Pennsylvania Court to Hear Arguments on State Ban on Medicaid Coverage for Abortion and the Equal Rights Amendment

On Wednesday, Feb. 5, lawyers for Pennsylvania’s freestanding abortion clinics will argue before the Pennsylvania Commonwealth Court that the ban discriminates on the basis of sex, in violation of constitutional provisions. The Women’s Law Project (WRP) executive director Susan J. Frietsche and senior staff attorney Christine Castro will argue Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, along with Drexel Law professor David S. Cohen. The hearings will be livestreamed at 9:30 a.m. Wednesday, Feb. 5.

Legal Background and the Role of the Equal Rights Amendment

The case is the first Pennsylvania state court proceeding challenging an abortion restriction since the state Supreme Court restored the Pennsylvania Equal Rights Amendment last year. WRP originally filed the litigation challenging the state Medicaid ban in 2019, seeking to reverse a 1985 case, Fischer v. Department of Public Welfare, that restricted the Pennsylvania Equal Rights Amendment from applying to abortion restrictions.

In January 2024, the Pennsylvania Supreme Court ruled that abortion providers can challenge the Pennsylvania’s Medicaid coverage exclusion on abortion for violating the state’s Equal Rights Amendment and Non-Discrimination Clause of the Pennsylvania Constitution. On Jan. 29, 2024, the Supreme Court of Pennsylvania issued a landmark ruling that restored the Pennsylvania Equal Rights Amendment by overturning Fischer, declared the Medicaid exclusion of abortion “presumptively unconstitutional” and sent the case back to lower court.

Constitutional Rights and Judicial Opinions

Regarding the fundamental rights involved, two justices of the court explicitly stated 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.” They continued: “Whether or not to give birth is likely the most personal and consequential decision imaginable in the human experience. Any self-determination is dependent on the right to make that decision.”

A third justice called that opinion “incredibly insightful,” but decided to send the case back to the lower court to give the government an opportunity to meet its burden to prove “a compelling state interest” for the funding ban and that “no less intrusive methods are available to support” the ban.

The Legal Standard and Burden of Proof

The court’s majority opinion explains how the court should review sex-based restrictions on rights, such as the abortion funding limitation: “We take seriously the express recognition of the right to equality of the sexes under the law and the magnitude of this special protection against the denial or abridgment of rights under the law based on sex contained in our Equal Rights Amendment.”

As part of this process, the following legal principles apply:

• Presumption of Unconstitutionality: A challenge to a law as violative of Section 28 begins with the premise that a sex-based distinction is presumptively unconstitutional.
• Government Burden: It is the government’s burden to rebut the presumption with evidence of a compelling state interest in creating the classification and that no less intrusive methods are available to support the expressed policy.
• Judicial Inquiry: The judicial inquiry will be searching, and no deference will be given to legislative policy reasons for creating sex-based classifications.

Given these parameters, the court acknowledged that few, if any, sex-based conferrals of benefits or burdens will be sustainable. In response to these developments, the legislators threatened to punish Pennsylvanians by eliminating funding for contraception if the Medicaid ban is deemed unconstitutional.

Plaintiff Goals and Legal Standing

The plaintiff abortion providers seek a court order requiring the Pennsylvania Department of Human Services to comply with the state Constitution by covering abortion through Medicaid and an affirmation that reproductive autonomy is a fundamental right under the Pennsylvania Constitution. Furthermore, the Pennsylvania Supreme Court ruled that abortion providers have standing to sue on behalf of their patients and that antiabortion Pennsylvania legislators could not intervene in the case.