This piece first appeared in our weekly newsletter, The Fallout.
This week, Pennsylvania showed us why, with the abortion rights landscape in chaos, state courts and constitutions play an increasingly important role in stabilizing access to care.
Like many other states, Pennsylvania provides Medicaid coverage of abortion in very limited circumstances. But that could now all change.
In a 219-page decision, the Pennsylvania Supreme Court ruled that abortion providers could move forward with their challenge to the state’s ban on Medicaid coverage for abortion under the Pennsylvania Constitution. The decision overruled decades-old precedent that had previously blocked such a challenge, and it’s a tremendous win for providers.
The court didn’t go so far as to declare the right to abortion fundamental just yet—but it got close. Two justices explicitly stated it does, and a third called the opinion insightful but determined that this particular case was not the appropriate one to decide that question.
The ruling means the legal challenge to the state’s Medicaid ban can move forward—and will almost certainly succeed. Should that happen, one more barrier to abortion access in Pennsylvania will fall. The court strongly suggested in its opinion that abortion is a fundamental right under the Pennsylvania Constitution and its right to privacy.
The opinion states: “Whether or not to give birth is likely the most personal and consequential decision imaginable in the human experience. Any self-determination is dependent on the right to make that decision.”
Like Kansas before it, we’re seeing advocates make use of robust state constitutional privacy protections to fight back against an increasing national assault on reproductive autonomy. It may not be a long-term solution to the crisis overturning Roe v. Wade created, but it’s undoubtedly an important immediate venue for fighting back.
My colleague Imani Gandy and I will have more about what this decision means on the next episode of Boom! Lawyered, which drops tomorrow on your favorite audio streaming platform.