Peter Hall, Pennsylvania Capital-Star
January 29, 2024
The Pennsylvania Supreme Court issued a decision Monday clearing the way for a lawsuit by abortion providers on behalf of patients challenging the commonwealth’s ban on using tax dollars to pay for the procedure.
The ruling overturns a 42-year-old decision that upheld the constitutionality of the Pennsylvania Abortion Control Act’s ban on Medicaid-funded abortions except in cases of rape or incest. A lower court cited the decision when it dismissed the abortion providers lawsuit in 2021.
In an appeal of the lower court’s decision, a 3-2 majority of the Supreme Court on Monday said the Medicaid ban is sex-based discrimination, which is presumptively unconstitutional under the state’s Equal Rights Amendment.
The case was the subject of intense focus during last November’s election to fill a vacant seat on the state high court, with reproductive rights advocates pushing to solidify Democrats’ majority.
Lawyers who argued the case on behalf of the reproductive health providers said Monday the decision was an enormous victory that provides confidence that the court will rule to uphold abortion rights in the future.
“The right to make healthcare decisions related to reproduction is a core important right encompassed by the enmeshed privacy interest protected by our Charter,” Donohue wrote in a complex and nuanced 219-page lead opinion for the court. “Whether or not to give birth is likely the most personal and consequential decision imaginable in the human experience. Any self-determination is dependent on the right to make that decision.”
Justice Kevin Dougherty, who concurred in the overall result of the decision, said he agreed with two dissenting justices that the case was not about the right to abortion and it was not the right time to decide whether there is a fundamental right. Dougherty added that the question would likely make its way back to the high court.
“The majority’s incredibly insightful position may ultimately prevail in the end. But I believe we should take such an important issue directly, only after the lower court has entertained it, with full notice to the bench, bar, and public,” Dougherty wrote.
Chief Justice Debra Todd and Justice Sallie Mundy dissented in the outcome, saying there wasn’t a sufficient reason to overturn the court’s earlier decision. Justices Kevin Brobson and Daniel McCaffery, who both joined the court after the appeal began, did not participate in the decision.
The underlying lawsuit was filed by the Allegheny Reproductive Health Center, Allentown Women’s Center, Delaware County Women’s Center, Planned Parenthood Keystone and the organization’s southeastern and western Pennsylvania chapters.
“We are still determining next steps, but we are confident the Medicaid abortion ban will be consigned to the scrap heap of history very soon,” Susan Frietsche, co-executive director of the Women’s Law Project, said in a statement.
David S. Cohen, constitutional law professor at Drexel University Kline School of Law, said that although the majority did not agree on the fundamental right to abortion, the “very strong opinion” from two justices and the opinion of a third calling it “incredibly insightful” provide “a great building block to accomplish that goal.”
Cohen told the Capital-Star that the Department of Human Services, which defended the ban in Commonwealth Court, has a very high hurdle to clear to enforce the Medicaid exception. The case will now return to Commonwealth Court to determine whether the state can meet that burden.
In the majority opinion, Donohue found the exclusion of coverage for abortions discriminates against women who chose to exercise their fundamental right to reproductive autonomy and violates the Pennsylvania Constitution’s protection against discrimination by the government.
In order to justify the exclusion, the state must show that it has a compelling government interest and that it is using the least restrictive means available to advance that interest, Donohue said.
“The government does not bear a constitutional obligation to provide medical care to the indigent, nor is the government required to financially support the exercise of a fundamental right, including a woman’s exercise of her right to reproductive autonomy,” Donohue wrote.
“However, once the government chooses to provide medical care for the indigent, including necessary care attendant to pregnancy for those women exercising their right to reproductive autonomy who decide to carry a pregnancy to term, the government is obligated to maintain neutrality so as not to intrude upon the constitutional right to full reproductive autonomy, which includes the right to terminate a pregnancy,” the opinion reads.
U.S. Rep. Summer Lee (D-Pa. 12th District) said the decision would save the lives of women by allowing the state Medicaid program to pay for abortion care.
“The Pennsylvania Supreme Court ruling is a huge win for reproductive justice setting the stage to overturn decades of racist, classist policy that banned Medicaid recipients from accessing the care they needed — policy that directly contributed to Pittsburgh’s maternal mortality crisis where Black women are more likely to die during pregnancy than 97% of U.S. cities,” Lee said in a statement.
Planned Parenthood PA Executive Director Signe Espinoza said one in four low-income women seeking an abortion are forced to carry unwanted pregnancies to term because of Medicaid coverage bans.
“The rights of Pennsylvanians are due to all Pennsylvanians, not just those wealthy enough to afford them. Seeking essential health care should not be restricted based on your income bracket,” Espinoza said in a statement. “Today’s ruling is the first step toward ending discriminatory access to care, and we remain committed to removing every barrier to abortion.”
While Democrats cited reproductive rights as a crucial issue before the Supreme Court during last year’s election, the Democratic Legislative Campaign Committee has also stressed the importance of building a Democratic majority in the state Legislature for protecting abortion rights.
“Pennsylvanian Republicans already once used their majorities to try to push through a constitutional amendment to ban abortion – we cannot allow that to happen again,” the committee’s spokesperson Abhi Rahman said. “Republican legislators across the country have shown they’ll use any means possible to enact extreme and dangerous bans.”
House Democrats are again seeking to restore their one-vote majority in the lower chamber in a Feb. 13 special election for former Democratic state Rep. John Galloway’s Bucks County seat.
In its decision Monday, the Supreme Court also found Commonwealth Court erred in granting conservative lawmakers the right to intervene in the case. The lower court allowed state House Minority Leader Bryan Cutler (R-Lancaster), former state Senate President Pro Tempore Jake Corman (R-Centre) and the House Republican Caucus to defend the Abortion Control Act’s exclusion.
A spokesperson for Cutler and the House Republican Caucus said they were still reviewing the decision.
Pennsylvania Capital-Star is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Pennsylvania Capital-Star maintains editorial independence. Contact Editor Kim Lyons for questions: email@example.com. Follow Pennsylvania Capital-Star on Facebook and Twitter.