Allegheny Reprod. Health Ctr. v. Pa. Dep't of Human Servs.

Full title: ALLEGHENY REPRODUCTIVE HEALTH CENTER, ALLENTOWN WOMEN'S CENTER, DELAWARE…

Court: Supreme Court of Pennsylvania

Date published: Jan 29, 2024

26 MAP 2021 (Pa. Jan. 29, 2024)

Opinion

26 MAP 2021 J-65-2022

01-29-2024

ALLEGHENY REPRODUCTIVE HEALTH CENTER, ALLENTOWN WOMEN'S CENTER, DELAWARE COUNTY WOMEN'S CENTER, PHILADELPHIA WOMEN'S CENTER, PLANNED PARENTHOOD KEYSTONE, PLANNED PARENTHOOD SOUTHEASTERN PENNSYLVANIA, AND PLANNED PARENTHOOD OF WESTERN PENNSYLVANIA, Appellants v. PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES, VALERIE A. ARKOOSH, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES, ANDREW BARNES, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DEPUTY SECRETARY FOR THE PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES' OFFICE OF MEDICAL ASSISTANCE PROGRAMS, AND SALLY KOZAK, IN HER OFFICIAL CAPACITY AS DEPUTY SECRETARY FOR THE PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES' OFFICE OF MEDICAL ASSISTANCE PROGRAMS, Appellees

DONOHUE JUSTICE

ARGUED: October 26, 2022

Appeal from the Orders of the Commonwealth Court at No. 26 MD 2019 dated January 28, 2020, and March 26, 2021

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

DONOHUE JUSTICE

I. Introduction

This appeal arises out of an order of the Commonwealth Court sustaining preliminary objections and dismissing a petition for review seeking declaratory and injunctive relief from Sections 3215(c) & (j) of the Pennsylvania Abortion Control Act.¹Multiple abortion providers² sued the Department of Human Services and several individuals in their official capacities (collectively, "DHS") claiming that Sections 3215(c) & (j) violate the Equal Rights Amendment and equal protection provisions of the Pennsylvania Constitution. Pa. Const. art. I, § 28 (Equal Rights Amendment); Pa. Const. art. I, §§ 1, 26 & art. III, § 32 (equal protection provisions). Sections 3215(c) & (j) prohibit the expenditure of Commonwealth and Federal funds appropriated by the Commonwealth for the performance of an abortion except to avert the death of the mother or where the pregnancy was caused by rape or incest. 18 Pa.C.S. § 3215(c), (j) ("Coverage Exclusion").³ Providers brought suit on their own behalf and on behalf of patients who seek abortions and are enrolled in or eligible for aid under Pennsylvania's Medical Assistance program, but whose abortions are not covered because of the Coverage Exclusion. Various public officials moved to intervene, and the Commonwealth Court granted their motions in a separate order. DHS and Intervenors filed preliminary objections in the nature of a demurrer, asserting that the case is controlled by Fischer v. Department of Public Welfare, 502 A.2d 114 (Pa. 1985), wherein this Court upheld the Coverage Exclusion against constitutional challenges. DHS submitted a separate preliminary objection asserting that Providers lacked standing. The Commonwealth Court sustained both preliminary objections.

1 18 Pa.C.S. §§ 3201-3220.

2 The various abortion providers include: the Allegheny Reproductive Health Center, Allentown Women's Center, Delaware County Women's Center, Philadelphia Women's Center, Planned Parenthood Keystone, Planned Parenthood Southeastern Pennsylvania, and Planned Parenthood of Western Pennsylvania (collectively, "Providers"). The individuals sued in their official capacities included: Valeria A. Arkoosh, Acting Secretary of DHS; Andrew Barnes, Executive Deputy Secretary for DHS's Office of Medical Assistance Programs; and Sally Kozak, Deputy Secretary for the DHS Office of Medical Assistance Programs.

3 This Court's precedent, which Chief Justice Todd would continue to endorse, misstated the breadth of the Coverage Exclusion as extending only to non-therapeutic abortions. See, e.g., Concurring & Dissenting Op. at 5, 9 (Todd, C.J.) (citing Fischer v. Dep't of Pub. Welfare, 502 A.2d 114, 118 (Pa. 1985)). In fact, it excludes coverage regardless of whether the abortion is therapeutic, except in three limited circumstances. As the Concurring Opinion observes, there are instances in which therapeutic abortions are denied coverage. See, e.g., Concurring Op. at 17-18 (Wecht, J.) (observing that the Coverage Exclusion applies to abortions sought because the fetus is not viable or suffers from a fatal impairment and that the Coverage Exclusion "contains no exception for abortions that are medically necessary for the woman's health").

For the reasons that follow, the order of the Commonwealth Court granting Intervenors' application for leave to intervene is reversed. The purported intervenors are accepted as amici aligned with DHS. Further, the order of the Commonwealth Court sustaining preliminary objections and dismissing the petition for review is reversed, as we conclude that Providers have standing to pursue the petition for review and that their petition for review is legally sufficient to survive demurrer.

Relevant to this appeal, Pennsylvania's Medical Assistance program⁴ is a public insurance system providing eligible Pennsylvanians with medical insurance through either a fee-for-service or managed care health plan. See 55 Pa. Code § 1101.31 (providing the scope of benefits available to recipients). Medical Assistance provides comprehensive medical care including inpatient hospital services, outpatient hospital services, physicians' services, clinic services at independent medical clinics and ambulatory surgical centers, and family planning services. 55 Pa. Code §§ 1101.31 (b)(1), (3), (8), (11), (16). It includes all pregnancy-related care, including prenatal care, obstetric, childbirth, neonatal and post-partum care. Petition for Review, 1/16/2019, ¶ 48. However, Medical Assistance does not cover all abortions.

4 Medicaid is a joint federal-state program that provides medical assistance to the poor. 42 U.S.C. §§ 1396-1396w-6. Pennsylvania's Medical Assistance is the Commonwealth's Medicaid program. See 62 P.S. §§ 401-493; 55 Pa. Code §§ 1101-1251.81.

The Abortion Control Act sets forth the following exclusion which is at the center of the present controversy:

§ 3215. Publicly owned facilities; public officials and public funds

(c) Public funds.-- No Commonwealth funds and no Federal funds which are appropriated by the Commonwealth shall be expended by any State or local government agency for the performance of abortion, except:

(1) When abortion is necessary to avert the death of the mother on certification by a physician. When such physician will perform the abortion or has a pecuniary or proprietary interest in the abortion there shall be a separate certification from a physician who has no such interest.

(2) When abortion is performed in the case of pregnancy caused by rape which, prior to the performance of the abortion, has been reported, together with the identity of the offender, if known, to a law enforcement agency having the requisite jurisdiction and has been personally reported by the victim.

(3) When abortion is performed in the case of pregnancy caused by incest which, prior to the performance of the abortion, has been personally reported by the victim to a law enforcement agency having the requisite jurisdiction, or, in the case of a minor, to the county child protective service agency and the other party to the incestuous act has been named in such report.

(j) Required statements.--No Commonwealth agency shall make any payment from Federal or State funds appropriated by the Commonwealth for the performance of any abortion pursuant to subsection (c)(2) or (3) unless the Commonwealth agency first:

(1) receives from the physician or facility seeking payment a statement signed by the physician performing the abortion stating that, prior to performing the abortion, he obtained a non-notarized, signed statement from the pregnant woman stating that she was a victim of rape or incest, as the case may be, and that she reported the crime, including the identity of the offender, if known, to a law enforcement agency having the requisite jurisdiction or, in the case of incest where a pregnant minor is the victim, to the county child protective service agency and stating the name of the law enforcement agency or child protective service agency to which the report was made and the date such report was made;

(2) receives from the physician or facility seeking payment, the signed statement of the pregnant woman which is described in

paragraph (1). The statement shall bear the notice that any false statements made therein are punishable by law and shall state that the pregnant woman is aware that false reports to law enforcement authorities are punishable by law; and

(3) verifies with the law enforcement agency or child protective service agency named in the statement of the pregnant woman whether a report of rape or incest was filed with the agency in accordance with the statement.

The Commonwealth agency shall report any evidence of false statements, of false reports to law enforcement authorities or of fraud in the procurement or attempted procurement of any payment from Federal or State funds appropriated by the Commonwealth pursuant to this section to the district attorney of appropriate jurisdiction and, where appropriate, to the Attorney General.

18 Pa.C.S. § 3215(c), (j). The Coverage Exclusion is implemented through regulations which likewise prohibit abortion coverage except in the same three circumstances described in Section 3215. See 55 Pa. Code §§ 1141.57, 1163.62, 1221.57 (providing exclusion for coverage of physicians' services, hospital services, and clinic and emergency room services for abortions). Further, health care providers are prohibited from billing for services inconsistent with Medical Assistance regulations, and they are subject to sanctions if they violate these regulations. 55 Pa. Code §§ 1141.81, 1163.491, 1221.81 (providing for sanctions for improper billing of physicians' services, hospital services, and clinic and emergency room services for abortion); 55 Pa. Code § 1101.74 (providing for referral to federal prosecution where providers who are convicted of willfully defrauding Medicaid program are subject to $25,000 fine and up to five years of imprisonment).

On January 16, 2019, Providers filed a petition for review in the Commonwealth Court seeking declaratory and injunctive relief, complaining that the Coverage Exclusion in Sections 3215(c) & (j) violates the Equal Rights Amendment and equal protection provisions of the Pennsylvania Constitution. In addition to summarizing the relevant regulatory framework for Medical Assistance and the Coverage Exclusion set forth in Sections 3215(c) & (j), Providers averred the following:

• Regardless of federal law (which bars use of federal Medicaid funds for abortion except in cases of rape, incest, or threat to the woman's life), "federal law does not prevent states from using state funds to provide coverage for a broader range of services[,]" and sixteen states allow state Medicaid funds to cover abortion beyond these narrow exceptions. Petition for Review, 1/16/2019, ¶ 53.

• There is no parallel exclusion of coverage for men. In fact, there is no medical condition specific to men for which Medical Assistance denies coverage. Id. ¶ 54.

• "When a male [Medical Assistance] recipient requires a covered service, including all services related to reproductive health, Medical Assistance covers it. In contrast, when a woman requires an abortion, Medical Assistance covers it only if she would otherwise die or if the pregnancy results from rape or incest." Id. ¶ 54.

• Medical Assistance covers all medical care for pregnancy and childbirth for women who choose to continue their pregnancy to term. Id. ¶ 55.

• "The medical costs to the Medical Assistance program associated with covering pregnancy and childbirth services far exceed the cost of an abortion, particularly for women with medically complicated pregnancies." Id. ¶ 55.

Providers then detailed the effects of the Coverage Exclusion. They alleged that both women on Medical Assistance who seek abortions and Providers themselves suffer significant harm from the Coverage Exclusion. As to the women, Providers maintained that it forces them to choose "between continuing their pregnancy to term against their will and using money that they would have otherwise used for daily necessities, such as shelter, food, clothing, or childcare, to pay for the procedure[,]" which is the exact choice between health care and basic essentials that Medicaid was created to avoid. Id. ¶ 59 (citing Declaration of Colleen M. Heflin, Ph.D., 1/10/2019 (Exhibit A) and Declaration of Elicia Gonzales LSW, M.Ed., 1/11/2019 (Exhibit B)). They alleged that access to a provider of abortion care is a significant problem for poor women and women living in rural areas, many of whom must travel significant distances and incur substantial costs associated with travelling to obtain abortions. Id. ¶ 60. In many cases, these women are forced to delay care to raise funds for the abortion, id. ¶ 61, and in other cases, the obstacles are insurmountable. Id. ¶ 63 ("National studies show that roughly 25% of women on Medicaid who seek an abortion in a state with a coverage ban are forced to continue their pregnancies to term against their will because they are unable to acquire funds to pay for the procedure.") (Declaration of Terri-Ann Thompson, Ph.D., 1/11/2019 (Exhibit C)).

