US News Pennsylvania: Supreme Court sets up a showdown over whether abortion is a right protected by the state constitution

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Pennsylvania’s highest court on Monday stopped just short of recognizing abortion access as a right protected by the state’s constitution. But in a fractured decision, three of the five justices weighing that question signaled that they could be open to making such a finding in the future.

The debate arose in a case on a much narrower issue — a challenge to a state law limiting Medicaid funding for abortions except in cases involving rape, incest, or danger to the life of the mother.

A coalition of seven state abortion providers had urged the justices to not only overturn that restriction but recognize for the first time a constitutional right for citizens to make their own reproductive choices — a potentially significant conclusion in the wake of the U.S. Supreme Court’s 2022 decision to overturn Roe v. Wade and put abortion laws in the hands of state governments.

But despite issuing a 219-page majority opinion with language strongly endorsing such a finding, the state high court justices ultimately split on whether they were ready to make the call just yet. They sent both the debate over a constitutional protection for abortion access and the question of whether to strike down the state’s limits on Medicaid funding back to a lower court, setting up another round of heated legal battles over the future of abortion access in Pennsylvania.

Two justices — Democrats Christine Donohue, who authored the court’s opinion, and David Wecht — said they believed that the Pennsylvania constitution’s 1971 Equal Rights Amendment, for which there is no equivalent in the U.S. Constitution, clearly established a right to abortion access.

“The fundamental right of a woman to decide whether to give birth is not subordinate to policy considerations favored by transient legislatures,” Donohue wrote on their behalf. “We conclude that the Pennsylvania Constitution secures the fundamental right to reproductive autonomy.”

 
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