What Pennsylvania’s Supreme Court abortion ruling means

The Pennsylvania Supreme Court on Monday weighed in on a case brought by abortion providers that challenged the Medicaid coverage exclusion in the state’s Abortion Control Act, sending the case back to the Commonwealth Court for review. 

The majority opinion, as well as several other concurring and dissenting opinions, also offered a glimpse into where the justices stand on the larger issue of abortion and reproductive rights. 

How did we get here?

In 2019, seven abortion providers filed suit against the state, arguing that the state’s Abortion Control Act – which only allows Medicaid-funded abortions in cases of rape, incest and serious health issues – violates the state constitution’s equal protection clauses and Equal Rights Amendment. 

After the Commonwealth Court dismissed the petition, the state Supreme Court heard oral arguments in the case in October 2022. The 219-page majority opinion, released Monday, states that the ban is “presumptively unconstitutional” based on sex discrimination, though ultimately the court did not rule on the coverage exclusion and sent it back to the Commonwealth Court. 

What is the ruling?

Writing the majority opinion of the court, Justice Christine Donohue outlined the court’s five-point mandate, which reversed the Commonwealth Court’s decision to dismiss the original petition, while sending the case back to the Commonwealth Court for additional proceedings.

Donohue wrote that the Commonwealth Court acted in error when it decided that abortion providers lacked standing to “assert the Pennsylvania constitutional claims” in their petition, while also concluding that the Commonwealth Court “erred in granting the petitions to intervene filed by certain individual Pennsylvania Senators and Legislators.”

Ultimately, the state Supreme Court reversed the Commonwealth Court’s Jan. 28, 2020 order granting intervention, and reversed the Commonwealth Court’s March 26, 2021 order that sustained preliminary objections from the Pennsylvania Department of Human Services. 

In the opinion, Donohue and fellow Justice David N. Wecht wrote that reproductive autonomy is a fundamental right that includes the right to terminate a pregnancy. “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," the two justices wrote. “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 court, in the footnotes of the ruling, made clear that the above portion of the ruling declaring abortion to be a fundamental right represents only the views of Donohue and Wecht, and not a majority of the court. 

What does this mean for Pennsylvanians?

Chief Justice Debra Todd underscored in an opinion of her own that the case “does not concern the right to an abortion,” a sentiment that was echoed in another separate opinion from Justice Sallie Updyke Mundy, who said: “It is about the use of taxpayer dollars to subsidize that choice.” 

Justice Kevin Dougherty noted in his separate opinion that the case now falls to the Commonwealth Court but there is “little doubt the issue eventually will make its way back” to the state Supreme Court. 

Reproductive rights advocates like Planned Parenthood PA Executive Director Signe Espinoza applauded Monday’s actions by the court. 

“Seeking essential health care should not be restricted based on your income bracket; 1 in 4 low-income women seeking an abortion are forced to carry unwanted pregnancies to term because of Medicaid coverage bans,” Espinoza said in a statement. “Today’s ruling is the first step toward ending discriminatory access to care, and we remain committed to removing every barrier to abortion.”

Women’s Law Project co-executive director Susan J. Frietsche called the ruling an “enormous victory” in a statement. “We are still determining next steps, but we are confident the Medicaid abortion ban will be consigned to the scrapheap of history very soon,” Frietsche said.

Pennsylvania House Minority Leader Bryan Cutler, a Lancaster County Republican, slammed the decision as “another activist decision that has the court seeking to overstep its authority and change well-settled law.”

“Pennsylvania’s Abortion Control Act is the gold standard for a middle ground and compromise over reproductive rights law,” Cutler said in a Monday statement. “It was passed with bipartisan support and signed by a Democratic governor. The court opening this law does nothing but further the divide over such a sensitive topic and will only lead to more mischief and bad faith where lawmakers and other elected officials should be leading with respect and understanding.”

Cutler said he was also “extremely frustrated” by the court’s decision on legislative intervention, adding: “As those who are responsible for creating laws as a reflection of the voice of the people, lawmakers have a vested interest when those laws are challenged in court.”