Pennsylvania Court Finds Reproductive Autonomy Is a Fundamental Right

A Pennsylvania court ruled this week that abortion access was a fundamental right protected by the state constitution.

Litigation in the case, Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, began in 2019 when a group of reproductive healthcare providers challenged the constitutionality of state restrictions on Medicaid reimbursement for abortion under the state constitution. The providers first argued that the state’s Equal Rights Amendment (ERA) prohibited the coverage exclusion because Medicaid covered all reproductive healthcare for men while failing to do the same for women. Second, the plaintiffs reasoned that the ban violated the state constitution’s Equal Protection Clause by subsidizing one way that Pennsylvanians could exercise a fundamental right to choose (childbirth) while disfavoring another (abortion).

 In 2020, a lower court dismissed the suit, citing the 1985 case Fischer v. Department of Public Welfare. Relying on federal constitutional precedent, Fischer had unanimously rejected the claim that Pennsylvania’s Medicaid ban violated the state constitution. In Allegheny Reproductive Health Center, the state leaned on Fischer, while also challenging the providers’ standing to bring suit.

In January 2024, in a 3–2 ruling, the state high court concluded that the providers did have standing. The majority then overturned Fischer, holding that the state ERA applied to any classification that particularly burdens one sex. Laws regulating pregnancy and abortion, the court reasoned, had been prime examples of such sex discrimination in the past. And because public funds covered men’s reproductive health care but not abortion, the court concluded that the Medicaid ban qualified as sex discrimination under the state ERA.

The court then offered guidance to the lower courts about how to conduct this sex discrimination inquiry. The state would have to meet a high burden: It had to demonstrate that it had a “compelling state interest” for refusing to allow Medicaid coverage for abortion and that there were “no less intrusive methods” available to advance that interest. The court left the question of the law’s ultimate constitutionality for the lower courts to resolve on remand.

The state supreme court’s 2024 ruling offered even less guidance on the equal protection claim. The court divided 2–1–2 on how to resolve it. Justices Christine Donohue and David Wecht would have ruled that the state constitution protected a fundamental right to abortion, reasoning that the law unconstitutionally discriminated based on the way in which patients exercised a fundamental right to choose. Donohue wrote that this fundamental right reflected key constitutional norms surrounding equality. “Whether or not to give birth,” Donohue wrote, “is likely the most personal and consequential decision imaginable in the human experience.”

But Justice Kevin Dougherty, who had joined Donohue and Wecht in their ERA analysis, concluded that it was unnecessary to reach the equal protection claim or address the existence of an abortion right given that the court had already overturned Fischer and ruled for the plaintiffs on the ERA claim. Chief Justice Debra Todd and Justice Sallie Mundy dissented, concluding that there was no justification for overturning Fischer.

In a 4–3 ruling last week, an intermediate appellate court, the Pennsylvania Commonwealth Court, granted the plaintiffs’ request for summary relief, reasoning that the coverage exclusion violated both the state ERA and the Equal Protection Clause. The Commonwealth Court, which handles civil cases, has seven members and can in certain cases act as a trial court where cases begin. That is true of cases like Allegheny Reproductive Health Center where plaintiffs file civil suits against the state of Pennsylvania.

After the state supreme court’s ruling, the Commonwealth Department of Health and Human Services notified the Commonwealth Court that it would no longer be defending the constitutionality of the coverage exclusion. The plaintiffs renewed their request for summary relief, and the Commonwealth Court heard oral argument in February 2025. The Pennsylvania attorney general then sought leave to intervene in the case. The court granted that request and held a supplemental oral argument on the matter.

The attorney general conceded that the coverage exclusion constituted a sex classification under the state ERA, as the state supreme court had held. But the attorney general argued that the coverage exclusion served compelling interests: protecting fetal life, shielding women from post-abortion regret, and ensuring public funds were not put toward a medical procedure some citizens morally opposed. Moreover, the attorney general said, the state had used the least restrictive means of achieving those interests.

