Case:  Allegheny Reproductive Health Center. v. Pennsylvania Department of Human Service 

Court: Pennsylvania Supreme Court

Citation: 309 A.3d 808 (Pa. 2024).

Holding: The Pennsylvania Supreme Court overturned its precedent upholding a prohibition on public funding for abortion, allowing challenges to the state’s Medicaid coverage exclusion on abortion based on the Equal Rights Amendment and equal protection provisions of the Pennsylvania Constitution. The state supreme court held that laws classifying based on sex-based distinctions—including abortion and pregnancy—are presumptively unconstitutional under the state’s ERA and subject to strict scrutiny, requiring the government to show a compelling state interest in the law and that no less intrusive methods are available to support that interest.  Id. at 891.

Constitutional Claims: (1)  Equal Rights Amendment;(2) equal protection provisions; and (3) privacy and individual autonomy under Article I, which provides: “All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”

Key Reasoning: A majority of the court did not rule on whether the Pennsylvania Constitution protects a right to abortion, but several justices stated such a right exists within the state constitution and embraced an approach to history and tradition that eschews the approach in Dobbs.  Justice Donohue reasoned that the state constitution’s general right to privacy is “founded in the basic notion that it is the inherent right of an individual to be let alone—to live a private life, to have security in one’s bodily integrity and to make important decisions free of government intrusion,” and that the “right to make healthcare decisions related to reproduction is a core important right encompassed by the enmeshed privacy interest.”  Id. at 906.  Justice Donohue further observed that because the state’s constitutional rights are inherent, its courts are “not constrained, as the Dobbs Court believed it was, to determine whether abortion is ‘deeply rooted’ in the ‘history or traditions’ of the Commonwealth.” Id.

In a concurrence recognizing a state constitutional right to reproductive autonomy based in the foundational concept of liberty, Justice Wecht also criticized the approach to history and tradition in Dobbs, reasoning that courts could not “examine particular laws in their historical context without also examining the society in which those laws developed.”  309 A.3d 808, 980 (Wecht, J., concurring). Justice Wecht explained, “Generally speaking, relying upon particular points in history during which women expressly were precluded from political participation effectively enshrines and perpetuates the legal subjugation of women. Under this approach, there is no opportunity for the status of women to advance, and no chance to repudiate the nation’s discriminatory history.  The nation is locked into the gendered hierarchies of our past.”  Id. at 981. Justice Wecht underscored that historical anti-abortion laws must be contextualized within an analysis of why those laws existed and who had a voice in creating them, as “[s]imply referring to criminal laws that subjugated the rights of women in the past as a basis to subjugate the rights of women today, without looking critically at the misogyny that prevailed at the time, seems designed to perpetuate the wrongs of our past.”  Id. at 986.

Case Status/Subsequent History: In its January 2024 decision, the Supreme Court remanded the case to the lower Commonwealth Court to apply strict scrutiny in resolving the challenges to the constitutionality of the coverage exclusion.  At oral argument before the Commonwealth Court in February 2025, the state informed the court that it would no longer defend the coverage exclusion in light of the supreme court’s opinion. The case is currently awaiting the Commonwealth Court’s decision.