Added: Cornell Bustos - Date: 03.10.2021 21:23 - Views: 38533 - Clicks: 6888
Appeal from the Circuit Court of Kanawha County. Honorable John Hey, Circuit Judge. Civil Action No. For Now: John M. For Cross, et al. Weber Geoffry A. Chief Justice Workman delivered the Opinion of the Court. Justice Brotherton Dissents and reserves the right to file a Dissenting opinion. Justice McHugh Dissents and reserves the right to file a Dissenting opinion. Kelly, W. Bonham, W. Under the rationale announced by this Court in United Mine Workers v.
Parsons, W. Civil Serv. Comm'n, W. Senate Bill 2, in essence a medicaid tax reform bill, was introduced and passed by the Legislature during a second special session in May During the regular legislative session, there was no public Discussion of adding any abortion-restrictive riders to the medicaid tax reform bill. Although Governor Caperton ed the bill into law on June 4, , he publicly stated his reservations concerning the constitutionality of the abortion-funding restrictions included in Senate Bill 2. Following a trial on this matter on August 11 and 12, the circuit court entered its ruling on August 25, , declaring the challenged portion of Senate Bill 2 constitutional.
On September 7, , Appellees filed a motion with this Court requesting a stay pending appeal, which we granted on that same date. 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 . 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].
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. 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 Appellees' contention that the decision of the United States Supreme Court in Harris v. McRae, U. 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 protection guarantees of the Due Process Clause of the Fifth Amendment or either of the religion clauses of the First Amendment.
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, U. Indigency falls in the latter category. The 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.
The Court also rejected claims based on equal protection and religion. 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. As support for this proposition, Appellants cite decisions in seven states which have relied on the greater protections of their respective state constitutions to find abortion-restrictive language in entitlement programs unconstitutional. See Committee to Defend Reprod. Secretary of Admin. Byrne, 91 N. Perales, A. Department of Human Resources, 63 Ore. Celani, No. SCnC, Vt. May 26, Those protections unique to our state constitution as contrasted to the federal constitution are found in sections one, three, and ten of article III. Section one of article III re: All men are, by nature, equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely: the enjoyment of life and liberty, with the means of aquiring and possessing property, and of pursuing and obtaining happiness and safety.
Nowhere in the United States Constitution are the terms "equally free and independent" or "safety" or comparable rights guaranteed. The federal constitution is devoid of any language stating that the federal government is instituted for the "common benefit" and "security" of its citizens. See State v. Johnson, U. Based on the principle that "'the provisions of the Constitution of the State of West Virginia may, in certain instances, require higher standards of protection than afforded by the Federal Constitution[,]' Syllabus Point 2, Pauley v.
Daley, W. The provision of enhanced guarantees for "the enjoyment of life and liberty. Accordingly, we are not bound by federal precedent in interpreting issues of constitutional law arising from these enhanced guarantees. See Bonham, W. Furthermore, because we are permitted to elevate our constitutional protections, we are similarly free to reject federal precedent such as Harris.
See U. We do just that today. Under Roe v. Wade, U. In the most recent United States Supreme Court decision on the issue, the Court reiterated the central premise of Roe--that women may, for some time period, make independent decisions to obtain abortions based on the right to privacy. Planned Parenthood v.
Casey, L. Appellees claim, however, that West Virginia has not recognized a parallel fundamental right to privacy under our state constitution similar to that recognized in Roe. Because there is a federally-created right of privacy that we are required to enforce in a non-discriminatory manner, it is inconsequential that no prior decision of this Court expressly determines the existence of an analogous right.
Appellants note that if an indigent woman who is receiving Aid to Families with Dependent Children AFDC benefits, receives a gift or donation, earns additional income, or borrows funds to pay for an abortion, that money is required to be reported to the Department of Human Resources "DHS" and may render the woman inelegible to receive continued benefits. As attested to by John A. Boles, Jr. Moreover, the penalty is realized not only by the women, but also by their families through the loss of funds which would have been received if not for the exercise of a constitutional right.
Specific examples of medical conditions which may necessitate performing an abortion are hypertension which places pregnant women at higher risk for strokes, premature placenta separation, and a severe bleeding disorder. Other medical conditions which may place the mother's health in jeopardy if she continues the pregnancy include gestational diabetes, epilepsy, and phlebitis.
