established that no separate state right involving abortion exists. Further, defendants challenge reliance on Advisory Opinion on Constitutionality of 1975 PA 227, because that decision did not deal with abortion or any closely related subject, and because it was a decision with no precedential authority.

Whatever the merit of these and other arguments available to both sides concerning the existence of a separate state right to an abortion, we find it is unnecessary to decide that issue in this case, given our conclusion with regard to the funding question. As the discussion that follows makes clear, even if it is assumed arguendo that a state constitutional abortion right coextensive with the federal right exists, we are able to conclude that § 109a does not violate the Michigan Constitution, just as the United States Supreme Court was able to uphold the denial of public funding in Maher and Harris, without need to question the validity of Roe.27

B

To support its conclusion that § 109a is invalid, the Court of Appeals panel claims that the equal protection guarantee in our state constitution provides greater protection than the corresponding guarantee in the federal constitution. 187 Mich App 517. Specifically, the panel concludes that the Equal Protection Clause of our constitution was adopted for the purpose of "creating rights broader in scope than those afforded under its federal counterpart.” 187 Mich App 516. However, a review of the jurisprudence and constitutional history of this state suggests the opposite — that our Equal Protection Clause was intended to duplicate the federal clause and to offer similar protection.

The Court of Appeals panel seeks to justify its expansive reading of our equal protection guarantee by pointing to textual differences between the 1908 and 1963 Constitutions, and by referring to the debates of the Constitutional Convention which preceded adoption of the 1963 Constitution. However, we are not persuaded by these considerations.

While the 1908 Constitution was in effect, the only basis for a state guarantee of equal protection was found in a few words included in a broad statement concerning "Political Power” in art 2, § 1: "All political power is inherent in the people. Government is instituted for their equal benefit, security and protection.” (Emphasis added.)

Despite this sparsity of words, the pre-1963 decisions of this Court ruled that equal protection rights under the state constitution were the same as under the federal constitution. See In re Fox Estate, 154 Mich 5; 117 NW 558 (1908), rev’d on other grounds 159 Mich 420; 124 NW 60 (1909); Naudzius v Lahr, 253 Mich 216, 222; 234 NW 581 (1931). Nevertheless, it is understandable that the delegates to the convention which produced the 1963 Constitution would have considered it appropriate to draft a more adequate statement to describe the equal protection rights to be secured. However, if it had been their purpose to create more or different rights than those encompassed in the federal Equal Protection Clause, surely they would not have chosen these words: "No person shall be denied the equal protection of the laws . . . .” Obviously, except for the adjustment necessary because they were drafting a state, rather than the federal, constitution, the language is essentially the same as the Equal Protection Clause of the Fourteenth Amendment, which provides: "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

It is true that the delegates included in art 1, § 2 a second clause relating to civil rights: "nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin.” However, that a separate clause to provide explicit protection for civil rights was adopted in the midst of the civil rights movement, does not, in and of itself, suggest any purpose on the part of the delegates to broaden the scope of the preceding Equal Protection Clause.²⁸

Accordingly, we do not find in the wording used, nor in its arrangement, any evidence of purpose on the part of the drafters to provide broader protection in the Equal Protection Clause of the state constitution than is found in its federal counterpart. Rather, the pattern suggests a deliberate effort to duplicate the protection secured by the federal clause. Furthermore, a careful examination of the record of the debates of the Constitutional Convention confirms this view.

We note that when the Committee on Declaration of Rights, Suffrage, and Election offered its report recommending adoption of art 1, § 2, including the Equal Protection Clause as now worded, it was accompanied by a minority report proposing substitute language.²⁹ The substitute focused, not on the Equal Protection Clause, but on the separate Civil Rights Clause. The amendments which would have expanded coverage of that clause were rejected, and the committee’s proposal was then adopted and ultimately became Const 1963, art 1, §2.

