SCOTUS opinion could put the General Assembly in the driver’s seat on abortion rights

The leak of a draft Supreme Court opinion signaling the high court’s willingness to overturn federal protections for abortion has sparked renewed debate over abortion policy in Pennsylvania and highlighted the role that state lawmakers could have in determining abortion access in the state for years to come. 

In the draft opinion, which was written by Justice Samuel Alito and first reported by Politico, Alito writes that the Court’s decision on Roe v. Wade was “egregiously wrong from the start” and that the U.S. Constitution does not explicitly protect the right to an abortion. The opinion does not represent the Court’s final decision, but would mark a major shift on abortion and leave the issue of abortion access for states to decide – giving the Pennsylvania General Assembly major power over what abortion access will look like in the commonwealth if the Court decides to overturn the ruling. 

Pennsylvania lawmakers are already preparing for what a post-Roe future could look like, with Democrats pledging to defend the right to an abortion at every turn. But Republicans who control the state legislature seem poised to pounce on the ruling and achieve their long-sought goal of curtailing abortions. 

In a statement released this week, House Health Committee Chair Kathy Rapp, a key gatekeeper of abortion-related legislation, said the draft opinion indicates that “the scales of justice will finally weigh in favor of overturning Roe v. Wade.”

“Regardless if this leaked, preliminary U.S. Supreme Court ruling signals final Armageddon for Roe v. Wade, as majority chair of the House Health Committee and the majority co-chair of the bipartisan Pro-Life Caucus, I can confirm that Pennsylvania’s legislature is already well-positioned to successfully advance some of the strongest pro-life legislation in the history of our commonwealth,” Rapp said in a statement. 

Any abortion-related bills must first make their way through Rapp’s committee before being voted on by the state House, and Rapp has already shepherded multiple bills through her committee that seek to restrict abortion access. 

This session, the House Health Committee has approved multiple bills that would look to ban abortions in certain circumstances. One, which was approved by the committee on May 25, 2021, would ban abortions based on a prenatal Down syndrome diagnosis. That bill, House Bill 1500, was approved by House lawmakers last June. The second bill approved by the committee, a so-called Heartbill Bill sponsored by state Rep. Stephanie Borowicz, a Clinton County Republican, would prohibit abortions from being conducted if cardiac activity can be detected in the womb. That legislation, House Bill 904, was also voted out of the committee last May, but has yet to receive a vote in the House. 

Any standard bill approved by lawmakers will be met with a veto from Gov. Tom Wolf. During a press conference in Philadelphia on Wednesday, Wolf reiterated his opposition to any legislative effort that would limit abortion access. He called the draft opinion overturning Roe v. Wade “un-American” and “unacceptable.”

“Abortion is health care, and it must remain safe and legal,” Wolf said. “If the Supreme Court goes through with this ruling to overturn Roe v Wade, it will put the right of every American to make their own private medical decisions in jeopardy.”

Wolf has routinely vetoed legislation looking to ban abortion in certain circumstances throughout his term, though he will leave office in 2013 due to being term-limited, raising the stakes in this year’s race for governor. And if lawmakers choose to try and circumvent Wolf’s desk with a constitutional amendment, the Democratic governor would be powerless to try and halt such an effort, as he can’t veto constitutional amendments.  

Constitutional amendments must be passed by both chambers of the legislature in two consecutive legislative sessions, and then approved by voters in a ballot referendum. A governor cannot approve or veto proposed constitutional amendments. 

State Sen. Judy Ward, a Republican from Blair County, has spearheaded an effort to codify language into the state constitution that would underscore that Pennsylvanians don’t have a right to abortion – or the taxpayer funding of abortion services.

She said in a statement Thursday that her measure wouldn’t further restrict abortion access in and of itself. “Currently, Medicaid covers both non-elective abortions and voluntary abortions involving cases of rape or incest, but still withholds funding for all other elective instances. If the constitutional amendment is approved by the voters, this won’t change,” Ward said. “The Abortion Control Act will remain the law as well. The language does not ban abortions, but rather ensures that abortion policy in Pennsylvania comes from the people’s elected representatives.” A spokesperson for the Senate Republican Caucus said that the Senate’s priorities won’t change based on a leaked draft ruling. “This issue remains with the U.S. Supreme Court until an opinion is issued,” said Senate GOP spokesperson Erica Clayton Wright. “The primary focus of the Senate of Pennsylvania is to address the structural imbalance of our state’s economy, which is masked by the influx COVID-19 pandemic funding. It is critical that we get Pennsylvania’s economy moving in the right direction and address the real effects (President Joe) Biden’s economic plan is having on Pennsylvanians in the form of inflation, rising energy prices, and  increased gas and food prices.”

Jason Gottesman, a spokesperson for House Republicans, also said the House Republican Caucus is reluctant to base any decisions on the draft opinion. Gottesman said a majority of Pennsylvanians are opposed to “unrestricted abortion access,” citing a March 2022 Franklin & Marshall College poll that found that 31% of voters support abortion under any circumstances – 53% think it should be legal under “certain circumstances” and 13% think it should be illegal. 

“We will continue to review pending pro-life legislation and any further decisions will be made through the course of the normal legislative process,” he said.