Professor Robert Williams was one of the losing attorneys in 1985 when the Pennsylvania Supreme Court said state laws based on “physical characteristics characteristic of one sex” could not be considered sex discrimination. His team had asked a Pennsylvania court to find that Medicaid’s ban on funding abortions violated the state constitution. The High Court’s judgment is Fisher v. Department of Health and Human Services It largely nullified the state’s Equal Rights Amendment.
Nearly 40 years later, the Pennsylvania Supreme Court accepted and unequivocally reversed Williams’ opinion. fisher And they argued that the state’s ban on Medicaid-funded abortions constitutes sex discrimination. This meant that the ban had to be analyzed with rigorous scrutiny, requiring a showing that the state had a compelling interest in discrimination and that there were no more intrusive ways to support that interest. The High Court sent the suit; Allegheny Reproductive Health Center v. Pennsylvania Department of Human Serviceswill return to the lower courts to assess whether the ban survives under this standard.
Allegheny Reproductive Health Center “I was demoted fisher “It reinvigorates the state’s Equal Rights Amendment, which has been consigned to the dustbin of history and used in future litigation,” wrote David Cohen, an attorney for the plaintiff abortion clinics in the case, which paved the way for a lower court’s ruling last month that the ban violated the state ERA and that access to abortion is a fundamental right under the state constitution.
state court report I spoke with Mr. Williams about the plaintiff’s strategy. fisherhow lawyers should respond when they lose, how state constitutional litigation has changed over the past 40 years, and more. Mr. Williams state court report Advisory Committee.
The following interview has been edited for length and clarity.
what was the question in fisher And how was it decided?
In the early 1980s, Pennsylvania’s state legislature enacted a law that said abortion was not covered under the state’s Medicaid program, even though birth was covered. of fisher The lawsuit challenged the law based solely on the state constitution and based on four different provisions, each of which differed significantly from the provisions of the U.S. Constitution.
First is the Equal Protection Clause of 1776, which was enacted 100 years before the Equal Protection Clause of the Fourteenth Amendment.
Second, a 1960s provision that amended the state constitution to state that the government may not discriminate against citizens in the exercise of civil rights. This is completely different from the Equal Protection Clause and was enacted 100 years after the Confederation Clause.
Third, there is a little-known provision in most state constitutions that prohibits the enactment of special laws. It does not guarantee rights. It limits the types of laws that the legislature can enact. These provisions spread across the country in the 1870s as a response to legislative preferential treatment to corporations and other wealthy entities, as well as outright corruption. At that time, legislatures across the country spent almost all of their time granting benefits to various beneficiary people and groups. The prohibition of Congress from enacting special laws has often been interpreted as a guarantee of equal protection, but frankly, I find this ridiculous. But we said that the Legislature was discriminating against people based on whether they were having children or aborting them — we thought that was very clear.
And finally, Pennsylvania is one of the states that has an Equal Rights Amendment in its state constitution. We filed a claim based on that amendment.
We argued that each of these four provisions is distinct from and should be interpreted differently than the federal provisions that were central to the 1979 U.S. Supreme Court decision. Harris vs McRaestated that restrictions on the use of federal Medicaid funds for abortion do not violate federal liberty guarantees, equal protection, or religious freedom.
Pennsylvania courts disagreed with us. The justices seemed fairly persuaded that the four different provisions of the Pennsylvania Constitution, as well as the very different provisions of the U.S. Constitution adopted at different times, should be interpreted to cover the entire nation, not just Pennsylvania.
How did you end up working on this case?
I began my career in Miami in 1970 in the Federal Legal Services Program. It was a very aggressive program. The first year I was there, we won three cases in the U.S. Supreme Court. Of course, none of this was my case. I was a newcomer. But these victories showed me that I have the power to defend the Constitution on behalf of the powerless.
I noticed that there are laws in place that deny health insurance to women in a variety of situations, especially regarding reproductive rights. I was interested in this because I had begun to specialize in the structural aspects of poverty. I focused on things like filing fees and the obligation to publish a notice in a newspaper in the case of divorce, adoption or name change. At the time, it cost $35 to issue such a notice. This was a big part of someone’s welfare budget. In the same bucket were laws that effectively cut off reproductive rights services for women receiving Medicaid.
In my view, they were also simply wrong. I didn’t grow up caring much about women’s rights, but by then I had been educated by a few smart, progressive women, and I understood how grotesque it was for these old white men to enact those kinds of laws and walk around with no qualms when they knew full well that many of them wanted their daughters and wives to be able to have abortions.
