The New Jersey Supreme Court & Judicial Activism: Taxpayer-Funded Abortions In 1982, the New Jersey Supreme

Court, in Right to Choose v. Byrne, struck down a democratically enacted law that prohibited public funding of abortions through Medicaid, except for when the procedure was medically necessary to preserve the life of the mother. The Court ruled that the State not funding abortions that were medically necessary for the health of the mother violated the equal protection of the laws that are implicit in Article 1, paragraph 1 of the State Constitution. In doing so, the unaccountable New Jersey Supreme Court violated its own precedent and went beyond judicial review and embraced judicial activism. The U.S. Supreme Court previously ruled in Harris v. McRae (1980) that the Hyde Amendment, which generally banned federal funding of abortions through the Medicaid program except for when it was medically necessary for the life of the mother, did NOT violate the Equal Protection Clause of the U.S. Constitution. That same year, in McKenney v. Byrne (1980), the New Jersey Supreme Court showed deference to federal constitutional interpretation in stating that the "burden of mounting a successful challenge on equal protection grounds under the state Constitution [under stated circumstances] . . . is no different from that which prevails under the federal Constitution.” However, in the 1982 Right to Choose v. Byrne decision, the New Jersey Supreme Court ruled contrary to the U.S. Supreme Court’s Harris v. McRae decision. It reasoned that the State was unconstitutionally violating a woman’s free choice by not funding all medically necessary abortions, whether for the woman’s life or health. In other words, the New Jersey Supreme Court, engaging in judicial activism, changed the way it legally analyzed the claim of an equal protection violation in an effort to get the result that it wanted. In the Right to Choose v. Byrne decision, the Court ruled that because the State entered the playing field of providing medically necessary care to a pregnant woman, it “may be an umpire, but not a contestant” (Justice Pollock, majority opinion). The Court indicated that the State must be neutral in the woman’s decision-making process. For instance, it could not offer to cover the cost of delivering the child, but deny coverage of an abortion that a physician deems medically necessary for the woman’s health. In so doing, the Court expanded what had been a voluntary entitlement program of the government to a guaranteed right. The New Jersey Supreme Court ruled that by providing funding for abortion in one situation but not another that a woman’s right to have an abortion has been violated. However, the law that was struck down had nothing to do with whether a woman had a valid right to an abortion for health reasons; rather it, just like the Hyde Amendment, stated that taxpayer monies would not be used to fund the abortion. It is our elected representatives in the legislature to determine how to structure its Medicaid program and what services and under what conditions those services will be provided. The concept of equal protection of the law is a restraint on governmental power. It was intended to prevent the government from arbitrarily discriminating against a group or individual. What the Court did here was mere judicial activism, using equal protection to expand a voluntary entitlement program to a guaranteed right. The democratically elected New Jersey Legislature made a rational distinction between funding abortions to save the life of the mother or to preserve the health of the mother. Since a woman does not have a fundamental right to a taxpayer-funded abortion, the Court should have deferred to the

legislature as the U.S. Supreme Court did in Harris v. McRae. This is another example of the unaccountable New Jersey Supreme Court usurping the power that resides with other branches of government to further its own policy agenda.

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