Pennsylvania high court revives case challenging limits on Medicaid coverage for abortions

By MARC LEVY Associated Press

Pennsylvania’s Supreme Court said Monday that a lower court must hear a challenge to the constitutionality of a decades-old state law that limits the use of Medicaid dollars to cover the cost of abortions, a major victory for Planned Parenthood and the abortion clinic operators who sued.

The decision also elicited hope that the state Supreme Court may one day find a right to abortion in Pennsylvania’s constitution after the U.S. Supreme Court ended nearly a half-century of federal abortion protections by overturning Roe v. Wade.

The 3-2 decision both overturns a lower court decision to dismiss the case on procedural grounds and puts aside a 1985 state Supreme Court decision that upheld a law banning the use of state Medicaid dollars for abortion, except in cases of rape, incest or to save the life of the mother.

Alexis McGill Johnson, Planned Parenthood Federation of America’s president and CEO, called the decision a “landmark victory for reproductive freedom” in a statement.

The high court’s majority said Monday in a 219-page decision that prior court decisions did not fully consider the breadth of state constitutional protections against discrimination, beyond those provided by the federal constitution.

The lower court must now consider the case under those guidelines, the high court said.

The lawsuit, brought in 2019 by Planned Parenthood and other operators of abortion clinics, said the 1982 law unconstitutionally discriminates against poor women.

“Today’s ruling is the first step toward ending discriminatory access to care, and we remain committed to removing every barrier to abortion,” Signe Espinoza, executive director of Planned Parenthood of Pennsylvania’s policy arm, said in a statement.

Women’s Law Project co-executive director Susan J. Frietsche, who helped argue the case, she was confident that the law will be “consigned to the scrapheap of history very soon.”

The new ruling does not necessarily find a constitutional right to an abortion in Pennsylvania, where abortion is legal under state law through 23 weeks of pregnancy.

Rather, it turns on the question of whether the state Medicaid law unconstitutionally differentiated between women who want to carry to term and women who want to get an abortion.

The lower Commonwealth Court had said in its 2022 decision that it was bound by the prior state Supreme Court decision in dismissing the lawsuit.

But the majority said the lower court must reconsider whether Medicaid, called Medical Assistance, can legally draw a distinction “between pregnant women on Medical Assistance who would seek to obtain abortions and pregnant women on Medical Assistance who would seek to carry their pregnancies to term.”

Women who get an abortion receive no government funding for the reproductive care they seek, while women who carry to term receive full coverage, the majority opinion said.

That part of the majority opinion was written by Justice Christine Donohue and joined by Justices David Wecht and Dougherty. Dissenting were Chief Justice Debra Todd and Justice Sally Mundy, the lone Republican to take part in the decision.

Justices Kevin Brobson and Daniel McCaffery joined the bench after the case was argued and did not participate in the decision.

The lower court also had ruled that the abortion clinic operators didn’t have standing to assert the constitutional rights of low-income women seeking an abortion. The five high court justices who decided the case were unanimous in overturning that decision.

In one part of the majority opinion, Donohue made it clear that she sees a state constitutional right to abortion in the existing structure of Pennsylvania’s constitution.

“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 to carry a pregnancy to term,” Donohue wrote.

Wecht joined that part of the opinion. However, the other three justices did not.

Dougherty said he agreed with Todd and Mundy that the case is not about the right to an abortion, but qualified it in his written opinion by saying “at least, not yet.”

David S. Cohen, a constitutional law professor at Drexel University’s law school who helped argue the case, acknowledged that a majority of the court didn’t decide that there is a fundamental right to abortion in Pennsylvania.

But, Cohen said, “This issue will come back to the court in the future, and we now have a great building block to accomplish that goal.”