Court finds abortion access is fundamental right guaranteed by Pennsylvania Constitution

Finding that the Pennsylvania Constitution “guarantees a fundamental right to reproductive autonomy,” the Commonwealth Court of Pennsylvania voted 4-3 on Monday to rule the state’s ban on public funding for abortion unconstitutional.

The decision likely sets up an appeal to the state’s highest court.

Writing for the majority, Judge Matthew Wolf said that the state was violating the Equal Rights Amendment (ERA) and the promise of equal protection. The majority opinion argued that the state cannot pick and choose which essential healthcare to fund based on gender-specific needs.

“We conclude that the Coverage Exclusion violates the Equal Rights Amendment in Article I, Section 28 of the Pennsylvania Constitution. Further, we conclude that Article I of the Pennsylvania Constitution guarantees a fundamental right to reproductive autonomy, that the Coverage Exclusion does not operate neutrally with respect to that right and is not properly justified in doing so, and accordingly the Coverage Exclusion violates the equal protection guarantee in Article I, Section 26 of the Pennsylvania Constitution.”

In 1982, Pennsylvania passed the Abortion Control Act, which drew a hard line in the sand: state tax dollars (Medicaid) could not pay for abortions. For over forty years, a low-income woman in the Commonwealth could only get coverage if she was a victim of rape or incest, or to preserve the life of the mother

In 1985, the state Supreme Court upheld the ban, arguing that the government had a right to encourage childbirth over abortion. For a generation of Pennsylvanians, the law was a settled reality.

In early 2024, the Pennsylvania Supreme Court issued a landmark ruling in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services. While it did not strike down the law right then, it did something just as powerful: the Court ruled that the state’s ERA meant that any law treating men and women differently – including abortion restrictions – had to face the highest level of legal “strict scrutiny.”

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 finding were swift.

“I’ve long opposed this unconstitutional ban, and as Governor, I did not defend it — because a woman’s ability to access reproductive care should never be determined by her income,” said Gov. Josh Shapiro on social media.

“By declaring a sweeping constitutional ‘right to reproductive autonomy’ and mandating taxpayer-funded abortion through Medicaid, the court has overstepped its authority, ignored the plain text of our state constitution, and forced millions of Pennsylvanians who believe life begins at conception to subsidize the killing of unborn children,” said Michael Geer, president 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 enact.”

Probable Republican candidate for governor Stacy Garrity called the decision “immoral.”

“The Pennsylvania Commonwealth Court’s decision to force our tax dollars to pay for abortions is not only misguided, it is immoral,” said the State Treasurer in a statement. “It is also deeply concerning that Governor Josh Shapiro’s administration withdrew as respondents 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 callous ruling must serve as a wake-up call for November 3 and the elections that follow.”

Democratic lawmakers applauded the ruling.

“Today’s Commonwealth Court ruling recognizing reproductive autonomy as a fundamental constitutional right is an enormous victory for every woman, especially those who rely on Medicaid to get the care they need,” said Senate Minority Leader Jay Costa (D-Allegheny). “The Pennsylvania Senate Democratic Caucus has long held that a woman’s decision whether, when, and how to have a family is a fundamental right, and we are deeply grateful that the Commonwealth Court’s decision today aligns Pennsylvania with this key value. While much remains to be debated and legislated, today is a day for celebration as we expand access to care for thousands of Pennsylvania’s women and families.”

“Today’s decision reaffirms that the Pennsylvania Constitution guarantees the protection of a woman’s reproductive rights, and that any coverage ban violates those rights,” echoed the House Democratic Leadership of Speaker Joanna McClinton (D-Delaware/Philadelphia), House Majority Leader Matt Bradford (D-Montgomery), and House Appropriations Chairman Jordan Harris (D-Philadelphia). “Access to health care is critical to all Pennsylvanians, and this opinion is a victory for women and families seeking health care.

“House Democrats remain committed to protecting the fundamental rights of all Pennsylvanians.”

Alongside the House Democrats, Senate Democrats filed two amicus briefs in this case in support of the Women’s Law Project and abortion providers, arguing that the statute prohibiting state dollars from funding abortion care violated the Equal Rights Amendment and the equal protection provisions.

“The court didn’t need to create a sweeping ‘right’ to reproductive autonomy to resolve this case, said Randall Wenger, chief counsel of the Independence Law Center. “And it shouldn’t have. By doing so, it is now forcing all Pennsylvanians to subsidize elective abortions and threatening commonsense safeguards.”

“Today, our Commonwealth Court… held that there is a right to reproductive autonomy, and it’s the highest possible level of a right,” said Susan Frietsche of the Women’s Law Project.

“This is a miscarriage of justice for taxpayers, mothers, and babies throughout Pennsylvania,” said Maria V. Gallagher, executive 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, unrepeatable human life. This decision represents a sweeping violation of individual conscience protections and could cause the abortion rate to skyrocket in our Commonwealth,” Gallagher added.

The three dissenting judges, led by Patricia McCullough, Anne Covey, and Stacy Wallace, argued that the ruling effectively bypasses the legislative process.

“The Majority decides an unnecessary constitutional question by creating a new fundamental right that has no definition, no contours, no practical applicability, and no textual support in the Pennsylvania Constitution, wrote McCullough in her dissent. “If the People desire such a right, they freely may amend their constitution. This Court may not.”

Steve Ulrich is the managing editor of PoliticsPA, where this article originally appeared.