Tough questioning at hearing on Pa. ban of Medicaid funding for abortion

Lawyers argued whether the law violates of the state constitution’s Equal Rights Amendment or reflects just one sex-specific issue Medicaid does not cover.

Protesters on both sides of the abortion issue gather outside the Supreme Court in Washington on Jan. 19 during the March for Life. (Susan Walsh/AP)

Protesters on both sides of the abortion issue gather outside the Supreme Court in Washington on Jan. 19 during the March for Life. (Susan Walsh/AP)

The lawyer representing eight Pennsylvania abortion providers faced a tough round of questioning from a slate of Commonwealth Court judges Wednesday.

Women’s Law Project attorney Susan Frietsche argued on behalf of the abortion providers that the law that bans state Medicaid funding from paying for abortions violates the Pennsylvania constitution’s equal rights amendment because it denies coverage for a medical procedure that can be used only by women.

“We’re not saying that women have a right to a funded abortion,” said Frietsche. “We’re saying that if the commonwealth decides to fund health care, it must do so in accordance with gender equality standards. It must do so fairly.”

Attorneys for Pennsylvania’s Republican senators, representatives and the Department of Human Services argued that the discrimination in this instance is based on a woman’s choice to have an abortion, not the fact that she’s a woman. Jason Snyderman, representing the senators, noted that Medical Assistance also does not cover in vitro fertilization or erectile dysfunction — two medical issues that are specific to sex.

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“Just because the impact is only felt by one or the other sex doesn’t mean it’s sex-based discrimination,” said Snyderman.

David Dye, the attorney for the House GOP representatives, added that precedent establishes that the government is allowed to pick and choose which policy determinations it wishes to fund based on what it believes are “valuable and laudable for society.”

At the center of the case is the precedent set when a similar challenge was made in 1985. The court ruled in Fischer v. the Department of Public Welfare that the coverage ban does not violate the state ERA.

Bolstering the argument of the legislators and the Department of Human Services, Judge Patricia McCullough noted from the bench that in Fischer, the state Supreme Court outlined that the state’s explicit priority is to encourage the birth of a child in all circumstances unless another life, i.e. that of the mother, is in danger. In other words, the justices ruled it was OK to prioritize childbirth coverage over abortion.

Frietsche argued that where the Fischer ruling went wrong was in focusing too much on the federal Hyde Amendment, which prohibits the use of federal funds for abortion, and not enough on whether the ban violates the ERA, which only exists in state law.

She said if you can discriminate against women because of their reproductive capacity, that becomes very hard to distinguish from sex discrimination.

“So you’re saying once a government pays for health insurance, you’re saying they must pay for every service?” challenged President Judge Mary Hannah Leavitt.

Frietsche responded that the ban carves out a specific service of an otherwise comprehensive plan.

Of the panel of nine judges, the four who asked questions were women.

Among objections voiced by the other side was whether the abortion providers had  standing to challenge the funding ban. Matthew McLees argued for the Department of Human Services that the abortion providers did not demonstate a direct harm to them, and that any argument for financial hardship was invalid since they could simply choose not to offer abortions.

Frietsche responded by saying that these providers offer 95% of abortions in the state; providing abortions is simply what they do, making their interests inextricably linked to the patients they are representing. She also noted that it is unreasonable to expect “indigent” women seeking abortions to come forward in a case like this — they have a strong privacy interest, and it’s likely their pregnancies will be over by the time legal arguments are ever heard.

In a somewhat surprising move, Dye, the lawyer representing the House GOP representatives, also argued that withholding Medicaid funding for abortions could not be gender-based discrimination since transgender men can also become pregnant and would still be denied Medicaid coverage for abortions.

Ultimately, Frietsche acknowledged that the Commonwealth Court does not have the power to overturn Fischer v. the Department of Public Welfare, but said she hoped it would write an opinion describing why the state Supreme Court was wrong in 1985, prompting a closer look from the Supreme Court.

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