Providers further submitted that, as a result of the Coverage Exclusion, there are women who carry their pregnancies to term against their wills in Pennsylvania. Id. ¶ 64. Providers alleged specific harms suffered by women (1) who are forced to carry their pregnancies to term as a result of the Coverage Exclusion, id. ¶¶ 65-75; and (2) who are able to obtain an abortion despite the Coverage Exclusion and suffer because of it. Id. ¶¶ 76-83. For instance, "the maternal mortality risks associated with childbirth are approximately fourteen times greater than the risk associated with abortion care[,]" and the maternal mortality rate for African-American women is three times that of white women. Id. ¶ 67.

In addition, Providers averred that the "risks associated with pregnancy and childbirth are particularly acute for women with pre-existing conditions[.]" Id. ¶ 70. More specifically, continuing a pregnancy can exacerbate these conditions and pose serious threats to a woman's long-term health. The "health damage, though serious and potentially life-threatening, is usually not imminent enough to qualify the patient for abortion coverage under the statutory exception to the coverage ban, which requires that the abortion be necessary to 'avert the death' of the woman, rather than to avoid serious long-term health consequences." Id.

For example, Providers explained that pregnancy can force women suffering from cancer to alter treatments and medication plans to their detriments for the safety of the fetuses. It can force women "to choose between halting or compromising critical medical care or placing the fetus at risk[,]" resulting in devastating health outcomes. Id. ¶ 71. They explained the severe mental health tolls of unwanted pregnancies, drawing attention to the fact that "[w]omen may suffer severe psychological distress as a result of being forced to continue an unwanted pregnancy… [.] Other women who learn the fetus they are carrying has a severe anomaly or has a condition incompatible with life may also suffer severe distress from being unable to terminate the pregnancy." Id. ¶¶ 73-74.

Providers also alleged that the Coverage Exclusion specifically harms them. Id. ¶¶ 84-87. It forces them to dedicate money and staff to help women on Medical Assistance who do not have enough money to pay for an abortion. Id. Providers lose money because they regularly subsidize abortions for women on Medical Assistance who are unable to pay the fee. Id. ¶ 85. Further, they expend valuable resources - including employing dedicated staff - to assist women on Medical Assistance to obtain private charitable funding. Id. ¶ 86.

Providers additionally averred that the Coverage Exclusion interferes with counseling their patients because it forces them to spend time delving into personal matters that patients may wish to keep private to determine eligibility for Medical Assistance. This counseling is at times "painful, intrusive and without any medical or therapeutic purpose[.]" Id. ¶ 87. They stated that it may strain the patient-counselor relationship for patients who do not wish to talk about these private matters. Id.

In Count One of the petition for review, Providers claimed that the Coverage Exclusion violates Pennsylvania's Equal Rights Amendment. The Amendment provides:

Art. I § 28 Prohibition against denial or abridgment of equality of rights because of sex

Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.

Pa. Const. art. I, § 28. Providers explained that this amendment, which is unique to our Commonwealth, "prohibits all sex-based discrimination by government officials in Pennsylvania." Petition for Review, 1/16/2019, ¶ 89. They stated that the Coverage Exclusion, by singling out and excluding abortion, "a procedure sought singularly by women as a function of their sex[,]" denies women of the Commonwealth coverage for essential healthcare services "solely on the basis of their sex."⁵ Id. ¶ 90. Further, they alleged that it "flows from and reinforces gender stereotypes about the primacy of women's reproductive function and maternal role, and thus offends the Pennsylvania Equal Rights Amendment's prohibition against sex discrimination[,]" and "women's constitutional right to equality of rights under the law[.]" Id. ¶¶ 91-92.

5 Pregnancy is a sex-based medical condition. See Jillian Todd Weiss, Transgender Identity, Textualism, and the Supreme Court: What is the Plain Meaning of "Sex" in Title VII of the Civil Rights Act of 1964?, 18 Temp. Pol. & Civ. Rts. L. Rev. 573, 603 (1984) (quoting Sex, The Random House College Dictionary, Revised Edition 1206 (Jess Stein ed., 1982) (1968) (defining "Sex," first, as "either the male or female division of a species, esp. as differentiated with reference to the reproductive functions" and second, as "the sum of the structural and functional differences by which the male and female are distinguished, or the phenomena or behavior dependent on these differences"); Providers recognize that "transgender men and people whose gender identity is non-binary may have female reproductive organs and be capable of pregnancy and childbirth." Providers' Brief at 4 n.3.

In Count Two of the petition for review, Providers stated that the Pennsylvania Constitution protects against denial of equal protection under the law through the following three provisions:

Art. I § 1 Inherent rights of mankind

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

Pa. Const. art. I, § 1.

Art. I § 26 No discrimination by Commonwealth and its political subdivisions

Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.

Pa. Const. art. I, § 26.

Art. III § 32 Certain local and special laws

The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law and specifically the General Assembly shall not pass any local or special law:

1. Regulating the affairs of counties, cities, townships, wards, boroughs or school districts:

2. Vacating roads, town plats, streets or alleys:

3. Locating or changing county seats, erecting new counties or changing county lines:

4. Erecting new townships or boroughs, changing township lines, borough limits or school districts:

5. Remitting fines, penalties and forfeitures, or refunding moneys legally paid into the treasury:

6. Exempting property from taxation:

7. Regulating labor, trade, mining or manufacturing:

8. Creating corporations, or amending, renewing or extending the charters thereof:

Nor shall the General Assembly indirectly enact any special or local law by the partial repeal of a general law; but laws repealing local or special acts may be passed.

Pa. Const. art. III, § 32. Providers contended that these provisions "together guarantee equal protection of the law and prohibit discrimination based on the exercise of a fundamental right." Petition for Review, 1/16/2019, ¶ 94.

Next, Providers stated that the Coverage Exclusion "singles out and excludes" women on Medical Assistance "from exercising the fundamental right to choose to terminate a pregnancy, while covering procedures and health care related to pregnancy and childbirth." Id. ¶ 95. They alleged that the exclusion discriminates against women throughout this Commonwealth for exercising their fundamental right to choose to terminate a pregnancy. Id. In sum, because the exclusion "operates to discriminate singularly against those women who seek abortion-related health care services by denying them coverage under Pennsylvania's Medical Assistance programs, the Pennsylvania [Coverage Exclusion], as enforced and administered by DHS, … discriminate[s] based on the exercise of a fundamental right under the equal protection principles of Article I, Sections 1 and 26, and Article III, Section 32 of the Pennsylvania Constitution." Id. ¶ 96. Based on these claims and allegations, Providers requested that the Commonwealth Court: (1) declare Sections 3215(c) & (j) as well as the implementing regulations, 55 Pa. Code §§ 1147.57, 1163.62, 1221.57, unconstitutional; and (2) enjoin their enforcement and declare that abortion is a fundamental right under the Pennsylvania Constitution. Petition for Review, 1/16/2019, at 30. Providers did not rely on a federal constitutional right to abortion as the basis for their equal protection arguments.

On April 16, 2019, DHS filed preliminary objections in the nature of a demurrer and on the basis that Providers lack standing.⁶ Therein, DHS recalled that in Fischer v. Department of Public Welfare, 502 A.2d 114 (Pa. 1985), this Court held that the Coverage Exclusion does not violate the constitutional provisions on which Providers base their claims. DHS's Preliminary Objections, 4/16/2019, ¶ 4. Next, DHS cited to an opinion it received from the OAG, stating that Fischer is a "'controlling decision from a court of competent jurisdiction,' that the abortion funding ban coverage is therefore constitutional, and that Fischer is binding upon [DHS]." Id. ¶ 5 (citing Letter from Jonathan Scott Goldman, Executive Deputy Attorney General, to Teresa D. Miller, Secretary of DHS, (2/19/2019)).⁷ "Because Fischer is controlling precedent that [the Commonwealth Court] lacks the authority to overrule, [Providers] have failed to state a claim upon which relief may be granted." Id. ¶ 6.

6 On February 15, 2019, DHS and the individually named respondents, through the Office of General Counsel, filed an unopposed application for enlargement of time to file their response. In justifying their request for extra time, they explained that, pursuant to the Commonwealth Attorneys Act, 71 P.S. §§ 732-101-732-506, the petition for review was submitted to the Office of the Attorney General ("OAG") for a determination regarding representation. Motion for Enlargement of Time, 2/15/2019, ¶ 4. According to DHS, the OAG ultimately authorized the Office of General Counsel to defend this matter pursuant to Section 204(c) of the Commonwealth Attorneys Act, which provides, in pertinent part, that "[t]he Attorney General shall represent the Commonwealth and all Commonwealth Agencies … in any action brought by or against the Commonwealth or its agencies… ." 71 P.S. § 732-204(c). The Commonwealth Attorneys Act further states that "[t]he Attorney may, upon determining that it is more efficient or otherwise in the best interest of the Commonwealth, authorize the General Counsel or the counsel for an independent agency to initiate, conduct or defend any particular litigation or category of litigation in his stead." Id. The Office of General Counsel continues to represent DHS in this Court. Presumably at the behest of former Governor Tom Wolf, who was in office when briefing occurred in this matter, DHS clarifies in its briefing to this Court that "[t]he legal position taken herein regarding the abortion funding coverage ban, however, does not represent the policy position of the Governor's Administration." DHS's Supplemental Brief at 2 n.1. DHS further asserts that "the Department Appellees are defending the statute and regulations at issue pursuant to their responsibilities under the Commonwealth Attorneys Act. 71 P.S. § 732-301." Id.

7 DHS explained that this opinion was provided pursuant to Section 204(a) of the Commonwealth Attorneys Act. 71 P.S. § 732-204(a)(1) (stating that, upon the request of the head of any Commonwealth agency, "the Attorney General shall furnish legal advice concerning any matter or issue in connection with the exercise of official powers or the performance of official duties …"); see id. §732-204(a)(3) ("It shall be the duty of the Attorney General to uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction."). The letter indicates that the Secretary of DHS requested a legal opinion concerning the constitutionality of Section 3215(c), and that, after careful review, the OAG concluded that "at the present time, Section 3215(c) is constitutional." Letter from Jonathan Scott Goldman, Executive Deputy Attorney General, to Teresa D. Miller, Secretary of DHS, (2/19/2019) at 1. The letter advised that Fischer is "directly on point here and is still good law[.]" Id. at 2. However, it acknowledged that this Court could ultimately modify or overturn Fischer. "Unless and until that time," the letter stated, "Fischer remains the controlling authority on this issue and is binding upon DHS." Id.

Next, DHS asserted that Providers lack standing. In this regard, DHS claimed that Providers failed to establish a direct and immediate interest in the outcome of the litigation because they failed to demonstrate that the alleged harm to their interests was within the "zone of interests" protected by the statutory or constitutional guarantee in question. Id. ¶¶ 9-10, 14. Further, DHS argued, Providers lack standing to vindicate constitutional rights of their patients who are not parties to this action. Id. ¶ 14.

On April 17, 2019, certain members of the General Assembly's House of Representatives and separately, certain members of the Senate, filed applications for leave to intervene pursuant to the Pennsylvania Rules of Civil Procedure, Rule 2327(3) & (4).⁸

8 Eight Representatives sought to intervene: Mike Turzai, Bryan D. Cutler, Stan. E. Saylor, Kerry A. Benninghoff, Marcy Toepel, Michael Reese, Kurt A. Masser, Donna Oberlander. Nineteen Senators sought to intervene: Joseph B. Scarnati, III, Jacob Corman, Ryan Aument, Michele Brooks, John DiSanto, Michael Folmer, John Gordner, Scott Hutchinson, Wayne Langerholc, Daniel Laughlin, Scott Martin, Robert Mensch, Michael Regan, Mario Scavello, Patrick Stefano, Judy Ward, Kim Ward, Eugene Yaw, and David Arnold, who was added by stipulation on January 28, 2020. We refer to the Representatives and Senators who applied to intervene collectively as "Intervenors" and separately, where necessary to distinguish between them, as "House Intervenors" and "Senate Intervenors."

Rule 2327. Who May Intervene

At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if

(3)such person could have joined as an original party in the action or could have been joined therein; or

(4) the determination of such action my affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action.

Pa.R.C.P. 2327(3)-(4). Intervenors argued that they are permitted to intervene under Rule 2327 because they could have been joined as original parties and because the outcome of this case may affect their legally enforceable interests.

