HARRISBURG, Pa. — When Pennsylvanians woke up last week to the news that they could soon be voting on whether the state should declare there is no right to an abortion here, they weren't the only ones.
States regained discretion over abortion laws as a result of the U.S. Supreme Court decision in Dobbs v. Jackson Women's Health Organization last month that overturned the constitutional right to an abortion. Now, lawmakers across the country are rushing to amend their constitutions to prohibit — or protect — abortion rights.
Pennsylvania is one of at least seven states that has advanced a constitutional amendment, or is considering doing so, in order to declare that there is no right to an abortion, according to a Post-Gazette analysis. Five other states — including Delaware, California and New York — are working to codify that any individual has the right to receive an abortion.
Voters in three states — West Virginia, Tennessee and Louisiana — have already approved amendments to their constitutions to declare that it's their state policy that a person's life begins at conception, or that there is no right to an abortion there. Now, all three of these states have some of the most restrictive abortion bans in the country. (Louisiana's ban is currently on hold by a state judge.)
"The competition over what the law will be has been reset in light of the Dobbs decision," said Todd Belt, the director of George Washington University's political management program. "It's going to take a while for the courts to figure out what the Dobbs decision really means in terms of what a state can legislate."
Members of Pennsylvania's GOP-controlled General Assembly advanced five constitutional amendments that could appear before voters as early as May 2023, one of which would declare: "there is no constitutional right to taxpayer-funded abortion or other rights relating to abortion." The amendment must pass the Legislature again in next legislative session before reaching the voters.
The amendment would not outright ban abortions in Pennsylvania. Abortions will remain accessible to people up to 24 weeks of a pregnancy, per the state's Abortion Control Act.
GOP state lawmakers have said this language is necessary to prevent Pennsylvania's Supreme Court from interpreting the state constitution. The amendment's author Sen. Judy Ward, R-Blair, has insisted that nothing would happen to the state's current abortion law if this amendment is approved by voters.
The state's highest court has the potential to do so in a 2019 case before it now, Allegheny Reproductive Health Center et al. v. Pennsylvania's Department of Human Services. This case mainly challenges the state's ban on using Medicaid funds for abortions, but lawmakers and experts have looked to the case as having the potential to rule on whether abortion is a constitutional right in Pennsylvania.
In some states, such as Florida, the court has stepped in to interpret the constitution prior to Roe v. Wade being overturned. For example, the Florida Supreme Court has consistently ruled that abortion restrictions infringe on the state constitution's right to privacy provisions. This puts Florida's 15-week abortion ban into question, in the absence to any specific language in the constitution that says whether an abortion is a right in the state.
Pennsylvania Democratic lawmakers and abortion access advocates have attacked the amendment proposal as an effort to limit a person's bodily autonomy. Constitutional amendments cannot be vetoed by a governor. Gov. Tom Wolf, a Democrat, has vetoed at least four anti-abortion bills since taking office in 2015.
"Yes, this amendment does not explicitly and immediately ban abortion," said Rep. Emily Kinkead, D-Brighton Heights, during last week's debate. "But it's a pathway, and to say otherwise is a lie."
Amending the state constitution to prohibit abortion does three things for state lawmakers, Mr. Belt said. For one, it can take years to get a question on the ballot — though the exact process varies from state to state.
"That means the law will stay on the books for a while before there can be another referendum to overturn it," Mr. Belt added.
Constitutional amendments are also taken most seriously when judges or justices are considering a case, Mr. Belt said.
Lastly, using the constitutional amendment process — and thus, punting the decision to the voters — "gets lawmakers off the hook," Mr. Belt added.
"If they kick it to the voters, then they don't have to be responsible for explaining their vote to their constituents," he added.
Senate Majority Leader Kim Ward, R-Hempfield, made a similar claim from the Senate floor last week.
"We don't know how this is going to go," she said. "It could go either way."
For Kelly Davis, who leads the Pittsburgh-based, Black-led abortion advocacy group New Voices for Reproductive Justice, she already knows how this amendment would go if it appears on the May 2023 ballot in Pennsylvania, a municipal primary election that traditionally has the lowest turnout of any election.
"Constitutional amendments that go up during primary seasons are often a strategy used to limit the agency of people who experience structural challenges to voting," such as working an hourly job or lacking childcare, Ms. Davis said.
"If a constitutional amendment passes here, it could have a really direct impact on the health of people across Pennsylvania," Ms. Davis said. "We've already seen what it has done in Ohio."
Ohio banned abortions six weeks from conception. Ms. Davis mentioned the case of a 10-year-old rape victim, who had to travel from Ohio to Indiana earlier this month to receive an abortion.
"We know that children, folks that are poor, Black women, Black queer people will continue to pay the price," she added.
