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decided: September 20, 1984.


Original jurisdiction in case of JoAnne Fischer et al. v. Department of Public Welfare et al.


Kathryn Kolbert, with her, Susan Cary Nicholas, Seth Kreimer and Robert F. Williams, for petitioners.

Andrew S. Gordon, Senior Deputy Attorney General, with him, Daniel R. Schuckers, Deputy Attorney General, Allen C. Warshaw, Senior Deputy Attorney General, Chief, Litigation Section, LeRoy S. Zimmerman, Attorney General, and Stanley Slipakoff, Assistant Counsel, Department of Public Welfare, for respondents.

Nadine Taub, with her, Pamela Pryor Cohen, Swenson and Cohen, for Amici Curiae of the National Women's Health Network et al.

William Bentley Ball, with him, Philip J. Murren and Sandra E. Wise, Ball & Skelly, for Amici Curiae, Dr. Dorothy Czarnecki et al.

President Judge Crumlish, Jr. and Judges Williams, Jr., Craig, MacPhail, Doyle, Barry and Colins. Opinion by President Judge Crumlish, Jr. Concurring and Dissenting Opinion by Judge MacPhail. Judge Craig joins in this concurring and dissenting opinion.

Author: Crumlish

[ 85 Pa. Commw. Page 242]

Before us are petitioners' and respondents' exceptions to the decree nisi*fn1 of Judge John A. MacPhail, dated March 9, 1984, sitting as Chancellor. Petitioners,

[ 85 Pa. Commw. Page 243]

    a group of named individuals and a clergyman suing on their own behalf as well as all others similarly situated, a physician, and several non-profit medical service organizations, filed a petition for review seeking declaratory and injunctive relief which would prohibit the Commonwealth Respondents*fn2 (hereinafter Commonwealth) from implementing Section 453 of the Public Welfare Code*fn3 entitled "Expenditure of public funds for abortions limited," and Section 3215(c) of the Abortion Control Act*fn4 (the 1982 Abortion Control Act) also dealing with the public funding of abortion.


In August of 1981, petitioners' motion for preliminary injunction was granted and later affirmed by our state Supreme Court. Fischer v. Department of Public Welfare, 497 Pa. 267, 439 A.2d 1172 (1982).*fn5 In March of 1984, Judge MacPhail, acting as Chancellor, and after trial, made findings of fact and conclusions of law and issued a decree nisi declaring unconstitutional

[ 85 Pa. Commw. Page 244]

*fn6 and prohibiting the enforcement of Section 453 of the Public Welfare Code and Section 3215(c) of the 1982 Abortion Control Act. Petitioners and respondents timely filed exceptions to the decree. For the reasons to follow, we sustain respondents' exceptions which are based on article III, section 32 of the Pennsylvania Constitution, the Commonwealth's equal protection clause, and article I, section 28 of the Pennsylvania Constitution, the Commonwealth's equal rights amendment (ERA), and overrule the remainder of their exceptions.*fn7 We overrule petitioners' exceptions.

A version of the 1982 Abortion Control Act was first enacted in 1974 (the 1974 Abortion Control Act), and its general funding section*fn8 read as follows:

Since it is the public policy of the Commonwealth not to use public funds to pay for unneeded and unnecessary abortions, no abortion shall be subsidized by any State or local governmental agency in the absence of a certificate of a physician, filed with such body, stating that such abortion is necessary in order to preserve the life or health of the mother.

[ 85 Pa. Commw. Page 245]

Nothing contained in this section shall be interpreted to restrict or limit in any way, appropriations, made by the Commonwealth or a local governmental agency to hospitals for their maintenance and operation, or, for reimbursement to hospitals for services performed.