Providers objected to the intervention. Answer to Application for Leave to Intervene of Senators, 5/8/2019, at 2-4; Answer to Application for Leave to Intervene of Representatives, 5/8/2019, at 2-4. DHS took no position. Letter from Matthew J. McLees, Office of General Counsel, to Michael F. Krimmel, Chief Clerk, Commonwealth Court (5/1/2019). Following a hearing, a single judge sitting in the Commonwealth Court, Judge Robert Simpson, denied the applications to intervene.

As an initial matter, Judge Simpson required Intervenors to satisfy standing requirements to establish their right to intervene. See Judge Simpson's Opinion, 6/21/2019, at 13. Judge Simpson recalled that this Court applied these principles to address legislative standing in Markham v. Wolf, 136 A.3d 134, 138 (Pa. 2016). Applying the reasoning from Markham, he concluded that Intervenors' interests in the Coverage Exclusion and its implementing regulations are too indirect and insubstantial to establish standing. Judge Simpson's Opinion, 6/21/2019, at 15. He pointed out that Providers' request for relief sought a declaration that the Coverage Exclusion and its implementing regulations are unconstitutional, an order enjoining their enforcement, as well as a declaration that abortion is a fundamental right in the Commonwealth. Id. at 16. In so doing, he characterized Intervenors' personal stake as no different than any other citizen with an interest in the law being challenged. Id.

The Commonwealth Court granted reconsideration, following which a three-judge panel granted Intervenors' applications to intervene. Allegheny Reprod. Health Ctr. v. Pa. Dep't of Hum. Servs., 225 A.3d 902 (Pa. Commw. 2020). The panel concluded that Intervenors had established grounds to intervene pursuant to Rule 2327(4), agreeing with Intervenors' characterization of the object of the litigation. In the court's view, the litigation seeks to "change the substance and manner by which the General Assembly can appropriate funds for the Medical Assistance program." Id. at 911. Further, the panel reasoned that if Providers are successful, the constitutional principles established by the case "could bar the General Assembly from 'tieing legislative strings' to its appropriation of funds for the Medical Assistance program." Id. at 912 (quoting Lewis v. State, 90 N.W.2d 856, 860 (Mich. 1958)). According to the panel, the litigation could impact Intervenors' constitutional authority to control the Commonwealth's finances. Id. at 913.

After establishing that Intervenors had grounds to intervene, the Commonwealth Court considered whether, pursuant to Rule 2329, intervention is prohibited because the interests of Intervenors are otherwise adequately represented, or if intervention will cause undue delay or prejudice. The panel found that Intervenors' interests are not represented by DHS "given the vastly different responsibilities and powers of the executive and legislative branches of government as they relate to the coverage ban." Id. (quoting Judge Simpson's Opinion, 6/21/2019, at 17). As for Providers' arguments that intervention would cause prejudice or delay, the panel found such claims to be unfounded and speculative. Id.

After holding oral argument, an en banc panel of the Commonwealth Court dismissed the petition for review. Allegheny Reprod. Health Ctr. v. Pa. Dep't of Hum. Servs., 249 A.3d 598 (Pa. Commw. 2021). Regarding Providers' standing, the court considered and rejected two alternative bases for finding that they have standing in this matter. First, the court concluded that Providers failed to meet the requirements of the test for third-party standing articulated by the United States Supreme Court in Singleton v. Wulff, 428 U.S. 106 (1976) (plurality) and adopted by the Commonwealth Court in Harrisburg School District v. Harrisburg Education Association, 379 A.2d 893 (Pa. Commw. 1977).⁹ The court acknowledged that it applied the Singleton exception in Pennsylvania Dental Association v. Commonwealth, Department of Health, 461 A.2d 329 (Pa. Commw. 1983), to find that a dental association had standing to challenge a contractual amendment that permitted the government to access patient files when auditing the dentist. Allegheny Reproductive, 249 A.3d at 606. By contrast here, the intermediate court stated that it was forced "to rule on constitutional questions when the [c]ourt has no way of knowing that the patients on whose behalf [they] purport to speak even want this assistance." Id. Further, unlike in Pennsylvania Dental, the court found that the petition did not establish that the patients' rights were "inextricably bound up" with the interests of Providers. Finally, whereas the patients in Pennsylvania Dental had no way of knowing that their privacy interests were at stake, Providers' patients "will be informed, in advance, that abortion services are not covered by Medical Assistance." Id. The court concluded that Providers lacked standing to vindicate the constitutional rights of women on Medical Assistance, "who may or may not agree with this litigation brought on their behalf." Id. at 608-09.

9 In Singleton, a plurality of the High Court, drawing upon precedent, articulated a general rule: "Ordinarily, one may not claim standing in [the United States Supreme] Court to vindicate the constitutional rights of some third party." Singleton, 428 U.S. at 113-14 (citing, inter alia, Barrows v. Jackson, 346 U.S. 249, 255-56 (1953)). The plurality opinion stated the two reasons underlying the general rule. First, courts should not adjudicate constitutional rights unnecessarily because it may be that the third parties, i.e., the holders of these rights, "do not wish to assert them, or will be able to enjoy them regardless of whether the in-court litigant is successful or not." Id. Second, third parties themselves are usually the best proponents of their own rights. Id. Significantly, the plurality opinion stated that the general rule should not be applied where those justifications are absent. More specifically, a court should examine the relationship between the litigant and the person whose rights are being asserted. Id. "If the enjoyment of the right is inextricably bound up with the activity the litigant wishes to pursue, the court at least can be sure that its construction of the right is not unnecessary in the sense that the right's enjoyment will be unaffected by the outcome of the suit." Id. at 114-15. Courts should consider whether the litigant is "fully, or very nearly, as effective a proponent of the right as the latter." Id. at 115. Next, courts should weigh whether the third party has the ability to assert their right, and the plurality opinion provided the following guidance:

Even where the relationship is close, the reasons for requiring persons to assert their own rights will generally still apply. If there is some genuine obstacle to such assertion, however, the third party's absence from court loses its tendency to suggest that his right is not truly at stake, or truly important to him, and the party who is in court becomes by default the right's best available proponent.

Id. at 116.

Second, the Commonwealth Court rejected Providers' argument that they have standing based on the pecuniary harms they suffer as a result of the Coverage Exclusion. The intermediate court acknowledged that standing in Pennsylvania requires a substantial, direct and immediate interest in the matter sought to be litigated pursuant to the well-established test articulated in William Penn Parking Garage v. City of Pittsburgh, 346 A.2d 269 (Pa. 1975) (plurality) ("William Penn Parking"). The court explained that the "immediacy" component requires a causal connection between the actions complained of and the injury alleged. It elaborated: "[s]tated otherwise, to have standing, the litigant must show that its interest falls 'arguably within the zone of interests sought to be protected or regulated by the statute or constitutional guarantee in question.'" Allegheny Reproductive, 249 A.3d at 608 (citing Application of Biester, 409 A.2d 848, 851 n.6 (Pa. 1979)). The panel identified the zone of interests with reference to the interests protected or regulated by the Coverage Exclusion and the constitutional rights asserted. The court stated that the interests are "the life and health of the women subject to abortion and to protect the life and the health of the child subject to abortion[,]" and "the guarantee [of] equal protection of the laws and the prohibition against discrimination on the basis of sex." Id. The court held that the "asserted administrative and pecuniary interests do not fall within the 'zone of interests' addressed in either the Abortion Control Act or the Pennsylvania Constitution." Id. at 608.¹⁰

10 Judge Ceisler wrote a concurring and dissenting opinion to state her view that Providers have standing to pursue this litigation. Allegheny Reproductive, 249 A.3d at 612 (Ceisler, J., concurring and dissenting).

Next, with respect to DHS's assertion that Providers failed to state a claim upon which relief can be granted, the Commonwealth Court agreed with DHS that Fischer was dispositive and therefore concluded that it was bound to follow the decision. Because, in its view, all of Providers' legal claims were addressed and rejected in Fischer,¹¹ the court concluded that Providers failed to state a claim on which relief could be granted and dismissed the petition for review. Id. at 611.

11 As noted, Providers based their equal protection claim on an asserted fundamental right to abortion in the Pennsylvania Constitution, not the then-existing federal constitutional right to an abortion recognized in Roe v. Wade, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women's Health Org., 142 S.Ct. 2228 (2022) and its progeny. The Commonwealth Court did not expressly recognize the predicate for Providers' claim. The court's reliance on Fischer (which we later discuss at length) implies either that it views the Constitution of this Commonwealth as securing a right to an abortion coterminous with the right secured at that time by the federal Constitution or that there is no right to an abortion under our Charter but the federal right was a baseline protection that could not be undercut by a state Charter. Fischer, 502 A.2d at 116 (recognizing as starting point for analysis, that Roe established the right to an abortion). Part III.E. of this opinion, which represents the views of only two Justices of this Court, concludes that we may reach the question and decide that the Pennsylvania Constitution secures the right to reproductive autonomy. Accordingly, Justice Donohue and Justice Wecht proceed to analyze Providers' equal protection challenge in Part III.F., addressing the issues in this order because if we found that our Charter did not protect the right, the outcome would moot the Article 1, Section 26 issue. See infra note 88. Chief Justice Todd dissents from our recognition that our Charter protects the right to reproductive autonomy. Concurring & Dissenting Op. at 2-3 (Todd, C.J.). As to Providers' equal protection challenge, Chief Justice Todd maintains that it is bound by Fischer's Article I, Section 26 ruling because the "application of the penalty test [is] reasonable[.]" Id. at 14. This position is impossible because Fischer's penalty analysis can have vitality only if there exists a fundamental right to reproductive autonomy.

Providers appealed to this Court. In their brief to this Court, Providers raise three issues:

1. Do [Providers] have standing to bring these constitutional claims on behalf of their Medicaid patients who seek an abortion?

2. Did the Commonwealth Court err in permitting individual members of the Senate and House to intervene as Respondents in this case?

3. Does the Pennsylvania [Coverage Exclusion] violate the Pennsylvania Constitution's explicit guarantee of equality on the basis of sex contained in Pa. Const. art. I, § 28 and its separate equal protection guarantee contained in Pa. Const. art. I, §§ 1, 26 & art. III, § 32?¹²

12 Imbedded in Providers' third issue is the request that this Court 1) recognize the right to an abortion guaranteed by the Pennsylvania Constitution; and 2) overrule Fischer.

Providers' Brief at 2 (issues reordered).

While the appeal was pending in this Court, the United States Supreme Court overruled Roe v. Wade,¹³ and held that the federal Constitution does not confer a right to abortion. Dobbs v. Jackson Women's Health Organization, 142 S.Ct. 2228, 2279 (2022). Fischer, which the Commonwealth Court relied on in this case, addressed the constitutionality of the Coverage Exclusion based on the holdings of Roe v. Wade and its progeny that the Fourteenth Amendment protected "a woman's decision whether or not to terminate her pregnancy[.]" Roe, 410 U.S. at 153 ; see also Planned Parenthood v. Casey, 505 U.S. 833, 860 (1992) (plurality) (recognizing that "it is the constitutional liberty of the woman to have some freedom to terminate her pregnancy"); City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416 (1983) (referring to abortion as a woman's "fundamental right"). On application of Providers, this Court issued an order granting Providers the opportunity to file supplemental briefing to address the impact of Dobbs on this case and directing the Prothonotary to accept all supplemental briefs for filing. Order, 8/18/2022.

13 Roe v. Wade, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women's Health Org., 142 S.Ct. 2228 (2022).

As addressed below, Providers' supplemental brief argues, inter alia, that Dobbs' reasoning is irrelevant to their Pennsylvania Constitution claims, and Dobbs' rejection of a federal constitutional right to abortion provides a special justification for this Court to revisit Fischer. Providers' Supplemental Brief at 1-4. According to Providers, in the wake of Dobbs, "this Court's role in protecting the right to abortion under our state constitution takes on new importance[.]" Id.

