A Pennsylvania state court ruled this week that access to abortion is a fundamental right protected by the state constitution.
In case of a lawsuit, Allegheny Reproductive Health Center v. Pennsylvania Department of Human Servicesbegan in 2019 when a group of reproductive health providers challenged the constitutionality of state restrictions on Medicaid reimbursement for abortions under the state constitution. Providers first argued that the state’s Equal Rights Amendment (ERA) prohibits exemptions because Medicaid covers all reproductive health care for men but does not do the same for women. Second, the plaintiffs argued that the ban violates the Equal Protection Clause of the state constitution by penalizing one method (abortion) and subsidizing another method by which Pennsylvanians can exercise their fundamental right of choice (procreation).
In 2020, a lower court dismissed the case, citing a 1985 case. Fisher v. Department of Health and Human Services. Based on federal constitutional precedent, fisher They unanimously rejected arguments that Pennsylvania’s Medicaid ban violates the state constitution. in Allegheny Reproductive Health Center; the nation was leaning fishersimultaneously challenging the provider’s position in litigation.
In January 2024, the state high court concluded in a 3-2 decision that the provider was eligible. Then the majority reversed. fisherargued that the state’s ERA applies specifically to classifications that burden one gender. The court reasoned that laws regulating pregnancy and abortion were a prime example of such sex discrimination in the past. And because public funds covered men’s reproductive health care but not abortion, the court concluded that the Medicaid ban amounted to sex discrimination under the state’s ERA.
The court then provided guidance to lower courts on how to conduct this sex discrimination investigation. States had to prove that they had a “compelling state interest” in refusing to grant Medicaid coverage for abortion and that there were “no more intrusive methods” available to advance that interest. The court left the question of the law’s ultimate constitutionality to be resolved by lower courts on remand.
The state Supreme Court’s 2024 decision provided even less guidance on equal protection claims. The court split 2-1-2 on how to resolve this issue. Justices Christine Donahue and David Vecht would have ruled that the state constitution protects the fundamental right to abortion, saying the law unconstitutionally discriminates based on how patients exercise their fundamental right to choose. Donahue wrote that this fundamental right reflects important constitutional norms surrounding equality. Donahue writes, “The decision whether to have children is perhaps the most personal and consequential decision in human experience.”
But Justice Kevin Doherty, who joined Donahue and Vecht in their ERA analysis, concluded that there was no need to reach an equal protection claim or address the existence of an abortion right, given that the court had already reversed it. fisher The court ruled in favor of the plaintiffs on the ERA claim. Chief Justice Debra Todd and Justice Sally Mundy dissented, concluding there was no good reason to overturn it. Fisher.
Last week, in a 4-3 decision, the Pennsylvania Commonwealth Court, the middle appellate court, granted the plaintiffs’ request for summary relief, holding that the coverage exclusion violates both the state’s ERA and the Equal Protection Clause. The Commonwealth Court, which deals with civil cases, has seven members and sometimes acts as the court of first instance where cases begin. This is also the case in cases like Allegheny Reproductive Health Center Plaintiff files a civil suit against the State of Pennsylvania.
After the state Supreme Court’s ruling, the federal Department of Health and Human Services notified a federal court that it would no longer defend the constitutionality of the coverage exclusion. The plaintiffs again sought summary relief, and the Commonwealth Court held oral arguments in February 2025. The Pennsylvania Attorney General then sought permission to intervene in the lawsuit. The court granted the request and held supplementary oral argument on the issue.
The Attorney General acknowledged that the exemption constituted gender classification under the state ERA, as held by the state Supreme Court. But the attorney general argued that the exemption was in the compelling interests of protecting the life of the fetus, protecting women from post-abortion regret, and preventing public funds from being funneled into medical procedures that some citizens morally object to. Additionally, the Attorney General stated that the state used the least restrictive means to achieve these benefits.
The court did not find these proposed benefits to be persuasive. The court first addressed Pennsylvania’s interest in protecting the life of the unborn child. The majority was unsympathetic to this argument, questioning why “the state must ensure that all pregnancies reach term.” Citing the state’s interest in protecting women from post-abortion regret, the court asked whether there is an interest in “protecting competent adults from regretting their free choices.” The state’s interest in protecting citizens’ conscience-based objections to Medicaid coverage could not be better served. The court reasoned that while the Attorney General had shown that Congress had regard for this interest, the state had done nothing to show why it was persuasive.
And even if the state could demonstrate a compelling interest, the majority concluded that the state had less intrusive ways to pursue it. The court said that if Pennsylvania wanted women to carry their pregnancies to term, it could subsidize childcare or invest more in maternal and child health care. By directly licensing, regulating and educating doctors, governments could protect women from unscrupulous providers and post-abortion regret. And Pennsylvania had less intrusive ways to protect taxpayers’ consciences, such as a tax credit program. Therefore, the court ruled that the exemption violated the state’s ERA.
With respect to equal protection, plaintiffs reiterated their argument that this exclusion discriminates against one way of exercising a fundamental right of choice. The Attorney General responded that there is no fundamental right to state support for abortion services. In any case, the attorney general said that even if fundamental rights were involved in this case, the law could satisfy rigorous scrutiny for the same reasons outlined above.
The majority rejected the state’s equal protection claim. The issue is whether the state constitution recognizes “reproductive autonomy” or “reproductive decision-making rights,” not whether there is a right to use state funds to access reproductive services. The court agreed with health care providers that the law discriminates against and subjects those who choose abortion to strict scrutiny. The Attorney General’s justification for the exclusion failed in the equal protection context for the same reasons as the court’s arguments regarding the state ERA. Justice Michael Wojcik wrote a separate concurrence that emphasized the importance of individual autonomy in Pennsylvania’s constitutional tradition.
Justice Patricia McCullough, joined by two of her colleagues, dissented, arguing that the provider’s ERA claim should fail because the state’s interest in protecting the life of the unborn child is “compelling on its face.” McCullough also complained that the majority reached its conclusion without giving the state a hearing or sufficient opportunity to make its case. States should have the opportunity to provide evidence of abortion-related harm experienced by women to demonstrate a genuine interest in protecting women from regret, he said. She ultimately concluded that there is also a compelling interest in protecting the conscience of taxpayers, something she said Congress and the state constitution already recognize. Opponents were similarly persuaded by the state’s argument that exclusion is the least restrictive option.
Opponents were even more wary of the plaintiffs’ equal protection claims, arguing that the court should never have reached the claim in the first place. The dissenting justices also rejected the majority’s fundamental right, which McCollough wrote “does not arise from the text of the Pennsylvania Constitution or from any social policy purpose.”
Pennsylvania has not yet announced whether it will appeal, but if the attorney general does decide to appeal, the state Supreme Court would likely affirm at least part of the lower court’s ruling. In 2025, Pennsylvania voters retained all three justices in 2024 with a majority vote. Allegheny Reproductive Health Centermaintained a 5-2 Democratic majority (two of the current justices did not participate in the earlier decision).
But it remains unclear exactly how far the argument will go in court. As it turned out, only two justices chose to address equal protection claims in the courts below. The Pennsylvania Supreme Court could award the plaintiffs a victory without ever resolving whether the Constitution recognizes a fundamental right to reproductive autonomy.
In any case, it seems likely that Pennsylvania will join the list of states that recognize reproductive rights. lawsuit in Allegheny Reproductive Health Center It emphasizes the importance of judicial elections. The state constitution’s text has remained unchanged since the Pennsylvania Supreme Court rejected a challenge to the exemption. fisherthe judge who interpreted it made all the difference.
Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California, Davis School of Law.
