A lawsuit that seeks to eliminate Pennsylvania’s Medicaid restrictions on abortion was back in Commonwealth Court this week. And a Wednesday hearing presented an unusual scene, especially for an issue as divisive as abortion: Both parties in the dispute were sitting on the same side of the courtroom — and taking the same side of the case.
Since 2019 Pittsburgh’s Allegheny Reproductive Health Center and a half-dozen other reproductive-health organizations have argued that a state ban on using Medicaid to cover abortion unconstitutionally discriminates against poor women, particularly those who seek to terminate a pregnancy rather than carry it to term.
Early last year, the state Supreme Court seemed to agree. In a complicated series of opinions, a majority of justices held that the ban was “presumptively unconstitutional,” and sent the case back to Commonwealth Court to determine if there was any basis for overcoming that determination.
“We are relying on the Commonwealth Court to … declare that this state statute is unconstitutional,” Sue Frietsche, executive director of the Women’s Law Project and legal counsel for the abortion providers, told WESA. “We need them to say that because this statute, even though it is violating people's rights, is in effect today. It is still being enforced.”
For now, the ban on covering abortion with state funding for Medicaid — which receives money from the state and federal government — remains in effect. (The state currently does allow Medicaid to cover abortions in cases of rape and incest, or to save the life of the mother.) But the state Department of Human Services no longer supports it.
Aimee Thomson, a lawyer representing the state Department of Human Services, told the court that the department would no longer defend the statute “in light of the Supreme Court’s opinion.” She reiterated a response to the ruling filed by DHS last year that argued it “significantly narrowed the scope of issues in this case.”
Still, Thomson said that while her department agrees the ban is unconstitutional, it has a duty to enforce the law unless a court overturns it.
“We have an obligation to enforce the statute because the statute is in place,” she said.
According to court records, the department said that after the Supreme Court’s ruling, there were only two questions remaining: whether the Pennsylvania Constitution protects the fundamental right to abortion, and whether the coverage exclusion can survive legal scrutiny.
“The Department has carefully considered both issues and concluded, in agreement with [the abortion providers], that the answer to the first question is yes, and the answer to the second is no,” the brief reads.
The department’s statement reflects the position of Pennsylvania Gov. Josh Shapiro, who said in a statement last year that his administration “is urging the Court to strike down this ban that denies Pennsylvanians access to health care solely because of their sex and clearly runs counter to the recent Supreme Court ruling.”
But that shift posed a problem for the judges, who generally only hear cases where there is a legal disagreement between a plaintiff and a defendant.
“How does [DHS] believe this can proceed forward … without someone in front of us arguing as to whether there is a compelling interest or how it should proceed?” asked President Judge Renée Cohn Jubelirer. “The Supreme Court sent it back to us for further proceedings. How do we engage in those further proceedings if we don't have any controversy?”
Ordinarily, it’s the job of the state Attorney General to defend a state’s laws from court challenges. But the Attorney General’s office delegated the matter to the executive branch’s own attorneys instead. Harrisburg Republicans also sought to join the case, but last year’s Supreme Court decision removed them from it, ruling that they didn’t have a legal right to be involved.
Voices in favor of the ban were still heard on Wednesday. Attorney David Dye spoke out on behalf of House Republicans, who were allowed to file a “friend of the court” brief. He argued that the Department of Human Services is failing to do its job by not defending the statute, and the case should be returned to the Attorney General’s office, where recently elected Republican Dave Sunday was sworn in last month.
“The attorney general can withdraw delegation simply because it is the attorney general's job,” Dye argued.
“Let’s assume he can,” countered Judge Matt Wolf. “He didn’t.”
Sunday has taken no move in the case so far. And a spokesperson for the office told WESA Wednesday that it “wouldn't have commentary at this juncture" on the case. During his campaign for office last year, Sunday struck a cautious note on the topic, offering little more than a pledge to enforce the law on the books.
Dye acknowledged that Republicans in the legislature had reached out to Sunday on the issue, but said Sunday may have been too busy settling into his new office to address the matter.
“The attorney general we currently have has been in office for, I think, two weeks,” Dye said. “With possibly not this case being at the forefront of his to do list.”
Frietsche, who told the judges Republicans were merely trying to delay overturning the ban, scoffed at that idea after the hearing.
“This case has been the subject of so much publicity … as it deserves to be,” she said. “The idea that someone is going to be surprised to find out that there is a case going on about this, [especially] if you’re an attorney general, that idea is completely laughable.”
Although the providers’ case primarily challenges the Medicaid abortion ban, abortion-rights advocates hope that the case will open the door to protecting abortion rights for all Pennsylvanians — regardless of their health insurance. Their case argues the ban violates the state constitution’s Equal Rights Amendment by limiting reproductive care for women while covering all reproductive care for men.
With protections for abortion eradicated at the federal level by the US Supreme Court's Dobbs decision in 2022, Frietsche said she hopes the outcome in Pennsylvania will be a ruling “that abortion and reproductive autonomy is a fundamental right under our state declaration of rights.”
In a statement Wednesday, Allegheny Reproductive Health Center said continuing the case is part of its mission to fight “for reproductive autonomy for every Pennsylvanian.”
“Abortion care is health care, full stop,” said Dr. Sheila Ramgopal, CEO of Allegheny Reproductive Health Center. “We witness the harm of political meddling in medical care every single day. That’s why we’re fighting in court while serving patients in the exam room.”
Multiple anti-abortion groups are fighting as well. Several submitted a so-called friend of the court brief in support of the Medicaid restrictions. Groups including the American Association of Pro-Life Obstetricians and Gynecologists and the Pro-Life Union of Greater Philadelphia argued the state Constitution does not explicitly embrace a right to abortion and that Medicaid recipients are not a protected class.
The groups wrote that state law does not specifically protect Medicaid recipients because “‘financial need’ does not create a suspect class” that is vulnerable to discrimination.
“Pennsylvania’s ban on taxpayer-funded abortion … furthers the government’s legitimate interest in preserving life,” the brief reads. “Because this interest is important, it is also legitimate.”
In last year’s Supreme Court opinion, two of the five deciding justices wrote that “the right to reproductive autonomy, like other privacy rights, is fundamental.” But other justices, even those who supported other parts of the ruling, did not sign off on that proposition.
It’s not yet clear when the Commonwealth Court will issue a ruling on the case.
