The Pennsylvania Supreme Court on Monday issued a long-awaited opinion on a case centered around using state-funded Medicaid to pay for abortion, recognizing that “reproductive autonomy” is a fundamental right guaranteed by the state’s constitution.
The ruling declared that the Abortion Control Act of 1982, a Pennsylvania law prohibiting Medicaid from being used to cover the costs of abortion, violates the state constitution’s Equal Rights Amendment (ERA)—for which there is no equivalent in the U.S. Constitution.
“The fundamental right of a woman to decide whether to give birth is not subordinate to policy considerations favored by transient legislatures,” read the majority opinion, penned by Justice Christine Donohue. “We conclude that the Pennsylvania Constitution secures the fundamental right to reproductive autonomy, which includes a right to decide whether to have an abortion or carry a pregnancy to term.”
The initial challenge against Abortion Control Act was filed in January 2019 by a group of seven abortion clinic operators from across the commonwealth. Under the 1982 law, Medicaid may only be used to pay for abortions in very few instances such rape or incest, or to prevent the death of the pregnant woman.
In their complaint, the abortion providers argued that the Medicaid restriction discriminates against women on the basis of sex—a violation of the Pennsylvania ERA, which provides that, “Equality of rights under the law shall not be abridged ... because of the sex of the individual.”
In 2021, the Commonwealth Court dismissed the petition, and the pro-abortion coalition appealed to the state Supreme Court. The justices of the high court heard oral arguments in October 2022, just a few months after the U.S. Supreme Court ended protection of abortion at the federal level, instead leaving it to the states to decide how to regulate abortion.
In Monday’s opinion, all five justices who decided the case ruled in favor of the abortion law challengers, although three of them wrote both a concurring and dissenting opinion. Justice Kevin Brobson, one of the court’s only two Republican appointees, joined the bench after the case was argued and did not participate in the decision.
“The right to reproductive autonomy, like other privacy rights, is fundamental,” Justice Donohue wrote for the majority.
Under the Pennsylvania constitution, according to the justice, the government doesn’t have an obligation to support anyone’s exercise of such rights in the form of publicly funded medical aid. But if the government chooses to do so, it must be done in a non-discriminative manner in accordance to the ERA.
“However, once the government chooses to provide medical care for the indigent, including necessary care attendant to pregnancy for those women exercising their right to reproductive autonomy who decide to carry a pregnancy to term, the government is obligated to maintain neutrality so as not to intrude upon the constitutional right to full reproductive autonomy, which includes the right to terminate a pregnancy,” she wrote.
Meanwhile, Chief Justice Debra Todd and Justice Kevin Dougherty dissented from the resolution of the question of whether the Pennsylvania Constitution guarantees the right to abortion.
Justice Sallie Mundy agreed. “This case is not about anyone’s right to obtain an abortion,” she wrote in her own opinion. “It is about an alleged right to obtain taxpayer money to pay for it.”
The ruling didn’t resolve the case. Instead, it sent the case back to the Commonwealth Court, ordering it to reconsider the constitutional issues.
Abortions remains legal in Pennsylvania after the U.S. Supreme Court said it no longer recognizes a federal constitutional right to abortion.
Last November, Pennsylvania Legislature’s Democrat-controlled lower chamber passed a bill seeking to protect those who travel to Pennsylvania to get abortions. The measure would prevent public officials in Pennsylvania, where abortion is legal up to 24 weeks, from cooperating with authorities of other states who try to enforce their out-of-state abortion ban.
More than a dozen Democrat-led states have adopted similar measures since the 2022 landmark Supreme Court decision, which allowed at least 14 states’ abortion bans to go back into effect in the year that followed.
As of 2024, a total of 38 states have ratified an ERA—the minimum number of states needed to make it the law of the land. The most recent three states to ratify the ERA are Nevada (2017), Illinois (2018), and Virginia (2020).
