Doe v. Department of Social Services, s. 91092

CourtSupreme Court of Michigan
Citation439 Mich. 650,487 N.W.2d 166
Docket Number91093,No. 12,Nos. 91092,s. 91092,12
Parties, Medicare&Medicaid Guide P 40,366 Jane DOE and Nancy Doe, Plaintiffs-Appellees, v. DEPARTMENT OF SOCIAL SERVICES; and Director of Medical Services Administration of the Michigan Department of Social Services, Defendants-Appellants, and Right to Life of Michigan, Inc., Right to Life of Michigan, Inc. Legal Defense Fund, Committee to End Tax Funded Abortions, Mary Zick, Jennifer Donovan, Kent Donovan, Rick Halliburton, Colleen Holbrook, and Joe Klee, Intervening Defendants-Appellants. Calendar
Decision Date09 June 1992

Page 166

487 N.W.2d 166
439 Mich. 650, Medicare&Medicaid Guide P 40,366
Jane DOE and Nancy Doe, Plaintiffs-Appellees,
Services Administration of the Michigan Department
of Social Services, Defendants-Appellants,
Right to Life of Michigan, Inc., Right to Life of Michigan,
Inc. Legal Defense Fund, Committee to End Tax Funded
Abortions, Mary Zick, Jennifer Donovan, Kent Donovan, Rick
Halliburton, Colleen Holbrook, and Joe Klee, Intervening
Nos. 91092, 91093.
Calendar No. 12.
Supreme Court of Michigan.
Argued Nov. 7, 1991.
Decided June 9, 1992.

Page 168

[439 Mich. 655] American Civil Liberties Union Fund of Michigan by Elizabeth Gleicher, Cooperating Atty., Detroit, Paul J. Denenfeld, Legal Director, Detroit, Robert A. Sedler, Cooperating Atty., Detroit, for plaintiffs-appellees.

Dykema Gossett by John B. Curcio, Richard D. McLellan, Ronald J. Torbert, Lansing, for intervening defendants-appellants.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Counsel of Record, John Wernet, John M. Konwinski, Asst. Attys. Gen., Lansing, for defendants-appellants.

Joseph W. Dellapenna, Villanova, Pa., for amicus curiae.

Robert J. Eleveld, Teresa S. Decker, Varnum, Riddering, Schmidt & Howlett, Grand Rapids, Alan A. May, May & May, P.C., Southfield, for Michigan's Republicans for Choice.

[439 Mich. 656] Mark Granzotto, Attorney for Michigan Trial Lawyers Ass'n, Detroit, Monica Farris Linkner, Berkley, Charles P. Burbach, Southfield, amicus curiae for Michigan Trial Lawyers Ass'n.


GRIFFIN, Justice.

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[439 Mich. 657] life. We are required to decide whether that statute, Sec. 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 counterpart 4 and that Sec. 109a impinges upon a state right to an abortion; thus, the majority concluded that Sec. 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 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, reh. den., 410 U.S. 959, 93 S.Ct. 1409, 1410, 35 L.Ed.2d 694 (1973), is not, nor could it be, restricted by our decision today. Rather, this case concerns whether Sec. 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.

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[439 Mich. 658] I

As the result of an initiative petition, a legislative proposal which became Sec. 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[439 Mich. 659] 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 Sec. 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." M.C.L. Sec. 400.109a; M.S.A. Sec. 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 [439 Mich. 660] 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

Page 170

that an abortion was necessary to save Jane Doe's life.

In accordance with Sec. 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 Sec. 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 Sec. 109a.

After minimal discovery, defendants filed a motion for summary disposition. 14 The trial court, relying on People v. Bricker, 389 Mich. 524, 208 N.W.2d 172 (1973), and citing two United States Supreme Court cases, Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), reh. den., 448 U.S. 917, 101 S.Ct. 39, 65 L.Ed.2d 1180 (1980), and Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), ruled that Sec. 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 N.W.2d 862 (1991), and this Court [439 Mich. 661] then granted leave to appeal. 437 Mich. 1041 (1991).


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 Sec. 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 School Dist. v. Rodriguez, 411 U.S. 1, 24, 93 S.Ct. 1278, 1291, 36 L.Ed.2d 16 (1973), reh. den., 411 U.S. 959, 93 S.Ct. 1919, 36 L.Ed.2d 418 (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 U.S. at 58, 93 S.Ct. at 1309 (Stewart, J., concurring).

Thus, when legislation is challenged as violative of the equal protection guarantee under either [439 Mich. 662] 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. at 510, 468 N.W.2d 862. 18 Generally speaking, legislation challenged

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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 N.W.2d 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 N.W.2d 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...

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