Will the Pennsylvania Supreme Court Recognize a Right to Abortion?

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.

The Pennsylvania Supreme Court recently issued an abortion-related decision so dense that major media outlets like the Philadelphia Inquirer had to issue corrections to their original stories explaining the case.

In Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, the high court — reduced to five justices from its normal seven because one new justice joined the court after argument and did not participate in the decision, and another recused himself — fragmented in four directions in reversing a lower court’s dismissal of a challenge to a ban on Medicaid-funded abortion.

On the surface, a four-justice majority found that abortion providers had standing to bring the challenge, and three justices overruled Fischer v. Department of Public Welfare, the 1985 precedent upon which the lower court had relied in dismissing the case on the merits. Fischer had rejected similar claims at the time that abortion was a protected federal constitutional right. The case was then remanded under new, heightened standards for consideration of state equal protection and Equal Rights Amendment claims that seem to ensure that the abortion funding exclusion will eventually be struck down.

But below that surface, the explosive issue embroiling the state court was the possible recognition of a state constitutional right to abortion. This was clear to the media. The Inquirer headline for its corrected story was, “Pa. Supreme Court sets up a showdown over whether abortion is a right protected by the state constitution.”

It might seem surprising that the abortion issue looms so large. Pennsylvania is a Roe v. Wade state by statute that allows abortion up to 24 weeks of pregnancy. Democrats control one legislative house and there is a Democratic governor. There is no chance of an abortion ban becoming law. So, what difference would judicial recognition of a right to abortion make?

The answer is that the two justices who found a right to abortion at this stage in the case — Justice Christine Donohue, who wrote the majority and lead opinion, and Justice David Wecht concurring — did so much more comprehensively than the U.S. Supreme Court did in Roe and following cases. Were their positions to become the law in Pennsylvania, not only would current abortion restrictions like the 24-hour waiting period or parental consent be subject to challenge, but so might be the 24-week abortion ban itself.

Will the court find such a right?

When the case was first filed, Roe was still the law. So, the case was brought in a form familiar from federal law — given a constitutional right to abortion, is there a concomitant right to government funding? The U.S. Supreme Court always answered that question, no.

Fischer gave the same negative answer under the Pennsylvania Constitution in 1985. The plaintiffs in 2019 sought to reopen that issue.

But then in 2022, Dobbs v. Jackson Women’s Health Organization changed the framework of the case by overturning Roe. The plaintiffs argued in response to Dobbs that the state ERA challenge was unaffected and that, given a proposed state constitutional right to abortion, state equal protection provisions invalidated the Medicaid abortion exclusion.

The lower court relied on Fischer to dismiss the case on the merits. Since Fischer had denied the same state constitutional funding claims unanimously when abortion was a fundamental right, overruling Roe could not change the result whether abortion was a right under the Pennsylvania Constitution or not.

The Pennsylvania Supreme Court disagreed. In terms of the ERA, Donohue’s majority opinion on behalf of Wecht and Justice Kevin Dougherty held that distinctions based on pregnancy are distinction based on sex and presumptively violate the ERA, which prohibits denial of equality of rights “because of the sex of the individual.” Since all reproductive care for men is covered by Medicaid, abortion access must presumptively be covered as well.

In terms of the equal protection challenge, in the part of the opinion joined only by Wecht, Donohue began with recognition of a right to abortion in the privacy guarantees of Article I, Section 1 of the state constitution, rejecting the methodology of Dobbs. Having found that right, Article I, Section 26, which prohibits discrimination against the enjoyment of any “civil right,” means that regulation of abortion must be “neutral” with regard to the decision whether to give birth or have an abortion. The funding exclusion presumptively violates neutrality. Dougherty joined that conclusion partly because the statutory right to abortion also qualifies as a civil right.

According to the majority, remand was proper because the two issues were not finally decided but are to be subject to appropriate means-end review in the court below. But no one could read the views of these three justices as permitting the abortion funding exclusion to be upheld.

Chief Justice Debra Todd and Justice Sallie Mundy would each have affirmed the dismissal of the case on the authority of Fischer. Both would do so even if the state constitution guaranteed a right to abortion, because such a right would not imply a right to abortion funding.

On remand, the lower court will likely strike down the Medicaid funding exclusion but may well not reach the issue of a right to abortion. Under the ERA, the funding discrimination against abortion would not survive heightened scrutiny because it does not directly save any unborn lives at all. The state’s interest is in favoring childbirth, which is the essence of the discrimination the state supreme court majority found.

Similarly, on the Section 26 issue, the funding exclusion plainly discriminates against the statutory civil right to have an abortion. Again, without recourse to the weighty state interest in preserving unborn life, it is likely unconstitutional.

If the case returns to the Pennsylvania Supreme Court with the funding exclusion struck down without the establishment of a state constitutional right to abortion, would the court reach out to affirm on the basis of such a right? Donahue and Wecht would undoubtedly be tempted to do so, but Dougherty and Todd have already ducked the abortion issue once.  We don’t know about Justices Kevin McCaffery or Daniel Brobson, if he does not again recuse, but a third vote, let alone a fourth, might prove elusive. That would mean that the Pennsylvania Medicaid funding exclusion would be stuck down but no other changes would occur — an important but not politically seismic event.

Whatever one thinks of abortion, it would be a shame if the creative approaches to fundamental rights enunciated by Donahue and Wecht are lost. Donahue argued that the Dobbs reliance on the “deeply rooted in history and tradition” formula is inappropriate for a constitution founded on inherent, that is to say natural, rights, such as the Pennsylvania Constitution. Wecht argued that Dobbs misinterpreted history and that reliance on history itself embeds the sex discrimination we should be rooting out. Their views deserve a wider audience.

Bruce Ledewitz is the Adrian Van Kaam C.S.Sp. Endowed Chair in Scholarly Excellence at Thomas R. Kline School of Law of Duquesne University. The author thanks his research assistants, Jason Whiting and Megan Penn, for their assistance in the preparation of this article.