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Right to Choose E.M. v. Byrne

Decided: August 18, 1982.


On certification to the Superior Court, Chancery Division, whose opinions are reported at 165 N.J. Super. 443 (1979), 169 N.J. Super. 543 (1979) and 173 N.J. Super. 66 (1979).

For affirmance as modified -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler and Pollock. Concurring in part; dissenting in part -- Justice Pashman. Dissenting -- Justice O'Hern. The opinion of the Court was delivered by Pollock, J. Pashman, J., concurring in part and dissenting in part. O'Hern, J., dissenting.


This appeal presents the question of the validity under the New Jersey Constitution of a statute that prohibits Medicaid funding for abortions "except where it is medically indicated to be necessary to preserve the woman's life." N.J.S.A. 30:4D-6.1 (1981). Medicaid pays for the costs of all childbirths and abortions to save the life of the mother but, because of the statutory prohibition, does not pay for those therapeutic abortions needed to protect the health of the mother or for elective, nontherapeutic abortions.

Originally plaintiffs claimed that the denial of Medicaid funds violated rights assured by the due process and equal protection clauses of the New Jersey and United States Constitutions. The Chancery Division found the statute violated a fundamental right to health under both Constitutions. Consequently, that court declared the statute invalid and awarded attorneys' fees to plaintiffs as the prevailing party in a federal civil rights claim. After an appeal had been taken to the Appellate Division, we granted direct certification. 88 N.J. 472 (1981).

Following the Chancery Division decision, however, the United States Supreme Court in Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980), determined that the federal Constitution does not invest pregnant women with the right to Medicaid funds for abortions. Although we are bound to honor

that determination of plaintiffs' federal constitutional rights, we conclude that under the New Jersey Constitution the State may not restrict funds to those abortions to preserve a woman's life, but not her health. We conclude further that the New Jersey Constitution does not require the funding of elective, nontherapeutic abortions. Without determining whether a constitutional right to health exists in New Jersey, we find that the statute violates the right of pregnant women to equal protection of the law under Art. I, par. 1 of the New Jersey Constitution. Accordingly, we modify and affirm the declaration of the invalidity of N.J.S.A. 30:4D-6.1, 169 N.J. Super. 543. Although plaintiffs have succeeded in their state constitutional claim, they have not prevailed on the federal constitutional claims, and we reverse the award of attorneys' fees, 173 N.J. Super. 66.


In recent years abortion has generated an intense public debate, which is reflected in constantly changing federal and state legislative and administrative responses. With the decision of the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the issue assumed a new dimension.*fn1 In that case, the Court ruled that during the first trimester of a pregnancy the state has no role in the abortion decision, which "must be left to the medical judgment of the pregnant woman's attending physician." Id. at 164, 93

S. Ct. at 732. In the second trimester, the state may "regulate the abortion procedure in ways that are reasonably related to maternal health." Id. During the third trimester, the state may "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." Id. at 164-65, 93 S. Ct. at 732.

After Roe v. Wade, indigent women received funding for abortions under Medicaid, a joint federal-state program of medical care for the needy. In the three years between the Roe v. Wade decision and the enactment of N.J.S.A. 30:4D-6.1 in 1975, New Jersey did not restrict state Medicaid funding for abortions. See Statement to S-528 (1975); Right to Choose v. Byrne, 165 N.J. Super. 443, 446 (Ch.Div.1979) (Right to Choose I). In N.J.S.A. 30:4D-6.1, however, the New Jersey Legislature restricted state Medicaid funds to abortions needed to preserve the life, but not the health, of the mother. Subsequently, in September, 1976, Congress adopted the first version of the "Hyde Amendment," which, in terms similar to the present version,*fn2 provided that federal Medicaid funds should not be used to pay for abortions except where the life of the mother would be endangered. Pub.L.No. 94-439, § 209, 90 Stat. 1434. The 1977 version of the Hyde Amendment, Pub.L.No. 95-205, 91 Stat. 1460, however, extended the permissible use of Medicaid funds to situations in which the mother was the victim of rape or incest, or where two physicians determined "severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term. . . ." Although that version of the Hyde Amendment permitted funding for abortions to prevent serious injury, N.J.S.A. 30:4D-6.1 restricts funding to abortions to preserve the life of the mother. Thus,

the state statute is more restrictive than the 1977 Hyde Amendment.

