Pennsylvania Supreme Court Ruling Overturns Decades-Old Precedent in Abortion Ruling

This article is part of a content series on Allegheny Reproductive Health v. Pennsylvania Department of Human Services. You can read all the pieces in the series here.

For almost 40 years, the Pennsylvania Constitution’s Equal Rights Amendment has lain nearly dormant. Thanks to a 1985 state supreme court decision, any state law based on what the court called “physical characteristics unique to one sex” was exempt from being considered a form of sex discrimination. The court decided this in Fischer v. Dept. of Public Welfare, a unanimous opinion upholding the state’s ban on using its own Medicaid dollars to fund abortions. As a result, the state ERA has been cited only a small handful of times over the past four decades.

Not anymore. In late January, the Pennsylvania Supreme Court overturned that precedent in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, breathing new life into the state ERA. It did so in a case once again challenging the state’s ban on Medicaid funding for abortion, a case directly challenging the 1985 precedent. And this time, the state supreme court got it right.

Five years ago, Pennsylvania’s standalone abortion clinics sued the state over the Medicaid coverage ban. The Women’s Law Project, Planned Parenthood Federation of America, law firm Troutman Pepper, and I brought the case on behalf of the clinics raising two constitutional claims. First, we argued that the state’s ERA prohibited the coverage ban because Medicaid covered all men’s reproductive health care while not covering all aspects of women’s reproductive health. This, we argued, was sex discrimination pure and simple. Second, we argued that the state’s equal protection provisions prohibited the state from subsidizing one form of exercising the fundamental right to choose (by covering continued pregnancy leading to childbirth) while disfavoring the other form (by excluding terminating the pregnancy).

The 1985 precedent stood directly in our way on both claims. So we launched a full attack on that case. We argued that it incorrectly relied on U.S. Supreme Court precedent, something the Pennsylvania Supreme Court does not always do, especially when there is a provision in the Pennsylvania Constitution with no federal equivalent, like the ERA. We also argued that the 1985 decision was poorly reasoned and that there had been new research in the field showing us just how inequitable the coverage ban was.

The case took a long, meandering road. Delaying consideration of the merits, the state in the lower court challenged the ability of the abortion clinics to bring a claim on behalf of the constitutional rights of their patients. Anti-abortion state legislators also attempted to intervene in the case to assert their rights as legislators to deny funding to abortion. The lower court agreed with the state and the legislators on both of these claims.

The decision from the Pennsylvania Supreme Court in January was a resounding win for the clinics. On standing, the court unanimously rejected the challenge to third-party standing, ruling that clinics can bring claims on behalf of their patients. This ruling aligns Pennsylvania with the U.S. Supreme Court and every other state supreme court to have considered the issue except Kentucky’s. On intervention, the court ruled 4–1 that the legislators could not intervene in the case because they had no interest in the matter different than that of ordinary Pennsylvanians. Having passed the law at issue decades ago, the legislators’ involvement in the matter was complete, and allowing them to intervene would open up every constitutional case to burdensome intervention by legislators.

On the merits, the court resuscitated the ERA and explicitly overturned Fischer, the 1985 decision on this point. The 219-page opinion from Justice Christine Donohue ruled, by a 3–2 vote, that the state ERA applies to state classifications that burden one sex like the Medicaid coverage ban. The decision rejected the idea that laws regulating conditions unique to one sex — pregnancy — are not a form of sex discrimination. Rather, the court found that legislating with respect to such conditions has been a chief way in which government has oppressed women in the past. Because the state covers all men’s reproductive health care, the court said, the Medicaid coverage ban is a form of sex discrimination.

Explaining further, the court said that under the state ERA, all forms of sex discrimination are “presumptively unconstitutional.” The state can meet this “high burden” only by showing that it has a “compelling state interest” and there are “no less intrusive methods” available to it to accomplish that goal. The court stopped short of declaring the Medicaid coverage ban unconstitutional, leaving that ultimate determination to the lower court on remand. However, in a separate concurrence, Justice David Wecht said that given the difficult test to show a form of sex discrimination is allowed, the state now has an “unenviable burden.”

On the equal protection claim, the court divided 2–2–1. Donohue and Wecht agreed with our argument that the law unconstitutionally discriminates based on how someone exercises their fundamental right to choose. In reaching that conclusion, the two justices rejected the U.S. Supreme Court’s reasoning in Dobbs and found that the state constitution protects the right to abortion because of the state’s strong protections for decisional privacy. In particular, Donohue wrote, “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.”

They could not get a third vote for this part of the opinion, though. Justice Kevin Dougherty, who joined them on the ERA point, called this part of the opinion “incredibly insightful” but said that because of the ERA conclusion the court did not now need to address the issue of whether there is a fundamental right to abortion in the state constitution. With the two other justices relying on stare decisis and concluding the 1985 precedent should be upheld, there was not a third vote to find this right, and the issue is left for another day.

Although we didn’t get everything we asked for, this was an incredible victory for reproductive rights and sex equality in Pennsylvania. We have a powerful tool on remand that will hopefully lead to a quick determination that the Medicaid ban is unconstitutional. We have excellent language about the right to abortion in the Pennsylvania Constitution that we can hopefully convince a majority of the court about in a future case. And we have relegated Fischer to the dustbin of history, reinvigorating the state’s Equal Rights Amendment to be used in future cases.

David S. Cohen is a professor at Drexel University Thomas R. Kline School of Law. He served as counsel for the plaintiff abortion clinics in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services.