A Conversation with Professor Robert Williams About the Abortion Case He Lost Four Decades Ago 

When the Pennsylvania Supreme Court in 1985 said that state laws based on “physical characteristics unique to one sex” could not be considered sex discrimination, Professor Robert Williams was one of the attorneys on the losing side. His team had asked the Pennsylvania courts to find that a ban on funding abortion through Medicaid violated the state constitution. The high court ruling in Fischer v. Department of Public Welfare rendered the state Equal Rights Amendment a near-nullity.

Nearly 40 years later, the Pennsylvania Supreme Court came around to Williams’s view, expressly overruling Fischer and holding that a state ban on Medicaid-funded abortions constituted sex discrimination. This meant the ban had to be analyzed using strict scrutiny, which required the state to show it had a compelling interest for the discrimination and that there was no less intrusive way for it to support that interest. The high court sent the case, Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, back to the lower courts to assess whether the ban survived under this standard.

Allegheny Reproductive Health Center “relegated Fischer to the dustbin of history, reinvigorating the state’s Equal Rights Amendment to be used in future cases,” wrote David Cohen, counsel for plaintiff abortion clinics in the case. And it paved the way for a lower court ruling last month that the ban violated the state ERA and that abortion access was a fundamental right under the state constitution.

State Court Report spoke with Williams about the plaintiffs’ strategy in Fischer, how lawyers should respond to losing a case, the ways state constitutional litigation has changed over the last four decades, and more. Williams serves on the State Court Report advisory board. 

The following interview has been edited for length and clarity.

What was the question in Fischer and how was it decided?

The Pennsylvania legislature had enacted in the early 1980s legislation saying that abortion would not be covered under the state Medicaid program, even though childbirth was covered. The Fischer lawsuit challenged that legislation exclusively under the state constitution, relying on four different provisions, each of them significantly different from the provisions in the U.S. Constitution.

First, the 1776 equality guarantee, enacted 100 years before the 14th Amendment’s Equal Protection Clause.

Second, a provision from the 1960s that amended the state constitution to say that government couldn’t discriminate against citizens in the exercise of their civil rights. This one is quite different from the Equal Protection Clause, and it came 100 years after the federal clause.

Third, a little-known provision in most state constitutions that bans the enactment of special laws. It’s not a rights guarantee; it’s a limitation on the kinds of laws the legislature can enact. These provisions swept the country in the 1870s as a reaction to legislative favoritism for corporations and other well-heeled entities, as well as outright corruption. At the time, the legislatures across the country were spending almost all their time on granting favors to various favored people and entities. Bans on the enactment of special laws by the legislature had frequently been interpreted as equal protection guarantees, which I think is, frankly, laughable. But we said, look, the legislature discriminated against people based on whether they are having a child or having an abortion — we thought that was pretty obvious.

And then finally, Pennsylvania is one of the states that has a state constitutional Equal Rights Amendment. We brought a claim under that amendment.

We argued that each of these four clauses was different from — and should be interpreted differentially than — the federal clauses at the center of the U.S. Supreme Court’s 1979 decision in Harris v. McRae, which said that a restriction on using federal Medicaid funds for abortions did not violate federal liberty guarantees, equal protection, or freedom of religion.

The Pennsylvania court disagreed with us. The justices seemed quite persuaded that four different clauses in the Pennsylvania Constitution should be interpreted just like totally different clauses in the U.S. Constitution, that were adopted in different time periods, to cover the entire country rather than just the state of Pennsylvania.

How did you end up working on the case?

I started my career in the federal legal services program in 1970 in Miami. It was a very aggressive program. The first year I was there, we won three cases in the U.S. Supreme Court. None of them were my cases, of course — I was a new kid. But those wins showed me the power of constitutional advocacy on behalf of powerless people.

I noticed laws were being passed to deny medical coverage for women in various circumstances, particularly with regard to reproductive rights. It caught my attention because I had begun to specialize in the structural aspects of poverty. I was focusing on things like filing fees and the requirement of publishing a notice in a newspaper in cases of divorce, adoption, and change of name — in those days, it was $35 to publish such a notice, a big chunk out of someone’s public assistance budget! Laws essentially cutting off reproductive rights services for women on Medicaid were in the same bucket.

They were also just wrong, in my view. I had grown up without much concern for women’s rights, but I had been educated by that time by few smart progressive women and I could see just how grotesque it was for these old white men to enact those kind of laws and strut around without a care, when I knew full well that many of them would prefer their daughters and wives to be able to terminate pregnancies.

In the 1970s, Florida used administrative rulemaking to cut off Medicaid coverage for abortion. I attacked the ban under the Florida Administrative Procedures Act and won, but it was reversed on appeal. I learned a lot during that case. Later, when I went into teaching, I looked to cases challenging bans on Medicaid funding for abortion under state constitutional law — which had been filed in California, New Jersey, and one or two other states — as illustrative in a law review article arguing that state constitutional law should come out from the shadow of federal constitutional law.