However, in 1975, this section, and much of the 1974 Abortion Control Act, were held invalid in Planned Parenthood Association v. Fitzpatrick, 401 F. Supp. 554 (E.D. Pa. 1975). There, the District Court for the Eastern District of Pennsylvania considered the constitutionality of the 1974 Act and held, inter alia, that Section 7, the general funding section, conflicted with Title XIX of the Social Security Act*fn9 and concluded that it violated the equal protection clause of the fourteenth amendment. Judge Clifford Scott Green, writing for a panel of three, held that the state's denial of subsidies for unnecessary abortions was inconsistent with the Supreme Court's decision in Roe v. Wade, 410 U.S. 113 (1973), since it denied indigent pregnant women financial aid. Fitzpatrick, 401 F. Supp. at 581.

In an effort to revive the legislation following Fitzpatrick, the Pennsylvania General Assembly, in 1978, amended the 1974 Abortion Control Act. In particular, the broad language of the funding provision of the 1974 Act was replaced with language similar to that found in the so-called "Hyde Amendment."*fn10 The, by now well-known, Hyde Amendment prohibited the use

[ 85 Pa. Commw. Page 246]

    of federal funds for reimbursement of the costs of abortions under the federal medicaid program unless such procedure were deemed necessary to save the life or preserve the health of the mother. Significantly, it pronounced as public policy the preference for childbirth over abortion.

However, as was the case of the earlier version in Fitzpatrick, this amended section was enjoined in 1980

[ 85 Pa. Commw. Page 247]

    by the Third Circuit Court of Appeal in Roe v. Casey, 623 F.2d 829 (3d Cir. 1980). Judge Garth, writing for the Third Circuit, found that the amendment was, as modified by the Hyde Amendment, at odds with Title XIX of the Social Security Act.*fn11

Undaunted by the result of the previous litigation, the General Assembly, in December of 1980, amended the Public Welfare Code to limit medicaid funding of abortion. Section 453 of the Code, entitled "Expenditure of public funds for abortions limited," provided:

Since it is the public policy of the Commonwealth to favor childbirth over abortion, no Commonwealth funds and no Federal funds which are appropriated by the Commonwealth shall be expended by any State or local government agency for the performance of abortion: Provided, That nothing in this act shall be construed to deny the use of funds where a physician has certified in writing that the life of the mother would be endangered if the fetus were carried to full term or except for such medical procedures necessary for the victims of rape or incest when such rape or incest has been reported promptly to a law enforcement agency or public health service. Nothing contained in this section shall be interpreted to restrict or limit in any way, appropriations, made by the Commonwealth or a local governmental agency to hospitals for their maintenance and operation, or, for reimbursement to hospitals for services rendered which are not for the performance of abortions.*fn12

[ 85 Pa. Commw. Page 248]

Subsequent to the enactment of the latter amendment*fn13 to the Public Welfare Code, petitioners filed this action seeking to have Section 453 declared unconstitutional.

In June of 1982, in the midst of the pleading stage of the original petition for review, Governor Thornburgh signed into law the 1982 Abortion Control Act*fn14 In response to the funding provisions of the 1982 Act,*fn15 petitioners filed an amended petition for review

[ 85 Pa. Commw. Page 249]

    seeking review of Section 3215(c) of the 1982 Abortion Control Act pertaining to the public funding of abortions, which provides in part:

(c) Public funds. -- No Commonwealth funds and no Federal funds which are appropriated by the Commonwealth shall be expended by any State or local government agency for the performance of abortion, except:

(1) When abortion is necessary to avert the death of the mother on certification by a physician. When such physician will perform the abortion or has a pecuniary or proprietary interest in the abortion there shall be a separate certification from a physician who has no such interest.

(2) When abortion is performed in the case of pregnancy caused by rape which has been reported within 72 hours of the rape to a law enforcement agency having the requisite jurisdiction and has been personally reported by the victim or her agent.

(3) When abortion is performed in the case of pregnancy caused by incest which has been reported within 72 hours from the date when the female first learns she is pregnant and she has named the other party to the incestuous act. Such information shall be turned over by the department to a law enforcement agency.

