You must understand the unique situation unfolding here in Pennsylvania.
In short, while the U.S. Constitution notoriously does not have an Equal Rights Amendment, Pennsylvania’s state constitution has an equal rights provision, as well as an equal protection clause.
Currently, we are representing Pennsylvania abortion providers in a case challenging Pennsylvania’s discriminatory Medicaid abortion coverage ban, which was implemented in 1985. In addition to arguing that the Medicaid ban violates the Pennsylvania constitution and seeking a lift of the ban, we’re also asking the court to affirm the right to abortion in Pennsylvania.
This means is that there is an opportunity for the Pennsylvania Supreme Court to affirm and protect reproductive rights in Pennsylvania just as the U.S. Supreme Court is expected to further undermine or even outright reverse Roe.
The Philadelphia Inquirer looked at the situation in a recent piece titled Lawsuit shaping the future of abortion in Pa. isn’t the one you think.”
This summer, the Supreme Court of the United States is likely to deliver a blow to Roe v. Wade, the landmark 1973 case that established a federal right to an abortion, when the justices are expected to affirm a ban on abortions after 15 weeks’ gestation that was enacted in Mississippi. But it is a different lawsuit that is shaping the contours of the fight in Pennsylvania.
In 2019, the Women’s Law Project, along with Planned Parenthood and other organizations, sued the Pennsylvania Department of Human Services over the state’s restrictions on using Medicaid funding for abortions…
Taking on the Medicaid ban on abortion is a health and social justice issue — and the litigants in the case are arguing that Pennsylvania’s prohibition violates the state constitution’s Equal Rights Amendment and Equal Protection Clauses.
“What we are seeking in this litigation is a declaration that abortion is a fundament right
protected under the state constitution and the suspension of the ban on Medicaid funding for abortion in Pennsylvania,” said Susan J. Frietsche, senior attorney with the Women’s Law Project.
Read the rest of the Inquirer’s excellent editorial here.
“Importantly, the litigants are asking the court to recognize the right to abortion under the Pennsylvania Constitution. If the court recognizes this right — which it has not previously recognized — then even if Roe is overturned, the Pennsylvania Constitution will step up to protect the right to abortion in our state.”
Even if Pennsylvania Supreme Court affirms reproductive rights in Pennsylvania, there’s already another challenge.
Worried about a victory for reproductive rights in Pennsylvania Supreme Court—they are explicitly telling their supporters they expect to lose—anti-abortion lawmakers in the Pennsylvania Legislature have introduced a constitutional amendment designed, if it makes it into law, to effectively leapfrog over both the courts and the Governor’s office by restricting reproductive rights in Pennsylvania by amending the state Constitution.
You will hear a lot more about this effort, and how to oppose it, in the new year. Please rest up over the holiday—we have a lot of work to do.
Women’s Law Project is a public interest law center in Pennsylvania devoted to advancing and defending the rights of women, girls, and LGBTQ+ people in Pennsylvania and beyond. As a non-profit organization, we can not do this work without you. Please consider supporting our work.
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December 2021: Our physical offices are still closed but we are OPEN and working to serve your needs. Contact us here.