To support its assertion that the framers of our constitution intended to provide broader equal protection rights than those secured by the federal constitution, the Court of Appeals majority makes only two references to the proceedings of the Constitutional Convention. First, it notes that the "convention comment to Const 1963, art 1, § 2 clearly stated, 'This is a new section.’ ” 187 Mich App 515. Second, it calls attention to a statement by the chairman of the Committee on Declaration of Rights, Suffrage, and Elections:

"[T]here has been a distinct trend in recent State Constitutions to incorporate equal protection or civil rights clauses to apply to all persons as well as those singled out for special attention because of more apparent discrimination.” [Id. Emphasis added by the Court of Appeals.]

It is unnecessary to take issue with either point to observe that the extent of support mustered from the convention proceedings is very thin. Furthermore, if the purpose of quoting the chairman was to suggest that the delegates intended our state’s Equal Protection Clause to be broader ("all persons”) than its federal counterpart, the argument misses its mark. The federal clause assures equal protection to "any person.”

The portions of the convention debate that focused on equal protection do not support the analysis of the Court of Appeals majority. Rather, we draw from a reading of the convention record the firm conclusion that the delegates intended to affirm and incorporate the basic notions of equal protection that prevailed at the time.³⁰

C

In addition to concluding that our state’s equal protection guarantee is broader in scope than the federal guarantee, the Court of Appeals panel claims to have rejected "the method used by the United States Supreme Court in analyzing the federal Equal Protection Clause in favor of a different analysis of Michigan’s Equal Protection Clause.” Id. at 518. The panel states:

Beyond our freedom to read our own state’s Equal Protection Clause more broadly than that of the United States Constitution, we are also free to reject the method used by the United States Supreme Court in analyzing the federal Equal Protection Clause in favor of a different analysis of Michigan’s Equal Protection Clause. See [City of Mesquite v] Aladdin’s Castle, Inc, 455 US [283] 293 [102 S Ct 1070; 71 L Ed 2d 152 (1982)]. [Id][³¹]

Despite this assertion, the Court of Appeals actually accepts the basic framework for equal protection analysis as developed by the United States Supreme Court:

As the United States Supreme Court has acknowledged, and we find equally true under our state constitution, the Equal Protection Clause, like the Due Process Clause, "is not susceptible of exact delimitation. No definite rule in respect of either, which automatically will solve the question in specific instances, can be formulated.” Although the "equal protection” provision of our constitution is not a clause with precise definition, we recognize it can be violated by legislation that either affects a fundamental interest, as in this case, or creates a suspect classification, and that cannot be justified by any compelling interest of the state. In a case that does not involve a fundamental interest or a suspect class', a determination whether the legislation violates the Equal Protection Clause is made under the rational basis test, which requires that the party challenging the statute show it is without reasonable justification. [187 Mich App 510-511. Citations omitted.]

There is no suggestion by the panel that equal protection claims should not be reviewed using this framework, nor is any alternative framework proposed.

Moreover, even though it claims that it is employing a method of equal protection analysis distinct from that used by the United States Supreme Court, the panel scrutinizes § 109a under Michigan’s Equal Protection Clause just as the Supreme Court scrutinized abortion funding restrictions under the federal Equal Protection Clause. Because § 109a is alleged to create a classification scheme that treats some indigent women differently than others, the panel first determines the appropriate level of judicial scrutiny to apply. To determine if strict scrutiny is to be applied, the panel inquires whether § 109a impinges upon the exercise of a fundamental right.³² Again, the panel follows the Supreme Court; it analyzes the effect of § 109a on the "right to procreative choice.” Id. at 523.

It is in analyzing the effect of a funding restriction on the right of procreative choice that the Court of Appeals majority disagrees with the United States Supreme Court. In contrast to that Court, the panel concludes that § 109a does impinge upon the exercise of the right to choose an abortion:

[I]f [a Medicaid-qualified pregnant] woman chooses to have an abortion, even where medically necessary or required to terminate a pregnancy resulting from rape or incest, § 109a directly prevents the state from providing funds for that care.

It is the woman’s exercise of one fundamental right — the right to an abortion — which triggers § 109a’s restrictions. Her right to bear the child is not similarly impinged upon.

We recognize that, while the woman’s indigency also acts as a barrier to her freedom of choice, the state is not required to remedy that condition. But the state itself, by adoption of § 109a, has created a direct barrier to the woman’s exercise of her right to an abortion.

