Pa. Supreme Court sets up a showdown over whether abortion is a right protected by the state constitution

Pennsylvania’s highest court on Monday stopped just short of recognizing abortion access as a right protected by the state’s constitution. But in a fractured decision, three of the five justices weighing that question signaled that they could be open to making such a finding in the future.

The debate arose in a case on a much narrower issue — a challenge to a state law limiting Medicaid funding for abortions except in cases involving rape, incest, or danger to the life of the mother.

A coalition of seven state abortion providers had urged the justices to not only overturn that restriction but recognize for the first time a constitutional right for citizens to make their own reproductive choices — a potentially significant conclusion in the wake of the U.S. Supreme Court’s 2022 decision to overturn Roe v. Wade and put abortion laws in the hands of state governments.

But despite issuing a 219-page majority opinion with language strongly endorsing such a finding, the state high court justices ultimately split on whether they were ready to make the call just yet. They sent both the debate over a constitutional protection for abortion access and the question of whether to strike down the state’s limits on Medicaid funding back to a lower court, setting up another round of heated legal battles over the future of abortion access in Pennsylvania.

Two justices — Democrats Christine Donohue, who authored the court’s opinion, and David Wecht — said they believed that the Pennsylvania constitution’s 1971 Equal Rights Amendment, for which there is no equivalent in the U.S. Constitution, clearly established a right to abortion access.

“The fundamental right of a woman to decide whether to give birth is not subordinate to policy considerations favored by transient legislatures,” Donohue wrote on their behalf. “We conclude that the Pennsylvania Constitution secures the fundamental right to reproductive autonomy.”

Justice Kevin M. Dougherty, also a Democrat, called his colleague’s reasoning “incredibly insightful.” But, in an opinion of his own, he wrote that he did not believe that question was yet ripe for the justices to weigh in.

He urged the state’s Commonwealth Court to consider it first, adding: “There is little doubt the issue will eventually make its way back to [the state Supreme] court.”

Meanwhile, Democratic Chief Justice Debra Todd, and Republican Sallie Mundy penned dissents accusing their colleagues of shoehorning that larger constitutional question into a much more limited case on whether taxpayer money should fund abortions — and noted they believed that the rest of the justices had incorrectly decided that point, too.

(The court’s two other justices — Republican Kevin Brobson and Dan McCaffery, a Democrat who was sworn in months after the case was argued — did not participate in Monday’s decision.)

In the two years since Roe was overturned, several states have enacted restrictive laws that amount to near-total bans on the procedure while courts in others have recognized abortion as a right guaranteed by their state constitutions.

In Pennsylvania, abortion remains legal in Pennsylvania through the 23rd week of pregnancy. But in 2022, Republican lawmakers in Harrisburg sought to amend the state constitution to specifically state it did not guarantee the right to an abortion — an effort to preempt any such finding by the courts. That campaign died when Democrats took control of the state House last year.

In a statement Monday, House Minority Leader Bryan Cutler (R., Lancaster) dismissed the justices’ ruling as “another activist decision” by the Democratic-controlled court.

Reproductive rights advocates, meanwhile, hailed the decision as a positive step — even as they acknowledged its limited scope.

“We have a much clearer path to getting there today than we did before,” said David S. Cohen, a constitutional law professor at the Drexel Kline School of Law and attorney for the Women’s Law Project, which represented the plaintiffs in the case.

Providers say there are still significant barriers that limit who can access the procedure.

Only 14 of Pennsylvania’s 67 counties have an abortion provider. Nineteen of the 22 providers in Pennsylvania are in counties east of Harrisburg. The large swath of the state west of the capital — home to some 862,000 women and girls of reproductive age — is served by only three clinics providing abortion services.

And for many patients without traditional insurance coverage, Medicaid is the only option. The state and federally funded program provides health coverage for low-income families and individuals.

“Sometimes they’re waiting for their tax return before they can cover the cost of abortion,” said Lisa Perriera, the chief medical director of The Women’s Centers, which operates clinics in Philadelphia, Delaware County, Cherry Hill, Connecticut, and Georgia.

Specifically, the case before the justices Monday — Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services — centered on a 1985 decision by the state’s high court, which concluded that limits to Medicaid funded abortions did not run afoul of the state constitution’s guarantees of equal protection under the law for men and women.

The justices reasoned at the time that some conditions, like pregnancy, don’t affect both genders equally.

In setting aside that decision Monday, a majority of the justices — Donohue, Wecht, and Dougherty — described its reasoning as “patently flawed” and based on “rejected stereotypes.” Pennsylvania’s Medicaid program covers costs such as care for pregnancy and childbirth, as well as sexual and reproductive health for men.

They urged the Commonwealth Court to reconsider the Medicaid ban in light of their broader reading of the state’s constitutional protections. And Dougherty, in particular, urged its judges to weigh in on that reading guaranteed broader protections for abortion access.

“There is little doubt the issue will eventually make its way back to this court,” he wrote, “and the majority’s incredibly insightful position may ultimately prevail in the end.”

Read the opinion: