Pennsylvania Supreme Court clears way for Medicaid Expansion
Abortion providers had filed a challenge to law forbidding state funds to be used for reproductive care for poorer women
Pennsylvania’s Supreme Court reinvigorated the Equal Rights Amendment as a means to advance and protect abortion rights in a recent decision.
Healthcare providers brought a case in 2019 that challenged the Abortion Control Act of 1982, which prevents Medicaid from covering abortions unless the pregnancy is a result of rape, incest, or life-threatening.
In a 1985 case, Fischer v. Department of Public Welfare, the court ruled that the Hyde Amendment, which bans federal funding for abortion, had been constitutional. However, states can use their tax revenues to pay for abortions for women who use Medicaid. Seventeen states do that. Pennsylvania is not one of them as a result of that 1982 legislation.
The impact was that poorer women could not get abortions paid for by the state, said David Cohen, a professor at Drexel University School of Law who was also counsel for the plaintiffs in the new case.
The Supreme Court overruled that decision with the recent case, which will now go back to the lower court for consideration.
“All indigent women in the state of Pennsylvania won't have to try and scrape together money that they would otherwise spend on other needs, like child care or food or housing, in order to pay for an abortion,” Cohen said. “So there'll be an immediate effect on the lives of the people who are affected by this.
“And then it will also open up for possibilities of thinking of other aspects of the abortion law that might be a form of sex discrimination and might be challenged under this restriction or this law, or this rule.”
Five years ago, Pennsylvania’s standalone abortion clinics sued the state over the Medicaid coverage ban. The Women’s Law Project, Planned Parenthood Federation of America, and law firm Troutman Pepper and Cohen brought the case on behalf of the clinics, raising two constitutional claims.
First, they argued that the state’s ERA prohibited the coverage ban because Medicaid covered all men’s reproductive health care while not covering all aspects of women’s reproductive health. They argued that it was sex discrimination.
The plaintiffs also contended that the state’s ERA provisions prohibited the state from subsidizing one form of exercising the fundamental right to choose by covering continued pregnancy care leading to childbirth while disfavoring the other form in excluding abortions.
“The burden is on the state to show that it's justified, but they put a very high standard for the state to meet to show that justification,” Cohen said. “So hopefully, somewhere soon down the line–when we finish that part of the challenge–the Medicaid ban will be struck down as unconstitutional.”