We are, of course, not unmindful of the very deep and devisive ancillary issues which accompany this controversy.*fn16 While diverse cogent, moral, philosophical

[ 85 Pa. Commw. Page 250]

    and legal arguments have been orchestrated to a crescendo, our expressions are impervious to the dinning public rhetoric which has been extensively and unremittingly directed to our attention. Rather than grapple with the moral, philosophical and legal arguments to exclude from its parameters what this case is not about,*fn17 we need only turn to Judge David Craig's thoughts when he overruled the Commonwealth's preliminary objections:

[T]he ultimate principal issue here is whether a state law may withhold financial aid for a medical abortion needed to preserve the health of an indigent woman and allow it only if her very life is endangered, while not applying any similar limitation to other medical procedures necessary for health preservation alone -- recognizing also that the non-indigent woman faces no such distinction.

Fischer v. Department of Public Welfare, 66 Pa. Commonwealth Ct. 70, 82, 444 A.2d 774, 780 (1982).


Equal Protection

After analyzing the funding statutes, the Chancellor concluded "that the funding restriction imposes an undue burden upon the fundamental right of indigent women to have a medically necessary abortion."*fn18 The Chancellor reasoned that Roe v. Wade, 410 U.S. 113

[ 85 Pa. Commw. Page 251]

(1973), recognized the right of a woman to terminate her pregnancy and that constitutionally-protected right, though not absolute, is fundamental and can be impeded only when the interest of the state is a compelling one. While the state's interest in the potentiality of life is a recognizable one, it could not, as the Chancellor viewed present law, be regarded as so compelling an interest as to supersede a pregnant woman's constitutionally-protected right of self-determination. When the Chancellor balanced the two not always compatible and at times competing interests in Roe v. Wade, i.e., the health of the mother and the potential for human life, he found the present funding scheme to impinge upon the mother's fundamental right:

By denying funding for medically necessary abortions, the Commonwealth has attempted to elevate the right of potential life over the health of the mother. This it may not do. By singling out persons who have need of a medically necessary abortion from all other persons entitled to generally medically necessary services, the Commonwealth has allocated benefits on criteria which discriminatorily burden the exercise of an indigent pregnant woman's fundamental constitutional right. This it may not do.*fn19

We must respectfully disagree with that analysis. Decisions of the United States Supreme Court are not always binding authority on us but can and often do serve as helpful guiding principles. See Kroger Co. v. O'Hara Township, 481 Pa. 101, 392 A.2d 266 (1978). The Chancellor considered but did not follow the abortion funding decisions of the United States Supreme Court in Harris v. McRae, 448 U.S. 297 (1980), and Maher v. Roe, 432 U.S. 464 (1977).

[ 85 Pa. Commw. Page 252]

In Maher, the Supreme Court was faced with the task of determining whether restrictions upon state aid for non-therapeutic abortions*fn20 impermissibly infringed upon the rights of privacy and freedom of choice recognized in Roe v. Wade. The Maher Court upheld the state welfare regulation. In Harris, the Supreme Court upheld the federal Medicaid Act and Hyde Amendment thereto which restricted the use of federal funds for reimbursement of the cost of abortion under the Medicaid program to those situations where the life of the mother would be endangered if the fetus were carried to term or where the mother was the victim of rape or incest. In either case, those incidents had to be promptly reported to the proper authorities.

While we recognize that we are at liberty to consider the merits of a state-based constitutional challenge independently of the United States Supreme Court, see Danson v. Casey, 33 Pa. Commonwealth Ct. 614, 382 A.2d 1238 (1978), aff'd, 484 Pa. 415, 399 A.2d 399 (1979), we are convinced, as we read the language of this Commonwealth's Constitution, of the correctness and applicability of the rationale expressed in Harris and Maher that this legislation does not violate the equal protection provision of the Pennsylvania Constitution.

The right enunciated in Roe v. Wade is a qualified one. There, it was held that state regulation of abortion in certain instances may be appropriate. The Court said, "[A] state may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of

[ 85 Pa. Commw. Page 253]

    the factors that govern the abortion decision." Roe v. Wade, 410 U.S. at 154.*fn21

A woman is protected from unduly burdensome interference with her freedom to terminate a pregnancy but, conversely, this prohibition against the placement of direct governmental barriers does not prohibit state legislation which encourages childbirth over abortion. A state is free "to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds." Maher v. Roe, 432 U.S. at 474.

