Abortion rights scored a victory in Pa. court, but the fight is far from over

In June 2022, the United States Supreme Court catastrophically impacted women’s lives and health across the nation by overturning Roe v. Wade and leaving it up to elected officials to decide whether residents have the right to abortion. As part of that decision, the court also overruled one of my cases from 1992, Planned Parenthood v. Casey.

So you can imagine my reaction when I heard that this week, another of my cases, Fischer v. Department of Public Welfare from 1985, was overruled by the Pennsylvania Supreme Court. But this time, the court issued a promising opinion.

» READ MORE: The Supreme Court overturned my abortion case Friday. But I won’t stop fighting. | Opinion

The state Supreme Court reversed a lower court ruling and allowed a challenge to a state statute that prevents Medicaid from paying for most abortions to proceed to trial. The ruling does not fully resolve whether Pennsylvania must use state Medicaid funds to provide abortions, but it sets an important precedent that will require the state to prove that there is a compelling reason (the hardest standard to meet) for a law that discriminates against Pennsylvania women who rely upon Medicaid for their health care. Given that many thousands of women who seek abortion in the commonwealth are eligible for Medicaid, the decision has wide-ranging implications.

To her credit, Justice Christine Donohue, joined by Justices David Wecht and Kevin Dougherty, recognized that when low-income women are denied the ability to obtain abortions through their health insurance plan, they can be forced to carry unintended pregnancies to term, or otherwise forsake essential necessities like food and rent for their families.

Moreover, the court determined that excluding coverage of abortion — while at the same time permitting coverage for all men’s reproductive health services — was sex-based discrimination under the commonwealth’s Equal Rights Amendment and equal protection clause. The court made clear that the right to make important decisions about one’s health care cannot depend on income or gender. They must be guaranteed to all.

Significantly, Justices Donohue and Wecht (with glancing encouragement of the reasoning from Justice Dougherty) went even further and found that the state constitution’s equal protection clause includes a fundamental right to make autonomous, reproductive health decisions.

In other words, a majority of the five justices hearing the case ruled that the Medicaid ban will likely fall as a violation of the state Equal Rights Amendment and equal protection clause. And two justices explicitly found that our state constitution also protects the ability of all persons to make decisions about abortion. The significance of this cannot be overstated.

Pennsylvania has joined a growing group of states that are weighing in on the right to abortion. Over the last 30 years, a number of state courts have found that their state constitutions include the right to choose abortion and prohibit Medicaid bans. Since the U.S. Supreme Court overturned Roe v. Wade, six states — California, Kansas, Kentucky, Michigan, Vermont, and Ohio — have voted on abortion-related constitutional amendments, and abortion rights won in every state. Abortion-rights groups in several other states are hoping for the same outcome, including in three states where abortion currently is legal up to viability (Colorado, Montana, and Nevada) and in six states that ban abortion or allow it only in early gestation, such as up to six weeks (Arizona, Arkansas, Florida, Missouri, Nebraska, and South Dakota). In these states, voters will be asked if they believe that the state constitution should protect the right to abortion.

Nevertheless, this is not the time to ignore the continuing threat to women’s reproductive rights across the nation. Following the 2022 opinion — Dobbs v. Jackson Women’s Health Organization — 21 states have banned abortion or placed severe limits on when it can happen. These punitive laws have forced many people to travel long distances to obtain necessary health care. Young women, rural women, and women of color who have less access to health care suffer the most from these bans. Even those women carrying wanted pregnancies who face significant dangers to their health or future fertility — or where there are fatal fetal anomalies — are unable to obtain critical health services.

If this weren’t enough of a problem, the U.S. Supreme Court is set to hear arguments on March 26 in two cases that could significantly restrict access to mifepristone, the abortion pill that is currently used in over 50% of all abortions across the nation. The cases are an appeal from a 2023 ruling from the Fifth Circuit Court of Appeals, which imposed old rules from the Food and Drug Administration that, among other things, required that patients come to their doctor’s offices to receive the pills, even if mailing them would have been the best option and save unnecessary travel. If upheld, this ruling would have a profound effect on women in states where abortion is banned, but also significantly limit access to the abortion pill in states where abortion is legal.

Moreover, many upcoming elections for seats in the Pennsylvania legislature, several U.S. House seats, and the heavily contested U.S. Senate seat in Pennsylvania — and, of course, the likely rematch between President Joe Biden and former President Donald Trump — will turn on questions of abortion. It is not hyperbole to envision a Trump presidency with control of Congress held by Republicans. In such a circumstance, access to abortion will be limited even more.

Many upcoming elections will turn on questions of abortion.

If those who oppose abortion have their way, a nationwide ban on abortion affecting every state could make it through Congress and be signed into law.

Today, I am celebrating the abortion rights victory at the Pennsylvania Supreme Court. But at the same time, I’m urging all of us to remember that the battle for reproductive freedom is not over. We must continue to vote for, work for, and contribute to candidates who support abortion rights as if our lives depend on it — because they do.

Kathryn Kolbert is a reproductive rights attorney who has argued abortion cases in both the U.S. and Pennsylvania Supreme Courts. She is the coauthor of “Controlling Women: What We Must Do Now to Save Reproductive Freedom.” A newly updated paperback version was released in January.