There is thus an inequality within the program, with the distinction based on an indigent pregnant woman’s exercise of an option which the constitution vouchsafes to her individually. If she exercises her constitutional right to abortion, she is excluded from a program for which she is otherwise qualified; if she elects not to exercise that constitutional option, she may continue to receive the benefits of this statutory program. [Id. at 524.]

Having determined that § 109a does impinge upon the exercise of a fundamental right under the Michigan Constitution, the panel then applies strict scrutiny. Predictably, it concludes that § 109a cannot meet this demanding level of review and strikes down the section.

Obviously, the critical element in the panel’s analysis is not its purported rejection of basic equal protection analysis as developed by the United States Supreme Court, but its conclusion that § 109a impinges upon the right to choose an abortion. We agree with the panel that the Equal Protection Clause would require strict scrutiny of § 109a if the section were to impinge upon the exercise of a fundamental right. Thus, we turn to the question whether § 109a impinges upon the exercise of a fundamental right in the Michigan Constitution.

D

The Court of Appeals majority concludes that § 109a directly interferes with the exercise of a woman’s right to choose an abortion. 187 Mich App 524. It appears that the basis of this conclusion is an assumption that Medicaid-qualified women have an entitlement to funds for an abortion. Although the panel does not actually state that such an entitlement exists, it at least suggests such an entitlement when it compares the situation of Medicaid-qualified women before and after adoption of § 109a. The panel notes that ”[b]efore the enactment of § 109a, all Michigan women, rich and poor alike, were able to exercise [their right of procreative choice].” Id. at 523. However, the panel continues, after the enactment of § 109a, benefits once offered are taken away so "the state itself, by adoption of § 109a, has created a direct barrier to the woman’s exercise of her right to an abortion.” Id. at 524. In addition, the panel asserts that when a Medicaid-qualified woman elects to have an abortion, she is "excluded from a program for which she is otherwise qualified . . . .” Id. We disagree.

In the absence of some burden on the government to provide funds for the exercise of a right, a decision by the Legislature not to fund the exercise of a right is distinct from a legislative action that impinges upon that right. Regan v Taxation with Representation, 461 US 549. Likewise, even where the state has previously funded the exercise of a right, it is not required to continue such funding. See Atkins v Parker, 472 US 115; 105 S Ct 2520; 86 L Ed 2d 81 (1985). For public policy reasons, the state may choose to eliminate benefits that it previously offered.³³ Thus, when the state offers a particular benefit to persons receiving public assistance, it retains the "power to substitute a different, less valuable entitlement at a later date. . . . '[A] welfare recipient is not deprived of due process when the legislature adjusts benefit levels.’ ” Atkins, 472 US 129-130. See also Saxon v Dep’t of Social Services, 191 Mich App 689; 479 NW2d 361 (1991), lv den 439 Mich 884 (1991).

Clearly, the right involved in this case is not a right to continue to receive funds that were offered in the past; rather, it is the right to choose an abortion without unduly burdensome government interference. Like the United States Supreme Court, we do not see how a decision to offer funds only for childbirth takes away any of the choices that would be available to an indigent woman if the state did not offer funds for childbirth. It maybe that in the absence of state funding her indigency acts as a barrier to choosing abortion, but "[a]n indigent woman who desires an abortion suffers no disadvantage as a consequence of [Michigan’s] decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires.” Maher, 432 US 474. Similarly, an indigent woman who desires an abortion is not excluded from the Medicaid program. Whether a Medicaid-qualified woman wants to terminate her pregnancy or to carry her fetus to term, she is treated in the same way that any other Medicaid-qualified pregnant woman is treated: she is offered reimbursement for the expenses of childbirth, but not for the expenses of an abortion.

