Eight abortion providers across Pennsylvania are suing the state Department of Human Services for banning the use of Medicaid funds for abortions. Represented by the Women’s Law Project, their case will be argued virtually Wednesday in the Commonwealth Court of Pennsylvania.
Confirmation of President Donald Trump anti-abortion Supreme Court candidate Amy Coney Barrett for the US Senate would move the court firmly to the right, opening the door for Roe v. Wade. If the constitutional right to abortion were struck down, states would be left to decide whether and under what circumstances abortions would be permitted. In anticipation of this eventuality, abortion providers in Pennsylvania are working to strengthen protections at the state level.
The Federal Hyde Amendment, enacted in 1976, prohibited federal dollars from funding abortion care except in very limited circumstances. States, however, retain the right to cover abortion care. Currently, 16 states, including New Jersey and New York, cover abortion through their Medicaid programs.
As it stands, Pennsylvania law prohibits the use of public funds to perform an abortion except in cases of rape or incest or to protect the life of the mother.
The eight abortion providers sued the state Department of Social Services in January. Together, the clinics provide 95% of all abortions in the Commonwealth. They argue that the blanket ban violates the Pennsylvania Equal Rights Amendment for several reasons. One is based on gender: they argue that abortion is a medical procedure sought only by women, and since men can use medical assistance funds to cover all of their health care needs, the law specifically discriminates against women. The other argument is based on equal access to all pregnancy care: some services, such as antenatal care, labor and delivery costs, are covered by Medicaid. Providers argue that there is no reason why a person seeking an abortion cannot access some pregnancy services with government money, but not others.
In 1985, the Supreme Court of Pennsylvania ruled in a similar lawsuit that the blanket ban does not violate the constitution of the state. Abortion providers contend that in the years since, enough research has been published to show the deleterious impact on public health of denying public funds to low-income women seeking abortions.
At the national level in 2014, almost half of all abortion patients had family incomes below the federal poverty line – a rate almost double that of 2000. Research has shown that low-income women often need to delay abortion take care to fundraise for the procedure, which increases health risks.
The Department of Social Services should argue that the 1985 decision set a precedent that the Commonwealth Court does not have the power to overturn. He also argues that because abortion providers did not include female patients as complainants, they fail to demonstrate actual harm caused by the coverage ban and therefore lack standing to challenge the law.
In April, a group of GOP House and Senate members sought to join DHS as a defendant in the case on the grounds that as lawmakers controlling the budget they would be affected by any changes to the ban. cover. Their request to intervene was initially dismissed by Judge Robert Simpson on the grounds that they did not have standing, but was subsequently granted status.
Republican lawmakers and the Department of Human Services will have a combined 20 minutes to argue their case, as will the Women’s Law Center.
Procedurally, the Commonwealth Court cannot overrule the 1985 decision, but if its opinion analyzes why the precedent is incorrect, the case would go to court.