PA Supreme Court Declares Medicaid Funding Ban a Violation of the PA Constitution

The Pennsylvania constitution has an Equal Rights Amendment

While I don’t love the Dobbs decision which overturned Roe v. Wade, I do love the creativity that it has inspired. We had the synagogue in Florida which sued to overturn Gov. Ron DeSantis’ 15-week abortion ban because it is against the Jewish religion to ban abortion. I wrote about it here.

Last year, women in 8 states filed 15 lawsuits against existing or proposed abortion bans alleging the bans violated their freedom to practice their religions. Those religions included Judaism, Buddhism, Unitarian, Episcopalian, and the United Church of Christ. I wrote about it here.

Those are all challenges to the bans themselves. In Pennsylvania, a group of abortion providers filed a lawsuit in 2019 challenging a 1982 Pennsylvania law that prohibits the use of Medicaid to fund abortions. Their argument? That the law violates the Equal Rights Amendment of the Pennsylvania Constitution.

And the Pennsylvania state Supreme Court has agreed with them saying:

“To treat a woman differently based on a characteristic unique to her sex is to treat her differently because of her sex, which triggers enforcement of our Equal Rights Amendment.

Whether or not to carry a pregnancy, whether or not to give birth, whether or when to expand the size of their families, whether or when to make career, employment or other changes in the course of their lives are all decisions central to self-determination and, ultimately, to equality in society.”

But here’s where it gets really interesting. Justice David Wecht wrote a concurrence to the decision, saying in essence that the originalism that the conservative justices based the Dobbs decision on was a lot of horseshit. My word, not his.

Because … deep breath … abortion was legal at the time the country was founded. It didn’t become illegal until the 19th century and was a direct result of racism in order to “prevent the white, native-born birth rate from being overwhelmed.”

Believe it or not, it gets worse. The 19th century laws banning abortion and depriving women of their rights were based on old English common law which was based on the writings of Lord Matthew Hale who thought that giving women “legally enforceable rights over their own bodies was a threat to the freedom of men,” and William Blackstone, who said that “a married woman had no individual rights of her own.”

Does any of that have a familiar ring to it? It should, because those are excellent paraphrases of the beliefs of modern-day conservative, especially MAGA, men.

Finally, someone is willing to say that the emperor has no clothes. That the conservative wing of the Supreme Court is not just trying to force us back to the 1950s, they want to go all the way back to 17th century England. They want to strip women of all rights and make them, once more, the property of first, their fathers and then, their husbands.

This decision will be appealed, hopefully all the way to the Supreme Court. I can’t wait to hear how those justices justify following antiquated English laws, not to mention the racism that inspired the American version of those laws.

Originalism, my ass. They are just looking to justify their oppression of women.

In the meantime, I’m also hoping that this suit will inspire other people and groups to use the same arguments to challenge abortion and abortion-related laws in states that restrict abortions and funding for abortions.

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