By: Hannah Henrichon

We need to elect leaders, including PA Supreme Court Justices, who acknowledge a fundamental right to abortion for the sake of a Pennsylvania that works for all of us. In a 3-2 decision on Monday, January 29, 2024, the PA Supreme Court revived a case that could expand Medicaid coverage to abortion and pave the way for finding a constitutional right to abortion in PA.

The Court overturned a 1985 decision that said PA’s Equal Rights Amendment did not apply to the Abortion Control Act.  The majority opinion, written by Justice Christine Donohue, said a lower court must hear arguments in a case challenging the constitutionality of section 3215(c and j) of the Abortion Control Act (1982). The lower court must determine if the law unconstitutionally discriminates on the basis of sex in violation of the PA Equal Rights Amendment and/or the Equal Protection Clause. Section 3215 of the Abortion Control Act prohibits abortion coverage for Pennsylvanians on Medicaid except in cases of rape, incest, or to avert the death of the pregnant person. The lower court originally dismissed the lawsuit in 2022 because they were bound to the, now overturned, 1985 precedent.

How does this open the door for a constitutional right to abortion in PA? In a plurality opinion, Justices Donohue and Wecht agreed that the “Pennsylvania Constitution secures the fundamental right to reproductive autonomy”. Justice Dougherty, the other member of the majority, declined to decide the Medicare and fundamental right questions until the case moves through the proceedings at the lower level. However, he implied he may join the plurality when the issue comes before the PA Supreme Court, “there is little doubt the issue eventually will move its way back to this Court, and the [plurality’s] incredibly insightful position may ultimately prevail in the end.”. 

Justices Kevin Brobson (Republican) and Daniel McCaffery (Democrat) were not sworn in before the case was argued in October 2022, but Justice McCaffery campaigned on being a defender of abortion rights, so we can safely assume he will join this majority. This case underscores the importance of showing up in judicial elections by supporting leaders, like Justice McCaffery, who share our values.