Pennsylvania’s battle over abortion rights is headed to the state Supreme Court, courtesy of a lawsuit the Democratic governor has filed against the GOP-controlled General Assembly.
Earlier this month, the legislature began moving a major constitutional amendment that, if approved by voters, would make it impossible for abortion advocates to challenge bans or restrictions to the procedure in state court.
Gov. Tom Wolf’s administration has now filed a lawsuit with the state’s highest court, arguing that the amendment violates the personal right to privacy guaranteed in the state constitution, and also that the legislature passed it improperly.
Wolf called the legislature’s actions on abortion “extraordinary” and said they demonstrate “a radical agenda.”
“Frustrated that their legislation may face my veto pen again, they instead loaded multiple unrelated constitutional amendments into a joint resolution and rammed the bill through during the budget process,” Wolf said in a written statement.
In return, House GOP spokesman Jason Gottesman called the lawsuit “another pathetic attempt by a power-hungry administration to subvert the power of the people’s voice,” and said Wolf’s argument is “meritless.”
The legislature’s amendment is significant because abortion rights are currently tenuous in Pennsylvania.
The procedure is legal up to about 24 weeks of gestation, with later-term abortions permitted in case of a medical emergency. The legislature supports restricting that window further, and has passed bills to that effect in the past — bills that Wolf has always vetoed, and that Roe v. Wade would have rendered unenforceable.
With Roe overturned and the legislature’s position on abortion unlikely to change in the near future, the governor is now the primary bulwark against new restrictions. But Wolf’s term ends this year.
The Democrat vying to replace him, Attorney General Josh Shapiro, has vowed to continue vetoing all abortion restrictions. The Republican, state Sen. Doug Mastriano, supports a total abortion ban without exceptions for rape, incest, or a medical emergency.
What is Wolf’s argument?
The Wolf administration has a few primary arguments against the amendment.
The first has to do with process. Lawmakers passed the amendment in a highly unusual way, rolling the abortion language into a single bill with four other unrelated amendments. Lawmakers passed them all as a unit, and Wolf argues that this violates voters’ constitutional right to be informed about whether their representatives supported them.
Calling the technique an “attempt at political cover,” the administration argues that “each and every amendment [should] be out to a separate yea and nay vote so that the electorate can hold members of the General Assembly accountable.”
The administration also says the abortion amendment itself is too broad, because it seeks to modify both the right to taxpayer funding of an abortion, and the right to an abortion generally.
Finally, the Wolf administration says the amendment infringes on the Pennsylvanians’ inherent rights laid out in the constitution, which previous courts have held to include the right to privacy.
These particular constitutional rights, the administration argues, are not subject to amendment and must be construed to include the “right to control one’s body and reproductive life and the right to decide whether to parent.”
Generally, a lawsuit like this one would begin in Commonwealth Court.
But the Wolf administration is asking the state Supreme Court to exercise its “King’s Bench Power,” a unique, seldom-used authority that dates to the pre-Revolutionary founding of Pennsylvania and allows the court to take up any case it wants from any state court.
This is justified, the administration argues, because expediency is necessary. The state is required to begin advertising the amendment on Aug. 2, and Wolf hopes to forestall that. The administration also argues that the abortion amendment is “a matter of immediate public concern” because it believes the legislature is trying to “sidestep” the governor’s authority.
What would the amendment do?
The amendment wouldn’t restrict abortion outright.
It would add language to the constitution saying that the document does not “grant the right to taxpayer-funded abortion or any other right relating to abortion.”
Right now, the constitution has several provisions that abortion rights advocates point to as possible vehicles for challenging restrictive abortion bans, like one that guarantees equality of rights on the basis of sex. If a hypothetical abortion restriction were to be challenged based on one of those provisions, and a court agreed with that argument, it could yield a state-level precedent that would protect abortion, like Roe v. Wade did on the federal level.
But the proposed amendment would take away that option. The practical effect would be that if, in the future, a Republican legislature and governor were to pass a law restricting abortion in some way, abortion-rights advocates wouldn’t be able to challenge the law in state courts.
The ACLU has also pointed to potential knock-on effects.
In a memo the group sent to the state Senate, it wrote that not only could abortion be banned completely, but the amendment “could also allow restrictions to in vitro fertilization (IVF), contraception, and birthing care,” like treating ectopic pregnancies or miscarriages.
The amendment, the group concluded, represents “an extreme position that would have devastating consequences for all pregnant people.”
Where does this amendment stand right now?
Constitutional amendments take a circuitous route to final approval in Pennsylvania.
The legislature must pass them twice, in consecutive legislative sessions, using identical language both times. The amendments must be advertised in newspapers across the commonwealth throughout that process. Once the language passes for a second time, it must be approved by voters in a statewide referendum. The governor has no power over any of this.
The abortion amendment cleared the first step of the process, initial legislative approval, earlier this month.
It happened in the midst of tense budget negotiations. Lawmakers held a late-night committee meeting in which, as Wolf says in his lawsuit, they rolled language from the proposed abortion amendment into a single piece of legislation with four other, unrelated amendments. Despite outcry from Democrats and abortion rights groups, this logrolled amendment passed both chambers just before House and Senate members left Harrisburg for their summer recess.
Wolf wasn’t the only one troubled by the move. Liz Randol, legislative director for Pennsylvania’s chapter of the American Civil Liberties Union, noted at the time that bundling several issues together could shield lawmakers from some accountability on a divisive issue.
“It kind of obscures,” she said. “It gives a lot of political cover to legislators. So it could be valuable for those who might want to vote in favor of it, even if they might be uncomfortable with one or two of [the amendments].”
In order to keep the amendment moving, the House and Senate must pass their entire five-piece package again in the next legislative session, which begins in January 2023.
The soonest the amendments could be on the ballot is the May 2023 primary — an off-year election that generally sees low turnout.
Statewide referenda on amendments rarely fail in Pennsylvania. Groups that both support and oppose abortion restrictions say they plan to spend heavily on advocacy once the referendum gets closer.