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Women's Health Center of WV, et al. v. Panepinto, et al. (Dissenting)
Women's Health Center of West Virginia, Inc. v. Panepinto Nos. 21924, 21925 and 21926
McHugh, Justice, dissenting:
        I dissent from the majority opinion because I believe that a state is not required to provide funding to enable a woman to exercise her right to have an abortion. Like the majority, I agree that the question before the Court "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." Committee to Defend Reprod. Rights v. Myers, 625 P.2d 779, 780, 172 Cal. Rptr. 866, 867 (1981). However, unlike the majority, I conclude that W. Va. Code, 9-2-11 [1993] does not violate the West Virginia Constitution.
        The Supreme Court of Michigan was faced with the same issue in Doe v. Dept. of Social Services, 487 N.W.2d 166 (Mich. 1992) and concluded that the Michigan Medicaid statute which funded childbirth, but not abortion unless the abortion was medically necessary to save the mother's life, does not violate the equal protection clause in the Michigan Constitution.See footnote 1 1 I find the analysis of the Supreme Court of Michigan to be persuasive. Therefore, I will follow the Supreme Court of Michigan's analysis in my dissent.
        As the majority points out and as the Supreme Court of Michigan notes, the Supreme Court of the United States has analyzed this very issue in a series of cases. In Maher v. Roe, 432 U.S. 464, 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977) the Supreme Court of the United States upheld a Connecticut statute which limited state funding for abortions to medically necessary abortions performed during the first trimester of pregnancy. In reaching its conclusion the Supreme Court of the United States acknowledged that Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) gave a woman the right under the federal constitution to choose an abortion. However, in Maher the Supreme Court of the United States clarified the Roe decision:
        Roe did not declare an unqualified 'constitutional right to an abortion,' . . . . Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. It 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 U.S. at 473-74, 97 S. Ct. at 2382, 53 L. Ed. 2d at 494.
The Court in Maher explained that "[t]here is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy." Id. at 475, 97 S. Ct. at 2383, 53 L. Ed. 2d at 495 (footnote omitted).
        In Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980), the Supreme Court of the United States held that the Hyde Amendment, which placed federal restrictions on Medicaid funds for abortions except in a limited number of circumstances, did not violate the establishment clause in the First Amendment nor the equal protection clause of the Fifth Amendment of the United States Constitution. In reaching its conclusion the Supreme Court of the United States noted that
        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. The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, 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.
Id. at 316-17, 100 S. Ct. at 2688, 65 L. Ed. 2d at 804 (citing Maher, supra).
        The Supreme Court of Michigan in Doe, supra, discussed the Supreme Court of the United States' equal protection analysis found in Harris, supra, and Maher, supra, in detail. Doe points out that with this issue there are two levels at which an equal protection analysis can take place.See footnote 2 2 Ordinarily, the legislation must be rationally related to a legitimate governmental purpose. However, if the legislation creates a classification which is based on suspect factors or prevents the exercise of a fundamental right, then the legislation must be analyzed with strict scrutiny. This analysis, although ignored by the majority, is not foreign to this Court. E.g., Gibson v. W. Va. Dept. of Highways, 185 W. Va. 214, 406 S.E.2d 440 (1991); Means v. Sidiropolis, 184 W. Va. 514, 401 S.E.2d 447 (1990); Courtney v. State Dept. of Health, 182 W. Va. 465, 470, 388 S.E.2d 491, 496 (1989); and Israel v. West Virginia Secondary Schools Activities Commission, 182 W. Va. 454, 388 S.E.2d 480 (1989).
        The Supreme Court of the United States determined that strict scrutiny did not apply to the issue. In Maher, the Supreme Court of the United States pointed out that "this Court has never held that financial need alone identifies a suspect class for purposes of equal protection analysis." Maher, 432 U.S. at 471, 97 S. Ct. at 2381, 53 L. Ed. 2d at 492

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