In Maher and Harris, the Supreme Court pointedly distinguished the privacy or self-determination right in Roe v. Wade from the public funding of the exercise of that right. In Maher, the Supreme Court looked at a Connecticut welfare regulation which provided benefits for medical services incident to childbirth but denied those benefits which were related to non-therapeutic abortions. The Court, in upholding the Connecticut regulation, distinguished between forbidden coercion and permissible incentive. "There 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 (emphasis added).

The Maher Court observed that the case involved neither discrimination against a suspect class nor an impingement upon a fundamental right explicitly or

[ 85 Pa. Commw. Page 254]

    implicitly protected by the Constitution. Relying on San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), the Court noted that financial need in itself does not identify a suspect class for the purposes of the equal protection argument. The Maher Court asserted:

The . . . 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 services 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. (Emphasis added.)

Maher v. Roe, 432 U.S. at 474.

In Harris, the forbidden coercion and permissible incentive distinction proved dispositive. There, the Court was faced with the constitutionality of the 1980 fiscal year Hyde Amendment.*fn22 That Amendment provided:

[N]one of the funds provided by this joint resolution shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest when such rape or

[ 85 Pa. Commw. Page 255]

    incest has been reported promptly to a law enforcement agency or public health service.

The Hyde Amendment was found to place no governmental obstacle in the path of a woman choosing to terminate her pregnancy. "[The] protection against unwarranted government interference with freedom of choice . . . does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom." Harris, 448 U.S. at 317-18. As in Maher, the regulation was construed to provide a means to encourage alternative activity through subsidization. The alternative activity (childbirth) was preferred because of established public policy favoring it. Harris, 448 U.S. at 315.

To consider whether the funding statute here in question denies petitioners' equal protection of the laws,*fn23 we must determine the appropriate standard of review. There are two tests which have surfaced in the evolution of this theory of constitutional interpretation -- rational basis and strict scrutiny. "If the statutory classification bears some rational relationship to a legitimate state end, it is within the legislative power." Martin v. Unemployment Compensation Board of Review, 502 Pa. 282, 291, 466 A.2d 107, 111 (1983). If the statute burdens a suspect class or impinges upon one's exercise of a fundamental right, the Court will strictly scrutinize the statute and the state is obliged to proffer compelling reasons for its classification. See McCoy v. State Board of Medical Education and Licensure, 37 Pa. Commonwealth Ct. 530, 540, 391 A.2d 723, 728 (1978).

[ 85 Pa. Commw. Page 256]

Judge MacPhail's analysis of the infirmity of the present legislation led him to the conclusion that, because a woman has a right to an abortion in certain circumstances under Roe v. Wade, then necessarily, if she is indigent, the state has the obligation to fund this right. Thus, the right to a funded abortion would be present even if the state chose not to fund childbirth. His erroneous determinant is indigency. We disagree with the Chancellor, for Roe v. Wade does not reach the end perceived by him. A woman's freedom of choice does not carry with it a constitutional entitlement to every financial resource with which to avail herself of the full range of protected choices. See Harris v. McRae, 448 U.S. at 317-18. For example, a citizen has a constitutional right to travel but is not entitled to travel at the public expense. One has a constitutional right to freedom of expression but is not entitled to the use of public funds to finance the expounding of personal views. The economic constraints on the woman who would terminate her pregnancy are not caused by the Commonwealth. Her financial problems exist and continue to exist whether she elects to choose one or the other alternative. These problems are not the consequence of any action or legislation on the part of the Commonwealth.

We are convinced that the funding statutes do not impinge upon a fundamental right. Section 3202 of the 1982 Abortion Control Act*fn24 states in part, "It is the intention of the General Assembly of the Commonwealth of Pennsylvania to protect hereby the life and health of the woman subject to abortion and to protect the life and health of the child subject to abortion." Section 443 of the Public Welfare Code provides in part: "[I]t is the public policy of the Commonwealth to favor childbirth over abortion." We

[ 85 Pa. Commw. Page 257]

    conclude that the Commonwealth is offering a legitimate permissible incentive and is not dictating a coercive course. The Commonwealth is simply offering an alternative.