When the Fischer case was first conceived, I got a call from the lawyers involved. They said, “Bob, you wrote about this. You got to help us out.” Even though I wasn’t admitted to practice in Pennsylvania, I helped with strategy, brief-writing, and so on.

How did you feel when you saw that the Pennsylvania Supreme Court had overruled Fischer?

I was thrilled. I’m sure I shouted upstairs to my wife.

There’s a lesson I want lawyers to take away from my experience losing and having my loss overturned decades later. While working on Fischer, I did some very intensive research on the origins of the so-called anti-discrimination clause, the one adopted in 1967 that said you couldn’t discriminate among citizens in their exercise civil rights. I put that in our brief. The Fischer court completely ignored it. What did I do? I published my research in a law review article. Forty years later, overturning Fischer, the court in Allegheny quoted my article.

I suggest others do the same. A lot of these cases require original state constitutional research that nobody else has done, even today. And if you’re unsuccessful, don’t quit. Put it out there!

Why do you think the Fischer court relied so heavily on federal cases and interpretations of federal constitutional provisions, in a case brought under unique state clauses?

Number one, state constitutional independent interpretation was still fairly new for state supreme courts in the early- to mid-80s. There were some instances in which state courts had departed from the federal Constitution — primarily in criminal procedure, search-and-seizure matters, things like that — but it wasn’t common.

Second, making independent law on highly controversial matters like abortion was pretty frightening for elected state supreme court justices. Especially when it wasn’t happening as frequently as today. State court dockets have changed dramatically from the 1970s. Back then, they weren’t hearing these hot-button matters like abortion, capital punishment, voting rights, equality, and so on.

And, finally, in the face of the kinds of independent arguments we were making in Fischer, there’s an incentive to fall back on what everybody knows and is comfortable with. That’s why, I think, the Pennsylvania court wanted to make these seemingly unique state constitutional provisions seem like they were just the same stuff as what’s in the federal Constitution.

How did we get to a place today where litigants are more routinely bringing state constitutional claims and courts are more willing to depart from federal constitutional interpretation?

One of the most important things that happened very early was that the U.S. Supreme Court placed its seal of approval on the idea that state supreme courts could interpret their state constitutions to be more protective than what the U.S. Supreme Court had already done or might do in the future. In 1980, in Pruneyard Shopping Center v. Robins, the Court ruled 9–0 that it was okay for the California Supreme Court to interpret the state constitution as protecting leafleting and picketing in private shopping malls, even though they were privately owned, because they were open to the public. That case was read all over the country, even by people who had not been paying attention to state cases.

Then, there was a case in 1983 called Michigan v. Long, which solidified the adequate-and-independent-state-ground doctrine. That doctrine says that if a state supreme court issued a ruling based on state law and made it clear that it wasn’t relying on federal constitutional law doctrines, the U.S. Supreme Court would not have jurisdiction to take that case, even if the justices disagreed with what the state court was doing.

After that, we began to see the intricacies of state constitutional law. The movement plateaued by the mid-1990s, but in the last decade there were several big Supreme Court cases that renewed interest in state constitutions: The biggest, of course, was Dobbs v. Jackson Women’s Health Organization, which in 2022 overruled Roe v. Wade’s holding that the federal Constitution protected abortion rights. It sent abortion questions back to the states and their so-called democratic processes. Another was Rucho v. Common Cause in 2018, in which the Court said it would take a hands-off approach to gerrymandering. After those cases, people started turning to state constitutions and state courts to challenge gerrymandered maps and laws restricting abortion. Many states also amended their constitutions to protect abortion or ban hyper-political gerrymandering.

And, in 2021, the Court in Jones v. Mississippi said it wasn’t going to go any further in protecting juveniles from long prison sentences without parole. Now, lawyers are increasingly arguing that state constitutional bans on cruel and/or unusual punishments limit excessive sentences for kids. They’ve had some success in places like Massachusetts, Michigan, and Washington.

We have a much more contentious state constitutional world than we did decades ago. Look at the $100 million judicial election in Wisconsin last year, mostly out-of-state money. State supreme court elections used to be very sleepy. The incumbent always won. Now they’re subject to intense scrutiny.

Kathrina Szymborski Wolfkot is the managing editor of State Court Report and a senior counsel and manager in the Judiciary Program at the Brennan Center for Justice.

Suggested Citation: Kathrina Szymborski Wolfkot, A Conversation with Professor Robert Williams About the Abortion Case He Lost Four Decades Ago, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 12, 2026), https://statecourtreport.org/our-work/analysis-opinion/conversation-professor-robert-williams-about-abortion-case-he-lost-four