PHILADELPHIA — Pennsylvania’s ban on public funding for abortion is unconstitutional, a divided Commonwealth Court ruled Monday.

In reaching that conclusion, the statewide court that oversees government-related matters recognized “a fundamental right to reproductive autonomy” in the Pennsylvania Constitution.

The finding likely sets up another clash over abortion in the state Supreme Court, where three justices previously signaled their willingness to rule that abortion access is a right.

Recognizing the right is necessary to restrict government “attempts to coerce reproductive choice,” Judge Matthew Wolf wrote, a Democrat, for the majority.

“Those choices are the People’s, not the government’s,” Wolf wrote.

The court further found that the Medicaid funding restriction was a “sex-based distinction,” and rejected the argument from the Pennsylvania attorney general’s office that the distinction was justified because the state has an interest in protecting fetal life, the psychological wellbeing of women, and the conscience of citizens who don’t want their tax dollars paying for abortions.

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

The three-judge dissent, authored by Republican Patricia McCullough, attacked the majority opinion, saying it declared that “corporate” abortion providers have “have a constitutionally mandated ability to bill Pennsylvania taxpayers to pay for abortion on-demand.”

There are still unanswered question of facts in this case, McCullough wrote, and the majority “short circuited” the process by issuing its ruling without hearing more 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 wrote.

Republicans Anne Covey and Stacy Wallace joined the dissent.

Elizabeth Lester-Abdalla, a Women’s Law Project attorney who argued the case in Commonwealth Court on behalf of abortion providers, called the ruling a “landmark victory.”

What makes the ruling so significant is the erosion of federal protections for reproductive rights on the federal level following the 2022 U.S. Supreme Court decision that reversed Roe v. Wade. Advocates nationwide turned to their state constitutions for protections.

“It’s massive,” Lester-Abdalla said. “It’s historic.”

The office of Attorney General Dave Sunday, who defended the Medicaid funding restriction in court, said it was reviewing the decision.

A seven year battle

The ruling is the latest in a lawsuit filed in 2019 on behalf of seven abortion providers who argued the coverage restriction violates the Equal Rights Amendment because it excludes women and there is no comparable exclusion for men’s reproductive health. The limit on Medicaid funding amounts to an abortion restriction for poor women, attorneys for the providers told the court.

The Commonwealth Court dismissed the case in 2021, finding that the abortion providers didn’t have standing the challenge the funding restrictions.

But the Pennsylvania Supreme revived the case in 2024 and instructed the Commonwealth Court to determine whether the restriction was constitutional under the highest level of legal scrutiny.

In a 219-page plurality opinion, Democrats Christine Donohue and David Wecht said Pennsylvania’s Equal Rights Amendment establishes a right to abortion access and called the funding restriction “presumptively unconstitutional.”

“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.”

A third Democrat, Justice Kevin M. Dougherty, called his colleagues’ reasoning “incredibly insightful” in a separate opinion that declined to fully endorse the finding before the Commonwealth Court issued a decision on the argument’s merit.

Democratic Chief Justice Debra Todd and Republican Sallie Mundy in dissents accused their colleagues of shoehorning a larger constitutional question into a narrower case — and said they would have rejected the challenge to the coverage exclusion.

“The lead Justices would in essence override that legislative judgment, and, in doing so they would give no weight at all to the state’s interest in accommodating the conscience of taxpayers with deeply-held beliefs opposed to abortion who do not want to be compelled to fund it,” Mundy wrote of her colleagues’ opinion.

(The court’s two other justices — Republican Kevin Brobson and Dan McCaffery, a Democrat who was sworn in months after the case was argued — did not participate in the 2024 decision.)

Sunday steps in

The administration of former Gov. Tom Wolf defended the coverage ban in court, part of a tradition of executives defending challenges to legislation even if they disagree with the policy.

Gov. Josh Shapiro took a different path and declined to defend the case, telling the court in July 2024 his administration “cannot advance a meritorious defense” against the providers’ arguments after the Supreme Court’s ruling.

“I will always uphold our state’s Constitution and protect a woman’s right to make decisions over her own body and have the health care services she needs,” Shapiro said in a statement at the time, adding his administration was “urging the Court to strike down this ban that denies Pennsylvanians access to health care solely because of their sex.”

Sunday, a Republican, stepped in to defend the ban instead of the administration.

“If the People of Pennsylvania desired a constitutional right to reproductive autonomy, they would have clearly said so in their Constitution,” Sunday said in a court filing as part of the lead up to the recent ruling. “They have not.”

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