Pennsylvania is in the middle of a new fight over the future of abortion, and it’s all about the state constitution.
It began months before the U.S. Supreme Court overturned Roe v. Wade, declaring that states are the proper battleground over abortion rights.
It exploded into public consciousness Friday, when the Republican-controlled legislature advanced a proposed constitutional amendment that would explicitly state the document doesn’t guarantee any abortion-related rights. That move followed an earlier push by abortion providers for the state Supreme Court to recognize the right to abortion as constitutionally protected.
Both efforts are in their early stages, and their outcomes are far from clear. But together they underscore the importance the state’s founding document will play in what comes next.
For 50 years, Roe couched the right to abortion as one inherent in the U.S. Constitution. In its absence, state lawmakers, judges and activists are rushing to determine — and define — exactly what protections and prohibitions their state-level constitutions provide.
“You’re starting to see this ramp up” across the country, said Ting Ting Cheng, director of the Equal Rights Amendment Project at Columbia Law School. “Lawyers are starting to take a harder look at what equality arguments they can make that are based in their state’s constitutional law.”
And that fight promises to be particularly messy in Pennsylvania — a swing state with a Republican legislature, a Democrat-dominated state Supreme Court and a governor’s mansion up for grabs in November.
“Pennsylvania may be one of the most interesting test cases in the country,” Cheng said. “It’s not exactly black and white, and it really is up to the democratic process — the executive branch, the legislators, and the courts — working with and against each other.”
Pennsylvania’s Constitution is a key battleground
The Pennsylvania Constitution, like the U.S. Constitution, doesn’t explicitly say anything about abortion. Instead, abortion access is controlled by state statute, passed by the legislature and signed by the governor.
Under current law, abortion is legal in Pennsylvania up to 24 weeks. The 1982 Abortion Control Act includes other requirements, such as mandating a 24-hour waiting period and counseling before an abortion, and banning taxpayer funding of the procedure.
Constitutional rights aren’t always specifically spelled out: Courts interpret federal and state constitutions to figure out whether and to what extent the protections they guarantee apply. But when it comes to abortion, Pennsylvania courts have largely avoided interpreting what the state constitution might have to say about it as a fundamental right, deferring instead to federal courts.
In one of the state Supreme Court’s most significant rulings on the issue — a 1985 case challenging a ban on taxpayer funding of abortion through Medicaid — the justices took pains to limit the scope of their findings, stating explicitly that “this case does not concern the right to an abortion.”
But a new case asking the court to revisit that ruling could push the justices to go further.
The major abortion case before the Pa. Supreme Court
Weeks before the leak of a draft opinion this spring signaled the U.S. Supreme Court was poised to overturn Roe v. Wade, Pennsylvania’s justices agreed to hear a case that could become the state’s equivalent of the seminal federal ruling.
Abortion providers sued to challenge the state ban on Medicaid funds covering abortion that the state Supreme Court upheld in 1985. And while much of the case — Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services — is focused on that specific issue, underlying the plaintiffs’ arguments is the idea that abortion access is a right inherent in the state constitution.
“To do that analysis, the court would look at whether abortion is a protected right, and we think it clearly is,” said Susan Frietsche, senior staff attorney for the Women’s Law Project, which represents the abortion providers suing the state. With the U.S. Supreme Court returning the issue of abortion to the states, she said, “we think our state constitution will provide strong protection for abortion rights.”
The providers have partly based their argument on the state constitution’s Equal Rights Amendment, for which there is no equivalent in the U.S. Constitution. It says “equality of rights under the law” can’t be denied based on sex.
The state’s Medicaid program covers costs such as care for pregnancy and childbirth, as well as sexual and reproductive health for men. Paying for these costs but not for abortion, the providers say, violates the ERA. They’ve also argued that the ban violates the state constitution’s version of the federal “equal protection” guarantees of fair treatment under the law.
While advocates see the case as asking the court to recognize a right already inherent in the constitution, GOP legislative leaders, who have joined the case in opposition, argue that any such ruling would bend the law to create a right that doesn’t exist. The administration of Gov. Tom Wolf, a Democrat and the original defendant, has also been fighting the lawsuit.
The court hasn’t yet scheduled a date to hear arguments. It remains to be seen whether the justices will only address the funding ban on narrow grounds, or use the case as an opportunity to recognize an expansive right to abortion.
But their decision may not be the last word.
Pa. Republican are trying to amend the state constitution
In December, state Sen. Judy Ward, R-Blair, proposed amending the Pennsylvania Constitution to — among other things — explicitly state that it “does not grant the right to taxpayer-funded abortion or any other right relating to abortion.”
It was a direct response to the Allegheny case, Ward said, and it gained new momentum after the draft U.S. Supreme Court opinion leaked in May.
Both chambers of the General Assembly last week approved a pared-down version of that proposed amendment, setting up the next steps in the constitutional amendment process — a second vote in the legislature next year, followed by it being placed on the ballot for voters to approve or reject.
If it passes again in the 2023-24 legislative session, it could go before voters as early as the May 2023 primary.
Republicans say the constitutional amendment wouldn’t immediately enact new policy. It’s not a ban on abortion in the state. It could instead pave the way for future regulations, including a possible ban or further restrictions and prevent the state Supreme Court from overturning them based on the idea that abortion is a constitutionally protected right. It could also allow for expanded access.
Either way, it would make abortion policy solely the purview of the legislative process.
“This amendment does nothing to change the current law,” state Senate Majority Leader Kim Ward, R-Westmoreland, said on the Senate floor last week. “All it does is say that the legislature and the governor, as opposed to the Supreme Court of Pennsylvania, will determine the laws on abortion in our commonwealth.”
Whichever side wins, it won’t necessarily be permanent
If abortion is left to statute, it’s a lot easier to change with the political tides.
Statutes can change with the legislature or the governor, which is why much of the focus in the wake of the Supreme Court ruling has been on November’s race for governor. The winner can approve or veto bills passed by the legislature.
The constitution is meant to be more permanent. But it’s not set in stone.
As the current fight shows, the constitution can be amended. And the interpretation of its text doesn’t have to last forever, as the U.S. Supreme Court demonstrated in Dobbs v. Jackson, the case that overturned Roe.
If the current Allegheny case has the potential to be Pennsylvania’s version of Roe, there’s the possibility of a future state version of Dobbs that overturns it.
But for now, the battle lines in the short-term constitutional fight over abortion rights are clear.
The future of the GOP’s proposed abortion amendment depends on what next year’s legislature chooses to do — and then, if it passes, the voters.
“This isn’t a … slam dunk that’s going to happen. It may not happen,” Ward, the leader of the Senate Republicans, said in her floor speech. “This is just us giving the people of Pennsylvania the ability to put their voice into what our laws in Pennsylvania are.”
