HARRISBURG – Pennsylvania’s highest court has ruled that a lower appellate court will once again take up a case whose outcome will determine whether Medicaid funds will be permitted to cover the cost of abortions.
In a 3-2 majority ruling handed down on Jan. 29, the Supreme Court of Pennsylvania opined that the Commonwealth Court would once again hear a lawsuit brought by seven women’s reproductive health centers against the Pennsylvania Department of Human Services and several of its top officials.
The suit at issue, first brought in 2019, concerns the Pennsylvania Abortion Control Act of 1982 and its Coverage Exclusion – which prevents Medicaid from being used to pay for abortions unless the pregnancy came about due to rape, incest or if the life of the mother was in jeopardy.
The plaintiffs in the case argued that the law violated the Pennsylvania Constitution, in addition to the Commonwealth’s Equal Rights Amendment and equal protection statutes. Moreover, they contested that other states allow their Medicaid programs to cover abortion procedures beyond the auspices of the Pennsylvania law.
However, relying on a prior dismissal of a challenge to the law in 1985 [Fischer v. Department of Public Welfare], the Commonwealth Court initially dismissed the instant case in 2021 and as a result, the plaintiffs appealed to the state Supreme Court.
The case is of key import in the Keystone State, particularly in the wake of the 2022 overturning of Roe v. Wade, which had federally guaranteed the right to abortion for nearly 50 years, under the U.S. Constitution.
Though the state Supreme Court justices did not answer the question of whether the Pennsylvania Constitution guarantees the right to abortion, the justices did find that the state constitution provided for a “fundamental right to reproductive autonomy,” including whether or not to have an abortion, but just three of the five justices presiding over the case agreed with that distinction.
Abortion is allowed in Pennsylvania up to 24 weeks into a pregnancy.
Supreme Court of Pennsylvania Justice Christine Donohue authored the body’s majority opinion.
“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. 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 General Assembly’s decision to ‘encourage childbirth over abortion,’ as embodied by the Coverage Exclusion, demonstrates that the government has not maintained a position of neutrality with respect to this choice. This choice between carrying a pregnancy to term or terminating the pregnancy is inherent in the right itself. While the Fischer Court relied on a perceived continued ability to make an unsubsidized choice as a basis to conclude that the Coverage Exclusion is not discriminatory, the government is prohibited from discriminating against, i.e., treating differently, a woman based on the choice she makes. The right cannot be so encumbered,” Donohue said.
“Under Medical Assistance, the government funds one of these options but not the other. The Coverage Exclusion thus discriminates against those women who choose to exercise their fundamental right to terminate a pregnancy. By so doing, the government is not maintaining a position of neutrality with respect to women’s exercise of these rights, as is required by Article I, Section 26 of our Constitution. This lack of neutrality triggers an analysis under Section 26 for discrimination against a civil right. Pursuant to an equal protection analysis under Article I, Section 26, the Coverage Exclusion fails to treat the fundamental right to reproductive autonomy neutrally and therefore is subject to strict scrutiny to determine whether the legislative classification is justified.”
Each justice who presided over the case issued their own opinion in the matter, either concurring or dissenting with Donohue.
“Whatever one thinks about the role of history and tradition in affording rights to women under the United States Constitution, the Pennsylvania Constitution’s Equal Rights Amendment did away with the antiquated and misogynistic notion that a woman has no say over what happens to her own body. The right to reproductive autonomy originating in Article I, Section 1 and in the non-discrimination guarantee of Article I, Section 26 likewise are not constrained by federal law. These constitutional provisions protect Pennsylvanians from the powers of the state, and the state bears the burden of satisfying the means-ends analyses that the majority articulates. The state will have this opportunity on remand,” Justice David N. Wecht said, in his concurring opinion.
Chief Justice Debra Todd concurred with Sections I and II of Donohue’s majority opinion, but diverged from the remainder of it.
“Despite the thoughtful and comprehensive exposition by my learned colleague, I dissent from the remainder of the majority opinion and its ultimate mandate, as I conclude that we are bound to follow our decision in Fischer, under the doctrine of stare decisis. Preliminarily, I note that this case does not concern the right to an abortion,” Todd said, in her concurring and dissenting opinion.
“Rather, the issue before this Court is whether the Commonwealth, because it provides funds to indigent women who choose to give birth, is also required to provide funds to indigent women for the performance of an abortion when the abortion is not necessary to preserve the life of the mother, or where the pregnancy did not result from rape or incest.”
Justice Kevin M. Dougherty dissented from elements of Section III of the majority opinion and predicted that after its second go-round in the Commonwealth Court, the case would return before the state Supreme Court.
“In my view, now that Fischer no longer stands in the way, it falls to the Commonwealth Court to address providers’ claims in the first instance. Of course, there is little doubt the issue eventually will make its way back to this Court, and 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. Accordingly, I am compelled to respectfully dissent in part from the majority’s opinion,” Dougherty said, in his concurring and dissenting opinion.
Justice Sallie Updyke, the one Republican who presided in the case, shared her view that the state Supreme Court should have upheld its prior ruling in Fischer and that the Pennsylvania Constitution does guarantee reproductive autonomy.
“Ultimately, plaintiffs’ position in this litigation is substantially weakened because…abortion rights are not at stake, solely the ability to receive public money to pay for abortions. And in their brief to this Court, the harm plaintiffs describe as a basis for their standing to bring this action is not that their patients are in danger of losing that legal right, but that they (plaintiffs) must expend time and effort securing private funding for the abortions at issue, time and effort they would prefer to spend on other endeavors, and that they must also spend some time discussing financial matters with their patients instead of being able to limit those discussions to medical issues,” Mundy said, in her concurring and dissenting opinion.
“Yet, despite all this, the plurality today would create an entirely new constitutional doctrine out of whole cloth, christening it ‘reproductive autonomy,’ which does not appear anywhere in the Pennsylvania Constitution’s text or history. The majority then overrules a unanimous decision of this Court that is directly on point, and markedly erodes the authority of a co-equal branch of government to balance competing public policy concerns and make judgments by its own lights.”
Supreme Court of Pennsylvania Justices P. Kevin Brobson and Daniel McCaffery joined the bench after arguments in the instant case were held, and thus did not participate in the ruling.
Supreme Court of Pennsylvania case 26 MAP 2021
Commonwealth Court of Pennsylvania case 26 M.D. 2019
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com