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Lawsuit: Pennsylvania’s Medicaid Abortion Coverage Ban Is Unconstitutional

Jessica Mason Pieklo

The lawsuit filed Wednesday argues the state's ban on Medicaid funding of abortion care is discriminatory and violates the Pennsylvania Constitution.

Attorneys on Wednesday filed a lawsuit challenging a Pennsylvania law banning abortion coverage through Medicaid, claiming the coverage ban violates the Pennsylvania Constitution’s equal rights amendment and equal protection provisions. 

Pennsylvania only allows Medicaid funds to cover abortion care if the pregnancy is caused by rape or incest, or if necessary to avert the patient’s death. Federal law already bans the use of federal dollars to pay for abortion services. 

Fifteen states allow Medicaid to cover abortion care.

“Pennsylvania’s ban on Medicaid coverage of abortion is a decades-long injustice that deprives low-income women of reproductive health care in violation of the state Constitution’s Equal Rights Amendment,” Susan J. Frietsche, senior staff attorney at the Women’s Law Project, said in a statement. “The coverage ban discriminates on the basis of sex because Medicaid comprehensively covers men’s health care but not women’s. It inflicts severe harm on women because of their reproductive capacity, and it does so in service to discredited sex-role stereotypes that continue to limit women’s equal participation in society.”  

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Wednesday’s lawsuit seeks a court order requiring the Pennsylvania Department of Human Services to comply with the state constitution by covering abortion through Medicaid and reversing the 1985 Pennsylvania Supreme Court decision in Fischer v. Department of Public Welfare. That decision ruled Pennsylvania’s abortion funding restrictions do not violate the Pennsylvania Constitution.

“Restrictions on abortion coverage have a shameful and disproportionate impact on low-income women, Black women and women of color, immigrant women, young women, and families who have to travel long distances in order to access the care they need,” Lexi White, policy director for New Voices for Reproductive Justice, said in a statement. “Black women in Pennsylvania constitute 11 percent of women but account for 31 percent of all pregnancy-related deaths, the direct result of harmful barriers to our coverage and care.”

Ninety percent of Pennsylvania counties do not have an abortion care provider, advocates said.

“Though we hear a lot about whether Roe will stand or not, anti-abortion politicians have already been pushing abortion care out of reach with restrictions like Pennsylvania’s Medicaid abortion ban,” said Destiny Lopez, co-director of All* Above All, an organization focused on lifting bans on funding abortion care.

“Every day women call us looking for help because they are being forced to choose between necessities and the abortion she needs,” says Elicia Gonzales of Women’s Medical Fund, an organization that connects patients with the funds they need to pay for abortion, in a statement. “We hear from women who go without diapers for their children, skip meals, and turn the heat off in their homes all because politicians banned Medicaid from covering a safe, legal, common procedure. The entire purpose of Medicaid is to prevent people from having to choose between health care and necessities like food and heat.” 

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