Further, we do not find that an offer to fund childbirth impermissibly influences the procreative decisions of an indigent woman. The state’s election to subsidize childbirth does not coerce a woman into forfeiting her right to choose an abortion any more than the state’s election to subsidize public schools coerces parents into forfeiting their right to send their children to private schools. See Norwood v Harrison, supra. As with the decision to fund public schools, the state may have made childbirth a more attractive option by paying for it, but it has imposed no restriction on obtaining an abortion that was not already there. Maher, 432 US 474.³⁴

For these reasons, we disagree with the Court of Appeals and conclude that the state’s decision to fund childbirth, but not abortion, does not impinge upon the exercise of a fundamental right provided by the Michigan Constitution.

v

Having determined that § 109a does not impinge upon the exercise of a fundamental right, we hold that the Court of Appeals erred when it subjected § 109a to strict scrutiny. Because § 109a does not impinge upon the exercise of a fundamental right, and because, at least with respect to the funding of abortions, our equal protection guarantee does not offer greater protection than the federal equal protection guarantee, the proper standard of review is the rational basis test as articulated earlier.

Like the United States Supreme Court, we conclude that § 109a is rationally related to a legitimate governmental purpose. Contrary to the suggestion of the Court of Appeals,³⁵ there is no constitutional obligation on the state to remain neutral regarding abortion any more than there is an obligation on the state to remain neutral regarding the exercise of other fundamental rights. The state has a legitimate interest in protecting potential life, and it has a legitimate interest in promoting childbirth. Equally important, the Legislature has a legitimate interest in allocating state benefits in a way that reflects its determination of the public policy of the state. Our constitution does not require that we have a government without values; it requires only that, in the pursuit of certain values, our government will not improperly interfere with the exercise of fundamental rights. Because no medical procedure besides abortion involves the deliberate termination of fetal life, and because of the high cost of childbirth and the relatively lower cost of abortion, it is rational for the state to pursue its legitimate interests by paying for childbirth, but not abortion.

In reaching this decision, we are cognizant of plaintiffs’ argument that "[t]he sentiment of the legislature, or, in fact, of the electorate, with regard to a given issue does not change the role of the judiciary.” Similarly, we agree with the Court of Appeals that "[t]he legislative power of the people, through the initiative and referendum, does not give any more force or effect to voter-approved legislation than to other legislative acts . . . .” 187 Mich App 527. Just as important, however, is the principle that the limits of legislative power are defined by our federal and state constitutions, not by the sentiment of the judiciary. Marbury v Madison, 5 US (1 Cranch) 137; 2 L Ed 60 (1803). Thus, as we previously have observed, "[t]hat the legislative solution appears undesirable, unfair, unjust or inhumane does not of itself empower a court to override the legislature and substitute its own solution.” Manistee Bank & Trust Co, 394 Mich 666-667. Whatever the circumstances surrounding the adoption of § 109a, we are unable to find any basis in the history or text of our constitution that would support the conclusion of the Court of Appeals.

For these reasons, we hold that the Equal Protection Clause of our constitution permits the state to fund the expenses of childbirth even though the state does not fund abortions.³⁶ The decision of the Court of Appeals is reversed.

Cavanagh, C.J., and Levin, Beickley, and Riley, JJ., concurred with Griffin, J.

1 MCL 400.1 et seq.; MSA 16.401 et seq.

2 The 1963 Constitution contains two clauses relating to equal protection. Art 1, § 1 states, "[a]ll political power is inherent in the people. Government is instituted for their equal benefit, security and protection.” Art 1, § 2 states, ''[n]o person shall be denied the equal protection of the laws . . . .” These provisions will be referred to as the Equal Benefit Clause and the Equal Protection Clause, respectively.

3 In the circuit court, the plaintiffs alleged several constitutional violations — violations of the Due Process Clause (art 1, § 17), the right of privacy (art 1, § 23), the right of equal protection of the laws (art 1, §§ 1, 2), and the right of protection of civil rights (art 1, § 2).

4 US Const, Am XIV, § 1.

5 187 Mich App 493; 468 NW2d 862 (1991).

6 The powers to propose laws, and to approve or disapprove laws enacted by the Legislature are reserved to the people by Const 1963, art 2, § 9.

