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Pennsylvanians still waiting for high court to rule on Medicaid ban for abortion care

Pennsylvania law bans the use of state Medicaid dollars for abortion care except in instances of rape, incest, or to prevent the death of a pregnant person. But a case pending before the Pennsylvania Supreme Court — and argued before the court exactly one year ago today — could change the status quo.

Medicaid is the government insurance program for people who are low-income: In Pennsylvania it’s known as “Medical Assistance.” Abortion providers who brought the case argue that the state’s Medicaid abortion ban — enacted by state lawmakers in 1982 — discriminates against women and therefore violates the state's Equal Rights Amendment, as well as equal-protection provisions in the state constitution.

The Pennsylvania Department of Human Services administers the Medicaid program and argues its prohibition is only on the payment of abortion. The ban does not forbid patients from acquiring this care.

It's unclear, however, when the matter might be resolved. One year after the Supreme Court heard oral arguments in the case, there is no ruling in sight and the opaque inner workings of the court give no clues as to why.

“It’s a terrible system because games may be going on behind the scenes to hold a case like this,” said Duquesne University constitutional law professor Bruce Ledewitz.

There have been other cases in which the Pennsylvania Supreme Court took longer than a year to issue a decision. But Ledewitz says he has no idea why the court has yet to rule in this particular case — though he says it’s possible justices are waiting until after next month’s election to fill the vacant seat on the high court.

“Abortion has become a big issue in the election and they may not want to influence that,” he said.

University of Pittsburgh law professor Greer Donley agrees that election might be the reason an opinion has yet to be released — though it’s possible that justices are still arguing out the issues and have yet to reach a consensus.

Donley recalled that when she clerked for the 2nd Circuit US. Court of Appeals, some decisions were still pending 18 months after oral arguments.

“It was all just infighting [amongst] the judges about small issues,” she said, though other times the wait was because the case was complicated and judges needed time to fully consider the implications of a ruling.

”The Pennsylvania Supreme Court knows this case will be cited for a long time,” she said. “It’s a big deal to get it right.”

What’s at stake?

Medicaid recipients already face financial challenges that would make the cost of obtaining an abortion a serious hurdle: To qualify for Medicaid in Pennsylvania, a single adult’s maximum gross annual income cannot exceed $19,392; for a family of four, the cutoff is $39,900.

Prices for an abortion vary from provider to provider, though at Planned Parenthood of Western Pennsylvania, the cost of a procedure starts at $435 and increases with length of gestation. Additionally, many patients seeking an abortion must pay for costs related to taking off work for the appointment, traveling to a clinic and childcare.

Those who can’t afford costs will have no other option but to give birth to children they don't want or can't afford. Or it may take that patient more time to acquire the funds to pay for an abortion — and the longer someone waits, the more medically complicated and expensive the procedure becomes.

Black and brown Pennsylvanians comprise a higher portion of Medicaid enrollees compared to the general population, so abortion providers argue the ban on Medicaid paying for abortion care disproportionately affects communities of color.

While abortion providers argue this case is about gender discrimination and DHS says it’s about funding, Duquesne University’s Ledewitz says this case is very much a proxy for the question of abortion: “The court will decide in favor of the providers if it feels [there is] the fundamental right to abortion, in my opinion.”

How justices rule in this case might influence what issues come before the court in the future as the eventual outcome might encourage various parties from making certain arguments that would ultimately expand — or diminish — abortion access in Pennsylvania.

This is especially true now that the U.S. Supreme Court struck down the constitutional right to an abortion when it overturned Roe v. Wade.

The seismic ruling didn’t directly impact Pennsylvania law, which allows someone to obtain an abortion up to the 24th week of pregnancy. Still, when the U.S. Supreme Court overturned a nearly half-century of legal precedent, a whole new areaof law was created. And while the state Medicaid case was filed in 2019 — well before Roe was overturned — lawsuits dealing with abortion are likely to become more common at both the federal and state levels.

Sarah Boden