In response, DHS observes that the Pennsylvania Constitution has long guaranteed "reproductive health care rights independent of, and more expansive than, any protection provided by the United States Constitution," and that it protects the "fundamental right to abortion." DHS's Supplemental Brief at 2. Nonetheless, DHS maintains that Dobbs does not affect the analysis: Fischer remains the "controlling authority on the narrow question of whether the Pennsylvania Constitution provides a right to subsidized abortions[,]" and Fischer held that the Coverage Exclusion is constitutional. Id. at 3.

House Intervenors read Dobbs broadly, claiming that it refutes nearly every one of Providers' arguments. House Intervenors' Supplemental Brief at 2 (asserting that Dobbs refutes claims that the Pennsylvania Constitution provides greater protection than the federal Constitution); id. at 4 (arguing that Dobbs established that "courts should not be determining whether there is a right to abortion"); id. at 5-8 (claiming that Dobbs undercuts Providers' standing); id. at 8 (asserting that Dobbs supports intervention). They assert that Dobbs, at its core, held that the authority to regulate abortion falls with the people's elected representatives, and they claim that the Legislature in Pennsylvania "has determined that abortion is neither a Pennsylvania Constitutional right nor an appropriate use of public funds." Id. at 4.

Senate Intervenors filed a supplemental response asserting that this case does not concern the right to an abortion but instead is only about legislative funding, "an issue that no one disputes has always been within the exclusive purview of the General Assembly and not the judiciary." Senate Intervenors' Brief at 2-3. They assert that Dobbs does not change this fact. Id. at 3. Senate Intervenors call on Dobbs as supporting two points: first, they insist that our equal protection analysis is conducted using the same standards as the federal Equal Protection Clause test, and therefore, "there is plainly no support for [a right to terminate a pregnancy] under the Pennsylvania equal protection provisions." Id. at 5. Second, they argue that Dobbs made explicitly clear that laws related to abortion are not sex-based classifications. Id. at 4.

II. Preliminary Issues

A. Providers' Standing

1. Scope and Standard of Review

The Commonwealth Court sustained DHS's preliminary objection, finding that Providers lack standing to pursue this litigation. When evaluating an order sustaining a preliminary objection to standing, we deem true all material facts averred in the controlling pleading and all reasonable inferences that can be drawn therefrom. Robinson Twp. v. Commonwealth, 83 A.3d 901, 917 (Pa. 2013). "We will affirm an order sustaining preliminary objections only if it is clear that the party filing the petition for review is not entitled to relief as a matter of law." Id. (citing Stilp v. Commonwealth, 940 A.2d 1227, 1232 n.9 (Pa. 2007)). We further observe that, generally speaking, issues of standing present questions of law; thus, our standard of review is de novo, and our scope of review is plenary. Firearm Owners Against Crime v. Papenfuse, 261 A.3d 467, 476 (Pa. 2021).

2. Relevant Principles of Pennsylvania's Law on Standing

This Court has characterized standing together with ripeness and political questions as issues "giv[ing] body to the general notions of case or controversy and justiciability." Robinson Township, 83 A.3d at 916-17 (quoting Rendell v. Pa. State Ethics Comm'n, 983 A.2d 708, 717 (Pa. 2009)). Though not constitutionally compelled, "our standing doctrine … has a long venerable history as a useful tool in regulating litigation." In re Hickson, 821 A.2d 1238, 1243 n.5 (Pa. 2003). Pennsylvania's standing doctrine is judicially created in contrast to federal standing requirements, which derive from Article III of the United States Constitution. Johnson v. Am. Standard, 8 A.3d 318, 330 (Pa. 2010); Fumo v. City of Phila., 972 A.2d 487, 500 n.5 (Pa. 2009).

As observed by this Court in Robinson Township, "[i]n contrast to the federal approach, notions of case or controversy and justiciability in Pennsylvania have no constitutional predicate, do not involve a court's jurisdiction, and are regarded as prudential concerns implicating courts' self-imposed limitations." Id. (citing Fumo, 972 A.2d at 500 n.5; Rendell, 983 A.2d at 717 & n.9). Generally speaking, in our Commonwealth, standing is granted more liberally than in federal courts. Most critically, the federal standing analysis "does not control our resolution of the standing issue" because we are not bound by the dictates of Article III of the United States Constitution. Erfer v. Commonwealth, 794 A.2d 325, 329 (Pa. 2002) disavowed on other grounds by League of Women Voters v. Commonwealth, 178 A.3d 737, 813 (Pa. 2018).

Our inquiry is whether the putative plaintiff has demonstrated that she is "aggrieved," by establishing a substantial, direct and immediate interest in the outcome of the litigation. Robinson Township, 83 A.3d at 917 (citing Fumo 972 A.2d at 496). For instance, in William Penn Parking, this Court addressed whether parking garage operators had standing to challenge the imposition of the tax on their patrons established by City of Pittsburgh Ordinance No. 30 of 1973.¹⁴ The City objected to the parking garage operators' standing, arguing that only the patrons paying the tax had standing to challenge its validity. William Penn Parking, 314 A.2d at 288. The parking garage operators alleged that the tax would cause pecuniary harm to them because they would either have to pass the tax on to their patrons and suffer a reduced patronage or, if they decided not to pass the tax on, they would incur the tax and suffer a substantial loss to their net income. Id. at 287-88.

14 The parking garage operators and fifty-five residents/taxpayers brought the challenge pursuant to Section 6 of the Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6906 (1972), which provided, in relevant part, that for "taxpayers of the political subdivision not less than twenty-five in number aggrieved by the ordinance or resolution shall have the right to appeal" from the establishment of the tax. According to that provision, the court would review and uphold a tax unless it finds, inter alia, that the tax imposed "is excessive or unreasonable." Id. The parking garage operators and fifty-five residents/taxpayers challenged the tax on the grounds that it prevented them "from making a profit, that it discriminates against the operator-petitioners in favor of the Public Parking Authority of Pittsburgh and that it is excessive, unreasonable and unconscionable." William Penn Parking, 314 A.2d at 324 (internal footnote omitted).

We concluded that the parking garage operators had standing, observing that the statutory scheme allowed a taxpayer to appeal if aggrieved by the ordinance, regardless of whether he is liable for the tax imposed. Id. at 289. We saw "no reason to restrict" the meaning of aggrieved "to refer only to those liable for the tax imposed by the ordinance." Id. The Court further determined that the parking garage operators' interest was direct because "a declaration that the ordinance is invalid would obviate either injury alleged." Id. In addition, we held that their interest was substantial because they claimed a pecuniary loss. Id. The only real question was whether the parking garage operators' interest was closely connected to the ordinance, such that their interest was "immediate rather than remote." Id. We concluded that it was, explaining that although the tax fell initially upon the patrons of the parking garages, it was levied upon the very transaction between the parking garage operators and the patrons. Thus, we resolved the question of immediacy on the grounds that "the effect of the tax upon their business [wa]s removed from the cause by only a single short step." Id.

We have utilized this three-prong approach to standing, even when faced with scenarios where it was argued that the interests of the plaintiffs-whose professional conduct was concretely impacted by the challenged laws-paled in comparison to the alleged harms incurred by the third parties whose rights were at the core of the disputes. Dauphin County Public Defender's Office, 849 A.2d 1145, 1148-49 (Pa. 2004); Robinson Township, 83 A.3d at 923-25. In those circumstances, we did not see fit to modify the test for third-party standing, and we did not premise our standing analysis on the Article III factors utilized by the United States Supreme Court in Singleton or applied by the Commonwealth Court here.

In Dauphin County Public Defender's Office, we addressed the standing of the Dauphin County Public Defender's Office ("Public Defender") to challenge new eligibility requirements imposed by the President Judge of the Dauphin County Court of Common Pleas ("Dauphin County CCP").¹⁵ The President Judge issued an Administrative Order that dictated new eligibility requirements for criminal defendants seeking representation from the Public Defender, including an income threshold that was inconsistent with the Public Defender's multi-factor analysis of eligibility. Dauphin County Public Defender's Office, 849 A.2d at 1148. The Public Defender sought a stay of the Administrative Order and a writ prohibiting the Dauphin County CCP from interfering with the Public Defender's qualification process. The Dauphin County CCP challenged the Public Defender's standing, because "[a]ny injury" in that case "would be to the criminal defendant who will go unrepresented unless he retains counsel, not to the public defender." Dauphin County CCP's Brief, 11/4/2003, at 9-10.

15 The grounds for the Public Defender's challenge were various, though primarily focused on how the Administrative Order violated the Public Defender Act, 16 P.S. §§ 9960.1-9960.13 and the separation of powers doctrine. See Public Defender's Brief, 10/10/2003, at 7-14 (arguing that the Administrative Order violated, inter alia, Article V, Section 1 of the Pennsylvania Constitution and the right to counsel for indigent defendants as established in the Sixth and Fourteenth Amendments to the United States Constitution). We resolved the claim based on our interpretation of the Public Defender Act, which required the Public Defender to provide legal representation "to any individual that it concludes does not have the financial wherewithal to hire private legal counsel," and which did not authorize the Dauphin County CCP to override the Public Defender's decisions. Dauphin County Public Defender's Office, 849 A.2d at 1150.

This Court disagreed with the notion that only the indigent defendants could be "aggrieved" so as to confer standing based on our application of the three-part standing test from William Penn Parking. We determined that the Public Defender's interest in the litigation was substantial as it exceeded that of the common citizen in procuring obedience to the law because the Public Defender, unlike the general public, has a statutory obligation to provide legal representation to financially eligible criminal defendants. Dauphin County Public Defender's Office, 849 A.2d at 1148. Further, the Public Defender's interest was direct because the Administrative Order at issue stripped the Public Defender of its traditional discretion in making decisions regarding an applicant's eligibility for services when the applicant's income exceeds the poverty line. Finally, we stated that there was a clear and immediate causal connection between the Administrative Order and the Public Defender's diminished ability to make eligibility determinations and to provide representation to the defendants of its choice. Therefore, we concluded that the Public Defender was an aggrieved party with standing. Id. at 1149.

To reiterate, our standing analysis focused on how the Administrative Order impacted the Public Defender, whose responsibility it was to represent financially eligible criminal defendants. Based on this professional relationship representing indigent defendants and on the Public Defender's discretion to make decisions regarding eligibility for representation, the Public Defender's interests were substantial, immediate and direct. Thus, we held that the Public Defender's interests were sufficient to establish standing. Importantly, we were not troubled that the representation concerns and the constitutional right at the core of the lawsuit - the right to counsel - were more connected to the indigent defendants than to the Public Defender.

In Robinson Township, 83 A.3d at 923-25, this Court addressed the standing of a physician to challenge an oil and gas drilling statute. The statute at issue, Act 13, inter alia, placed restrictions on a physician's ability to obtain and share information with other physicians regarding the chemicals used in drilling operations. Dr. Khan was a physician who treated patients in the area where the drilling operations were taking place, and he alleged that Act 13's restrictions impeded his ability to diagnose and treat patients.

Of note, Dr. Khan contended that Act 13 was an unconstitutional "special law" in violation of Article III, Section 32 of the Pennsylvania Constitution¹⁶ and that it violated the single-subject rule of Article III, Section 3 of the Pennsylvania Constitution because it dealt with both patient health care and regulation of oil and gas operations. Further, he maintained that the challenged provision prevented physicians from sharing diagnostic test results and a patient's history of exposure, both of which are essential tools of treating patients and competently practicing medicine. Id. at 923-24. Dr. Khan alleged that Act 13's restrictions placed medical professionals in a position to choose between abiding by its mandate and adhering to a physician's ethical and legal duties to report findings in medical records and to make those records available to patients and other medical professionals.

16 The Commonwealth Court summarized the claim as follows:

Act 13 is an unconstitutional "special law" in violation of Article 3, § 32 of the Pennsylvania Constitution because it restricts health professionals' ability to disclose critical diagnostic information when dealing solely with information deemed proprietary by the natural gas industry while other industries under the federal Occupational and Safety Act have to list the toxicity of each chemical constituent that makes up the product and their adverse health effects[.]

Robinson Twp. v. Commonwealth, 52 A.3d 463, 470 (Pa. Commw. 2012).