In certain instances, as in the case of phlebitis, the drugs used to prevent blood clotting in the lungs are dangerous to the fetus and cannot be administered if the woman is pregnant. In the case of malignant breast tumors, pregnancy may actually accelerate the growth of the tumors. According to the submitted record, many of these problems occur with greater frequency among low-income women. To deny this Conclusion requires that we similarly deny the reality of being poor. The United States Supreme Court explained in Maher, The Constitution imposes no obligation on the States to pay the pregnancy-related medical expenses of indigent women, or indeed to pay any of the medical expenses of indigents.
But when a State decides to alleviate some of the hardships of poverty by providing medical care, the manner in which it dispenses benefits is subject to constitutional limitations. The Court ruled in Maher that Connecticut regulations which excluded funding for nontherapeutic abortions did not violate the Equal Protection Clause of the Fourteenth Amendment.
The oft-quoted reasoning of the Court in Maher was that: 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. The indigency that may make it difficult--and in some cases, perhaps impossible--for some women to have abortions is neither created nor in any way affected by the Connecticut regulation.
Perhaps just as frequently-quoted is Justice Brennan's response to this reasoning: As a practical matter, many indigent women will feel they have no choice but to carry their pregnancies to term because the State will pay for the associated medical services, even though they would have chosen to have abortions if the State had also provided funds for that procedure, or indeed if the State had provided funds for neither procedure.
This disparity in funding by the State clearly operates to coerce indigent pregnant women to bear children they would not otherwise choose to have, and just as clearly, this coercion can only operate upon the poor, who are uniquely the victims of this form of financial pressure. Maher, U. As noted above, the potential denial of AFDC benefits upon borrowing, earning, or receiving funds to pay for an abortion is yet another illustration of how indigent women are coerced by the State to have children which they might otherwise choose not to bear.
Appellees strenuously argue that the state is not obligated to pay for the exercise of constitutional rights. While this proposition is true as stated, it is equally true that once a government chooses to dispense funds, it must do so in a non-discriminatory fashion, and it certainly cannot withdraw benefits for no reason other than that a woman chooses to avail herself of a federally-granted constitutional right. See Maher, U. As noted in Moe, the Legislature need not subsidize any of the costs associated with child bearing, or with health care generally.
However, once it chooses to enter the constitutionally protected area of choice, it must do so with genuine indifference. It may not weigh the options open to the pregnant woman by its allocation of public funds; in this area, government is not free to 'achieve with carrots what [it] is forbidden to achieve with sticks. The concept invoked by selective governmental funding is the issue of government neutrality. We have ly determined that the common benefit clause of article III, section 3 of the West Virginia Constitution imposes an "obligation upon state government.
United Mine Workers v. We characterized article III, section 3 as an "equal protection clause" that serves the goal of "fundamental fairness. Under this rationale, we ruled that while there was no constitutional mandate to sell air time to anyone, once West Virginia University sold broadcast time to the coal industry for the presentation of "a politically controversial issue of public concern," the University was required to sell equal air time to the coal miners' union to permit contrasting viewpoints.
Furthermore, we noted in Parsons, that the obligation of the government to act for the "common benefit, protection, and security" of its citizens is "as applicable in the [arena of free speech]. In reliance on Parsons, Appellants argue that strict neutrality is mandated whenever state government operates to assist constitutionally-protected decisions. In resolving this same issue of neutrality, the Massachusetts Supreme Court looked to the views Justice Brennan expressed in his Dissent to Harris: 'In every pregnancy, [either medical procedures for its termination, or medical procedures to bring the pregnancy to term are] medically necessary, and the poverty-stricken woman depends on the Medicaid Act to pay for the expenses associated with [those] procedure[s].
But under [this restriction], the Government will fund only those procedures incidental to childbirth. By thus injecting coercive financial incentives favoring childbirth into a decision that is constitutionally guaranteed to be free from governmental intrusion, [this restriction] deprives the indigent woman of her freedom to choose abortion over maternity, thereby impinging on the due process liberty right recognized in Roe v.
Appellants urge this Court to accept the reasoning articulated by Justice Brennan and others that by denying funding for medically necessary abortions while funding childbirth, the state impermissibly pressures women towards a state-approved reproductive choice. The effect of such restrictions is inherently coercive where a woman is too poor to afford appropriate medical care: From a realistic perspective, we cannot characterize the statutory scheme as merely providing a public benefit which the individual recipient is free to accept or refuse without any impairment of her constitutional rights.
On the contrary, the state is utilizing its resources to ensure that women who are too poor to obtain medical care on their own will exercise their right of procreative choice only in the manner approved by the state.Womens personals Sabine West Virginia
email: [email protected] - phone:(948) 402-3174 x 5086
Womens personals Sabine West Virginia