From 1985 to Now: Revisiting Abortion Funding in Pennsylvania’s Supreme Court

This past Wednesday, October 26, 2022, the Pennsylvania Supreme Court heard oral arguments to overturn Fischer v. Department of Public Welfare, a unanimous 1985 state Supreme Court ruling that upheld Pennsylvania legislation—the 1982 Abortion Control Act— banning Medicaid reimbursements for abortions in all cases except those involving rape, incest, or to preserve the life of the mother (the “Ban”). Opponents of the Ban claim that overturning this ruling not only protects low-income women’s access to abortion, but guarantees their right to reproductive autonomy. Whereas, proponents of the Ban claim that the state should not be obligated to provide taxpayer-funded abortions, and read this decision narrowly.

In January 2019, eight abortion providers across Pennsylvania, collectively providing 95% of all abortions performed in the state, filed a petition claiming that the Ban violated the Equal Rights Amendment of the Pennsylvania Constitution. The Equal Rights Amendment prohibits discrimination on the basis of sex. The plaintiffs, led by the Allegheny Reproductive Health Center (one of two abortion clinics in Pittsburgh), claimed that the Ban was discriminatory, naming the Pennsylvania Department of Human Services, the state agency responsible for administering medical assistance programs such as Medicaid, as the defendant. In 2021, a Pennsylvania Commonwealth Court dismissed the plaintiffs’ suit, ruling that the plaintiffs lacked legal standing to make constitutional claims, unlike their individual patients and doctors who would have legal standing to bring a constitutional suit.

The clinics argued before the Pennsylvania Supreme Court that their inability to charge for certain abortion services gave them standing, and the scope of the issue reached beyond funding. In addition, the clinics argued that the Ban discriminates against women by denying them health care coverage and infringes on a woman’s fundamental right to reproductive autonomy provided by the Pennsylvania State Constitution’s guarantee of “life and liberty”. The Pennsylvania Department of Human services, however, urged the justices to uphold the lower court’s ruling and therefore the Ban, reiterating that the clinics lacked standing because their financial harm did not give them the ability to make constitutional claims on behalf of their patients. Adding an additional layer to the oral arguments, the justices also considered whether sixteen individual state legislators could assert standing to intervene and oppose the clinics. The state legislators argued that they should be allowed to participate in the case because they have an interest in how funding is allocated and in protecting human life.

The Pennsylvania Supreme Court is expected make a ruling in the coming months. As new developments arise, we will continue to update our Dobbs Decision Resource Center. In the meantime, please contact one of the lawyers in Shipman’s Health Law practice group if you have questions about this ever-changing legal landscape.