Providers to argue Pa. ban on using Medicaid funds for abortions is illegal

Eight providers are suing the state’s Department of Human Services over the prohibition. Oral arguments are set for Wednesday in Commonwealth Court.

Pennsylvania's Commonwealth Court

The Commonwealth Court hears cases in the Pennsylvania Judicial Center in Harrisburg. (AP Photo/Carolyn Kaster)

Eight abortion providers across Pennsylvania are suing the state’s Department of Human Services for prohibiting the use of Medicaid funds for abortions. Represented by the Women’s Law Project, their case will be argued virtually on Wednesday in  Commonwealth Court of Pennsylvania.

Confirmation of President Donald Trump’s anti-abortion Supreme Court nominee, Amy Coney Barrett, by the U.S. Senate would shift the court firmly to the right, opening the door to overturning Roe v. Wade. If the constitutional right to abortion were overturned, states would be left to decide if and under what circumstances abortions would be allowed. In preparation for that eventuality, abortion providers in Pennsylvania are working to shore up protections on a state level.

The federal Hyde Amendment, enacted in 1976, bans federal dollars from funding abortion care except in very narrow circumstances. States, though, retain the right to cover abortion care. Currently, 16 states, including New Jersey and New York, cover abortion through their Medicaid programs.

As it stands, Pennsylvania law prohibits the use of state funds to perform an abortion except in the case of rape or incest or to protect the life of the mother.

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The eight abortion providers sued the state Department of Human Services in January. Combined, the clinics provide 95% of all abortions across the commonwealth. They argue that the coverage ban violates the Pennsylvania Equal Rights Amendment on several grounds. One is on the basis of sex: They argue that abortion is a medical procedure only sought out by women, and since men are able to use Medical Assistance funds to cover all their health care needs, the law discriminates specifically against women. The other argument rests on equal access to all pregnancy care: Some services, such as prenatal care, labor and delivery costs, are covered by Medicaid. The providers argue there is no reason that someone seeking an abortion shouldn’t be able to access certain pregnancy services with state dollars, but not others.

In 1985, the Pennsylvania Supreme Court ruled in a similar lawsuit that the coverage ban does not violate the state constitution. The abortion providers argue that in the years since then, enough research has been published to show the deleterious public health impact of denying public funds to low-income women seeking abortions.

Nationally in 2014, nearly half of all abortion patients had a family income below the federal poverty level — a rate almost double that of 2000. Research has shown that low-income women often need to delay abortion care to raise money for for the procedure, which increases the health risks.

The Department of Human Services is expected to argue that the 1985 ruling established a precedent that Commonwealth Court does not have the authority to overturn. It also argues that because the abortion providers did not include patients as plaintiffs, they don’t demonstrate an actual harm caused by the coverage ban, and therefore have no standing to challenge the law.

In April, a group of GOP House and Senate members sought to join DHS as respondents in the case on the grounds that, as lawmakers who control the budget, they would be affected by any change to the coverage ban. Their application to intervene was at first denied by Judge Robert Simpson on the grounds that they did not have standing, but were then granted status.

The Republican lawmakers and the Department of Human Services will have a combined 20 minutes to make their case, as will the Women’s Law Center.

Procedurally, the Commonwealth Court cannot override the 1985 decision, but if its opinion analyzes why the precedent is incorrect, the case would move up through the courts.

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