Allegheny Reproductive Health Center v. Pa. Department of Human Services (Medicaid Case)

Media contact:

Tara Murtha – tmurtha@womenslawproject.org

Click here for a full explanation of the ruling, which you can also download as a fact sheet (PDF).

On January 29, 2024, the Pennsylvania Supreme Court issued a lengthy and complex ruling that represents a huge legal victory for Pennsylvania abortion providers and a step closer to reproductive freedom for Pennsylvanians.

The Court did not overturn the state Medicaid ban; it paved the way to a successful challenge by reversing the decades-old precedent that improperly locked our state court’s doors to challenging the Medicaid ban as sex-based discrimination, recognizing abortion restrictions are sex-based discrimination, and asserting the Medicaid ban is therefore “presumptively unconstitutional.”

The ruling also revitalized our Equal Rights Amendment by asserting it applies to abortion restrictions and aggressively rebutted Dobbs by correctly recognizing abortion restrictions are sex-based discrimination.

We also won on the issues of standing and intervention. The Court reversed the lower court’s erroneous ruling on standing and reaffirmed abortion providers have the right to represent the interests of patients in court. The Court also reversed the lower court’s erroneous ruling on intervention and rejected the request of a self-selected group of anti-abortion state lawmakers who sought to gain the privileges of being direct parties in the case.

WLP attorneys are currently determining next steps, but we are optimistic about eliminating the biggest barrier to abortion care for Pennsylvania families. As WLP Co-Executive Director Susan Frietsche told the press, “the Medicaid ban will soon be consigned to the scrap heap of history.”

The majority opinion did not explicitly affirm reproductive autonomy rights as a fundamental right under the Pennsylvania Constitution, but the ruling contained signals that the Court could find such a right in another case.

Two of the five Justices of the Court that ruled in this case explicitly stated that our state constitution “secures the fundamental right to reproductive autonomy, which includes a right to decide whether to have an abortion or to carry a pregnancy to term.” A third Justice called that opinion “incredibly insightful,” but decided that resolving that question was not required by this case. The two Justices who found a right to abortion spoke eloquently about its connection to privacy: “Whether or not to give birth is likely the most personal and consequential decision imaginable in the human experience. Any self-determinaQon is dependent on the right to make that decision.”

Overview

On January 16, 2019, represented by attorneys from the Women’s Law Project; attorney David S. Cohen; Planned Parenthood Federation of America; and a private law firm, a group of Pennsylvania abortion providers filed a lawsuit challenging the state statute that bans abortion coverage through the Pennsylvania Medicaid program.

The central claim of Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services is that the state’s Medicaid abortion coverage ban violates the Equal Rights Amendment and equal protection provisions of the Pennsylvania Constitution.

Specifically, the abortion providers seek:

a court order requiring the Pennsylvania Department of Human Services to comply with the state Constitution by covering abortion through Medicaid;
a court order explicitly affirming reproductive autonomy rights are protected as fundamental rights under the Pennsylvania Constitution; and
A court order overruling the 1985 Pennsylvania Supreme Court decision in Fischer v. Department of Public Welfare.

Petitioners also request the Supreme Court of Pennsylvania reverse the Commonwealth Court’s improper rulings regarding standing and intervention.

We are currently awaiting a ruling from the Supreme Court of Pennsylvania.

“In the wake of the devastating Dobbs decision, we must remember that Pennsylvania’s Constitution explicitly guarantees equality on the basis of sex and prohibits laws that confer different burdens or benefits on men and women,” says WLP interim co-executive director Susan J. Frietsche. “This case is an opportunity for the Supreme Court of Pennsylvania to put into practice a central promise of our state constitution by ending the discriminatory ban on Medicaid coverage of abortion and affirming the right to safe, legal abortion care.”

Background & Timeline

In 1985, the Pennsylvania Supreme Court ruled that the coverage ban enacted via the Abortion Control Act was constitutional in a case called Fischer v. Department of Public Welfare. Allegheny seeks to overturn Fischer so that Pennsylvania can join the seventeen other states, including neighboring New York and New Jersey, that cover abortion through Medicaid.

1982: Pennsylvania enacted the Abortion Control Act, banning Medicaid from covering abortion care except in very narrow circumstances (“the Medicaid ban” or “the coverage ban”)
1982: Litigation is filed to challenge the Medicaid ban
1985: The Supreme Court of Pennsylvania upholds the Medicaid ban in Fischer v. Department of Public Welfare
January 16, 2019: ARHC v. PA DHS was filed in Commonwealth Court
October 14, 2020: Oral arguments took place in Commonwealth Court
March 26, 2021: Commonwealth Court issued a ruling
October 13, 2021: Provider-appellants filed opening briefs with the Supreme Court of Pennsylvania
October 26, 2022: Oral arguments took place in the Supreme Court of Pennsylvania

We are currently awaiting a ruling from the Supreme Court of Pennsylvania.

