Pa. Supreme Court sets the stage to consider whether the state constitution protects abortion

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HARRISBURG — The Pennsylvania Supreme Court ordered a lower appellate court on Monday to reconsider a case that will determine whether Medicaid must cover abortions and that could have far-reaching implications in a post-Roe world.

Supporters and opponents of abortion access are closely watching this case, not only because of the Medicaid coverage question, but because some believe the justices could use it to set a precedent as to whether the Pennsylvania Constitution guarantees the right to abortion.

The ruling did not resolve either question. However, in five separate opinions, the justices offered key insights into their thinking on the issue.

Adam Bonin, a Democratic attorney who frequently litigates cases before the state Supreme Court and is familiar with this one, said one of the most consequential pieces of information in the ruling is that a majority of justices agree that the Pennsylvania Constitution “strongly” protects against sex-based discrimination — something Commonwealth Court will now have to consider in its own ruling.

The justices also “strongly hinted that they will strike down this exclusion [of Medicaid paying for abortions] down the road,” Bonin said. However, the justices did not make a final decision.

“This is a cautious court,” he said. “They don’t want to decide things that they don’t have to.”

In a 219-page opinion, Justice Christine Donohue ordered that the case, brought by seven reproductive health providers, be reargued in front of the state’s Commonwealth Court.

That court initially dismissed the case, which challenges a statute that prevents the state’s Medicaid program from paying for low-income people’s abortions in most situations, ruling that the providers lacked standing to challenge the law.

The high court unanimously upheld the law in 1985 following a previous challenge.

But in her opinion Monday, Donohue argued that the ruling should be revisited in light of the U.S. Supreme Court’s 2022 decision overturning Roe v. Wade.

“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 … 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.”

Five justices on the seven-member court participated in the decision, and all issued separate opinions concurring or dissenting in part with Donohue.

Monday’s ruling sets the stage for the case to return to the high court. Justice Kevin Dougherty foreshadowed the possibility in a short concurring opinion, saying that “there is little doubt the issue eventually will make its way back to this Court.”

What will happen then is up in the air. Donouhue and Justice David Wecht agreed that the state constitution’s Equal Rights Amendment should be construed to protect the right to abortion. At least two members of the court — Justice Sallie Updyke Mundy and Chief Justice Debra Todd — did not agree with that particular argument.

Mundy in particular expressed her disagreement in a 24-page dissent, arguing that the court should have upheld its precedent.

“One may therefore wonder how the right to be let alone in making personal decisions can be transformed into the right to receive taxpayer money to fund one decision if the government funds a different decision,” Mundy wrote.

Two other justices, Kevin Brobson and Daniel McCaffery, did not participate in the case.

Signe Espinoza, executive director of Planned Parenthood Pennsylvania Advocates, called the ruling “the first step toward ending discriminatory access to care, and we remain committed to removing every barrier to abortion.”

Abortion is currently legal in the commonwealth up to 24 weeks, and pregnancies can also be terminated after that cutoff if a pregnant person’s life or health is in danger.

Pennsylvania’s laws ensuring abortion access aren’t as strong as those in some other states. It doesn’t have language on its books protecting the right to an abortion. By contrast, voters in California, Michigan, and Vermont in 2022 enshrined guarantees of abortion rights in their state constitutions, which constrain future abortion-restricting bills unless those amendments are repealed.

Pennsylvania also imposes several other rules on people who wish to end pregnancies.

One of them is a requirement for pre-abortion counseling, followed by a 24-hour wait before the person can undergo the surgical procedure or obtain medication. Before a minor can get an abortion, their parent or guardian must also consent unless a judge signs off on a judicial bypass.

Other restrictions involve insurance coverage. Along with the prohibition on Medicaid coverage being used for abortion except in cases of rape, incest, or a life-endangering health condition, plans for public employees who are paid using state funds include the same conditions. So does coverage under plans in the Affordable Care Act exchange, unless the purchaser buys a rider for additional coverage.

Efforts to further restrict abortion access in Pennsylvania, led by legislative Republicans, have been significantly curtailed since 2022 by the party losing both the race for governor and its more than decade-old control of the state House.

Since then, the GOP has moved no significant abortion-restricting legislation. Previously, Republican lawmakers had pushed a constitutional amendment that would have constrained future courts from ruling that the state constitution, as it currently stands, protects the right to abortion.

While that amendment could still technically move, it hasn’t been reintroduced this legislative session and a spokesperson for the GOP-controlled state Senate recently told Spotlight PA that she was unaware of plans to do so.

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