Pa. judges say blocking Medicaid for abortion violates state constitution
The case could still be appealed up to the state Supreme Court.
By KATIE MEYER
Spotlight PA
HARRISBURG — Pennsylvania’s ban on state Medicaid dollars paying for low-income people’s abortion care is unconstitutional, a state appellate court ruled Monday.
In a 4-3 decision, Commonwealth Court said the state’s ban on these public dollars paying for abortions violates the Pennsylvania Constitution’s Equal Rights Amendment and equal protection provisions “beyond any genuine dispute of fact.”
The case could still be appealed up to the state Supreme Court.
It was brought by seven reproductive health providers, who had argued, among other things, that patients have a fundamental right to make their own reproductive decisions.
In the court’s majority opinion, Judge Matthew Wolf wrote that, “recognizing this fundamental right … is necessary to restrict state government to its proper sphere, thus protecting our liberty.”
In a dissent, Judge Patricia McCullough accused the majority opinion judges of moving too quickly and ruling “by judicial fiat,” and said they are “creating a new fundamental right that has no definition, no contours, no practical applicability, and no textual support.”
The case has already followed a complicated path up and down Pennsylvania’s appellate courts.
Commonwealth Court previously dismissed the case. But in 2024 the state Supreme Court sent the case back to the lower bench, ordering its judges to reconsider. The high court set a new precedent in that decision, saying that under Pennsylvania’s Equal Rights Amendment, abortion restrictions could be considered sexbased discrimination. The justices also said that any law that creates such a “sexbased distinction is presumptively unconstitutional,” unless the state can prove the distinction is necessary.
That 2024 decision by the high court was considered an important window into the way the justices would likely rule on the merits of the case.
Abortion is legal through 23 weeks of pregnancy in Pennsylvania. However, the commonwealth has a longstanding ban on allowing federal or state funds to be used for abortion care, unless the case involves rape, incest, or the potential death of the mother.
Gov. Josh Shapiro, a Democrat, had not defended the state’s Medicaid coverage exclusion in court.
“I’ve long opposed this unconstitutional ban, and as Governor, I did not defend it — because a woman’s ability to access reproductive care should never be determined by her income,” Shapiro said in a statement on social media Monday. Attorney General Dave Sunday, a Republican, intervened in the case to argue, among other things, that the state has an interest in “protecting fetal life,” that the coverage exclusion is one mechanism through which the legislature can pursue that interest, and that preventing abortion can actually protect women from psychological harm.
A spokesperson for Sunday said in a statement that the office is “reviewing the Court’s opinions.”
The abortion providers meanwhile argued that preventing public dollars from funding abortion amounts to sex-based discrimination.
Among them were the Planned Parenthood chapters for Southeastern, eastern and central, and Western Pennsylvania. In a joint statement Monday, the organizations called Commonwealth Court’s decision “a win for equality.”
“For decades, Pennsylvania has had a two-tier system for reproductive health care: abortion access for those who can pay, and a ban for those who can’t,” they wrote, adding, “While we wait to see the next legal steps this case takes, we will be celebrating.”
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