In the 1970s, Florida used administrative rulemaking to discontinue Medicaid coverage of abortions. I successfully attacked the ban under the Florida Administrative Procedures Act, but it was reversed on appeal. I learned a lot from that incident. Later, when I entered the teaching profession, I focused on lawsuits (filed in California, New Jersey, and one or two other states) challenging state constitutional bans on Medicaid funding for abortion. This is exemplified by a law review article that argues that state constitutions should emerge from the shadow of the federal constitution.
time fisher When this case was first considered, I received a call from the attorney involved. They said, “Bob, you wrote about this. Please help us.” Although he was not allowed to practice in Pennsylvania, he helped with strategies and preparations.
What did you think when you saw the Pennsylvania Supreme Court overturn the decision? fisher?
I was very excited. I’m sure I screamed at my wife upstairs.
There are lessons I wish lawyers could learn from my loss and the experience of having it reversed decades later. Working fisherI have done very intensive research into the origins of the so-called anti-discrimination clause, which was adopted in 1967 and states that there should be no discrimination between citizens in the exercise of their civil rights. I mentioned it in the abstract. of fisher The court completely ignored it. What did I do? I published my research in a law review article. 40 years later, it turns upside down fishercourt of allegheny You quoted my article.
I encourage others to do the same. Many of these cases still require unique state constitutional investigations, which no one has ever done before. And if you fail, don’t give up. Get it out there!
why do you think so? fisher Did courts rely so heavily on federal cases and interpretations of federal constitutional provisions in cases brought under state-specific provisions?
First, independent interpretation of state constitutions was still fairly new to state supreme courts in the early to mid-’80s. Although there were some instances in which state courts departed from the federal Constitution, primarily in criminal proceedings and search and seizure matters, this was not the norm.
Second, enacting independent legislation on highly controversial issues like abortion was extremely intimidating to elected state supreme court justices. Especially when it didn’t happen as often as it does today. State court filings have changed dramatically since the 1970s. Back then, they didn’t hear about hot topics like abortion, the death penalty, voting rights, or equality.
And finally, in the face of an independent discussion like we had before, fishereveryone has an incentive to rely on what they know and are comfortable with. That’s why I think the Pennsylvania courts wanted to make these seemingly unique state constitutional provisions look like they were exactly the same as the federal constitution.
How did we get to today, when litigants more routinely raise state constitutional claims and courts more willingly distance themselves from interpreting the federal Constitution?
One of the most important things that happened very early on was that the U.S. Supreme Court put its stamp of approval on the idea that state supreme courts could interpret state constitutions more protectively than the U.S. Supreme Court had already done or might do in the future. in 1980 Pruneyard Shopping Center v. Robinsthe court ruled 9-0 that the California Supreme Court could interpret the state constitution to protect leafleting and picketing at private shopping malls because even privately owned shopping malls are open to the public. The case was read all over the country, even by people who hadn’t been paying attention to the state’s case.
Then, in 1983, there was an incident called. Michigan vs. Longsolidified the principle of a proper and independent national foundation. According to this doctrine, if a state supreme court makes clear that it bases its decision on state law and does not rely on principles of federal constitutional law, the U.S. Supreme Court does not have jurisdiction to hear the case, even if the justices disagree with the state court’s decision.
Then the intricacies of the state constitution began to emerge. Although the movement plateaued by the mid-1990s, there have been several major Supreme Court cases in the past decade that have renewed interest in state constitutions. Of course the biggest thing is Dobbs v. Jackson Women’s Health Organizationoverturned in 2022 Roe vs. Wadeargues that the federal Constitution protects the right to abortion. It sent questions about abortion back to the states and their so-called democratic processes. The other is Lucho vs. Common Cause In 2018, the court said it would take a hands-off approach to gerrymandering. After these cases, people began turning to state constitutions and state courts to challenge gerrymandered maps and laws restricting abortion. Many states have also amended their constitutions to protect abortion or prohibit excessive political gerrymandering.
And in 2021, the court Jones vs. Mississippi State He said there would be no further progress in protecting juveniles from long prison sentences without parole. Lawyers are increasingly arguing that state constitutions prohibiting cruel or unusual punishment limit excessive punishment of children. They have had some success in places like Massachusetts, Michigan, and Washington state.
We have a much more contentious state constitutional world than we had decades ago. If you look at Wisconsin’s judicial elections last year, it was $100 million, mostly out-of-state funding. State Supreme Court elections used to be very sleepy. The incumbent always won. They are now the subject of intense scrutiny.
Kathrina Szymborski Wolfkot state court report Senior Attorney and Manager of the Justice Program at the Brennan Center for Justice.
Recommended citation: Kathrina Szymborski Wolfkot, A conversation with Professor Robert Williams about the lost abortion case 40 years agoSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 12, 2026), https://statecourtreport.org/our-work/analysis-opinion/conversation-professor-robert-williams-about-abortion-case-he-lost-four
