Case: Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services

This is a state constitutional challenge to Pennsylvania’s ban on Medicaid-funded abortion.

In 1981, the Pennsylvania legislature passed a law that prohibited the use of state and federal Medicaid funds for abortions, except in cases of risk to the pregnant woman's life, rape, or incest (the “Coverage Ban”). The Pennsylvania Supreme Court upheld the Coverage Ban in the 1985 case Fisher v. Dep’t of Public Welfare against challenges under the Equal Rights Amendment and equal protection provisions of the Pennsylvania Constitution. 502 A.2d 114 (Pa. 1985). 

Nearly 35 years later, on January 16, 2019, a group of reproductive health care providers challenged the constitutionality of the Coverage Ban in the Commonwealth Court of Pennsylvania. Plaintiffs – the Allegheny Reproductive Health Center, Allentown Women’s Center, Berger & Benjamin LLP, Delaware County Women’s Center, Philadelphia Women’s Center, Planned Parenthood Keystone, Planned Parenthood Southeastern Pennsylvania, and Planned Parenthood of Western Pennsylvania – sued the Pennsylvania Department of Human Services (DHS), its Secretary, and the Executive Deputy Secretary and Deputy Secretary for the DHS’s Office of Medical Assistance Programs.

Plaintiffs brought two claims. First, they alleged that the Coverage Ban constituted sex-based discrimination in violation of Pennsylvania's Equal Rights Amendment. Second, Plaintiffs argued that the ban discriminated singularly against women seeking abortion-related health care, thereby discriminating based on the exercise of a fundamental right under the equal protection principles of Article I, Section 1 and 26, and Article III, Section 32 of the Pennsylvania Constitution. Represented by the Women’s Law Project, Planned Parenthood Federation of America, and private counsel, Plaintiffs sought injunctive relief, as well a declaratory judgment that the Coverage Ban was unconstitutional and that abortion is a fundamental right under the Pennsylvania Constitution.

Litigation in the Commonwealth Court

On April 17, eighteen state senators and eight representatives filed applications for intervention (the “Legislators”), which Judge Robert Simpson denied on June 21. Judge Simpson rejected the Legislators’ argument that standing is unimportant to the intervention analysis. Then, upon considering their standing, he found that the Legislators’ interest in the Coverage Ban was too indirect and insubstantial to qualify. 

The issue of the Legislators’ intervention was not closed for long. The Legislators applied for reargument on July 3 and July 5; several intervenors also appealed to the Pennsylvania Supreme Court on July 19. The Commonwealth Court granted the applications for reconsideration on July 22. The appeal was closed as premature, given the reconsideration, on July 23. 

A three-judge panel of the Commonwealth Court heard reargument and then, on January 28, 2020, granted the applications to intervene. 225 A.3d 902. The panel held that the Legislators had demonstrated injury to their ability “to act as a legislator” – the litigation, if successful, would restrict legislators’ ability to add conditional language to bills, insofar as it related to abortion coverage under Medicaid, and would expand the prohibition against special laws in Art. III, Section 32 of the Pennsylvania Constitution to eliminate Legislators’ power to decide under which services abortion services would be funded. As well, the panel found that the Legislators’ interest was not represented by Defendants. 

Defendants and the Legislators filed preliminary objections in February 2020. Petitioner Berger & Benjamin LLP was removed on May 15, as the clinic had closed in summer 2019. 

The Commonwealth Court heard oral argument en banc on October 14, 2020 and dismissed Plaintiffs’ petition on March 26, 2021. 249 A.3d 598. The court dismissed on two independent grounds. First, that Plaintiffs lacked standing to assert the constitutional rights of third-party Medicaid enrollees because there was no showing that their interests were inextricably bound up with those of their patients, and because no obstacle prevented women from asserting their own rights. Second, that all constitutional claims had already been directly addressed and rejected by the Pennsylvania Supreme Court in Fischer v. Department of Public Welfare, 502 A.2d 114 (Pa. 1985), which the court was bound to follow.

