Pa. Supreme Court sets up showdown over whether abortion is protected by state constitution

Pennsylvania’s highest court on Monday stopped short of recognizing abortion access as a right protected by the state’s constitution. But in fractured decision, three of the five justices weighing that question signaled that they could be open to making that finding in the future.

The debate arose in a case on a much narrower issue — a challenge to a state law limiting Medicaid funding for abortions.

A coalition of seven state abortion providers had urged the justices to not only overturn that ban but to recognize for the first time a constitutional right for citizens to make their own reproductive choices — a potentially significant conclusion in the wake of the U.S. Supreme Court’s 2022 decision that overturned Roe v. Wade and put abortion laws in the hands of state governments.

But despite issuing a 219-page majority opinion with language strongly endorsing such a finding, the state high court justices ultimately split on whether they were ready to make the call just yet. They deferred the question first to a lower court.

Democratic Justices Christine Donohue, who authored the court’s opinion, and David Wecht said they believed that the Pennsylvania constitution’s 1971 Equal Rights Amendment — for which there is no equivalent in the U.S. Constitution — clearly established a right to abortion access

“The fundamental right of a woman to decide whether to give birth is not subordinate to policy considerations favored by transient legislatures,” Donohue wrote on behalf of herself and Wecht. “We conclude that the Pennsylvania Constitution secures the fundamental right to reproductive autonomy.”

Justice Kevin M. Dougherty, also a Democrat, called his colleague’s reasoning “incredibly insightful,” but wrote, in an opinion of his own, that he did not believe that question was yet ripe for the justices to weigh in. He urged a lower court to consider it first, adding: “There is little doubt the issue will eventually make its way back to this court.”

Meanwhile, Democratic Chief Justice Debra Todd and Republican Sallie Mundy penned dissents accusing their colleagues of shoehorning that larger constitutional question into a much more limited case on whether taxpayer money should fund abortions — and noted that they believed the rest of the justices had incorrectly decided that point, too.

(The court’s two other justices — Republican Kevin Brobson and Dan McCaffery, a Democrat who was sworn in months after the case was argued — did not participate in Monday’s decision.)

The justices’ messy split sent both the Medicaid funding question and the debate over constitutional protections back to the Commonwealth Court, setting up a heated legal battle over the future of abortion access in Pennsylvania.

State law permits abortions through the 23rd week of pregnancy. But in the two years since Roe was overturned, several other states have passed laws dramatically limiting the procedure.

In 2022, Republican lawmakers in Harrisburg sought to amend the state constitution to specifically state it did not provide a right to abortions — a preemptive move aiming to block any such decision from the court.

In a statement, House Minority Leader Bryan Cutler (R., Lancaster) described Monday’s ruling as “another activist decision” by the Democrat-controlled court.

Still, reproductive rights advocates hailed the ruling as a positive development even as they noted its limited scope.

“Today’s decision is a landmark victory for reproductive freedom,” said Alexis McGill Johnson, president and CEO of the Planned Parenthood Federation of America. “With abortion under attack across the country, Pennsylvania continues to be a beacon of hope.”

This is a developing story and will be updated.

Correction: This article has been updated to correctly characterize the scope of Monday’s ruling, noting that only two of the justices that made up the court’s majority said they recognized abortion access as a right protected by the state constitution.

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