State ERAs Can Protect Reproductive Rights Post-Dobbs

The Pennsylvania Supreme Court held that a Medicaid ban on abortion is sex discrimination under the state’s Equal Rights Amendment.

U.S. members of Congress hold signs calling for equal abortion access on April 19, 2023. (Stefani Reynolds / AFP via Getty Images)

This article was originally published on State Court Report, a project of the Brennan Center for Justice at NYU Law.

Pennsylvania’s highest court held in January that the state’s statutory ban on Medicaid coverage for abortion is sex discrimination under the state’s Equal Rights Amendment. Finding the ban “presumptively unconstitutional,” the justices sent the case back to the lower court to assess if the state has put forward a compelling state interest and demonstrated there are “no less intrusive methods” to meet its goals.

Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services is the first time a state Supreme Court has ruled on how state ERAs impact reproductive rights since Dobbs v. Jackson Women’s Health Organization dismantled the federal constitutional right to abortion. This decision proves that reproductive rights have a future post-Dobbs—one firmly rooted in state-level ERAs and their untapped potential to protect and advance reproductive rights.

Pennsylvania’s ERA, adopted in 1971, guarantees that “equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.” It has been a largely untapped tool for sex equality in the state until this opinion from the Pennsylvania Supreme Court.

Pennsylvania abortion providers in 2019 filed a lawsuit challenging the state statute banning Medicaid funding for abortion. This Medicaid ban, with very narrow exceptions, blocked access to reproductive autonomy and basic reproductive health care for the most marginalized people— women of color, low-income women, and women in rural areas. The providers asked the court to affirm reproductive autonomy as a fundamental right under the state constitution and argued that the Medicaid ban violated the Pennsylvania Constitution’s ERA and equal protection provisions.

The state’s defense relied heavily on a 1985 ruling, Fischer v. Department of Public Welfare, in which the Pennsylvania Supreme Court previously upheld the Medicaid ban stating that the ERA “does not prohibit differential treatment among the sexes when, as here, that treatment is reasonably and genuinely based on physical characteristics unique to one sex.” The court in Fischer also carved out a distinction between the right to choose under one’s fundamental right to privacy, protected under Roe v. Wade, and one’s indigency status, a class the court deemed did not merit heightened protections.

Last month’s ruling overturned Fischer and embraced a vision for sex equality advanced by the plaintiffs and clearly laid out for the court in an amicus brief filed by Columbia Law School’s ERA Project, where I am the director. The brief lays out why the Medicaid ban is reviewable under the Pennsylvania ERA as a form of sex discrimination.

The brief explains that Pennsylvania’s Medicaid ban was a form of sex discrimination for three reasons. First, the ban burdened women’s access to health care in ways that men are not similarly burdened. Second, the ban stems from outdated gender stereotypes based on the problematic idea that women belonged only in the home to birth and raise children, rather than also occupying professional spaces like the workplace, the boardroom, and elected office. Finally, when people who bear the largest burden of childrearing — typically women — are prevented from planning parenthood, they are prevented from participating equally in education, the workplace, in politics, and in other contexts fundamental to robust citizenship. 

The Allegheny decision adopts similar reasoning, including that Pennsylvania’s ERA applies to “sex-based classifications, including classifications based on pregnancy” and “lawmaking that is based on or perpetuates stereotypes about the proper roles and abilities of women and men.”

The federal ERA, which amends the U.S. Constitution to guarantee that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex,” has met the constitutional requirements for ratification, with approval from supermajorities of both houses of Congress in 1972 and from 38 state legislatures. It provides a promising new constitutional foundation for sex equality and reproductive autonomy rooted in a substantive equality framework that reflect a more modern approach to anti-discrimination. As Congress and advocates continue to push for enactment (and resolution of procedural hurdles) to the federal ERA, state constitutions hold great promise for the protection and expansion of gender justice.

Currently, 28 state constitutions contain explicit sex equality protections, referred to as state ERAs. Courts in Connecticut and New Mexico have interpreted their ERAs to protect public funding for abortion

Since the U.S. Supreme Court overruled Roe in 2022, state ERAs have become an even more important tool for advocates to use to protect reproductive rights as a matter of sex equality. As a result, a new wave of ERAs is making its way across the country. States like Delaware and Nevada had efforts well underway in anticipation of Dobbs and added ERAs to their constitutions in 2022. New York and Minnesota have followed suit with ballot initiatives to add constitutional sex equality and reproductive rights protections.

The Pennsylvania decision shows that the future of reproductive rights is tied to the momentum to secure constitutional guarantees of sex equality at the state level. In Dobbs, the U.S. Supreme Court held that sex equality and the right to abortion are not rooted in our nation’s history and traditions and therefore lack constitutional authority.

For nearly 50 years, Roe secured a basic right to abortion, but one rooted in a right to privacy derived from other constitutional protections. Dobbs laid bare a vulnerability that was superficially bandaged over. The Pennsylvania Supreme Court’s ruling shows that sex equality is the solid foundation for reproductive rights in the future. Now, more than ever, it is clear that abortion access (and the right to reproductive care in general) is not guaranteed without sex equality, and sex equality cannot be achieved without abortion access. 

In Allegheny, the Pennsylvania Supreme Court considered the public debate around the proposed federal ERA together with other historical records to interpret the intended purpose of their state ERA. The court concluded that Pennsylvania voters ratified the state ERA in response to the U.S. Supreme Court’s inadequate response to sex discrimination in a “context of persistent relegation of women to subservient and dependent roles.”

The past 50 years of abortion cases have taught advocates that sex equality must be explicitly provided for in constitutional language before courts will recognize and protect it. When the nation’s history and traditions form a basis for the continued subjugation of women, non-binary people, and transgender people, a new equality model must be forged by writing sex equality into state and federal constitutions. The emerging state ERA jurisprudence is shaping a constitutional foundation for reproductive rights — a new sex equality path that states like Nevada, New York, Minnesota, and many others will continue to forge.

Care about women’s equality? We do too. Let Ms. keep you up to date with our daily + weekly newsletters(Or go back to the “ERA Is Essential to Democracy” media collection.)


Ting Ting Cheng is the director of the Equal Rights Amendment (ERA) Project at Columbia Law School’s Center for Gender and Sexuality Law. Ting Ting was the legal director of the 2017 Women’s March on Washington and served on the National Organizing Committee. She was a foreign law clerk at the Constitutional Court of South Africa for Justices Albie Sachs and Edwin Cameron. In addition, Ting Ting was a Fulbright Scholar to South Africa where she received the Amy Biehl Award.