In that context, plaintiffs filed their original complaint in June, 1978 challenging the statute on a variety of grounds. Plaintiffs alleged the funding restriction violated the federal Medicaid Act as well as provisions of the federal and state Constitutions, including those that guarantee equal protection of the laws. They also asserted that the statute constituted the establishment of religion and impinged upon their free exercise of religion. The action has led to three opinions by the Chancery Division, as well as a final judgment on March 28, 1979 and a supplemental final judgment on March 19, 1980. Right to Choose I, 165 N.J. Super. 443; Right to Choose v. Byrne, 169 N.J. Super. 543 (1979) (Right to Choose II); Right to Choose v. Byrne, 173 N.J. Super. 66 (1979) (Right to Choose III).

In its first opinion, the Chancery Division described the parties:

Plaintiffs are four women who were pregnant when their complaint or amended complaint was filed, two mothers on behalf of minor daughters who were then pregnant, a medical doctor, two nonprofit associations formed to protect abortion and welfare rights, and a religious association for abortion rights.

In accordance with R.R. 4:32-1, 2, this court certified the individual plaintiffs as representatives of two classes: Medicaid-eligible women who are seeking funding for elective nontherapeutic abortions and for abortions which are medically necessary for the protection of their health, although their pregnancies are not life-threatening.

Defendants are state officials with responsibility for the administration of the State Medicaid statute. Defendant intervenors are three medical doctors, a nonprofit corporation formed to oppose abortion, a nonprofit association of students opposing the war in Vietnam and a nonprofit taxpayers association.

[ Right to Choose I, 165 N.J. Super. at 448-49].

In assaying the consequences of N.J.S.A. 30:4D-6.1 and its validity under the federal Medicaid Act, the court concluded that the conflict between the statute and the Medicaid Act, even when construed in light of the 1977 version of the Hyde Amendment, constituted a breach of New Jersey's obligation to provide

its share of Medicaid funding for necessary medical services. Right to Choose I, 165 N.J. Super. at 454. Therefore, the Chancery Division enjoined defendants from enforcing N.J.S.A. 30:4D-6.1 and ordered the issuance of guidelines for funding medically necessary abortions.

The court found further that plaintiffs "were foreclosed from arguing as a matter of federal constitutional law that the withholding of Medicaid funding for elective nontherapeutic abortions is a denial of equal protection of the law. . . ." Right to Choose I, 165 N.J. Super. at 455-56. It reached that conclusion by relying on Maher v. Roe, 432 U.S. 464, 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977), which upheld the validity of a Connecticut statute prohibiting the use of Medicaid funds for nontherapeutic abortions.

Also in Right to Choose I, the Chancery Division rejected plaintiffs' claims that N.J.S.A. 30:4D-6.1 establishes as a state policy the views of the Roman Catholic Church that life begins at conception, 165 N.J. Super. at 459; that the Roman Catholic Church became excessively entangled in the legislative process, id. at 460; and that the statute interfered with the free exercise of religion. Id. at 462-63.

In response to the court order in Right to Choose I, the Department of Human Services proposed guidelines incorporating the terms of the 1977 Hyde Amendment. That amendment permitted funding for abortions "'where the life of the mother would be endangered . . . for the victims of rape or incest . . . or . . . [in] those instances where severe and long-lasting physical damage to the mother would result if the pregnancy were carried to term when so determined by two physicians.'" Right to Choose II, 169 N.J. Super. at 546, quoting Pub.L.No. 95-480, 92 Stat. 1586.

In sustaining plaintiffs' equal protection challenge in Right to Choose II, the Chancery Division found that the regulations

discriminated "against Medicaid eligible women with a medical necessity for an abortion without warrant of a compelling state interest, in violation of equal protection of the law." 169 N.J. Super. at 552. Underlying that holding was the court's conclusion that:

[E]njoyment of one's health is a fundamental liberty which is shielded by the Fourteenth Amendment to the Federal Constitution and by Article 1, paragraph 1, of the State Constitution against unreasonable and discriminatory restriction. Medicaid funding is in furtherance of that fundamental liberty.

The effect of the proposed guidelines would be to withhold funding for one medically necessary procedure and one only, an abortion to protect a woman's health, although such funding was previously available.

[ Id. at 551].