We further hold that this legislation is not predicated upon a suspect classification. The Maher Court observed that "every denial of welfare to an indigent creates a wealth classification as compared to non-indigents who are able to pay for the desired goods or services. But this Court has never held that financial need alone identifies a suspect class for purposes of equal protection." Maher, 432 U.S. at 471. It is well settled that discrimination based on the degree of comparative economic security alone does not give us the authority to invoke the strict scrutiny test. San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). Our Supreme Court in Martin held that a classification based on wealth does not trigger a heightened standard of scrutiny.

Having concluded that there is no infringement upon fundamental rights or suspect classification, we must determine whether there is a reasonable basis for the legislation. Houtz v. Department of Public Welfare, 42 Pa. Commonwealth Ct. 406, 410, 401 A.2d 388, 391 (1979). Our Supreme Court in Martin adopted the standard of the United States Supreme Court in Hodel v. Indiana, 452 U.S. 314, 331-32 (1982), for scrutinizing social and economic legislation:

Social and economic legislation . . . that does not employ suspect classifications or impinge on fundamental rights must be upheld against equal protection attack when the legislative means are rationally related to a legitimate governmental purpose. . . . Moreover, such legislation carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality. . . . [S]ocial

[ 85 Pa. Commw. Page 258]

    and economic legislation is valid unless "the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [a court] can only conclude that the legislature's actions were irrational." This is a heavy burden, and appellees have not carried it. (Citations omitted.)

Martin, 502 Pa. at 294, 466 A.2d at 113. This standard, strict as it may seem, is constitutionally-mandated so as to preserve the separation of powers, so basic to our system of government. Id. We hold that, through these funding statutes, the Commonwealth has reasonably furthered its interest in childbirth, recognized to be a vital governmental interest in Roe v. Wade.*fn25

Equal Rights Amendment

In addition to the equal protection clauses of the state constitution, petitioners argued a constitutional challenge based upon the Pennsylvania equal rights amendment (ERA)*fn26 that provides, "Equality of rights under the law shall not be denied or abridged

[ 85 Pa. Commw. Page 259]

    in the Commonwealth of Pennsylvania because of the sex of the individual." While acknowledging that petitioners' argument is not as strong as the equal protection argument, the Chancellor concluded that the funding statute unlawfully discriminates against women in respect to a physical condition which is unique to them. The cases of Anderson v. Upper Bucks County Area Vocational Technical School, 30 Pa. Commonwealth Ct. 103, 373 A.2d 126 (1977), and Cerra v. East Stroudsburg Area School District, 450 Pa. 207, 299 A.2d 277 (1973) (employment discrimination cases in which women were being adversely discriminated against because of pregnancy), were cited in support of this conclusion.

We easily distinguish Anderson and Cerra. In Anderson, a collective bargaining agreement excluded sick leave benefits for pregnancy. This Court held that this exclusion constituted sex discrimination*fn27 because we found that pregnancy, under the Pennsylvania Human Relations Act,*fn28 should be treated as any other infirmity. In Cerra, a tenured female teacher was fired for incompetency and willful misconduct when she refused to resign at the end of her fifth month of pregnancy in accord with a school district

[ 85 Pa. Commw. Page 260]

    regulation. Our Supreme Court held that, while incompetency may be a valid reason for termination, a physical disability which results "in a teacher's temporary absence . . . is not . . . incompetence." Cerra, 450 Pa. at 211, 299 A.2d at 279. In a statutory rather than constitutional analysis, it stated:

Male teachers, who might be temporarily disabled from a multitude of illnesses, have not and will not be so harshly treated. In short, Mrs. Cerra and other pregnant women are singled out and placed in a class to their disadvantage. They are discharged from their employment on the basis of a physical condition peculiar to their sex. This is sex discrimination pure and simple.