The Commonwealth Court in Robinson Township found that Dr. Khan lacked standing because his alleged harm was prospective and speculative insomuch as he was not yet in the situation of being refused necessary patient information pursuant to Act 13 or being unable to provide proper medical care. See Robinson Twp. v. Commonwealth, 52 A.3d 463, 477-78 (Pa. Commw. 2012). This Court reversed. Robinson Township, 83 A.3d at 923-25.

In finding that Dr. Khan had standing, this Court highlighted that Act 13 placed Dr. Khan in the untenable position of choosing between violating the law, violating his ethical obligations to treat a patient by acceptable standards and refusing a patient medical care. We did not credit the Commonwealth's argument "that Dr. Khan's harm [wa]s speculative because it [wa]s based on the rights of his patients and on serial mights which are unfounded." Id. at 924 (internal quotation marks omitted). Acknowledging that Dr. Khan was not yet in such a position, we stated that our jurisprudence allows pre-enforcement review of statutory provisions in cases in which the parties at issue must choose between equally unappealing options and where the third option is equally undesirable. Id. "In light of Dr. Khan's unpalatable professional choices in the wake of Act 13," we held that the interest he asserted was substantial and direct. Id. Further, we rejected the notion that his interest was remote, explaining that a decision regarding the constitutionality of Act 13 "may well affect" whether he and other similarly situated medical professions would accept patients, and it may affect subsequent medical treatment decisions. We therefore concluded that the physician had standing. Id.

As in William Penn Parking and Dauphin County Public Defender's Office, our analysis in Robinson Township highlighted the professional harms faced by the plaintiff, then found that the plaintiff's interests were adequately substantial, immediate and direct to confer standing. Consistent with the other cases, we were not swayed by arguments that the core legal rights being vindicated by the lawsuit belonged to other persons (whether patrons of parking garages, indigent defendants, or medical patients).

3. Parties' Arguments

Providers' Arguments

Providers urge this Court to apply the William Penn Parking three-prong standing test. They emphasize that William Penn Parking applied these rules in a case in which the litigants - parking garage operators - invoked the rights of third parties - patrons - to challenge a city tax being imposed upon the third parties. They argue that this case is on all fours with William Penn Parking. Providers' Brief at 12-13.

Providers contend that they were injured by the legal harm inflicted on their patients because Providers have increased expenditures in covering patients' costs, lost staff time in working to help patients obtain funding, and a compromised provider-patient relationship. Id. at 14-15. They argue that their interest is direct because striking the exclusion would obviate the injury alleged, and that their interest is immediate because there is "only a single short step" between the patients' lack of coverage and the Providers' harm. Id. at 15. Providers highlight that this Court has repeatedly assessed third-party standing under the basic three-factor test. Id. at 16-19 (citing Robinson Township, 83 A.3d at 923-25; Dauphin County Public Defender's Office, 849 A.2d 1148-49; In re Hickson, 821 A.2d at 1245-46). Providers assert that the Commonwealth Court erroneously inserted a "zone of interests" requirement into the three-prong test and note that this Court has stated that such consideration "is merely a guideline that may be used to find immediacy," but it is not an absolute requirement. Id. at 19-20 (citing Johnson, 8 A.3d at 333). In their view, this Court's inquiry into immediacy having been satisfied, there is no need to consider zones of interests. See also Providers' Reply Brief at 28 (criticizing DHS for misreading precedent to "graft a hard and fast 'zone of interests' rule into this Court's standing jurisprudence").

In the alternative, Providers argue that even if this Court adopts the third-party standing test as articulated in Singleton, they have established standing. Providers' Brief at 21. They emphasize that in Singleton, the United States Supreme Court allowed abortion providers to assert the constitutional rights of their patients in challenging a state's ban on Medicaid coverage of procedures and services related to abortion. Id. at 22 (citing Singleton, 428 U.S. at 118 ("[I]t generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.")). Because the facts here are nearly identical to those in Singleton, they urge this Court to reach the same result in this case.¹⁷

17 The National Women's Law Center writes in support of Providers' position, and presents a more ample view of the genuine obstacles faced by a woman who would otherwise seek to raise these claims on their own behalf. National Women's Law Center Brief at 2-30. The Obstetrical Society of Philadelphia also supports Providers' position. It critiques the Commonwealth Court's misconceptions of the doctor-patient relationship, arguing that healthcare professionals must have standing to advance the rights and interests of their patients because their interests are, as an ethical rule, aligned. Obstetrical Society of Philadelphia Brief at 14-16.

DHS's Arguments

DHS insists that Providers are unable to establish an immediate interest. In DHS's view, the harm alleged by Providers is purely pecuniary and administrative and is not within the zone of interests sought to be protected by the constitutional provisions on which Providers rely. DHS's Brief at 12. DHS acknowledges that the "zone of interests" concept applies when the party's immediate interest is not apparent "to assist a court in determining whether a party has been sufficiently aggrieved, and therefore has standing." Id. (citing Johnson, 8 A.3d at 333). DHS argues that there is no immediate interest because Providers only "assert pecuniary and administrative-related harms" in connection with the purported violations of third parties' rights, and therefore, DHS urges this Court to undertake a zone-of-interests analysis. Id. at 13.

In advancing that argument, DHS states the following:

Within the requirement that the interest of the plaintiff be "immediate" in order to confer standing is the concept that the "protection of the type of interest asserted is among the policies underlying the legal rule relied upon by the person claiming to be 'aggrieved.'" [William] Penn Parking, 346 A.2d at 284. The United States Supreme Court has phrased this guideline as whether 'the interest the plaintiff seeks to protect

is arguably within the zone of interests sought to be protected by the statute or constitutional guarantee in question." Upper Bucks [Cnty. Vocational-Tech. Sch. Educ. Ass'n v. Upper Bucks Cnty. Vocational-Tech. Sch. Joint Comm., 474 A.2d [1120,] 1122-23 [(Pa. 1984)] (quoting Ass'n of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150 (1970)). Should a party's immediate interest not be apparent, a zone of interests analysis may and should be employed to assist a court in determining whether a party has been sufficiently aggrieved, and therefore has standing. Johnson[,] 8 A.2d [at] 333[.]

Id. at 12-13.

DHS then asserts that the purposes of the Equal Rights Amendment and equal protection provisions "do not encompass protecting reproductive healthcare providers against pecuniary or administrative-related burden incurred when providing services to low-income individuals." Id. at 13. According to DHS, Providers have not alleged that they have suffered harm to a constitutionally-protected interest or discrimination, and "the only individuals who could potentially assert that they suffer the type of harm that is protected by the cited constitutional provisions are individuals who were enrolled in or eligible for [Medical Assistance] and sought abortion services that were not covered due to the [Coverage Exclusion]." Id. at 13-14.

DHS asks this Court to follow Upper Bucks, wherein this Court conducted a zone-of-interests analysis to determine that teachers lacked standing to seek a declaration that their school district must be open for 180 days in accordance with state law and regulations, despite sixteen days of closures they experienced during a teacher strike. This Court determined that "the sole purpose" of the statutory and regulatory 180-day requirement was to benefit students of the Commonwealth and that any benefit to the teachers of that requirement was "purely incidental[.]" Upper Bucks, 474 A.2d at 1123. DHS asserts that the present circumstances are analogous: Providers' harm does not fall within the zone of interests protected by the Equal Rights Amendment or the equal protection guarantees of the Pennsylvania Constitution, and any harm that Providers suffer is incidental. DHS's Brief at 15.

DHS then argues that William Penn Parking, Dauphin County Public Defender's Office and Robinson Township are all factually distinguishable from the instant matter because the plaintiffs in those cases were asserting their rights and not relying on the rights of clients or patients. Id. at 16-17 (citing William Penn Parking, 346 A.2d at 289; Dauphin County Public Defender's Office, 849 A.2d at 1149; Robinson Township, 83 A.3d at 924-25). Relying on case law from the United States Supreme Court and the Commonwealth Court, DHS states that "one ordinarily has no standing to vindicate the constitutional rights of third persons." Id. at 16 (citing Warth v. Seldin, 422 U.S. 490 (1975); Pequea Valley Sch. Dist. v. Dep't of Educ., 387 A.2d 1022 (Pa. Commw. 1978)).

In the alternative, if this Court adopts the test articulated in Singleton, DHS argues that Providers do not meet that test either. In this regard, DHS relies almost entirely on a recitation of the Commonwealth Court's application of the Singleton test, as detailed above. DHS also critiques Providers' reliance on Singleton by reminding this Court that only a plurality of the High Court endorsed the notion that women seeking abortions face a hindrance in asserting their rights. Instead, DHS argues, in the years since Singleton, "women have challenged abortion-related restrictions on their own behalf in case after case across this country." Id. at 20. In sum, DHS asks for this Court to affirm the Commonwealth Court's determination that Providers lack standing. Id.¹⁸

18 The Senate Intervenors do not address standing. The House Intervenors contend that Providers lack standing because they are not aggrieved. House Intervenors' Brief at 14-15. The House Intervenors also argue that the harms to Providers' interests result not from constitutional violations but from Providers' business practices. Id. at 16. They also assert that Providers are unlike many of the plaintiffs in the cases relied upon by Providers because Providers are corporations trying to minimize profit losses, not doctors prohibited from practicing their profession. Id. at 19. They urge this Court to require any party seeking to establish "a new right not previously acknowledged…, the right to demand tax- payer funding for elective abortion, to demonstrate that the third party actually wants the right asserted on their behalf." Id. at 20-21. The American Center for Law & Justice and New Wave Feminists write in support of DHS, and they advance similar arguments as DHS in challenging Providers' standing. American Center for Law & Justice Brief at 11-20; New Wave Feminists' Brief at 3-17.

4. Analysis

Accepting all well-pled material facts in the petition for review as true, we conclude that Providers have plainly established that they are aggrieved by the Coverage Exclusion. Unlike members of the general public, Providers have a substantial interest in the outcome of this litigation as medical institutions that provide treatment and services to women receiving Medical Assistance, including abortion services. See Dauphin County Public Defender's Office, 849 A.2d at 1149 (finding Public Defender's interests to be substantial based on its obligation to provide legal representation to financially eligible criminal defendants).

In addition, Providers' interests are direct because, as they allege, when patients who are beneficiaries of Medical Assistance seek abortions, Providers must modify their treatment plans to counsel patients to determine whether the abortions are covered by Medical Assistance, and when they are not, they incur additional expenses to further counsel patients, secure funding, and provide medical care. Petition for Review, 1/16/2019, ¶¶ 84-87. Further, the regulations implementing the coverage exclusion apply directly to Providers, prohibiting them from billing for abortions and subjecting them to sanctions and criminal penalties if they do so. 55 Pa. Code §§ 1141.81, 1163.491, 1221.81; 55 Pa. Code § 1101.74. If the Coverage Exclusion were struck as unconstitutional, then Providers would no longer need to modify their counseling of patients for these unique circumstances, and they would not have to incur additional expenses to assist Medical Assistance patients seeking abortions. That is, a declaration that the Coverage Exclusion is invalid would obviate Providers' injury. See William Penn Parking, 346 A.2d at 287-88 (finding directness requirement met because "a declaration that the ordinance is invalid would obviate either injury alleged").

As in William Penn Parking, the only real question here is whether Providers' interests are adequately immediate, and as in that case, we answer this question in the affirmative. Providers' interest is immediate because they are currently subject to regulations prohibiting them from billing for these medical services, and they face the possibility of sanctions and criminal penalties if they violate the regulations. See Firearm Owners Against Crime, 261 A.3d at 488 (stating that firearm owners interest in challenging firearm ordinances "is immediate because they are currently subject to the challenged ordinances, which the City is actively enforcing, and must presently decide whether to violate the ordinances, forfeit their rights to comply with the ordinances, or avoid the City altogether[]").

Moreover, the Coverage Exclusion clearly affects Providers' counseling of patients and results in additional costs to Providers. These effects of the Coverage Exclusion on Providers' businesses are thus removed from the cause "by only a single short step." William Penn Parking, 346 A.2d at 289. This analysis also is consistent with Dauphin County Public Defender's Office, where we rejected arguments that only indigent defendants (and not the Public Defender) had standing to challenge new eligibility requirements for public representation, and with Robinson Township, where we were unconvinced by arguments that Dr. Khan's harm was based on his patients' rights. Similarly, here, we reject DHS's arguments that women on Medical Assistance seeking abortions are the only possible plaintiffs for the same reason that we did not credit Dauphin County CCP's arguments that criminal defendants were the proper plaintiffs and the Commonwealth's arguments that patients (not Dr. Khan) were the proper plaintiffs. We focus our inquiry on whether Providers were aggrieved, and because they are, they have established a cognizable injury for standing purposes.