7 Pursuant to MCL 168.471 et seq.; MSA 6.1471 et seq., the initiative petition was filed with the Secretary of State on April 30, 1987. The petition was certified on June 12, 1987, by the Board of Canvassers and submitted to the Legislature as 1987 PA 59. 1987 PA 59 was enacted by the Legislature on June 23, 1987; however, before it became effective, a second petition was presented to the Secretary of State to have 1987 PA 59 placed on the ballot and subjected to a referendum vote of the people. This petition was certified by the Board of Canvassers, and 1987 PA 59 was placed on the November 1988 ballot.

8 The Medicaid program was established by Congress in 1965 as part of the Social Security Act. 42 USC 1396 et seq.

9 See 42 USC 1396d(b).

10 PL 94-439, § 209, 90 Stat 1434.

11 Subsequent versions of the Hyde Amendment have been enacted by Congress. One version was upheld by the United States Supreme Court. See Harris v McRae, 448 US 297, 302-303; 100 S Ct 2671; 65 L Ed 2d 784 (1980), reh den 448 US 917 (1980), discussed below.

12 Several organizations and a number of individuals were allowed to intervene as defendants.

13 The identity of the plaintiffs was revealed to the trial court in camera.

14 MCR 2.116(0(10).

15 Within hours of the trial court’s ruling, Jane Doe received an abortion paid for with donated private funds. Although her abortion may render the case moot, we consider it appropriate to decide this case. "A disposition based on mootness is not required where the underlying conduct is capable of repetition, yet evades review.” Mead v Batchlor, 435 Mich 480, 487; 460 NW2d 493 (1990). In addition, this case raises an issue of sufficient public importance that a decision on the merits is warranted. Id.

16 Const 1963, art 1, § 2.

17 US Const, Am XIV, § 1. The Fifth Amendment has been interpreted to contain an equal protection component that is applied to the federal government. Harris, supra, 448 US 321.

18 For example, see Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975). See also Fox v Employment Security Comm, 379 Mich 579; 153 NW2d 644 (1967); Alexander v Detroit, 392 Mich 30; 219 NW2d 41 (1974).

19 Although these two tiers of review have been the basis of most equal protection analysis, there are cases in which the courts have used a middle tier of heightened scrutiny. This middle tier requires that the challenged classification scheme further a substantial governmental interest. Plyler, 457 US 217. Typically, this middle tier has been applied to classifications based on gender or mental capacity. See, for example, Craig v Boren, 429 US 190; 97 S Ct 451; 50 L Ed 2d 397 (1976), reh den 429 US 1124 (1977). However, it has not been so restricted. See Plyler v Doe; Metro Broadcasting v FCC, 497 US 547; 110 S Ct 2997; 111 L Ed 2d 445 (1990). See also Manistee Bank & Trust Co, supra.

20 See also Beal v Doe, 432 US 438; 97 S Ct 2366; 53 L Ed 2d 464 (1977).

21 PL 96-123, § 109, 93 Stat 926.

22 Typically, the Court will look for some "indicia of suspectness.” These indicia include a history of purposeful unequal treatment or a degree of political powerlessness that commands extraordinary protection from the majoritarian political process. San Antonio School Dist, 411 US 28.

23 In Regan, the denial of tax-exempt status for a nonprofit corporation was upheld because the corporation intended to devote substantial amounts of its time to lobbying. The Court held that there was no obligation on Congress to support the corporation’s lobbying with a tax exemption, even though the right to lobby the government is fundamental.

24 See, for example, Boddie v Connecticut, 401 US 371; 91 S Ct 780; 28 L Ed 2d 113 (1971). In Boddie, the Court struck down a court fee which precluded indigent women from going into court,to obtain a divorce. Because the state court system was the only system empowered to dissolve marriages, the fee was found to violate due process requirements. Jane Doe’s case more closely resembles Kadrmas v Dickinson Public Schools, 487 US 450, 460; 108 S Ct 2481; 101 L Ed 2d 399 (1988). In Kadrmas, a school district in North Dakota ended its policy of providing free transportation to school and began charging a fee for bus service. The plaintiffs, a family living near the poverty line, complained that the fee was unconstitutional because it placed a greater obstacle to education in the path of the poor than in the path of wealthier families. Finding that North Dakota had neither a legal nor a practical monopoly on the means of transporting children to school, the Court rejected the argument: "The Constitution does not require that [bus] service be provided at all, and it is difficult to imagine why choosing to offer the service should entail a constitutional obligation to offer it for free.” 487 US 462.

