Women's Health Center of West Virginia, Inc. v. Panepinto

446 S.E.2d 658, 191 W. Va. 436
CourtWest Virginia Supreme Court
DecidedJuly 21, 1994
Docket21924 to 21926
StatusPublished
Cited by35 cases

This text of 446 S.E.2d 658 (Women's Health Center of West Virginia, Inc. v. Panepinto) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Women's Health Center of West Virginia, Inc. v. Panepinto, 446 S.E.2d 658, 191 W. Va. 436 (W. Va. 1994).

Opinions

WORKMAN, Chief Justice:

Appellants challenge the August 25, 1993, order of the Circuit Court of Kanawha County upholding the constitutionality of West Virginia § 9-2-11 (Supp.1993),1 which bans [439]*439the use of state medicaid2 funds for abortions except in limited circumstances. Those individuals and organizations, to whom we collectively refer as Appellants,3 claim that to deny those abortions which are determined to be “medically necessary,”4 violates the West Virginia Constitution. After extensive consideration of the submitted record, numerous briefs, and the arguments of counsel, we conclude that West Virginia Code § 9-2-11 constitutes a discriminatory funding scheme which violates an indigent woman’s constitutional rights.

Senate Bill 2, in essence a medicaid tax reform bill, was introduced and passed by the Legislature during a second special session in May 1993. Also contained within the provisions of Senate Bill 2 was the text of West Virginia Code § 9-2-11.5 A change in federal law prohibiting West Virginia from relying on the fund-raising sources previously used to raise its share of medicaid funds necessitated the drafting of Senate Bill 2. During the regular legislative session, there was no public discussion of adding any abortion-restrictive riders to the medicaid tax reform bill. This language, the text of West Virginia Code § 9-2-11, was added during the final hours of the second extraordinary legislative session. Although Governor Ca-perton signed the bill into law on June 4, 1993, he publicly stated his reservations concerning the constitutionality of the abortion-funding restrictions included in Senate Bill 2.6

On July 9, 1993, the Women’s Health Center of West Virginia, Inc., Women’s Health Services, Inc., and West Virginia Free, on behalf of themselves and all medicaid-eligible women in West Virginia filed a complaint in [440]*440the Circuit Court of Kanawha County, seeking to have that portion of Senate Bill 2, which became West Virginia Code § 9-2-11, declared unconstitutional. Following a trial on this matter on August 11 and 12, the circuit court entered its ruling on August 25, 1993, declaring the challenged portion of Senate Bill 2 constitutional. The circuit court ordered Secretary Panepinto and Commissioner Tolliver to immediately implement the subject provisions of Senate Bill 2 and West Virginia Code § 9-2-11, and denied Appellants’ motion for a stay pending appeal absent the posting of a $350,000 bond, which they were unable to post. On September 7, 1993, Appellees filed a motion with this Court requesting a stay pending appeal, which we granted on that same date.7

In preface to the discussion to follow, we borrow the opening comments of another tribunal faced with similar issues:

At the outset, to dispel certain misconceptions that have appeared in this case, we must clarify the precise, narrow legal issue before this court. First, this case does not turn on the morality or immorality of abortion, and most decidedly does not concern the personal views of the individual justices as to the wisdom of the legislation itself or the ethical considerations involved in a woman’s individual decision whether or not to bear a child. Indeed, although in this instance the Legislature has adopted restrictions which discriminate against women who choose to have an abortion, similar constitutional issues would arise if the Legislature — as a population control measure, for example — funded [medicaid] ... abortions but refused to provide comparable medical care for poor women who choose childbirth. Thus, the constitutional question before us does not involve a weighing of the value of abortion as against childbirth, but instead concerns the protection of either procreative choice from discriminatory governmental treatment.

Committee to Defend Reprod. Rights v. Myers, 29 Cal.3d 252, 256, 625 P.2d 779, 780, 172 Cal.Rptr. 866, 867 (1981) (emphasis supplied).

Contrary to Appellees’ representation, the question before this Court is not whether the state is obligated to subsidize the exercise of a woman’s right to have an abortion. Rather, the issue presented is whether, once the state undertakes funding of medical care for the poor, which includes funding for childbirth, can the state deny funding for medically necessary abortion services? More specifically, does the limitation of funds to certain legislatively-specified reproductive services violate the constitutional protections afforded the indigent female citizens of this state?

We begin our analysis by addressing Ap-pellees’ contention that the decision of the United States Supreme Court in Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), which upheld the funding restrictions imposed by the Hyde Amendment,8 should control the outcome of this case. At issue in Harris, was whether the denial of public funding via the Medicaid program for certain medically necessary abortions violated the liberty or equal protec[441]*441tion guarantees of the Due Process Clause of the Fifth Amendment or either of the religion clauses of the First Amendment. 448 U.S. at 301, 100 S.Ct. at 2680. Recognizing that a woman’s decision whether to terminate her pregnancy falls within the liberty protection of the Due Process Clause, the Court in Harris ruled that:

it 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. The reason was explained in Maher [v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977)]: although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category.... [T]he fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. We are thus not persuaded that the Hyde Amendment impinges on the constitutionally protected freedom of choice recognized in [Roe v.] Wade [410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ].

Id. at 316-317,100 S.Ct. at 2688. The Court also rejected claims based on equal protection and religion. Id. at 319-326, 100 S.Ct. at 2689-2693. Appellees suggest that we adopt the reasoning used in Harris and conclude that notwithstanding a woman’s fundamental right to have an abortion, the state is not required to provide funding to enable the exercise of that right.

Conversely, Appellants maintain that this Court is not bound by the Harris decision under the rationale that because the West Virginia Constitution provides more expansive protections to its citizens than the federal constitution, this state’s constitutional protections prevail. See Doe v. Maher, 40 Conn. Supp.

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Bluebook (online)
446 S.E.2d 658, 191 W. Va. 436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/womens-health-center-of-west-virginia-inc-v-panepinto-wva-1994.