A devastating court opinion in Pennsylvania recently epitomized judicial overreach, abandoning taxpayers and endangering precious lives. The Commonwealth Court interpreted the state constitution to include a “right to abortion,” reversing a 40-year precedent.
The case was brought to the court in 2019, challenging the state’s 1982 prohibition on Medicaid funding for abortion. The Pennsylvania Supreme Court has already spoken on this exact provision. In 1985, shortly after the law’s passage, the court upheld its constitutionality under state law.
However, several abortion clinics, including the three Planned Parenthood regions located in Pennsylvania, filed another suit in 2019. Though the state constitution has not changed, an attorney from the Women’s Law Project argues, “What’s different is the law’s evolved … People have studied what happens to low-income women who are deprived of access to abortion, and it is devastating to their lives.”
The original decision, delivered in 1985, began, “This case does not concern the right to an abortion,” and explicitly noted that federally, the Hyde Amendment (which is another prohibition on funds towards abortion) “neither impinged on a fundamental right nor operated to the detriment of a suspect class.” The case affirmed that the state’s Equal Rights Amendment does not afford a “basis of relief” that violates the Abortion Control Act of 1982.
But this week, a lower court issued a new opinion on the same law, striking it down and adding that the state’s Equal Rights Amendment does guarantee a right to reproductive autonomy. It found that “recognizing this fundamental right … is necessary to restrict state government to its proper sphere, thus protecting our liberty. This will mean that the state will face judicial scrutiny of its attempts to coerce reproductive choice. Those choices are the People’s, not the government’s.”
The reality is that it is this new opinion that expressly ignores the “People’s choice.” The state of Pennsylvania passed this law to protect taxpayers from being forced to fund abortion. The People have not chosen to amend the state constitution, which the Pennsylvania Supreme Court explicitly clarified did not confer a right to abortion. Some states have chosen to add these guarantees, but the results have been disastrous. Abortion businesses have wielded such amendments to remove common-sense safeguards like mandatory ultrasounds, information distribution that fully informed consent, and even counseling requirements. Abortion is currently legal in Pennsylvania through 23 weeks of gestation with additional exceptions for the life of the mother and “substantial and irreversible impairment of a major bodily function.” Pennsylvania does have some protections against sex-based abortions, parental consent, and a 24-hour waiting period.
This lower court has unmistakably changed the constitution they were charged to defend, and they did so by judicial fiat, free from the opinion, guidance, or accountability from the people. However, they are not the final word. The Pennsylvania Supreme Court can still rightfully defend the constitution and clarify, once again, that it does not guarantee a right to abortion.
Pennsylvania justices are elected for 10-year terms and can run on party tickets. The court is made up of seven justices, currently five of whom ran as Democrats and two as Republicans. Two justices, one Republican and one Democrat, (who currently serves as Chief Justice,) will conclude their terms next year.
Concerned Women for America and our Women for America leaders in Pennsylvania will continue to monitor the case closely. We urge you to join us in prayer that the Pennsylvania Supreme Court will grant an appeal and reverse this unlawful and dangerous decision.
