PA Supreme Court allows challenge to ban on Medicaid coverage of abortion to proceed

On Jan. 29, the Pennsylvania Supreme Court allowed a lawsuit challenging a 1982 state law that bans Medicaid from covering most abortion care to proceed.

The lawsuit, filed in 2019 by a group of abortion providers, argues that by not allowing Medicaid to fund most abortion care, the 1982 law targets the rights of low-income women in Pennsylvania “who choose to terminate their pregnancy and who would otherwise have their medical care covered by Medical Assistance.” The suit further notes that the law restricts Medicaid coverage of abortion but not of other procedures: “The denial of Medical Assistance coverage for low-income women seeking to terminate a pregnancy contravenes fundamental guarantees of equality and poses a dire threat to their health and well-being.”

The 3-2 ruling overturned a ruling by the Commonwealth Court in 2021 that had dismissed the 2019 lawsuit on procedural grounds that the plaintiffs did not have standing to bring it and put aside a 1985 decision by the Supreme Court that had upheld the law, which bans the use of Medicaid funding for abortion except in cases of rape or incest or to save the life of the pregnant person.

Plaintiffs in the 2019 suit appealed the Commonwealth Court’s decision to the Supreme Court, which  ruled last week that the plaintiffs did have standing to bring the suit.

In her majority opinion, Pennsylvania Supreme Court Justice Christine Donohue wrote, “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.”

Alexis McGill Johnson, Planned Parenthood Federation of America’s president and CEO, said the decision was a landmark victory for reproductive freedom, according to NPR. 

Sue Frietsche, the co-executive director of the Women’s Law Center and co-counsel for the plaintiffs, told the Pennsylvania Independent that there were three shifts between the 1985 ruling and the ruling last month that swayed the Supreme Court.

“The first thing was, we have better facts now than we had back in 1985, by a lot,” Frietsche said. She mentioned as an example the Turnaway Study, a University of California San Francisco longitudinal examination of the experiences of pregnant people who are denied abortions that they want.

“Now we have empirical evidence that people take a really bad hit in so many different aspects of their life if they’re denied an abortion that they want. So that changed, and that was significant, not only because it’s a very powerful policy reason why you shouldn’t limit access to abortion, but it also goes to the equality analysis,” Frietsche said.

Frietsche said the second shift was away from viewing the legal basis of the right to abortion as privacy, as the Supreme Court ruled in Roe v. Wade: “People started to see that it wasn’t a matter of keeping this thing private between a woman and her doctor, but rather the way that abortion restrictions operate to subordinate an entire class of people on the basis of their reproductive capacity. … People started seeing abortion rights as a matter of sex equality.”

Lastly, Frietsche pointed to the decision by the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization in June 2022 that overturned Roe:.“We lost our federal constitutional right. So that just elevated the importance of state constitutions and state courts.”  

As for whether or not the Pennsylvania Supreme Court’s recent decision is a bellwether for changes to federal law regarding Medicaid coverage of abortion, Frietsche said that for now it’s more likely that progress will be made in the states.

“But that doesn’t mean that there shouldn’t be a really vibrant national strategy and a big push because, ultimately, we want one rule — that is, a good rule that you can rely on no matter where you live,” Frietsche said.

Abortion is currently legal in Pennsylvania through 23 weeks of pregnancy.