Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services (2024)

Summary:

A plurality of Pennsylvania Supreme Court justices sided with abortion providers, who claimed that the Pennsylvania Constitution required public funding of elective abortions, on the basis that ending this public funding treats women differently from men in violation of the Equal Rights Amendment. Justices Todd and Mundy were the only justices to conclude that the Pennsylvania Constitution did not require public funding of elective abortions.

The Verdict:

Despite precedent and without any clear textual support from the Pennsylvania Constitution, the state’s top court “found” not only a constitutionally protected right to elective abortions but a right to have the government pay for them. This right, according to the majority, divests the General Assembly of any right to pass a law in this area. The Pennsylvania Supreme Court usurped the policymaking authority of the General Assembly, imposed its own policy determinations in place of the legislature’s, and made these permanent by purporting to locate them in the state constitution.

Background:

Allegheny Reproductive Health Center is a case about the General Assembly’s ability to end public subsidies for abortion services. This issue was seemingly decided decades ago, when the Pennsylvania Supreme Court in Fischer v. Department of Public Welfare, 502 A.2d 114 (Pa. 1985), unanimously concluded that there was no state constitutional right to public funding of abortion.

In concluding that the Equal Rights Amendment protected the right to an abortion, Justices Donohue, Wecht, and Dougherty invalidated as unconstitutional the General Assembly’s attempt to restrict public funding for elective abortions. They reasoned that the restriction discriminated against women—as only women can become pregnant—and overturned Fischer as out of step with prior and subsequent caselaw equating reproductive ability with sex.

Yet, Justices Donohue and Wecht would have gone a step further, adding that the Pennsylvania Constitution also confers an unwritten but fundamental “right to reproductive autonomy.” In their view, this unwritten right means that the General Assembly is unable to restrict the choices of indigent women who would choose not to carry their child to term.

Chief Justice Todd and Justice Mundy disagreed on the merits. They would have decided that states have no obligation to subsidize abortions, even if abortion itself is a constitutionally protected choice. In choosing not to fund elective abortions, the discrimination is not sex-based but between those who choose abortion and those who choose childbirth—and states have a longstanding, recognized interest in supporting childbirth over abortion.