Pennsylvania Medicaid Abortion Coverage Ban Challenged Under State ERA: “Sex Discrimination, Pure and Simple”

“While all eyes are on the U.S. Supreme Court, we must remember that Pennsylvania’s Constitution explicitly guarantees equality on the basis of sex and prohibits laws that confer different burdens or benefits on men and women.”

Susan J. Frietsche, senior staff attorney at the Women’s Law Project

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Outside the Supreme Court in March 2016 for Whole Woman’s Health v. Hellerstedt, in which the Court ruled 5–3 that Texas cannot place restrictions on the delivery of abortion services that create an undue burden for women seeking an abortion. (Lorie Shaull / Wikimedia Commons)

The recent award-winning short film, Abortion Helpline, This is Lisa tells the gut-wrenching story of low-income women calling Pennsylvania’s Women’s Medical Fund seeking help to pay for abortion health care.

“All my savings that I had are going towards my insulin and making sure my kid is set,” said one caller, who had survived one life-threatening pregnancy already and had just lost her job. “I have $100 and enough to cover my rent for this coming month.”

But the counselor had only $19 left to give out that day, so she asked the caller to try again the next day, when she hoped more money would be available.

Since 1985, Pennsylvania has banned Medicaid insurance coverage for abortion with few exceptions, and low-income women have suffered. Unable to use their insurance for abortion health care, they have had to rely on private abortion funds that often cannot meet all callers’ needs.

Last Wednesday, Pennsylvania-based abortion providers and reproductive rights lawyers led by the Women’s Law Project (WLP) and Planned Parenthood Federation of America filed their brief in a lawsuitAllegheny Reproductive Health Center v. Pennsylvania Department of Human Services—asking the state’s Supreme Court to strike down the Pennsylvania ban on Medicaid funding for abortion as a violation of the Equal Rights Amendment and equal protection provisions of the Pennsylvania Constitution.

“This case is an opportunity for the Supreme Court of Pennsylvania to put into practice a central promise of our state constitution by ending the discriminatory ban on Medicaid coverage of abortion and affirming the right to safe, legal abortion care,” said Frietsche.

Advocates argue the state’s refusal to cover abortion in its Medicaid program is sex discrimination because the policy excludes “funding for an extremely common, sex-linked medical need of women while funding all reproductive medical needs for men.”

“The coverage ban confers different benefits and burdens on the basis of sex, explicitly removing coverage for medical care for a sex-linked characteristic—the ability to become pregnant—from otherwise comprehensive coverage,” argues the brief. “Women enrolled in Medical Assistance are treated differently on the basis of a physical condition peculiar to their sex. This is sex discrimination pure and simple.’”


If the lawsuit succeeds, Pennsylvania will join 16 other states that cover abortion through Medicaid.  


Pennsylvania is one of 33 states with policies mirroring the federal Hyde Amendment barring public Medicaid funding for abortion health care except in cases of life endangerment, rape or incest—a policy upheld by the Supreme Court in the 1980 case of Harris v. McRae.

Advocates are asking the Pennsylvania Supreme Court to overturn the 1985 case of Fischer v. Department of Public Welfare, which ruled that the coverage ban was constitutional. They seek a court order recognizing abortion as a fundamental right and restoring Medicaid insurance coverage of abortion.  

“Health care is a human right, and people deserve the right to decide if and when they want to become pregnant free of stigma,” said Signe Espinoza, executive director of Planned Parenthood Pennsylvania Advocates. “For too long, Pennsylvania’s harmful Medicaid ban on abortion coverage has not given Pennsylvanians this freedom.”


A first-trimester abortion costs $500—almost a third of the monthly income for a Medicaid-eligible family of three. The average cost of a second-trimester abortion is $1,195, and more later in pregnancy.


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Almost half of Pennsylvania women live in counties without an abortion provider. (Courtesy of Power to Decide)

The costs of abortion combined with state-imposed obstacles to access heavily burden low-income women. A first-trimester abortion costs an average of $500—almost a third of the monthly income for a Medicaid-eligible family of three. The average cost of a second-trimester abortion is $1,195, and more later in pregnancy.

Pennsylvania’s restrictions on abortion services delay access to abortion health care and increase the costs. The state’s mandated 24-hour waiting period requires women to make extra unnecessary trips to clinics to obtain abortion health care. Almost half of Pennsylvania women live in those counties without an abortion provider, so they have to travel long distances and incur additional expenses for transportation, food, overnight accommodations and child care. Low-income workers often lack paid sick leave and lose wages and tips for lost work time. Young women must obtain parental consent or go to a court to get permission to obtain abortion health care.


Almost half of Pennsylvania women live in those counties without an abortion provider.


These policies disproportionately harm women of color: 31 percent of Black women and 27 percent of Latinas of reproductive age have Medicaid insurance coverage, compared with just 15 percent of white women, nationwide in 2015.

“The state’s ban on abortion coverage for Medicaid enrollees is blatantly discriminatory against Black and Latinx Pennsylvanians, who due to systemic racism, are more likely to face economic hardship and use public insurance coverage,” said Alexis McGill Johnson, Planned Parenthood Federation of America president and CEO. ”Access to constitutionally protected health care should not depend on your income, your race, or your zip code.”

Approximately one-fourth of women who would have Medicaid-funded abortions instead are forced to give birth when this funding is unavailable.

A peer-reviewed study over 10 years shows that forcing women to carry an unwanted pregnancy to term leads to negative health and socioeconomic consequences, including a greatly heightened risk of death from childbirth, lower rates of employment and higher rates of poverty, negative impacts on the financial well-being and development of existing children, poorer maternal bonding and increased risk of physical violence from abusive partners.

“For too long, Pennsylvanians enrolled in Medicaid have been forced to find separate funds for abortion—a financial burden that shouldn’t exist under a program intended to pay for essential health care,” said McGill Johnson.

A wide range of organizations filed briefs supporting the challenge, including New Voices for Reproductive Justice and 24 other organizations advocating for Black women and girls; the ERA Project at Columbia Law School; the National Women’s Law Center; faith-based organizations; medical organizations and healthcare providers; the ACLU of Pennsylvania; the National Health Law Program; and members of the Democratic Caucuses of the Pennsylvania House and Senate.

If the lawsuit succeeds, Pennsylvania will join 16 other states that cover abortion through Medicaid.  

“Bottom line, our communities deserve access to care however and whenever they need it,” said Espinoza.

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman Professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.