That conclusion also underlay the declaration in the supplemental final judgment that N.J.S.A. 30:4D-6.1 violated the equal protection clause of the Fourteenth Amendment of the United States Constitution and Art. I, par. 1 of the New Jersey Constitution. Having declared the statute unconstitutional, the court enjoined defendants to fund all Medicaid abortions except elective, nontherapeutic abortions and those to prevent insignificant impairments to health. 169 N.J. Super. at 552.

Thereafter the Department issued new regulations, effective May 1, 1980, declaring that "Medicaid will pay for all medically necessary abortions." N.J.A.C. 10:53-1.14(a). Furthermore, in determining whether an abortion is medically necessary, a physician may consider: "(1) Physical, emotional, and psychological factors; (2) Family reasons; (3) Age." Id. at (b).

The injunction and new regulations have had a significant effect on the availability of abortions. In Right to Choose I, the court found that, while the statute was in effect, births to Medicaid-eligible women increased by 30% but the number of Medicaid-funded abortions declined from a monthly average exceeding 900 to fewer than 25. 165 N.J. Super. at 457. We were informed at oral argument that during fiscal year 1981, while the injunction and regulations have been in effect, the

federal and state governments funded 6,118 abortions: 2,374 were jointly funded and 3,744 were solely state funded.*fn3

In its final opinion, the Chancery Division granted plaintiffs' claim for attorneys' fees under 42 U.S.C.A. § 1988, which permits the court, in its discretion, to award attorneys' fees to the prevailing party in any action to enforce certain federal civil rights. Although the attorneys' affidavits failed to segregate time spent on the prevailing issues, the Chancery Division awarded counsel fees to two of the organizations representing plaintiffs: Essex-Newark Legal Services was awarded $13,500 and Rutgers Women's Rights Litigation Clinic was awarded $6,375. Right to Choose III, 173 N.J. Super. at 74.

Shortly after the decision in Right to Choose III, however, the United States Supreme Court sustained a more restrictive version of the Hyde Amendment, a version that prohibited the use of Medicaid funds for abortions except where the life of the mother was endangered. Harris v. McRae, 448 U.S. 297, 325 n.27, 100 S. Ct. 2671, 2692 n.27, 65 L. Ed. 2d 784 (1980). In effect, McRae overruled the declaration of the Chancery Division in Right to Choose II that funding Medicaid abortions to protect the life, but not the health, of the mother violated the equal protection clause of the federal Constitution.*fn4 McRae, supra, 448 U.S. at 322-27, 100 S. Ct. at 2691-2694.

A further effect of McRae was to affirm the Chancery Division's decision that the denial of Medicaid funds for abortion did

not violate the federal constitutional provision against the establishment of religion. Because plaintiffs in McRae lacked standing, the United States Supreme Court declined to reach the claim that the Hyde Amendment violated the free exercise of their religion. Id. at 320, 100 S. Ct. at 2689-2690. Thus, McRae effectively remitted plaintiffs to the contention that the statute violated those provisions of the New Jersey Constitution concerning religion and equal protection. N.J.Const. (1947), Art. I, pars. 1, 3 & 4.

Before evaluating plaintiffs' claim under the New Jersey Constitution, it is advisable that we set the limits of this opinion by stating what it excludes. It is not a referendum on the morality of abortion. We do not presume to answer the profound questions about the moral, medical, and societal implications of abortion. Nor do we undertake to determine when life begins or at what point a fetus is a person. Our mission is to decide the extent to which the New Jersey Constitution permits a statutory restriction on funding for abortions.


Fundamental to our decision is the role of a state court of last resort in our federalist system. Inherent in that role is the interplay between, on the one hand, the individual states, their Constitutions, and courts; and, on the other hand, the federal government, its Constitution, and the Supreme Court. Understanding of the relationship between the United States Supreme Court and a state Supreme Court as interpreters of constitutional rights begins with the recollection that the original states, including New Jersey, and their Constitutions preceded the formation of the federal government and its Constitution. See People v. Brisendine, 13 Cal. 3d 528, 550, 531 P. 2d 1099, 1113, 119 Cal.Rptr. 325, 329 (1975).

Over the past two centuries, however, the United States Constitution has emerged as the primary source of fundamental rights. Note, "Developments in the Law -- The Interpretation of

State Constitutional Rights," 95 Harv.L.Rev. at 1326, 1328 (1982) ("State Constitutional Rights"). Nevertheless, in recent years, distinguished jurists and scholars have encouraged state courts, in appropriate cases, to look more closely to their own Constitutions as fonts of individual rights. Although the federal Constitution may remain as the basic charter, state Constitutions may serve as a supplemental source of fundamental liberties. See generally Brennan, "State Constitutions and the Protection of Individual Rights," 90 Harv.L.Rev. 489 (1977).