Id. at 213, 299 A.2d at 280. These cases are not dispositive of the issue before us. In the case sub judice, indigent women who choose to carry a fetus to term receive certain benefits which indigent women who choose to terminate their pregnancy do not. This simply is not actionable sex discrimination under the provisions of ERA.

This case does not involve a gender-based classification cognizable under the equal rights amendment. True, this statute has a basis in gender, for only women may choose to have an abortion or bear a child. But women are not being unfairly discriminated against because of their sex. "The legislation is directed at abortion as a medical procedure, not at women as a class." Moe v. Secretary of Administration, 417 N.E.2d 387, 407 (Mass. Sup. Jud. Ct. 1982) (Hennessey, C.J., dissenting). The Commonwealth has chosen to further a legitimate state interest through the use of its funding power. We hold that the funding sections of the Public Welfare Code and the 1982 Abortion Control Act do not violate the provisions of the Pennsylvania equal rights amendment.

[ 85 Pa. Commw. Page 261]

A.2d at 77. To determine whether an intrusion into an individual's privacy is permissible, the individual's right of privacy is balanced against the countervailing state interest. Denoncourt v. State Ethics Commission, Pa. , , 470 A.2d 945, 948 (1983). There, our Supreme Court stated:

[the] government's intrusion into a person's private affair is constitutionally justified when the government interest is significant and there is no alternate reasonable method of lesser intrusiveness to accomplish the governmental purpose. Whether there is a significant state interest will depend, in part, on whether the state's intrusion will effect its purpose; for if the intrusion does not effect the state's purpose, it is a gratuitous intrusion, not a purposeful one. (Footnotes omitted.)

Id. at , 470 A.2d at 949.

It has been stipulated of record that rape and incest are intensely personal invasions into the victim's privacy. There is, of course, no dispute that both rape and incest are so personal and so traumatic as to want for comparatives. From our perspective, it appears that the only function served by the reporting requirement is to compound the original abuse. The Commonwealth attempts to justify the state intrusion into the victim's personal lives by claiming profound interest in the prosecution and conviction of those who offend the criminal law, the maximization of federal funding, the promotion of "fresh complaints" by rape victims, the need to report crime in order to prevent subsequent crime, and the legislative intention to pay only valid claims. We agree with the Chancellor's analysis of these interests and his conclusion that the intrusion will not effect the Commonwealth's purposes. The record discloses that the reporting requirements will

[ 85 Pa. Commw. Page 263]

    not increase the veracity of the claim nor will they motivate physically- or psychologically-damaged victims to make "fresh complaints."*fn30 There was no evidence that women will make false rape or incest claims merely to obtain the funding.

The right being invaded here is one of significant constitutional proportions. The statute requires disclosure of an intensely personal and traumatic experience when such a disclosure may very well be impossible due to physical or psychological injury. Justice Larsen, in his dissent in Matter of Pittsburgh Action Against Rape, 494 Pa. 15, 38, 428 A.2d 126, 138 (1981), aptly noted:

A rape victim suffers an invasion of her bodily privacy in an intensely personal and unsettling manner, triggering a number of emotional and psychological reactions running the gamut from shock, fear, distrust and anger to guilt, shame and disgust.

The "rape trauma syndrome" can bring about unconsciousness and amnesia in some victims, lasting for periods ranging from a few days to several weeks.

Incest is even more traumatic upon victims' personal lives because children are the usual victims.

To require females of tender age not only to report a pregnancy, but to identify the perpetrator of the crime as well, infringes upon that victim's fundamental right to privacy in a most damaging manner. Identifying another family member as a criminal within 72 hours of learning that she is pregnant is a terrifying experience

[ 85 Pa. Commw. Page 264]

    too formidable for an adult, let alone one of tender age.*fn31

Thus, we agree with the Chancellor that the interests enunciated by the Commonwealth are greatly outweighed by the severe invasion of the woman's privacy*fn32 so as to transgress the constitutional guarantee of privacy.

