Pennsylvania court ends ban on public funds for abortion, enshrines reproductive autonomy right

HARRISBURG, Pa. (CN) — Pennsylvania’s decades-long ban on public funding for abortion is unconstitutional, a state appellate court ruled Monday, setting up a potential battle in the state’s Supreme Court.

Under the Pennsylvania Abortion Control Act of 1982, public funds could no longer fund abortions in the state, with limited exceptions. In 2019, a group of medical care providers filed suit, arguing the coverage exclusion effectively served as an abortion restriction on women in poverty.

In 2024, the Pennsylvania Supreme Court instructed the state’s Commonwealth Court to determine whether that restriction stood up against the highest level of legal scrutiny.

On Monday, the court made its determination: A 4-3 majority ruled the state constitution enshrines “a fundamental right to reproductive autonomy” and that a ban on public funds for abortions is unconstitutional.

“Recognizing this fundamental right … is necessary to restrict state government to its proper sphere, thus protecting our liberty,” wrote Judge Matthew Wolf, a Democrat, for the majority. ”This will mean that the state will face judicial scrutiny of its attempts to coerce reproductive choice. Those choices are the people’s, not the government’s.”

David Cohen, a consulting attorney for the Women’s Law Project who aided abortion providers in the case, championed the ruling for the Keystone State.

“It’s a landmark victory for abortion rights and justice and a big win for the people of Pennsylvania,” he told Courthouse News.

The court’s ruling centered on Pennsylvania’s Equal Rights Amendment, finding the funding restriction constituted a “sex-based distinction” that failed to hold up to legal scrutiny.

The Pennsylvania Attorney General’s Office — led by Dave Sunday, a Republican — had presented to the court three state interests in an attempt to justify that distinction. However, all three interests failed to persuade the court’s majority.

First, Sunday argued such a distinction was justified due to an interest in preserving already-existing fetuses. However, Wolf reframed Sunday’s claimed interest as merely “an interest that is advanced at the cost of forcing women to bear children against their will,” noting that Sunday’s narrow proposed interest excluded efforts to prevent unplanned pregnancy or, more generally, promote human reproduction.

“The attorney general simply has not explained why that interest is compelling for the state,” Wolf wrote. “He has not shown or argued why, as a matter of law, the state must ensure that every pregnancy is carried to term. The attorney general has not met this burden on remand, and respondents have stated they cannot meet it.”

Second, Sunday argued in favor of the distinction due to women’s psychological well-being, asserting that restricting state funds for abortions helps prevent women from regretting having an abortion. Again, Wolf dismissed Sunday’s claim.

“The attorney general has not identified any other context in which we have found a compelling state interest in protecting a competent adult from feeling regret for her free choices,” Wolf noted. “We are not persuaded there is any compelling ‘paternalistic interest in regulating an adult’s mind,’ such as that of a woman who chooses with informed consent to procure an abortion as medical care.”

Finally, Sunday asserted that citizens’ conscience interests in state funding for abortion justified the distinction. Yet again, though, the attorney general failed to persuade the court’s majority.

“This argument, like with the other interests the attorney general asserts, relies principally on deference to extant legislative determinations and fails to explain why this or the other interests rise to a compelling level in this context,” Wolf wrote.

“We conclude that, though these three interests may be permissible state interests in the abstract, at least to some degree, the attorney general has not shown that they are compelling,” he added.

Judges Michael Wojcik and Lori Dumas — both Democrats — joined the majority opinion, as did President Judge Renee Cohn Jubelirer, a Republican.

Authoring the three-judge dissent, Judge Patricia McCullough — a Republican — bashed the majority opinion as granting abortion providers “a constitutionally mandated ability to bill Pennsylvania taxpayers to pay for abortion on-demand,” suggesting the court made its ruling without hearing sufficient evidence.

“I simply cannot recall another case in which this court has decided issues of such profound public importance in this kind of summary, we-believe-you-if-you-say-so fashion,” McCullough said.

Judges Anne Covey and Stacy Wallace, both Republicans, joined McCullough’s dissent.

In a statement to Courthouse News, representatives for the Pennsylvania Attorney General’s Office said, “We are reviewing the court’s opinions.”

Pennsylvania Governor Josh Shapiro — who has chosen not to defend the state’s ban on using public funds for abortion throughout its litigation — applauded the ruling in a statement Monday.

“I’ve long opposed this unconstitutional ban,” he said, “and as governor, I did not defend it — because a woman’s ability to access reproductive care should never be determined by her income.”

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