Finding that Pennsylvania’s constitution “guarantees the fundamental right to reproductive autonomy,” the Pennsylvania Commonwealth Court on Monday ruled by a 4-3 majority that the state’s ban on public funding of abortion is unconstitutional.
The decision will likely be the basis for an appeal to the state’s highest court.
Writing for the majority Judge Mateusz Wilk found that the state was violating the Equal Rights Amendment (ERA) and the promise of equal protection. The majority opinion was against it that the state cannot select and finance primary health care based on gender needs.
“We conclude that the coverage exclusion violates the Equal Rights Amendment in Article I, Section 28 of the Pennsylvania Constitution. We further conclude that Article I of the Pennsylvania Constitution guarantees the fundamental right to reproductive autonomy, that the coverage exclusion does not operate neutrally with respect to that right and is not properly justified in this case, and therefore the coverage exclusion violates the equal protection guarantee of Article I, Section 26 of the Pennsylvania Constitution.”
In 1982, Pennsylvania adopted the so-called Abortion Control Actwhich set a tough line: state tax dollars (Medicaid) cannot pay for abortions. For more than forty years, a low-income woman in the commonwealth could only get insurance if she was a victim of rape or incest or to save her mother’s life
In 1985, the state Supreme Court upheld the ban, arguing that the government had the right to encourage childbirth rather than abortion. For a generation of Pennsylvanians, the law was an established reality.
In early 2024, the Pennsylvania Supreme Court issued a landmark ruling in the case Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services. While it didn’t strike down the law outright, it did something equally powerful: The Court ruled that the state’s ERA meant that any law that treated men and women differently — including restrictions on abortion — must be subjected to “strict legal scrutiny” at the highest level.
After Monday’s decision, the state’s Medicaid program is now legally required to treat abortion like any other medical procedure.
Reactions to the Court’s findings were swift.
“I have long opposed this unconstitutional ban and did not defend it as governor because a woman’s access to reproductive care should never be determined by her income,” she said. Governor Josh Shapiro on social media.
“By declaring a constitutionally broad ‘right to reproductive autonomy’ and mandating taxpayer-funded abortion through Medicaid, the court overstepped its authority, ignored the plain text of our state constitution, and forced millions of Pennsylvanians who believe that life begins at conception to subsidize the killing of unborn children,” she said. Michael Geerpresident of the PA Family Institute in a statement. “This is judicial activism at its worst, imposing on the bench what the people and their elected representatives have repeatedly refused to do.”
Likely Republican candidate for governor Stacy Garrity he called the decision “immoral.”
“The Pennsylvania Commonwealth Court’s decision to force our taxes to pay for abortions is not only wrong, it is immoral,” the state treasurer said in a statement. “It is also deeply disturbing that Gov. Josh Shapiro’s administration has withdrawn itself as a respondent in this case.
“The Pennsylvania Abortion Control Act was passed with bipartisan support and signed into law by a Democratic governor. Today’s ruling is a direct violation of the Hyde Amendment and federal law.”
“We cannot allow four activist judges to have the final say on how our tax dollars are spent. I stand with all Pennsylvanians who value life and liberty and have the courage to stand up and fight for it.”
“Elections have consequences. This heartless ruling must spur action before November 3 and the elections that follow.”
Democratic lawmakers praised the ruling.
“Today’s Commonwealth Court ruling recognizing reproductive autonomy as a fundamental constitutional right is a huge victory for every woman, especially those who rely on Medicaid to get the care they need,” she said Senate Minority Leader Jay Costa (D-Allegheny). “The Pennsylvania Senate Democratic Caucus has long held that a woman’s decision about whether, when, and how to raise a family is a fundamental right, and we are deeply grateful that today’s decision by the Commonwealth Court brings Pennsylvania into line with this key value. While much remains to be debated and legislated, today is a day of celebration as we expand access to care for thousands of women and families in Pennsylvania.”
“Today’s decision affirms that the Pennsylvania Constitution protects women’s reproductive rights and that any insurance ban violates those rights,” House Democratic leadership reiterated Speaker Joanna McClinton (D-Delaware/Philadelphia), House Majority Leader Matt Bradford (D-Montgomery) i House Speaker Jordan Harris (D-Philadelphia). “Access to health care is critical for all Pennsylvanians, and this review is a victory for women and families seeking health care.
“House Democrats remain committed to protecting the fundamental rights of all Pennsylvanians.”
Along with House Democrats, Senate Democrats filed two amicus briefs in the case in support of the Women’s Rights Bill and abortion providers, arguing that the bill prohibiting state dollars from funding abortion care violates the Equal Rights Amendment and equal protection laws.
“The court did not have to create a broad “right” to reproductive autonomy to decide this case, it said Randall WengerChief Advisor to the Independence Law Center. “And it shouldn’t. By doing so, he now forces all Pennsylvanians to subsidize elective abortions and threatens the guarantee of common sense.”
“Today is our Commonwealth Court[…]ruled that there is a right to reproductive autonomy and it is a right at the highest possible level,” she said Susan Frietsche Women’s Rights Project.
“This is a miscarriage of justice for taxpayers, mothers and children across Pennsylvania,” she said Mary V. Gallagherexecutive director of the Pennsylvania Pro-Life Federation, the Keystone State affiliate of National Right to Life.
“No taxpayer should be forced to pay for the taking of an innocent, unique human life. This decision is a radical violation of the protection of individual conscience and may result in a sharp increase in the number of abortions in our Commonwealth,” Gallagher added.
Three dissenting judges presided over Patricia McCullough, Anna CoveyAND Stacy Wallaceargued that the ruling effectively bypasses the legislative process.
“The majority is deciding an unnecessary constitutional issue by creating a new fundamental right that has no definition, contours, practical application or textual support in the Pennsylvania Constitution,” McCullough wrote in her dissent. “If the people desire such a right, they are free to amend their Constitution. This Court cannot.”
updated to include comments from Garrity and House Democrats