Initial Case Documents (January, 2019)

Petition for Review (January 16, 2019)

Affidavit – Terri-Ann Thompson, PhD, Ibis Reproductive Health

Affidavit – Sarah Noble, MD, MPH, Board-certified psychologist based in Pennsylvania

Affidavit – Courtney Schreiber, MD, MPH, Division Chief and Medical
Director at the Perelman School of Medicine, University of Pennsylvania

Affidavit – Colleen Heflin, Professor of Public Administration and International
Affairs and a Senior Research Associate in the Center for Policy Research at the
Maxwell School of Citizenship and Public Affairs at Syracuse University

Affidavit – Elicia Gonzales, former Executive Director, Abortion Liberation Fund (formerly Women’s Medical Fund)

PA GOP House & Senate Intervention Requests (Spring 2019)

Pennsylvania House Republicans Application to Intervene (April 17 2019)

Pennsylvania Senate Republicans Application to Intervene (April 17, 2019)

Answer to Application to Intervene Pennsylvania House (May 8, 2019)

Answer to Application to Intervene Pennsylvania Senate (May 8, 2019)

Opinion (June 21, 2019)

Petitioners’ Brief in Opposition to Preliminary Objections filed May 15, 2020

Omnibus Brief

The state and a small group of legislators have asked the court to dismiss the case because of a 1985 precedent. In this brief, WLP and our cooperating attorneys argue Pennsylvania’s ban on Medicaid coverage of abortion unconstitutionally discriminates against pregnant women enrolled in Medical Assistance who choose to have an abortion. It does so on the basis of their sex and on the basis of their choice to exercise their fundamental right to terminate their pregnancy. Petitioners outline why the lone precedential ruling upholding the ban was wrongly decided and should be overruled. Petitioners also assert that striking down a state law as unconstitutional would not, as House Intervenor-Respondents also contend, relieve the General Assembly and all other state actors from complying with federal law because the Supremacy Clause of the United States Constitution compels such compliance.

Amici Curiae supporting Petitioners filed May 15, 2020

Reproductive Justice Brief:

Amici curiae are advocates for reproductive justice including New Voices for Reproductive Justice and 24 additional Pennsylvania-based and national organizations advocating for Black women and girls. Amici submit this brief in support of petitioners to amplify the importance of reproductive justice, the human right to control our bodies, sexuality, gender, work, reproduction, and ability to form our families. In this brief, amici argue that the state-enforced Medicaid ban on covering abortion care has consequences for all Medicaid beneficiaries in Pennsylvania, but those consequences fall more heavily on Black women and girls.

National Health Law Program brief:

Amicus curiae the National Health Law Program (NHeLP) is a 50-year-old public interest organization that works to advance access to quality health care, including the full range of reproductive health care services, and protect the legal rights of low-income and underserved individuals. NHeLP submits this brief to provide the Court with relevant background information regarding the Medicaid program and to correct several misstatements the Intervenors made in prior briefing in this case. For example, Intervenors suggest that if Pennsylvania is forced to cover abortion services, it could choose to terminate coverage of family planning services and supplies to save money. That is not the case. If Pennsylvania were to terminate or substantially reduce coverage of family planning services, it would violate the Medicaid Act, putting all of its Medicaid funding at risk.

Members of the Democratic Caucuses of the Pennsylvania House and Senate Brief:

Amici Curiae are 47 Democratic members of the Pennsylvania General Assembly. Amici believe Pennsylvania’s Coverage Ban unconstitutionally restricts low-income women covered under the Pennsylvania Medical Assistance program from obtaining an abortion in violation of the Pennsylvania Equal Rights Amendment, Article I, Section 28 (“ERA”) and the guarantees of equal protection under Article 1, Sections 1 and 26 of the Pennsylvania Constitution. Amici have an interest in this case because the questions before this Court involve issues of separation of powers between the three branches of State government and the constitutional interpretation of a state statute restricting low-income women from obtaining health care services.

Pennsylvania Religious Coalition for Reproductive Justice brief:

Amici Curiae is the Pennsylvania Religious Coalition for Reproductive Justice (PRCRJ) is the Pennsylvania affiliate of the Religious Coalition for Reproductive Choice (RCRC). PARCRJ’s mission is to educate, serve, witness and advocate for reproductive justice as a spiritual and moral issue. Amici argue that any genuine efforts to protect the health and well-being of pregnant women must allow for those seeking abortions to have access to safe and affordable abortion care.

Commonwealth Court of Pennsylvania Ruling (March 26, 2021)

Commonwealth Court of Pennsylvania Opinion:

The Commonwealth Court of Pennsylvania ruling cleared the way to the Supreme Court of Pennsylvania, the only court with the power to lift the Medicaid ban. The court also determined that abortion providers cannot challenge abortion restrictions on behalf of their patients. This ruling on the legal doctrine of “standing” defied well-established precedent going back decades. Judge Ellen Ceisler dissented from the portion of the ruling regarding standing.

