Billy Penn in Harrisburg

Lawsuit: Time’s up for PA’s Medicaid abortion ban

The lawsuit could expand low-income access to abortion.

Protesters dressed as handmaids protested a 20-week abortion ban in the Pa. General Assembly in 2017.

Protesters dressed as handmaids protested a 20-week abortion ban in the Pa. General Assembly in 2017.

Courtesy Women's Law Project

A group of abortion providers is suing Pennsylvania to overturn a policy that forbids the use of state Medicaid dollars to pay for the procedure.

The lawsuit, filed Wednesday in Commonwealth Court, could expand low-income Pennsylvanians’ access to abortion.

Pennsylvania’s Abortion Control Act prevents the use of state and federal funds for abortion, except in cases of rape, incest, and life of the parent. A lawsuit brought in the 1980s sought to overturn that provision, but failed in the Pa. Supreme Court.

The new suit is brought on similar terms — namely that the ban violates the state constitution’s Equal Rights Amendment and equal protection provisions, as it discriminates on the basis of sex.

What’s different now, according to attorney Sue Frietsche of the Women’s Law Project, is the interpretation of those statutes.

Bringing abortion laws out of the 1980s

In 1985, when the ruling in the first suit came down, laws were only just beginning to address sexual harassment, she said — it had not been recognized by the federal government or Supreme Court as something illegal until that decade.

“Our concept of gender equality has evolved significantly in the days since this ban was first upheld,” she said. “Now we understand gender equality in a much different way.”

The suit names the state Department of Human Services as the defendant. A spokesperson for Gov. Tom Wolf’s administration declined to comment on pending litigation.

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Public funding for abortions has been limited for decades to varying degrees.

The Hyde Amendment, passed by Congress in 1977, banned the use of federal Medicaid dollars to pay for abortions except in cases of rape, incest, or to prevent the death of the parent. Pennsylvania follows that standard, as do 33 other states and the District of Columbia.

Currently, more than a dozen states use their own Medicaid funds to pay for “medically necessary” abortions, which is allowed under Hyde. Most of those states were compelled into the policy by court order, according to the reproductive health nonprofit Guttmacher Institute.

Time’s up for the Medicaid ban?

Those rulings are part of why advocates and providers in Pennsylvania are bringing the litigation now.

“We’ve started to see courts in other states that have equal rights amendments like ours issue decisions that are the opposite” of the 1985 decision in Pennsylvania, Frietsche said, “that say that denying Medicaid coverage for abortion is a type of sex discrimination. And we would like to follow some of those states.” That includes Alaska, where the state Supreme Court overturned the Medicaid ban as it violated the “constitutional guarantee of equal protection.”

Unlike in 1985, Frietsche said there’s clear evidence today of the harm these types of bans have on low-income people.

A study released in the peer-reviewed medical journal Obstetrics & Gynecology showed that state Medicaid coverage of abortion “was associated with an average 16 percent decreased risk of severe maternal morbidity.” There’s not only physical harm and medical risk to people forced to continue a pregnancy, Frietsche said, but also psychological harm.

The suit, which is also supported by the Planned Parenthood Federation of America, will begin its journey in Commonwealth Court, but will likely end up in the Pa. Supreme Court. The composition of the court has changed radically over the past decade and is now majority Democrat.

Wolf, who was recently sworn-in for a second term as governor, is an outspoken supporter of abortion rights, while the conservative General Assembly has often sought to further limit access to the procedure.

In Alaska, the legislature attempted to circumvent a court ruling that overturned the Medicaid ban by limiting what a “medically necessary” abortion is. A judge struck down that law.

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Abortion