“Whether or not to give birth is likely the most personal and consequential decision imaginable in the human experience,” wrote the court. “Any self-determination is dependent on the right to make that decision.”
Abortion providers can challenge the Pennsylvania ban on Medicaid coverage for abortion as sex discrimination under the state’s Equal Rights Amendment and Equal Protection provisions of the Pennsylvania Constitution—the Pennsylvania Supreme Court ruled in a 219-page opinion in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services.
The decision overturned a 1985 case that said the ERA did not apply to abortion. The ban on Medicaid funding will now be reviewed as sex discrimination, according to Drexel University constitutional law professor and co-counsel David Cohen.
“The Pennsylvania Supreme Court ruled in our favor on almost all of our claims. This is a BIG VICTORY!” tweeted Cohen.
The case was filed in January of 2019 by the Women’s Law Project, Planned Parenthood, and the law firm of Troutman Pepper and Cohen. It claimed Pennsylvania’s ban on Medicaid funding for abortion was unconstitutional under the state ERA.
“We are still determining next steps, but we are confident the Medicaid abortion ban will be consigned to the scrapheap of history very soon,” said Women’s Law Project co-executive director Susan J. Frietsche, who argued the case before the Pennsylvania Supreme Court with Cohen, alongside WLP attorney Christine Castro.
Two justices of the court explicitly stated that the Pennsylvania Constitution “secures the fundamental right to reproductive autonomy, which includes a right to decide whether to have an abortion or to carry a pregnancy to term.”
They continued: “Whether or not to give birth is likely the most personal and consequential decision imaginable in the human experience. Any self-determination is dependent on the right to make that decision.”
The court also ruled that a group of House and Senate Republicans cannot intervene to join the case as parties.
The court’s majority opinion explains how courts should review sex-based restrictions on rights, such as the abortion funding limitation:
“We take seriously the express recognition of the right to equality of the sexes under the law and the magnitude of this special protection against the denial or abridgment of rights under the law based on sex contained in our Equal Rights Amendment. … Thus, a challenge to a law as violative of Section 28 begins with the premise that a sex-based distinction is presumptively unconstitutional. It is the government’s burden to rebut the presumption with evidence of a compelling state interest in creating the classification and that no less intrusive methods are available to support the expressed policy. The judicial inquiry will be searching, and no deference will be given to legislative policy reasons for creating sex-based classifications. Given these parameters, we acknowledge that few, if any, sex-based conferrals of benefits or burdens will be sustainable.”
A third justice called that opinion “incredibly insightful,” but decided to send the case back to the lower court to give the government an opportunity to meet its burden to prove “a compelling state interest” for the funding ban and that “no less intrusive methods are available to support” the ban.
“Even though a majority of the court didn’t hold there is a fundamental right to abortion in Pennsylvania,” said Cohen. “This issue will come back to the court in the future, and we now have a great building block to accomplish that goal.”
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