Appellants File Opening Brief with PA Supreme Court (October 13, 2021)

Plaintiff-appellants brief filed to the Supreme Court of Pennsylvania:

The central claim in the case is that the state’s Medicaid abortion coverage ban violates the Equal Rights Amendment and equal protection provisions of the Pennsylvania Constitution. In 1985, the Pennsylvania Supreme Court ruled that the coverage ban was constitutional in a case called Fischer v. Department of Public Welfare. Petitioners seek a court order overruling the 1985 Fischer decision, recognizing reproductive autonomy rights as a fundamental right, and restoring Medicaid coverage of abortion.

Amicus Curiae File Briefs with PA Supreme Court (October 13, 2021)

New Voices for Reproductive Justice et. al. brief:

Amici curiae are 23 organizations working in Pennsylvania and the U.S. to ensure Reproductive Justice and the health and well-being of Black women and girls. Lead amicus New Voices for Reproductive Justice (“New Voices”) is a Pennsylvania non-profit organization that works through leadership development, community organizing, policy advocacy, and culture change to amplify the voices of Black women and girls, who demand and deserve access to quality and culturally responsive health care. In this brief, amici argue that the Coverage Ban violates the Pennsylvania Constitution and particularly harms Black women and girls.

National Health Law Program brief:

National Women’s Law Center brief:

Amicus curiae is the National Women’s Law Center, a nonprofit legal advocacy organization founded in 1972 dedicated to the advancement and protection of the legal rights and opportunities of women, girls, and all who face sex discrimination. Amicus argue that the Commonwealth Court was wrong as a matter of law that abortion providers lack standing to assert the rights of their patients. Amicus urges this Court address the obstacles that prevent many abortion patients from advancing their rights in court—obstacles that are heightened for those in need of Medical Assistance. These obstacles include forgoing their right to privacy—risking stigmatization, harassment, and the threat of violence—to litigate their case.

Members of the Democratic Caucuses of the Pennsylvania Senate and House of Representatives brief:

Amici curiae are Democratic members of the Pennsylvania General Assembly. Amici believe Pennsylvania’s Coverage Ban unconstitutionally restricts low-income women covered under the Pennsylvania Medical Assistance program from obtaining an abortion in violation of the Pennsylvania Equal Rights Amendment, Article I, Section 28 (“ERA”) and the guarantees of equal protection under Article 1, Sections 1 and 26 of the Pennsylvania Constitution. Amici Curiae submit the brief in support of the Appellants so that the Court may hear perspectives from legislators not represented by Republican Legislative Intervenors, who do not have standing to intervene in this matter, and to expand upon the greater protections afforded to our citizens by the Pennsylvania Constitution.

ACLU and professors Seth Kramer and Robert Williams brief:

Amici curiae urge this Court to correct the errors of Fischer v. Department of Public Welfare, which is inconsistent with the robust rights to privacy and autonomy in modern Pennsylvania constitutional law. This Court has both the duty and authority to interpret the Pennsylvania Constitution independently of Federal law, and it must interpret the Pennsylvania Constitution to preserve the greatest freedom and autonomy for the people of Pennsylvania.

Medical Organizations and Healthcare Providers brief:

Amici curiae are medical organizations and healthcare providers. Amici argue that the Commonwealth Court erred in holding that the Reproductive Health Centers lack standing to advance the constitutional rights of their patients under the Pennsylvania ERA and equal protection provisions. The Court misapplied the test for standing, ignored its own precedent, and wrongly distinguished persuasive federal law. The Court’s opinion is also based on a fundamental misunderstanding about the role of abortion providers in supporting their patients. The Court’s incorrect opinion has far-reaching implications for Pennsylvania’s healthcare professionals, impacting their ability to advocate for their patients and promote their patients’ interests.

National Council of Jewish Women, Catholics for Choice, and other Faith-based Organizations brief:

Amici curiae are national and Pennsylvania-based organizations from a broad range of religious traditions and faiths. As faith-based organizations concerned with protecting the rights of women to worship or not as they choose, and to make their own decisions on matters of personal importance, amici have supported and will continue to support the principle that decisions before the point of viability about whether to take a pregnancy to term should belong to the women – all of them, poor or not — who will live with the consequences of their choices. These reproductive decisions are uniquely personal and informed by conscience.

ERA Project brief:

Pennsylvania ratified the Equal Rights Amendment (“ERA”) in 1971 to incorporate modern principles of sex equality into the fabric of the state’s fundamental law. In so doing, Pennsylvania expressly disavowed legal measures that discriminate on their face on the basis of sex, that embrace outdated, stereotypic notions of women’s proper role as wife and mother, and that undermine the very possibility of sex equality in the workplace and other aspects of public life. The Pennsylvania Abortion Control Act (“Coverage Ban”) violates the state ERA in several ways: by funding different, and worse, health care services for women based on sex, and by embracing and perpetuating outmoded gendered stereotypes identity, role in society, and autonomy to make fundamental decisions about one’s reproductive life. Even worse, the Coverage Ban functionally relegates low-income women and pregnant people generally to second-class status. For these reasons, the Coverage Ban should be declared invalid.