A lawsuit that could overturn Pennsylvania’s restrictions on Medicaid coverage for abortions will be back in court this week. Before the Commonwealth Court are two questions: Does a ban on coverage for abortions violate the state’s Equal Rights Amendment? And does the state constitution protect a right to reproductive freedom?
The case has been up and down the state’s legal system, with Pennsylvania’s highest court remanding the case back to Commonwealth Court last year in a complicated series of opinions that found such a ban to be “presumptively unconstitutional.”
Pittsburgh’s Allegheny Reproductive Health Center and a half-dozen other reproductive health groups first challenged the state statute that prohibits Medicaid coverage for abortion in 2019. The law makes an exception for cases of rape, incest or in cases where the procedure would save the life of the mother.
The plaintiffs are represented by attorneys from the Women’s Law Project, Planned Parenthood and Philadelphia-based David S. Cohen and Troutman Pepper Hamilton Sanders. In court documents, the plaintiffs argue the ban discriminates against poor women who are forced to choose between continuing their pregnancy “against their will and using money that they would have otherwise used for daily necessities such as shelter, food, clothing, or childcare to pay for the procedure,” out of pocket.
Although the case primarily challenges the Medicaid abortion ban, abortion-rights advocates hope that the case will open the door to protecting abortion rights for all Pennsylvanians — regardless of their health insurance. Their case argues the ban violates the state constitution’s Equal Rights Amendment by limiting reproductive care for women while covering all reproductive care for men.
“When a male recipient requires a covered service, including all services related to reproductive health, [Medicaid] covers it,” providers argue in court records. “In contrast, when a woman requires an abortion, [Medicaid] covers it only if she would otherwise die or if the pregnancy results from rape or incest.”
While federal law also prohibits the use of Medicaid funds to cover the cost of an abortion beyond limited exceptions, several states — including New York, New Jersey and Maryland — allow for broader coverage of the procedure with state Medicaid funds.
Pennsylvania’s Attorney General Dave Sunday will seek to defend the constitutionality of the state’s restrictions on abortion coverage Wednesday, after he initially delegated the case to Gov. Josh Shapiro’s executive legal counsel. But Shapiro’s attorneys declined to defend the ban at a hearing earlier this year, siding with abortion providers. Shapiro has supported overturning the ban.
“I will always protect equitable access to reproductive care — and my Administration looks forward to making our arguments and urging the Court to strike down this ban that denies Pennsylvanians access to health care based on their sex,” Shapiro posted on X in 2024.
Whether the ban is unconstitutional will be a major piece of Wednesday’s hearing, as the state’s Supreme Court opinion deemed it “presumptively” unconstitutional in 2024, sending it back to the lower court under a new framework.
Attorneys representing the state’s Department of Human Services in February agreed that the ban is unconstitutional and declined to defend it. In court records, the department said that after the Supreme Court’s ruling, there were only two questions remaining: whether the Pennsylvania Constitution protects the fundamental right to abortion, and whether the coverage exclusion can survive legal scrutiny.
“The Department has carefully considered both issues and concluded, in agreement with [the abortion providers], that the answer to the first question is yes, and the answer to the second is no,” the brief reads.
But the Supreme Court opinion was not a clear majority. Two of the five deciding justices wrote that “the right to reproductive autonomy, like other privacy rights, is fundamental.” But other justices, even those who supported other parts of the ruling, did not sign off on that proposition. In court documents, the Attorney General’s office noted the incongruity and argued that a Pennsylvanian’s right to abortion is protected by the 1982 Abortion Control Act rather than the state constitution.
A spokesperson for Sunday declined to comment on the Attorney General and the Governor taking opposing sides in the case, but maintained that the office has a duty to defend the ban.
“The Commonwealth Attorneys Act clearly states that the Attorney General shall defend the constitutionality of statutes unless or until they are ruled unconstitutional — and that has not happened in this matter,” the office said in an email.