Immediacy having been clearly established, there is no reason to delve into a "zones of interests" analysis. Johnson, 8 A.3d at 333. We acknowledge that, in resolving questions of immediacy in other cases, we have considered whether the plaintiffs' alleged harms fall within the interests protected by the provisions at issue. As this Court stated in Johnson, should "a party's immediate interest not be apparent, a zone of interests analysis may (and should) be employed to assist a court in determining whether a party has been sufficiently aggrieved, and therefore has standing." Johnson, 8 A.3d at 333 (emphasis added). Here, Providers' immediate interest is apparent, obviating any potential need to employ a zone-of-interests analysis. To the extent Upper Bucks could be misread as requiring a "zone of interests" analysis, we reiterate the clarification made in Johnson that there is no "requirement that one be in the zone of interests for the immediacy prong of a standing analysis to be satisfied." Id. at 331. Therefore, to the extent the Commonwealth Court required a showing that Providers were in the zone of interests protected by the applicable statute and constitutional provisions, it erred.

In this vein, DHS acknowledges that a zone-of-interests analysis is not always required. DHS's Brief at 12. However, in analyzing Providers' standing, DHS applies such a requirement to this case. Id. at 10 (asserting that Providers "do not have an immediate interest in the outcome of this case … because the alleged harm suffered by [Providers] is not within the zone of interests sought to be protected by the constitutional provisions on which [they] rely"). By conducting this analysis, DHS attempts to inject federal third-party standing considerations into Pennsylvania's prudential "immediacy" requirement. To justify this approach, DHS cites to Commonwealth Court decisions applying the federal third-party standing principle that "one ordinarily has no standing to vindicate the constitutional rights of third persons." See id. at 10 (citing Warth, 422 U.S. at 490; Phila. Facilities Mgmt. Corp. v. Biester, 431 A.2d 1123, 1131 (Pa. Commw. 1981); Pequea Valley Sch., 387 A.2d at 1022). The lower court's application of the federal third-party standing doctrine cannot be reconciled with our three-prong approach that solely asks whether the plaintiff is aggrieved.

The federal doctrine creates a requirement in addition to a showing that plaintiffs are aggrieved.¹⁹ "[E]ven when the plaintiff has alleged injury sufficient to meet the 'case or controversy' requirement," the High Court holds that "the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth, 422 U.S. at 499; see also Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (providing that one of the main reasons for the doctrine is concern that "the party with the right has the appropriate incentive to challenge (or not challenge) governmental acting and to do so with the necessary zeal and appropriate presentation").

19 Though the Commonwealth Court referred to it as the "Singleton analytical framework," the United States Supreme Court developed the third-party standing doctrine outside of the abortion context. It has applied the test to prohibit and allow third-party standing in varying circumstances. See, e.g., Pierce v. Soc'y of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 536 (1925) (allowing corporations that established and operated private schools to challenge a statute requiring children to attend public schools by asserting the parents' Fourteenth Amendment rights, noting that this was consistent with "many other cases where injunctions have issued to protect business enterprises against interference with the freedom of patrons or customers"); Barrows, 346 U.S. at 255-256 (deciding that the rule against third-party standing did not apply to respondent in action for failing to honor restrictive race-based covenant, though respondent was relying on the equal protection rights of others); Warth v. Seldin, 422 U.S. 490 (1975) (holding that housing organizations and residents of Rochester lacked standing to challenge town's zoning ordinance for effectively excluding persons of low and moderate income from living in the town); Craig v. Boren, 429 U.S. 190 (1976) (explaining that vendor had "jus tertii" standing to challenge Oklahoma statutory scheme prohibiting sale of 3.2% beer to males under the age of 21 and to females under the age of 18 on the basis that it constituted gender-based discrimination that denied males ages 18 to 20 equal protection of the laws); Powers v. Ohio, 499 U.S. 400, 410 (1991) (determining that a criminal defendant has standing to raise the equal protection rights of a juror excluded from service); Kowalski v. Tesmer, 543 U.S. 125 (2004) (holding that a lawyer cannot invoke a future client's Sixth Amendment right to a fair and speedy trial).

We are mindful of DHS's observation that this Court's opinions in Robinson Township, Dauphin County Public Defender's Office, and William Penn Parking did not expressly indicate that the putative plaintiffs were asserting rights that belonged to third parties. However, DHS overlooks that in each of those cases, the putative plaintiffs actually relied on the rights of their clients. Most obviously, the parking garage operators in William Penn Parking were challenging a tax imposed on their patrons. They complained of harm to their businesses-that the tax prevented them from making a profit- but the main grounds for their challenge was statutory language prohibiting the tax imposed on their patrons from being excessive and unreasonable. In Robinson Township, Dr. Khan, like Providers, was a medical provider bringing a constitutional claim under Pennsylvania's equal protection provision in Article III, Section 32. He was complaining that Act 13 was a special law that interfered with his treatment of patients, just as the Providers here complain that Sections 3215(c) & (j) and the implementing regulations are special laws that interfere with their treatment of patients. Further, the defendants in each of those cases made the same arguments that DHS makes now, but this Court rejected them, instead applying the established three-factor standing test to determine whether the plaintiff was aggrieved.

As demonstrated above, the standing question is more than adequately resolved with reference to the well-established principles and test announced in William Penn Parking and applied in its progeny. We heed the lesson of Johnson that a zone-of-interests analysis is not a necessary component of immediacy. Further, we decline to adopt a fourth factor to require proof that the plaintiff is not bringing a challenge to vindicate the rights of others. In reaching this conclusion, we reiterate that "[u]nder Pennsylvania law, the doctrine of standing is a prudential, judicially-created tool, affording discretion to courts. In the federal system, by contrast, standing is both constitutional, implicating Article III's case or controversy requirement, and prudential, involving judicial limits on federal jurisdiction." Firearm Owners Against Crime, 261 A.3d at 481-82. Neither DHS nor the Commonwealth Court has offered an adequate rationale for seeking out and adopting another test.

We observe that the Commonwealth Court's rationale for adopting the federal standing principles articulated in Singleton was that courts should not adjudicate constitutional rights unnecessarily because it may be that the third parties, i.e., the holders of these rights, do not wish to assert them, and that those third parties are usually the best proponents of their rights. Allegheny Reproductive, 249 A.3d at 605.²⁰ In other words, the court justified applying third-party standing out of concern that: (1) the Providers might be unnecessarily vindicating constitutional rights; and (2) the Providers might not be the best advocates. The Commonwealth Court's foray into this line of inquiry ignores our resolution of the analogous issues in the above-discussed cases.²¹ For the sake of completeness, we note that the Commonwealth Court's predicates are faulty.

20 The Commonwealth Court relied on Harrisburg School District, 379 A.2d at 895-97 and Pennsylvania Dental Association, 461 A.2d at 331, to establish the applicability of the Singleton framework. In both cases, the Commonwealth Court applied the framework without any deliberation about the propriety of importing the federal constitutional doctrine into our prudential state-specific approach to standing. The court simply cited the federal standard, then applied it, without considering whether the concerns animating the federal standing doctrine have equal force in the courts of our Commonwealth. These cases are unresponsive to the question of whether this Court should adopt the third-party standing doctrine in the Commonwealth. In Harrisburg School District, the Commonwealth Court was addressing the District's assertion that striking teachers' conduct, in picketing at school board members' homes, violated the school board members' constitutional rights to privacy. The Commonwealth Court observed that Singleton was decided a year prior, then employed Singleton's framework. Subsequently, citing to Harrisburg School District, the court in Pennsylvania Dental Association summarily applied the Singleton doctrine to determine that the dental association had standing to challenge a contractual amendment that permitted the government to access patient files when auditing the dentist on the grounds that it violated patients' privacy rights.

21 The Commonwealth Court also ignores that among the reasons for the federal third-party standing doctrine is the High Court's effort to exercise restraint when interpreting state law, a concern irrelevant to our prudential standing analysis. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 & 13 n.5 (2004) (stating that its prudential standing analysis and decision to reject standing in that case are informed by the fact that family law rights-rights which "belong[] to the laws of the States and not to the laws of the United States"-"are entwined inextricably with the threshold standing inquiry"); Barrows, 346 U.S. at 256 (stating that one reason for this rule "is that the state court, when actually faced with the question, might narrowly construe the statute to obliterate the objectionable feature, or it might declare the unconstitutional provisions separable[]"); New York ex rel. Hatch v. Reardon, 204 U.S. 152, 160-61 (1907) (expressing concern that "it may be more or less of a speculation to inquire what exceptions the state court may read into general words, or how far it may sustain an act that partially fails").

First, with regard to the notion that "the [c]ourt has no way of knowing that the patients on whose behalf [Providers] purport to speak even want this assistance[,]" id. at 607, we observe that Providers bring these claims in support of women seeking abortions who live close to or below the poverty line and who qualify for Medical Assistance. The petition alleges that Providers work with women who have sought abortions in their clinics but were denied coverage because of the Coverage Exclusion. See, e.g., Petition for Review, 1/16/2019, ¶¶ 56-64. The holders of these rights have thus sought to assert their rights by appearing before Providers and seeking abortion services.

Further, there can be no genuine dispute that pregnant women seeking abortions are not in the best position to act as proponents of their rights. Pregnant women face a genuine obstacle to asserting their rights as a function of the short nature of pregnancy and the statutory temporal limit on a woman's right to seek an abortion,²² as compared to the prolonged nature of litigation. Litigation will often outlast the window of opportunity to seek an abortion even if one presupposes a woman's timely awareness of a pregnancy and the knowledge of and availability of legal services to seek expedited relief from the court. A poor pregnant woman's individual ability to assert her own constitutional rights in this context is illusory at best. We also note that a woman's interest in privacy is implicated by any requirement that she be the plaintiff bringing this lawsuit to vindicate her constitutional rights. New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841, 847 (N.M. 1998) ("[P]rivacy concerns and time constraints impose a significant hindrance on the ability of Medicaid-eligible women to protect their own interest in obtaining medically necessary abortions.").

22 The Abortion Control Act contains the following general prohibition: "no person shall perform or induce an abortion upon another person where the gestational age of the unborn child is 24 or more weeks." 18 Pa.C.S. § 3211(a).

Thus, the Commonwealth Court erred in reverting to consideration of the unique third-party standing test from federal jurisprudence as articulated in Singleton. Because Providers have established that they are aggrieved by the Medical Assistance Coverage Exclusion, the Commonwealth Court erred in denying them standing.²³

23 Our conclusion that Providers have standing is consistent with many other courts' conclusions that abortion providers have standing to challenge state abortion laws, albeit those conclusions are often reached through application of Singleton. See Comprehensive Health of Planned Parenthood of Kan. and Mid-Mo v. Kline, 197 P.3d 370, 374, 394 (Kan. 2008) (applying Singleton to determine that an abortion provider had standing); Feminist Women's Health Ctr. v. Burgess, 651 S.E.2d 36, 37-39 (Ga. 2007) (applying Singleton to determine that a physician and several health care facilities had standing); Planned Parenthood of Kan. and Mid-Mo v. Nixon, 220 S.W.3d 732, 736-738 (Mo. 2007) (applying Singleton to determine Planned Parenthood had standing both independently and on behalf of minor patients); State v. Planned Parenthood of Alaska, 35 P.3d 30, 34 (Alaska 2001); Armstrong v. State, 989 P.2d 364, 369-370 (Mont. 1999) (applying Singleton to determine health care providers had standing); Pro-Choice Miss. v. Fordice, 716 So.2d 645, 662-65 (Miss. 1998) (applying Singleton to determine doctors and health care providers had standing); New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841, 846-47 (N.M. 1998) (applying, inter alia, the rationale of Singleton to determine that health care providers and organization representing Medicaid-eligible women had standing); Planned Parenthood League v. Bell, 677 N.E.2d 204, 207-09 (Mass. 1997) (applying Singleton to determine that Planned Parenthood League of Massachusetts had standing); Davis v. Fieker, 952 P.2d 505, 508 (Okla. 1997) (applying "direct, immediate and substantial" test to determine that physician who practices medicine in state of Oklahoma has standing to challenge abortion regulations); Cheaney (continued…) v. State, 285 N.E.2d 265, 266 (Ind. 1972) (pursuant to United States Supreme Court rule that an accessory has standing to assert that the offense of which she is charged with assisting cannot constitutionally be a crime, determining that abortion provider (not a doctor) had standing); Ballard v. Anderson, 484 P.2d 1345, 1348 (Cal. 1971) (determining that physician had standing arising from his right to practice medicine consistent with law and his potential liability if he performs an abortion).