Pennsylvania Supreme Court Ruling

Plaintiffs appealed to the Pennsylvania Supreme Court on April 26, 2021. After briefing, oral argument, and the filing of numerous amicus briefs, the Pennsylvania Supreme Court reversed the Commonwealth Court’s decision on January 29, 2024. 309 A.3d 808. The Court ruled that (1) Plaintiffs had standing and (2) that the Commonwealth Court had erred in allowing Legislators to intervene, (3) overturned Fischer’s interpretation of both the Equal Rights Amendment and (4) the state’s Equal Protection clause. Two Justices also argued (5) that the Pennsylvania Constitution protects the right to abortion. 

Chief Justice Debra Todd and Justices Christine Donohue, David Wecht, Kevin Dougherty, and Sallie Mundy participated in the consideration of the case.

1. Standing: The Court unanimously rejected the challenge to third-party standing, finding that Plaintiffs could bring claims on behalf of their patients and that Plaintiffs’ interests were substantial, direct, and immediate. 
2. Intervention: The Court ruled 4-1 that the Legislators could not intervene. The Legislators’ interest was no different than that of an ordinary Pennsylvania, and the litigation did not impair their ability to vote or exercise unique legislative authority. Additionally, the Court rejected the argument that judicial review of any legislation implicates the appropriation authority of the Legislature, finding that accepting this position would allow any of 253 legislators to intervene in virtually any constitutional challenge to any law. Justice Mundy dissented. 
3. Equal Rights Amendment: In a 3-2 ruling, Justices Donohue, Wecht, and Dougherty held that the ERA applied to state classifications that burdened one sex. As Medicaid covered all of men’s reproductive health care but excluded abortion from women’s coverage, the Coverage Ban qualified as sex discrimination. The Court remanded to resolve the question of the Ban’s constitutionality, noting that the government had the burden of demonstrating a compelling state interest and no less intrusive means. In dissent, Chief Justice Todd and Justice Mundy wrote there was no justification for overturning Fischer. 
4. Equal Protection: In the same 3-2 split, the Court overturned Fischer’s Article I, § 26 holding and adopted a neutrality principle: when a legislative classification touches on the exercise of a civil right and is not neutral with respect to that right, the court must conduct a commensurate means-end review. The Coverage Ban was not neutral with respect to reproductive autonomy and so should be subject to strict scrutiny on remand. 
5. Right to Reproductive Autonomy: Justices Donohue and Wecht would have also found that the Pennsylvania Constitution’s protections for decisional privacy in Article I, §§ 1 and 8 secures a fundamental right to reproductive autonomy, including the right to have an abortion. 

On Remand to the Commonwealth Court 

The case was remanded to the Commonwealth Court and Plaintiffs moved for summary relief on July 19, 2024. Briefing continued throughout 2024, and the court heard oral argument en banc on February 5, 2025. However, the Commonwealth of Pennsylvania, through the Attorney General, moved to intervene on February 27, 2025. The court granted the application for intervention on March 14 – Defendants had stated they would no longer defend the constitutionality of the Coverage Ban, and the Attorney General had a constitutional and statutory obligation to defend statutes’ constitutionality. The court heard additional oral argument on issues raised by the Attorney General in November 2025.  

The Commonwealth Court, in a 4-3 ruling, granted Plaintiffs’ application for summary relief on April 20, 2026; the court held that the Coverage Ban was unconstitutional and, notably, that abortion access was a fundamental right protected by the Pennsylvania Constitution. --- A.3d ----2026, WL 1053998. The court permanently enjoined the state from enforcing the Coverage Ban and its associated regulations.

First, the court held that the statute violated Pennsylvania’s Equal Rights Amendment, Art I. § 28. The Coverage Ban limited healthcare only for women, thus denying women essential healthcare services “solely on the basis of their sex.” None of the three purported compelling state interests – protecting fetal life, conscience rights of taxpayers, and women’s psychological well-being (i.e., “protecting a competent adult from feeling regret for her free choices”) – were compelling within the ERA analysis. As such, the state had failed to rebut the presumption of unconstitutionality. 

Second, the court held that the statute violated Pennsylvania's equal protection guarantees, Art. I, §§ 1, 26. The court adopted the plurality reasoning from the state Supreme Court’s 2024 ruling and found that Article I and its embedded privacy rights guarantee a fundamental right to reproductive autonomy. As the Coverage Ban did not operate neutrally with respect to this right, strict scrutiny applied – and the statute did not pass strict scrutiny review, or even rational basis review. 

As of April 30, 2026, the Coverage Ban is enjoined and the case is ongoing.