A new Pa. Supreme Court ruling could change abortion access in the state. Here's how.

The Keystone State’s abortion rights advocates were celebrating this week, hailing the release of a Pennsylvania Supreme Court ruling as a “landmark victory.”

On Monday, the justices by a 3-2 margin overturned a legal decision that for decades has guided how the courts thought about the right to an abortion. They also kicked the case back to a lower court to determine whether Pennsylvania can withhold Medicaid funding from women who want to terminate a pregnancy.

The commonwealth since the 1980s has generally prohibited public medical assistance dollars from helping low-income women cover the cost of the procedures, and the plaintiffs in this case filed suit to challenge this law.

But in the immediate future, not much might change as a consequence of the decision, said Greer Donley, a law professor and abortion rights expert at the University of Pittsburgh.

More: In pre-Roe hearings, Pa. women described their anguished, resolved search for an abortion

Even the underlying case still isn’t resolved, since a Commonwealth Court will have to take it up.

“In some sense, this case didn’t itself do much,” said Donley, who also sits on the board of trustees for the Women’s Law Project, which helped argue the lawsuit. “But on the other hand, it very much opened the door to wide-ranging future potential lawsuits that could really redefine gender equity in our state.”

Here’s background on the case and why Donley and others say it matters.

What’s the case about?

The legal challenge stems from a 1982 law in Pennsylvania that prohibits Medicaid funding for abortion, except in cases of rape or incest or if the life of the pregnant person is at risk.

Several years after the law’s passage, a group of medical assistance recipients who were seeking abortions, some providers and a rape counseling organization challenged it on the grounds that it violated the Pennsylvania Constitution and the Equal Rights Amendment.

At the time, the Pennsylvania Supreme Court rejected the arguments and unanimously upheld the Medicaid funding ban.

Their ruling in Fischer v. Department of Public Welfare held sway for decades.

Then, in 2019, a group of abortion providers from across the state filed the current challenge to the Medicaid ban and asked the courts to overturn the longstanding precedent.

They argued that the 1982 law discriminates against women on the basis of sex, since there are no analogous funding prohibitions related to men’s health care. Furthermore, the filing says the law deprives women of their ability to exercise a fundamental right covered by the Pennsylvania Constitution.

“The coverage ban interferes with the ability of poor women in Pennsylvania to access the abortion care they need,” the providers’ filing stated.

A Commonwealth Court in 2021 decided against the providers. The judges said they were bound by the Fischer ruling and that any debate over toppling that precedent should play out before the Pennsylvania Supreme Court.

The providers forwarded the question to the higher court later that year.

What did the Pennsylvania Supreme Court say?

In short, the court overturned the ruling from the 1980s and paved the way for further review.

The majority also found fault with their predecessors’ assertion that the Medicaid funding ban was not discriminatory toward women under the Equal Rights Amendment.

The earlier justices had ruled that this policy affected women not because of their sex but because of their voluntary choice to have an abortion. Though women alone are affected due to their ability to carry a pregnancy, that’s not the same thing as targeting them specifically for their sex, the court had reasoned in the 1980s.

This week, the court's majority opinion stated that the Equal Rights Amendment allows no room for treating men and women differently based on their physical characteristics.

“The danger of allowing legislation that makes distinctions based on reproductive capabilities is that such laws further engrain the socio-economic disparities that continue to exist as a result of the historic subjugation of women in society,” the opinion said.

Two of the five justices who ruled in the case further stated that abortion is a fundamental right protected by the Pennsylvania Constitution.

More: The Supreme Court has overturned Roe v. Wade. What happens next in Pa.?

“Whether or not to carry a pregnancy, whether or not to give birth, whether or when to expand the size of their families, whether or when to make career, employment or other changes in the course of their lives are all decisions central to self-determination and, ultimately, to equality in society,” these judges wrote.

A third judge wrote that this reasoning was “incredibly insightful” and agreed with colleagues that the Fischer court ruling was flawed. However, he argued that the case at hand didn’t call for a decision on the constitutional right to an abortion.

What happens to the case now?

The case will return to a lower court, which will apply a new standard to the decision-making process based on this week’s ruling, Donley said.

There’s no guaranteed outcome — and anti-abortion advocates with the Pennsylvania Family Institute said in an email blast this week that the courts could still side with them “based on the substantial interest the state has in choosing whether to use taxpayer funds for elective abortions.”

But Donley said the Supreme Court majority adopted a clear position on the Medicaid funding question.

“In other words, it's highly likely that the lower courts will end up ruling that the Medicaid funding ban in Pennsylvania is unconstitutional under the court's new framework,” Donley said.

Susan Frietsche, the Women’s Law Project co-executive director who helped argue the case, said the plaintiffs are still figuring out their next move but that she’s confident the Medicaid funding ban will soon “be consigned to the scrapheap of history.”

What are abortion opponents saying about the ruling?

Abortion opponents took some comfort from the fact the court declined to stake out a position on constitutional protections for the procedure.

Otherwise, they were dismayed.

GOP leaders in the Pennsylvania legislature called the ruling an example of judicial overreach, accusing the court’s majority of conducting activism from the bench.

“This decision, supported by only part of the seven-member court, eviscerates the past, well-established precedent of the Pennsylvania Supreme Court and opens the door for tax dollars to pay for all elective abortions,” House Republican Leader Bryan Cutler (R-Lancaster) said in a statement.

The ruling is out of step with the viewpoints of Pennsylvanians who object to public funding for abortions, said Maria Gallagher, legislative director of the Pennsylvania Pro-Life Federation. Women and babies in the commonwealth need “comprehensive care and support,” Gallagher said, “not a blank check for taxpayer funded abortions.”

Why are abortion rights advocates celebrating this as a major victory?

Donley said there’s an elephant in the room related to this decision: the Pennsylvania Supreme Court has never ruled on whether the commonwealth’s constitution protects abortion access.

The judicial panel didn’t ultimately resolve that question in this case, but two justices expressed the view that abortion is a constitutional right and a third “suggested very strongly” that he agrees, Donley said.

“It strongly signals that our Supreme Court is open to that interpretation and that the lower courts are now for the first time free to reach that interpretation themselves,” she said.

In its ruling, the Supreme Court also toppled the long-established Fischer precedent and cleared the way for dismantling the state’s Medicaid funding ban.

And, Donley said, the ruling could lay the groundwork for advocates to begin chipping away at “significant chunks” of Pennsylvania’s abortion laws, such as requirements for a 24-hour waiting period.

“There are a lot of rules that make abortion much more difficult to access in our state,” she said. “So many of those laws could be challenged moving forward.”

Finally, she said, the majority argued forcefully that the Equal Rights Amendment does apply to laws dealing with reproductive rights, potentially influencing the way lower courts in the future analyze sex discrimination cases more broadly.

This article originally appeared on Beaver County Times: PA abortion rights advocates celebrate 'landmark' legal win