B. Intervention

1. Scope and Standard of Review

Resolution of this issue requires an examination of whether the Commonwealth Court erred by concluding that the various state legislators who requested to intervene in this matter were permitted to do so pursuant to Pennsylvania Rule of Civil Procedure 2327. Generally speaking, such an issue presents a question of law; thus, our scope of review is plenary, and our standard of review is de novo. Markham v. Wolf, 136 A.3d 134, 138 (Pa. 2016).²⁴

24 Senate Intervenors challenge any reliance on the standard and scope as set forth in Markham to address the instant question because "the legal question Markham held was subject to this standard and scope was whether 'legislative standing' exists." Senate Intervenors' Brief at 57 n.21 (citing Markham, 136 A.3d 138). Here, the Senate Intervenors highlight that they are intervening as Respondents, not as Petitioners, and therefore need not establish legal standing, despite recognizing that "the standing analysis is useful for assessing whether a legally enforceable interest exists" for them to intervene. Id. While we acknowledge that both Senate and House Intervenors are attempting to intervene as Respondents, rather than Petitioners, this does not impact our standard and scope of review. The Senate Intervenors contend that this Court should apply an abuse of discretion standard to the instant question. See Senate Intervenors' Brief at 1 (citing Pa. Ass'n of Rural & Small Sch. v. Casey, 613 A.2d 1198, 1200 n.1 (Pa. 1992)). However, as the Commonwealth Court observed below, "the court is given the discretion to allow or to refuse intervention only where the petitioner falls within one of the classes enumerated in Rule 2327 and only where one of the grounds under Rule 2329 is present which authorizes the refusal of intervention." Allegheny Reproductive, 225 A.3d at 908 (quoting Larock v. Sugarloaf Twp. Zoning Hearing Bd., 740 A.2d 308, 313 (Pa. Commw. 1999)). As the question of whether a party falls into one of the categories set forth in Rule 2327 raises a question of law, we review such matters de novo. Pa. Bankers Ass'n v. Pa. Dep't of Banking, 956 A.2d 956, 963 (Pa. 2008).

2. Relevant Principles of Pennsylvania's Law on Intervention

Pennsylvania Rule of Civil Procedure 2327 governs who may intervene in a civil action, and it provides, in relevant part:

At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if ... (3) such person could have joined as an original party in the action or could have been joined therein; or (4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action.

Pa.R.C.P. 2327(3)-(4).

To intervene, the prospective intervenor must first establish that she has standing.²⁵ Markham, 136 A.3d at 140. The concerns animating the concept of standing are inextricably linked to questions of intervention pursuant to Rule 2327. Id. at 139; see also Application of Biester, 409 A.2d 848, 850 n.2 (Pa. 1979) (concluding that because the proposed intervenor "lack[ed] standing to advance the petition for review, he ha[d] no legally enforceable interest to assert as an intervenor"). Given that the foundational principles of standing were discussed in detail in the immediately preceding section of this opinion, we only will reiterate that for a party to a legal action to have standing, they must be aggrieved or "negatively impacted in some real and direct fashion." Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 660 (Pa. 2005). Such intervention is as permissible for individual legislators as anyone else "where there [is] a discernible and palpable infringement on their authority as legislators." Fumo, 972 A.2d at 501.

25 Because Intervenors are proposing to intervene as Respondents, rather than Petitioners, Senate Intervenors assert that standing is irrelevant to our analysis, despite acknowledging the applicability of standing principles to at least one of their bases for intervention. Senate Intervenors' Brief at 69. As Judge Simpson acknowledged below, neither our Rules of Civil Procedure nor our case law have made any distinction based upon a proposed intervenor's status as petitioner or respondent. See Judge Simpson's Opinion, 6/21/2019, at 13; see also Pa.R.C.P. 2327. In fact, this Court has applied the same legislative standing principles to individual legislators who sought to intervene as Respondents. See Robinson Twp. v. Commonwealth, 84 A.3d 1054 (Pa. 2014) (per curiam).

3. Parties' Arguments

Providers' Arguments

Providers argue that this Court has limited individual legislator intervention to situations where the legislators' "ability to participate" in the voting process is negatively impacted or she is deprived of her authority to act as a legislator. Providers' Brief at 77 (citing Markham, 136 A.3d at 145; Fumo, 972 A.2d 501). Deeming neither condition present in the instant matter, Providers contend that Intervenors are merely attempting to defend the constitutionality of the statute, and thus have not established a right to intervene. Id.

In directly responding to the Commonwealth Court's decision, Providers aver that the lower court fundamentally misunderstood what effect Intervenors' challenge would have if Providers were successful. Id. 78-79. Rather than force the Legislature to appropriate money for abortions, they argue, a decision that the Coverage Exclusion is unconstitutional would not implicate the legislators' powers in any way. Id. at 78. According to Providers, by holding otherwise, the court's reasoning "unduly expands the narrow circumstances under which individual legislators can intervene" to nearly every constitutional challenge to legislation. Id. at 79-80.

Intervenors' Arguments ²⁶

26 While the members of both the House and Senate have separately submitted arguments in their briefs on the issue of their right to intervene in this matter, their briefs largely share the same views and arguments. Accordingly, we summarize their arguments together, and we highlight arguments that are unique to a particular group of legislators.

Intervenors agree with the Commonwealth Court's analysis regarding legislative intervention. House Intervenors' Brief at 23-24; Senate Intervenors' Brief at 56-58. Relying on various constitutional provisions,²⁷ Intervenors assert that the power to raise and appropriate government funds lies exclusively within their branch of government, and that if the relief sought by Providers is granted, it would impair their ability to exercise that authority. House Intervenors' Brief at 25-29; Senate Intervenors' Brief at 60-63. Specifically, they argue that it would impair the Intervenors' ability to determine the amount of funds appropriated for Medical Assistance and how those funds should be utilized. House Intervenors' Brief at 29; Senate Intervenors' Brief at 63.

27 House Intervenors' Brief at 25-26 (citing Pa. Const. art. III, §§ 10, 11, 14, 15, 17-19, 22, 24, 26, 29-30); Senate Intervenors' Brief at 59-60 (Pa. Const. art. II, § 1; Pa. Const. art. III, § 24).

Although not addressed by the Commonwealth Court, Intervenors also argue that they are entitled to intervene as persons who could have been joined as original parties pursuant to Rule 2327(3). House Intervenors' Brief at 30-34; Senate Intervenors' Brief at 69-73.

4. Analysis

We find that our analysis in Markham is dispositive of this issue. This Court has limited legislator intervention to particular circumstances. Specifically, we have held that such standing exists when a legislator's direct and substantial interest in her ability to participate in the voting process is negatively impacted, or when a legislator has suffered a concrete impairment or deprivation of an official power or authority to act as a legislator. Markham, 136 A.3d at 145. In other words, legislators may challenge actions when the injuries diminish their unique legislative powers as set forth under our Constitution. Id. Legislators may not challenge actions when the injuries affect conduct outside the legislative forum unrelated to voting or the approval process, making their challenge "akin to a general grievance about the correctness of governmental conduct[.]" Id.

In Markham, individual state legislators sought to intervene in a challenge to an executive order that provided direct care health workers with a process by which to seek representation and collectively bargain. Markham, 136 A.3d at 138-39. The legislators claimed that they were aggrieved by the executive order insofar as it violated the separation of powers doctrine by diminishing the effectiveness of prior-enacted legislation, "infringing upon their exclusive law-making authority and usurping the power of the General Assembly." Id. Specifically, the legislators in Markham sought to intervene pursuant to Rule 2327(3) & (4), arguing that the Governor's executive order "denie[d] every member of the General Assembly the opportunity to vote on whether direct care health providers may organize and collectively bargain[,]" which was not provided for in the relevant labor laws. Id. at 139.

In analyzing whether the legislators in Markham could intervene, we held that they were required to satisfy our standing requirements to demonstrate that they are actually aggrieved. Id. at 140. After reviewing relevant federal and Pennsylvania law, we concluded that the legislators could only demonstrate a direct and substantial interest when their ability to participate in the voting process is negatively impacted or when their authority to act as a legislator is impaired in some way. Id. at 145. With those principles in mind, we found that the legislators were only raising a claim that the executive order violated the separation-of-powers doctrine, but that the executive order neither inhibited the legislators' ability to vote on or enact legislation, nor prevented them from "advising, consenting, issuing, or approving matters within their scope of authority as legislators." Id. at 145. Accordingly, their interests in the underlying challenge were "too indirect and insubstantial," and thus were generalized interests no different than those "common to the general citizenry." Id. at 145-46. We further highlighted the following concern:

[T]aking the unprecedented step of allowing legislators standing to intervene in, or be a party to, any matter in which

it is alleged that government action is inconsistent with existing legislation would entitle legislators to challenge virtually every interpretive executive order or action (or inaction). Similarly, it would seemingly permit legislators to join in any litigation in which a court might interpret statutory language in a manner purportedly inconsistent with legislative intent. Appellants offer no limiting principle which would permit their intervention in the instant matter, but constrain their ability to initiate litigation, seek declaratory relief, or to intervene in any matter which does not, under the principles we express today, impact them in their role of legislators.

Id. at 145. With that in mind, we observed that the legislators in Markham still had recourse, as our decision in no way precluded them from enacting future legislation in that area, and that they were permitted to participate as amici to be heard on the merits of the controversy. Id. at 145-46.

Here, Intervenors' interest in the Coverage Exclusion is too attenuated to satisfy our intervention requirements. With respect to any negative impact on their ability to vote, we find none. Other than passing budgets in contemplation of the parameters of Medical Assistance, the last time that the Legislature voted on the Coverage Exclusion at issue in this case was in 1989, and thus, it cannot be said that this litigation directly affects Intervenors' ability to vote with respect to this exclusion. See Wilt v. Beal, 363 A.2d 876, 881 (Pa. 1976) ("Once, however, votes which they are entitled to make have been cast and duly counted, their interest as legislators ceases."). In other words, Intervenors' direct connection with this specific piece of legislation ceased when it was last voted on and went into effect. Thus, Intervenors have no interest greater than the ordinary citizen to have duly-enacted statutes enforced. If anything, Intervenors' only concern appears to be with voting on future legislation. See Senator Intervenors' Brief at 67 ("[T]he entire purpose of Providers' action is not only to enjoin the existing statute, but to prevent members of the General Assembly from ever voting in favor of future legislation containing similar funding restrictions."). This is too speculative of a concern and too attenuated from the exclusion that is under review. We have before us a challenge to the Coverage Exclusion that is presently in effect and not a hypothetical statutory provision that has yet to be drafted. There is no defined legislative right to vote on future appropriation bills that specifically refuse public funding for abortions, particularly when the constitutionality of such a provision is currently under review by the courts. If it is ultimately decided that the challenged provisions are unconstitutional, then the legislators cannot genuinely claim that their future interests in unconstitutional legislation are violated. See Healthsystem Ass'n of Pa. v. Commonwealth, 77 A.3d 587, 598 (Pa. 2013) (stating that "regardless of the extent to which the political branches are responsible for budgetary matters, they are not permitted to enact budget-related legislation that violates the constitutional rights of Pennsylvania citizens"). This further illustrates that Intervenors' interest is merely defending the constitutionality of the Coverage Exclusion, making their interests no greater than that of the general citizenry.

