Pennsylvania Supreme Court opens the door to public funding for abortion

Justice Christine Donohue Justice Christine Donohue of the Pennsylvania Supreme Court ordered that the case, which was previously dismissed, be reargued before the state's Commonwealth Court. | Credit: Public Domain|Wikimedia

The Supreme Court of Pennsylvania on Monday revived a 2019 lawsuit brought by a number of abortion providers in the state that challenges, on discrimination grounds, a longtime state law barring public funding for most abortions. 

In a 219-page ruling Jan. 29, the state high court reversed an earlier dismissal of the lawsuit, sending it back to the Commonwealth Court, one of the state’s two appellate courts. 

At issue is Pennsylvania’s Abortion Control Act, in place since the 1980s, which restricts the use of state and federal funds for abortion except “when necessary to avert the death of the mother” or in cases of rape or incest. 

The abortion providers bringing the lawsuit had argued, among other things, that Pennsylvania’s policies regarding the use of federal funds unfairly singled out women, since “there is no medical condition specific to men for which medical assistance denies coverage.”

The Commonwealth Court had previously dismissed the lawsuit in 2021 on the grounds that it was bound by Pennsylvania Supreme Court precedent; the state Supreme Court had previously upheld the abortion restrictions in 1985.

The majority ruling this week found that Pennsylvania’s law barring public funds for most abortions “discriminates against those women who choose to exercise their fundamental right to terminate a pregnancy” and that abortion providers have standing to sue the state over the policy. 

The ruling does not immediately change abortion policy in Pennsylvania. Rather, the state Supreme Court ruling sends the case back to the Commonwealth Court for further review. Abortion is presently legal in Pennsylvania up to 24 weeks in pregnancy, or later in pregnancy if the life of the mother is at risk.

Seventeen states use public state funds to pay for abortions, despite a federal policy known as the Hyde Amendment that since 1976 has prohibited the use of federal tax dollars to pay for abortion. States that want to pay for abortions through their Medicaid program could do so using their own funds and are not reimbursed by the federal government.

The Pennsylvania Catholic Conference, which advocates for policy in the state on behalf of the Catholic bishops, said it is working on a formal response to the state Supreme Court’s ruling. 

In a brief statement to CNA on Tuesday, Eric Failing, the conferences’s executive director, noted that it is “a complex case with a lot of decisions so we are going through it very carefully.”

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