25 The panel also asserts that the state is without a compelling interest to satisfy strict scrutiny. Although we do not here focus separately on this point, it will be discussed in the analysis which follows.

26 MCL 750.14; MSA 28.204. The statute provides,

Any person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in case the death of such pregnant woman be thereby produced, the offense shall be deemed manslaughter.

In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.

27 Given our reversal of the Court of Appeals decision on the dispositive funding question, and without intimating any view regarding the merits, we vacate, and direct that no precedential weight is to be accorded, the discussion and conclusion in the Court of Appeals opinion regarding the underlying issue of a state constitutional right to abortion.

28 Moreover, in its opinion the Court of Appeals majority makes clear that its decision rests solely on the Equal Protection Clause of Const 1963, art 1, § 2, and not on the succeeding Civil Rights Clause. 187 Mich App 534-535.

29 1 Official Record, Constitutional Convention 1961, pp 740-741.

30 This conclusion is supported by earlier decisions of this Court and of the Court of Appeals. See, e.g., Moore v Spangler, 401 Mich 360, 370; 258 NW2d 34 (1977); Fox v Employment Security Comm, n 18 supra at 588; Roy v Rau Tavern, Inc, 167 Mich App 664, 667; 423 NW2d 54 (1988); Doster v Estes, 126 Mich App 497, 512; 337 NW2d 549 (1983); cf. NAACP v Dearborn, 173 Mich App 602, 613-614; 434 NW2d 444 (1988).

31 It is true, as the Court of Appeals majority has stated, that " '[t]he United States Supreme Court does not have a monopoly on correct constitutional interpretation.’ ” 187 Mich App 518 (citation omitted). Of course, this Court has the authority to determine that a provision in our state constitution should be interpreted or applied differently than a parallel provision in the federal constitution. City of Mesquite v Aladdin’s Castle, Inc, supra at 293; People v Thompson, 424 Mich 118, 125; 379 NW2d 49 (1985); Delta Charter Twp v Dinolfo, 419 Mich 253; 351 NW2d 831 (1984). However, in certain cases where textual similarities and historical considerations have pointed to a common meaning, this Court has seen fit to adopt a construction given by the United States Supreme Court to a parallel provision in the federal constitution in the absence of compelling reason to impose a different interpretation. See, e.g., People v Nash, 418 Mich 196; 341 (1983); People v Catania, 427 Mich 447; 398 NW2d 343 (1986); People v Collins, 438 Mich 8; 475 NW2d 684 (1991).

32 The panel does not suggest that § 109a creates a suspect class, which also would trigger strict scrutiny.

33 See, for example, Bob Jones Univ v United States, 461 US 574; 103 S Ct 2017; 76 L Ed 2d 157 (1983).

34 Of course, the state’s decision to subsidize childbirth cannot be characterized simply as an attempt to encourage women to choose childbirth instead of abortion. As Professor McConnell explains in his article, The selective funding problem: Abortions and religious schools, 104 Harv L R 989, 1011-1012 (1991):

[T]he medical services involved in childbirth serve a function beyond "terminating pregnancy” and improving the mother’s health. They are more than just a substitute for abortion; they are also a means of caring for a child. While the appropriate way to deal with pregnancy is a controverted issue, everyone agrees that if a child is to be born, the birth should be completed as safely as possible. Medical services at birth should be understood as part of a network of government-funded social services for the benefit of children ....

35 187 Mich App 531.

36 Because the Court of Appeals found that § 109a violated the Equal Protection Clause, it did not address the other constitutional arguments advanced by plaintiffs. Plaintiffs have not renewed their other constitutional claims before this Court; however, we conclude that those claims would not affect our decision today. We review due process claims using substantially the same standards as we use to review equal protection claims. Shavers v Attorney General, 402 Mich 612-613. Further, our analysis under the Equal Protection Clause incorporates the claim that a woman’s privacy right is violated by § 109a.