The court didn’t see these proposed interests as compelling. The court first addressed Pennsylvania’s interest in protecting fetal life. The majority wasn’t sympathetic to this argument, questioning why “the state must ensure that every pregnancy is carried to term.” Addressing the state’s interest in protecting women from post-abortion regret, the court questioned whether there was any interest in “protecting a competent adult from feeling regret for her free choices.” The state’s interest in protecting citizens’ conscience-based objections to Medicaid coverage did not fare any better. While the attorney general showed that the legislature cared about this interest, the court reasoned, the state had done nothing to show why it was compelling.

And even if the state could demonstrate a compelling interest, the majority concluded that the state had less intrusive ways to pursue them. If Pennsylvania wanted women to carry pregnancies to term, it could subsidize childcare or invest more in maternal and child healthcare, the court said. The government could protect women from unscrupulous providers or post-abortion regret by licensing, regulating, or educating doctors directly. And Pennsylvania had less intrusive ways of protecting taxpayer conscience, like a tax credit program. The court thus ruled that the coverage exclusion violated the state ERA.

With respect to equal protection, the plaintiffs reiterated their claim that the exclusion discriminated against one way of exercising a fundamental right to choose. The attorney general responded that there was no fundamental right to state support for abortion services. In any event, even if there was a fundamental right implicated in the case, the attorney general said, the law could satisfy strict scrutiny for the same reasons outlined above.

The majority rejected the state’s equal protection arguments. It framed the issue as whether the state constitution recognized a right to “reproductive autonomy” or a “right to reproductive decision-making,” not whether there was a right to use state money to access reproductive services. The court agreed with the providers that the law discriminated against those choosing abortion and applied strict scrutiny. The attorney general’s justifications for the exclusion failed in the equal protection context for the same reasons they had in the court’s discussion of the state ERA. Judge Michael Wojcik wrote a separate concurrence to underscore the importance of personal autonomy in Pennsylvania’s constitutional tradition.

Joined by two of her colleagues, Judge Patricia McCullough dissented, asserting that providers’ ERA claim should fail because the state’s interest in protecting fetal life was “compelling on its face.” McCullough also complained that the majority had reached its conclusion without affording the state a hearing and full opportunity to make its case. The state should have the chance to provide evidence of abortion-related harms that women experienced to demonstrate that it had a compelling interest in protecting women from regret, she said. She finally concluded that there was also a compelling interest in protecting a taxpayer’s conscience, something she said the legislature and the state constitution already recognized. The dissenters were equally persuaded by the state’s claims that the exclusion was the least restrictive means of doing so.

The dissenters were even more leery of the plaintiffs’ equal protection claim, insisting that the court should not have reached it in the first place. The dissenting judges also dismissed the fundamental right the majority laid out, which McCollough wrote sprang “from social policy objectives and not from any text of the Pennsylvania Constitution.”

Pennsylvania has not yet stated whether it will appeal, but if the attorney general does move forward, the state supreme court seems likely to affirm at least part of the lower court’s ruling. In 2025, Pennsylvania voters retained all three of the judges in the 2024 majority decision in Allegheny Reproductive Health Center, leaving in place a 5–2 Democratic majority (two of the current justices did not participate in the earlier decision).

Precisely how far the court will go, though, remains unclear. After all, only two of the justices chose to tackle the equal protection claim in the court below. It is possible that the Pennsylvania Supreme Court will hand the plaintiffs a victory without ever resolving whether the constitution recognizes a fundamental right to reproductive autonomy.

One way or another, Pennsylvania seems likely to join the states that recognize reproductive rights. The litigation in Allegheny Reproductive Health Center underscores the importance of judicial elections. While the text of the state constitution hasn’t changed since the Pennsylvania Supreme Court rejected a challenge to the coverage exclusion in Fischer, the judges interpreting it have made all the difference.

Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California Davis School of Law.