Abortion Bans = Sex Discrimination

A victory out of the Pennsylvania Supreme Court resulted from years of hard work by grassroots feminist activists across Pennsylvania—and they “would love other states to follow.”

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On Jan. 29, the Pennsylvania Supreme Court ruled in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services that a law banning Medicaid funding for abortion discriminates against women, in violation of the state’s Equal Rights Amendment. The decision overturned a 1985 case saying the ERA did not apply to abortion.

“The Pennsylvania case is so sweeping and strong in the way that it identifies interference with reproductive decision-making as a form of sex discrimination and as part of the historic pattern of oppression of women. It’s really beautiful,” said Susan J. Frietsche, co-executive director of the Women’s Law Project, which filed the case on behalf of Pennsylvania abortion providers.

“To treat reproductive health in a discriminatory manner is sex discrimination,” said Ellie Smeal, president of the Feminist Majority Foundation (and publisher of Ms.), who fought to pass the Pennsylvania Equal Rights Amendment in the 1970s. “It’s very plain. It’s common sense. It’s sex discrimination to ban Medicaid coverage of abortion.”

The plaintiffs used three arguments to challenge the funding ban.

  • First, they charged that the law discriminates based on sex because men get all of their healthcare needs met through the Medicaid system, while women are deprived of a very common type of medical care: abortion. “Men get more than women; therefore, it’s sex discrimination,” Frietsche said.

  • Second, the plaintiffs asserted that the Medicaid coverage ban, as Frietsche described it, “arose from and perpetuated invidious gender stereotypes about the proper role of women: the belief that women should choose a path of motherhood and childcare.”

  • Third, the plaintiffs argued that the Medicaid ban on abortion coverage harms women. “You see it in the health of people who are denied wanted abortions, their financial well-being, their emotional and psychological well-being and the well-being of their other children,” said Frietsche, noting that the law disproportionately harms low-income people, especially low-income women of color.

The Court agreed with the plaintiffs, ruling that the funding ban created a sex-based distinction that was presumptively unconstitutional. The government must justify the law by proving that the state has a compelling interest to ban abortion funding and that no less-intrusive methods were available to achieve that interest.

“The judicial inquiry will be searching, and no deference will be given to legislative policy reasons for creating sex-based classifications,” the justices wrote. “Given these parameters, we acknowledge that few, if any, sex-based conferrals of benefits or burdens will be sustainable.”

“That’s a very heavy burden,” Frietsche said. “I can’t imagine how [the state is] going to sustain that burden. … The Medicaid [abortion] ban will soon be consigned to the scrap heap of history.”

Pennsylvania is one of 32 states with policies mirroring the federal Hyde Amendment, which bars Medicaid funding for abortion except in cases of life endangerment, rape or incest—a policy whose constitutionality was upheld by the U.S. Supreme Court in the 1980 case Harris v. McRae.

“The [Pennsylvania] case really does underline that there is a central role for state courts to play,” Frietsche said. “State constitutions, which are independent sources of rights, don’t need to be interpreted in lockstep with the federal Constitution. They are resources that we need to develop and exploit.”

The Long Fight

The Pennsylvania ERA, adopted in 1971, has nearly identical language to the federal ERA, which Congress passed one year later: “Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.”

“The wording is simple, but very clear,” Smeal said. “It prohibits the state from denying rights on the basis of sex.”

The case shows what an Equal Rights Amendment can do and why the federal amendment is so important.

Ellie Smeal, Feminist Majority Foundation

Advocates founded the Women’s Law Project in 1974 to use the ERA to challenge Pennsylvania’s discriminatory laws. The organization went through the state regulation and statute book systematically, identifying and challenging sex-based classifications in employment, athletics in schools, insurance, criminal law and healthcare.

Decades ago, they challenged the funding ban on using Medicaid for abortion. But in the 1985 case Fischer v. Department of Public Welfare, the Pennsylvania Supreme Court ruled that the coverage ban did not violate the state ERA because the law did not make a sex-based distinction.

Fischer drove a gigantic hole through the heart of the ERA by saying that if a government policy or statute disadvantaged women based on their unique physical characteristics, then that was okay—[that] because men and women are simply different, you can treat them differently,” Frietsche said. “What I love about the current majority opinion is that it takes that illogic apart and discusses how women’s reproductive capacity has since the dawn of time been the excuse for disadvantageous treatment.”

This victory resulted from years of hard work by grassroots feminist activists across Pennsylvania.

“I think a major reason we won is that progressives and feminist groups began to work on changing the judiciary,” Smeal said. “The judges are elected in Pennsylvania. The big difference between 1985 and today is that there’s a Democratic majority on the Pennsylvania Supreme Court.”

Twenty-one states choose Supreme Court judges by statewide election, including eight states with ERAs. Many of these states restrict abortion access, so the Pennsylvania strategy could work in other parts of the country.

“We would love other states to follow,” Frietsche said, adding that she is open to consulting with activists across the country.

A New Way Forward

According to Frietsche, the ERA also provides a path forward for challenging other restrictions on abortion, such as Pennsylvania’s 24-hour waiting period.

“The waiting period is clearly based on outmoded gender stereotypes that women don’t know their own minds, that they can’t make their own decisions, as well as on the presumption that every pregnancy should be carried to term,” Frietsche explains.

Other restrictions that could be challenged include legislation that allows only physicians to provide abortions and bars other qualified health professionals from providing this care, a law requiring minors to obtain parental consent for abortion, and medically unnecessary regulations designed to shut down abortion clinics.

Twenty-two states have Equal Rights Amendments, and 10 of these states ban Medicaid funding for abortion and have medically unnecessary restrictions, including bans on telemedicine abortion and patronizing “informed consent” laws. An additional six states have more limited equality provisions in their Constitutions—and four of them ban Medicaid coverage of abortion.

“The Pennsylvania case is coming at a crucial time when Roe v. Wade is gone,” Smeal said. “The case shows what an Equal Rights Amendment can do and why the federal amendment is so important.”

The federal ERA has been fully ratified and is currently awaiting publication in the U.S. Constitution, which Republicans in Congress are blocking.

“Once the federal Equal Rights Amendment is certified and is put into the Constitution, there will be challenges to the treatment of women’s reproductive health,” Smeal said. “The federal Equal Rights Amendment will be stronger than Roe, by far. And it will be nationwide.”

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This story originally appeared in the Spring 2024 issue of Ms. magazine. Join the Ms. community today and you’ll get the Winter issue delivered straight to your mailbox.


Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor of American Studies and the chair of 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.