From that perspective, state Constitutions are separate sources of individual freedoms, State v. Schmid, 84 N.J. 535, 553 (1980), and restrictions on the exercise of power by the Legislature. State v. Saunders, 75 N.J. 200, 225-26 (1977) (Schreiber, J., concurring). By contrast, the United States Constitution is a grant of enumerated powers to the federal government. Id. See Gangemi v. Berry, 25 N.J. 1 (1957). See generally "State Constitutional Rights," supra, 95 Harv.L.Rev. at 1326-28. Thus, in appropriate cases, the individual states may accord greater respect than the federal government to certain fundamental rights. Although the state Constitution may encompass a smaller universe than the federal Constitution, our constellation of rights may be more complete.

Indeed, the United States Supreme Court itself has long proclaimed that state Constitutions may provide more expansive protection of individual liberties than the United States Constitution. See, e.g., Oregon v. Kennedy, U.S. , , 102 S. Ct. 2083, 2092, 72 L. Ed. 2d 416, 428 (1982) (Brennan, J., concurring); PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 2040-41, 64 L. Ed. 2d 741 (1980); id. at 91-92, 100 S. Ct. at 2040 (Marshall, J., concurring); Oregon v. Haas, 420 U.S. 714, 719, 95 S. Ct. 1215, 1219, 43 L. Ed. 2d 570 (1975); Cooper v. California, 386 U.S. 58, 62, 87 S. Ct. 788, 791, 17 L. Ed. 2d 730 (1967).

In addition, this Court has recognized that our state Constitution may provide greater protection than the federal Constitution.

See, e.g., State v. Alston, 88 N.J. 211, 227-28 (1981) (standing to challenge searches and seizures); In re Grady, 85 N.J. 235, 249 (1981) (the right to sterilization); State v. Schmid, 84 N.J. 535, 559 (1980) (free speech protected in some instances against private interference); State v. Baker, 81 N.J. 99, 112-13 (1979) (the right of unrelated persons to live as a single unit); State v. Johnson, 68 N.J. 349, 353 (1975) (consent to search); Southern Burlington Cty. NAACP v. Township of Mt. Laurel, 67 N.J. 151, 174-75 (1975) (exclusionary zoning); Robinson v. Cahill, 62 N.J. 473, 482, 509 cert. denied sub. nom. Dickey v. Robinson, 414 U.S. 976, 94 S. Ct. 292, 38 L. Ed. 2d 219 (1973) (fundamental right to thorough and efficient public education).

Nonetheless, we proceed cautiously before declaring rights under our state Constitution that differ significantly from those enumerated by the United States Supreme Court in its interpretation of the federal Constitution. See State v. Hunt, 91 N.J. 338, 344-345 (1982); id. at 362-363 (Handler, J., concurring). Our caution emanates, in part, from our recognition of the general advisability in a federal system of uniform interpretation of identical constitutional provisions. Where provisions of the federal and state Constitutions differ, however, or where a previously established body of state law leads to a different result, then we must determine whether a more expansive grant of rights is mandated by our state Constitution. See generally "State Constitutional Rights," supra, 95 Harv.L.Rev. at 1361.


Against this background, we consider the implications of 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). In McRae, the five-member majority found that the version of the Hyde Amendment that prohibited Medicaid funds for abortions except when necessary to save the life of the mother bore a rational relationship to government's "legitimate interest in protecting

the potential life of the fetus." 448 U.S. at 324, 100 S. Ct. at 2692.