There are far less intrusive measures that the Commonwealth could adopt to further its stated goals. For example, to prevent fraud and pay only valid claims, and to use funds in the most efficient manner, the legislature could enact legislation delineating abuses of the system to be a crime with penalties which would include reimbursement. A first trimester reporting period to balance the state and individual interest could be adopted. Under this timetable, the Commonwealth's interests would be sufficiently protected, yet the invasion of privacy would not nearly be as severe. A rape or incest victim must at some point come to terms with her unwanted pregnancy in order to obtain an abortion, be it publicly funded or otherwise.*fn33

[ 85 Pa. Commw. Page 265]

There is no inconsistency between upholding the constitutionality of the statutes' funding provisions and the striking down of the reporting regulation and statutory provision. They have been decided on entirely different principles. The reporting provisions found to be repugnant to the constitutionally-protected right of privacy are not equivalent to nor were they subject to the same constitutional attack as the general funding sections. Thus, we have upheld the time-honored judicial exercise of legislative scrutiny, upholding those things in accord with the Pennsylvania Constitution and striking those things repugnant to it, though they are part and parcel with other provisions found not to be offensive.

This legislative scheme may not be one to which all of the members of this or any other Court subscribe. Whether we agree or disagree with the desirability, wisdom or consistency of the statutes here in question, the judiciary's role has been defined:

[T]he judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceeds along suspect lines.

City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). We are also mindful of our state Supreme Court in Martin, quoting Daniel v. Family Security Life Insurance Co., 336 U.S. 220, 224 (1949):

Looking through the form of this plea to its essential basis, we cannot fail to recognize it as an argument for invalidity because this court disagrees with the desirability of the legislation.

[ 85 Pa. Commw. Page 266]

We rehearse the obvious when we say that our function is thus misconceived. We are not equipped to decide desirability; and a court cannot eliminate measures which do not happen to suit its taste if it seeks to maintain a democratic system. The focus for the connection for ill-considered legislation is a responsive legislature.

We sustain those exceptions of the respondents based on equal protection and the equal rights amendment and overrule the remainder of them.

We overrule the exceptions of petitioners.


Respondents' exceptions to the Chancellor's Conclusions of Law Nos. 1, 2, 3 and 4, and the decree nisi dated March 9, 1984, are sustained; the remainder of respondents' exceptions are overruled. Petitioners' exceptions are overruled.

Judgment is entered in favor of the petitioners with respect to the reporting provisions of the statutes and the Commonwealth is permanently enjoined from their implementation. Judgment is entered in favor of the Commonwealth with respect to the remaining provisions of the statutes.


Exception sustained in part and overruled in part. Enforcement of reporting provisions of statutes enjoined. Judgment in favor of respondents with respect to remaining statutory provisions.

Concurring and Dissenting Opinion by Judge MacPhail:

Inasmuch as my adjudication is now reported preceding the majority opinion, I feel it is unnecessary to repeat what I said therein. I note that the majority opinion is limited to sustaining exceptions to the conclusions of law I reached. The fair implication that follows is that the facts I found are not disturbed by the majority opinion.

I, accordingly, concur in the result reached by the majority with respect to the unconstitutionality of the

[ 85 Pa. Commw. Page 267]

    reporting requirements of the statutes under consideration but, for the reasons set forth in my adjudication, I must respectfully dissent to the result reached by the majority that the remainder of the statutes under consideration do pass constitutional muster.

In addition, I believe that the majority in its statement at slip op. pp. 11 and 12 that my analysis would lead to the conclusion that "because a woman has a right to an abortion in certain circumstances under Roe v. Wade, then necessarily, if she is indigent, the state has the obligation to fund this right," misapprehends my adjudication. Clearly, the fact that any woman has the right to choose an abortion under the circumstances delineated in Roe v. Wade does not obligate the state to fund all abortions for indigent women. However, where the state funds a full panoply of medically necessary services for indigent persons I found that the state may not then refuse to fund medically necessary abortions for indigent pregnant women.

In summary, I would dismiss all exceptions and enter the decree nisi as a final decree.

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