The majority opinion precipitated vigorous dissents from four members of the Court, who attacked that opinion at several points. Of particular relevance is the dissenters' contention that, by denying Medicaid funds for medically necessary abortions, the Hyde Amendment was not supported by a sufficiently compelling state interest to justify its restriction on the exercise of the fundamental right to choose an abortion. In his dissent, Justice Stevens stated that the Court's earlier decision in Roe v. Wade prevented the State from "exclud[ing] a woman from medical benefits to which she would otherwise be entitled solely to further an interest in potential life when a physician, 'in appropriate medical judgment,' certifies that an abortion is necessary 'for the preservation of the life or health of the mother.'" 448 U.S. at 352, 100 S. Ct. at 2713 (citations omitted). He found a denial of equal protection to a class consisting of poor pregnant women who, under Medicaid, had a right to necessary medical treatment. Those women "are confronted with a choice between two serious harms: serious health damage to themselves on the one hand and abortion on the other." Id. at 350, 100 S. Ct. at 2712. He found further that the denial of funds for medically necessary abortions was "tantamount to severe punishment." Id. at 354, 100 S. Ct. at 2714. Consequently, protection of potential life could not be used as a reason to deny indigent women necessary medical care.

Justice Brennan, with whom Justices Marshall and Blackmun joined, concurred with Justice Stevens:

I agree entirely with my Brother Stevens that the State's interest in protecting the potential life of the fetus cannot justify the exclusion of financially and medically needy women from the benefits to which they would otherwise be entitled solely because the treatment that a doctor has concluded is medically necessary involves an abortion.

[448 U.S. at 329, 100 S. Ct. at 2702].

The majority in McRae concluded that the prohibition on the use of Medicaid funds for abortion to protect the health of the

mother did not violate the equal protection clause of the United States Constitution. Under the supremacy clause, U.S.Const., Art. VI, cl. 2, that interpretation precludes our reaching a different result as a matter of federal law. We remain obligated, however, to evaluate N.J.S.A. 30:4D-6.1 in light of the Constitution of New Jersey.

In more expansive language than that of the United States Constitution, Art. I, par. 1 of the New Jersey Constitution provides: "All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness." The state Bill of Rights, which includes that provision, has been described as expressing "'the social, political, and economic ideals of the present day in a broader way than ever before in American constitutional history.'" Milmed, "The New Jersey Constitution of 1947" in N.J.S.A.Const., Arts. I-III 91 at 110 (1971). By declaring the right to life, liberty and the pursuit of safety and happiness, Art. I, par. 1 protects the right of privacy, a right that was implicit in the 1844 Constitution. Heckel, "The Bill of Rights," in II Constitutional Convention of 1947, 1336 at 1339 (1951).

The right of privacy has been found to extend to a variety of areas, including sexual conduct between consenting adults, State v. Saunders, 75 N.J. 200, 224-29 (1977) (Schreiber, J., concurring); the right to sterilization, In re Grady, supra, 85 N.J. at 249; and even the right to terminate life itself. In re Quinlan, 70 N.J. 10, 19, 40-41, 51 cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976). These cases establish that "under some circumstances, an individual's personal right to control her own body and life overrides the State's general interest in preserving life." In re Grady, supra, 85 N.J. at 249.

In recent years, moreover, a body of law has developed in New Jersey acknowledging a woman's right to choose whether

to carry a pregnancy to full-term or to undergo an abortion. Even before Roe v. Wade, this Court intimated that a woman who had contracted rubella during her pregnancy had a right to choose whether to give birth to a defective child or undergo an abortion. See Gleitman v. Cosgrove, 49 N.J. 22, 62-63 (1967) (Weintraub, C.J., dissenting in part). That intimation became a reality in Berman v. Allen, 80 N.J. 421, 432 (1979), in which the Court held that a woman had a cause of action for deprivation of the right to decide whether to bear a child with Down's Syndrome. We reaffirmed that right last year in Schroeder v. Perkel, 87 N.J. 53, 66 (1981), holding that a mother, after giving birth to a child with cystic fibrosis, had a right to choose whether to conceive a second child who might suffer from the same genetic defect. See Comras v. Lewin, 183 N.J. Super. 42 (App.Div.1982) (negligent deprivation of right to choose to abort). See also Doe v. Bridgeton Hospital Ass'n, Inc., 71 N.J. 478 (1976) (private non-profit hospital may not use moral concepts to limit common-law right of access to quasi-public hospital facilities for elective abortions).

Although we decline to proceed as far as the Chancery Division in declaring that the New Jersey Constitution guarantees a fundamental right to health, Right to Choose II, supra, 169 N.J. Super. at 551, we recognize that New Jersey accords a high priority to the preservation of health. More than 70 years ago, Chancellor Pitney recognized that

[a]mong the most [important] of personal rights, without which man could not live in a state of society, is the right of personal security, including 'the preservation of a man's health from such practices as may prejudice or annoy it,' a right recognized, ...

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