Along these lines, Intervenors advance an argument supported by the Commonwealth Court, that a determination of the constitutionality of this statute-or any piece of legislation for that matter-implicates the legislative authority to appropriate government funding. House Members' Brief at 25-29; Senator Intervenors' Brief at 60-63. There is no question that Article III of the Pennsylvania Constitution endows the Legislature with authority over the appropriation of government funds. Pa. Const. art. III, §§ 3, 11, 24. However, the Commonwealth Court's negative inference that a ruling on the constitutionality of the exclusion "will directly limit the General Assembly's exclusive authority to appropriate moneys from the treasury" fails to appreciate the traditional function of judicial review. Allegheny Reproductive, 225 A.3d at 911.

Applying this concept broadly, there is no discernible limiting principle to individual legislator intervention. Nearly all matters of state government implicate the appropriation of government funding in some form or fashion. While the degree may change, government funding underlies all government action. Thus, individual legislators' interests would arise in every instance that there is a question with respect to a law's constitutionality. To endorse the Commonwealth Court's rationale would broaden the scope of individual legislator intervention to such a degree that any of the 253 state legislators would be permitted to intervene in virtually any case in which the constitutionality of a piece of legislation is being challenged.

Not only is this position untenable, but it is contrary to our existing jurisprudence concerning individual legislator intervention. Markham, 136 A.3d at 145 ("[T]he assertion that another branch of government … is diluting the substance of a previously-enacted statutory provision is not an injury which legislators, as legislators, have standing to pursue."). Like the legislators in Markham, Intervenors in the instant matter are raising concerns that a co-equal branch of government is exercising its authority in a way that will diminish (or in this case, nullify) previously enacted legislation. Despite Intervenors' attempts to frame this constitutional determination as a deprivation of their appropriation authority, we respectfully conclude that this attempt misses the mark.

This Court regularly and appropriately measures the constitutionality of legislation, and by suggesting that each time we do so implicates the Legislature's appropriation authority, Intervenors turn the separation-of-powers doctrine on its head. "Indeed, '[o]rdinarily, the exercise of the judiciary's power to review the constitutionality of legislative action does not offend the principle of separation of powers[.]'" Robinson Township, 83 A.3d at 927-28 (quoting Hosp. & Healthsystem Ass'n of Pa. v. Commonwealth, 77 A.3d 587, 596 (Pa. 2013)). It is precisely this Court's role to determine what is within the bounds of our Charter. Id. at 926 ("[T]he Pennsylvania Supreme Court in particular, ha[s] the power to determine the constitutionality of statutes[.]").

The Commonwealth Court and Intervenors appear to share a fundamental misunderstanding of the relief sought by Providers and the impact that any decision supporting it would have on the Legislature's appropriation of government funds. Providers are not asking the judiciary to mandate funding for abortion coverage but, rather, are seeking a judicial declaration that the Coverage Exclusion and its implementing regulations are unconstitutional and that its enforcement be enjoined. Providers' Brief at 78. If successful, the ultimate decision in this appeal will fulfill the Court's constitutional mandate to adjudicate such matters. Following our decision, Intervenors may vote or legislate however they so choose in conformity with their constitutional prerogatives and obligations.

Furthermore, we find no merit to Intervenors' alternative argument that their intervention in this matter is proper pursuant to Rule of Civil Procedure 2327(3), which provides that a party shall be permitted to intervene when "such person could have joined as an original party in the action or could have been joined therein." Pa.R.C.P. 2327(3). In support of this position, Intervenors cite to several cases in which individual legislators and/or the General Assembly itself were named as defendants. House Intervenors' Brief at 30-33 (citing Finn v. Rendell, 990 A.2d 100 (Pa. Commw. 2010); Stilp v. Commonwealth, 974 A.2d 491 (Pa. 2009); Sears v. Wolf, 118 A.3d 1091 (Pa. 2015); William Penn Sch. Dist. v. Pa. Dep't of Educ., 170 A.3d 414 (Pa. 2017); League of Women Voters v. Commonwealth, 178 A.3d 737 (Pa. 2018)); Senate Intervenors' Brief at 70-72 (citing, inter alia, Pa. State. Ass'n of Jury Comm'rs v. Commonwealth, 78 A.3d 1020 (Pa. 2013); Pa. State Ass'n of Cnty. Comm'rs v. Commonwealth, 52 A.3d 1213 (Pa. 2012); Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205 (Pa. Commw. 2018); Leach v. Commonwealth, 141 A.3d 426 (Pa. 2016)). These cases do not support their intervention in this matter. In this regard, we agree with Judge Simpson's observation that "there is no indication" in any of the relied upon cases "that joinder was contested." Judge Simpson's Opinion, 6/21/2019, at 13. Here, intervention has been vigorously contested throughout the matter.

These cases are inapposite on not only procedural grounds, but substantive grounds, as well. In most of these cases, the plaintiffs were attempting to directly challenge uniquely legislative functions. See Stilp, 974 A.2d 491 (challenging legislator compensation); League of Women Voters, 181 A.3d 1083 (challenging the drawing of district lines); Leach v. Commonwealth, 141 A.3d 426 (Pa. 2016) (challenging the enactment process pursuant to the single-subject rule); William Penn Sch. Dist v. Pa. Dep't of Educ., 170 A.3d 414 (Pa. 2017) (claiming the General Assembly failed to enact legislation that would ameliorate education funding disparities). The remaining cases similarly involved the Legislature's functions because plaintiffs sought mandates that the General Assembly appropriate funds in a specific manner. Sears, 118 A.3d 1091 (requesting that government funds be redirected to a health insurance program); Pa. State Ass'n of Cnty. Comm'rs, 52 A.3d 1213 (seeking to compel General Assembly to provide funding for court system); Finn, 990 A.2d 100 (asking the judiciary to compel government entities to reimburse district attorneys' salaries). In the instant matter, Providers are not seeking to compel the General Assembly to do anything, nor are they implicating Intervenors' unique legislative authority for the reasons previously discussed.

As Providers have identified, they are asking the courts to review the constitutionality of the Coverage Exclusion, to enjoin DHS-the agency tasked with administering Medical Assistance-from enforcing the allegedly unconstitutional exclusion, and to recognize a right to abortion under Pennsylvania's Constitution. The petition for review (and relief requested therein) implicates DHS's administrative functions and does not directly involve the legislative function such that Intervenors could have been joined as original parties. Therefore, Intervenors have no basis to defend the constitutionality of the statute pursuant to Rule 2327(3), and their argument in support of intervention pursuant to Rule 2327(3) is meritless.

For the above reasons, we reject the Commonwealth Court's rationale that Intervenors may intervene based on a theory that striking down the exclusion would affect their authority to appropriate government funds. Accordingly, we hold that Intervenors are not permitted to intervene in this action.²⁸, ²⁹

28 After determining that the legislators could intervene pursuant to Rule 2327(4), the Commonwealth Court then turned its analysis to the corollary rule on intervention, Pennsylvania Rule of Civil Procedure 2329. Allegheny Reproductive, 225 A.3d at 913 (citing Pa.R.C.P. 2329). Rule 2329 prohibits intervention, as relevant to the lower court's analysis, where the intervenor is already adequately represented, or when intervention will cause undue delay or prejudice. Id. However, a court need only engage in an analysis under Rule 2329 when it finds that a proposed intervenor has satisfied one of the requirements of Rule 2327. Given that Intervenors have failed to demonstrate that they may intervene pursuant to Rule 2327, there is no need to address the grounds for disqualifying intervention pursuant to Rule 2329.

29 Despite our conclusion that the Commonwealth Court erred by allowing intervention, we nonetheless will consider the pertinent portions of Intervenors' briefs as amici briefs in support of DHS's position that the Coverage Exclusion is constitutional. In re Canvassing Observation, 241 A.3d 339, 346 n.6 (Pa. 2020). Pennsylvania Rule of Appellate Procedure 531 recognizes that an amicus cannot raise an issue that has not been preserved by the parties, see Pa.R.A.P. 531, Note, but the legislators only provide arguments directly addressing the issues preserved by the parties. While DHS does not respond directly to the merits of the Providers' constitutional arguments, the Intervenors do. This does not disqualify their amici status. In fact, this Court is of the view that "[a]n amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties [(e.g., relevant responsive arguments)] may be of considerable help to the Court." Pa.R.A.P. 531, Note (citing U.S. Supreme Ct. R. 37.1). Because of the volume of amici in this appeal, for the sake of clarity, we refer to Intervenors as such throughout this opinion, despite their status as amici.

III. Challenge to Fischer as controlling precedent

A. Scope and Standard of Review

The Commonwealth Court rejected Providers' constitutional challenges by sustaining DHS's preliminary objection in the nature of a demurrer. We review such decisions in a way that is substantially similar to the manner in which we review an order sustaining a preliminary objection to a party's standing. See supra p. 23. In addition to the principles of review discussed above, we note that "the standard of review for preliminary objections in the nature of a demurrer is limited; the question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it." Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270, 274 (Pa. 2005) (citation and internal quotation marks omitted).

B. Relevant Legal Principles

When interpreting a constitutional provision, the polestar of our analysis must be the plain language. In re Bruno, 101 A.3d 635, 659 (Pa. 2014). Under such a reading, "this Court regards the language of our Constitution as the embodiment of the will of the voters who adopted it[.]" Washington v. Dep't of Pub. Welfare, 188 A.3d 1135, 1144 (Pa. 2018) (citing Stilp, 905 A.2d at 939). When interpreting constitutional language, we are mindful that the language of the Constitution controls and that it must be interpreted "in its popular sense, as understood by the people when they voted on its adoption." Pa. Env't Def. Found. v. Commonwealth, 161 A.3d 911, 929 (Pa. 2017). In ascertaining the meaning of a word in accordance with its common and approved usage, this Court has found it helpful to consult dictionaries. Greenwood Gaming & Ent., Inc. v. Commonwealth, 263 A.3d 611, 620 (Pa. 2021) (citing Bruno v. Erie Ins. Co., 106 A.3d 48, 75 (Pa. 2014)). Further, when reviewing statutory enactments, "we presume that the General Assembly does not intend to violate the Pennsylvania Constitution[.]" McLinko v. Dep't of State, 279 A.3d 539, 563 (Pa. 2022).

Also relevant to the present analysis is the doctrine of stare decisis, pursuant to which courts are bound by previous decisions of the court in order to "promote[] the evenhanded, predictable, and consistent development of legal principles, foster[] reliance on judicial decisions, and contribute[] to the actual and perceived integrity of the judicial process." See Commonwealth v. Alexander, 243 A.3d 177, 195-96 (Pa. 2020) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)). To ensure certainty and finality, overturning a decision requires a "special justification, over and above the belief that the precedent was wrongly decided." Id. at 196 (quoting Allen v. Cooper, 140 S.Ct. 994, 1003 (2020)). The appropriateness of overruling a past decision depends on a number of factors, including the age and lineage of the decisions, as well as "'the quality of [its] reasoning, the workability of the rule it established, its consistency with other related decisions, … and reliance on the decision.'" Id. at 196-97 (quoting Knick v. Twp. of Scott, Pa., 139 S.Ct. 2162, 2177-78 (2019)).³⁰ Additionally, the considerations for stare decisis are afforded "special force in the area of statutory interpretation[,]" resulting in courts adhering to a more strict application of the doctrine in this context as opposed to in the context of constitutional law. Hilton v. S.C. Pub. Rys. Comm'n, 502 U.S. 197, 202 (1991). Stare decisis is at its weakest in the context of constitutional interpretation. Alexander, 243 A.3d at 197 (citing Agostini v. Felton, 521 U.S. 203, 235 (1997)).

30 Justice Mundy's suggestion that we, as Justices, have overruled other Justices is, at best, curious. Concurring & Dissenting Op. at 3 n.2 (Mundy, J). Although presumably offered for its rhetorical effect, it is also dangerous. As a majority of the Justices adjudicating a case, we speak as the Supreme Court of this Commonwealth. Justice Mundy's pedestrian "observation" calls into question countless cases adjudicated by similarly constituted versions of this Court.

Although undoubtedly powerful, this Court has repeatedly recognized that "[w]hile the doctrine of stare decisis is important, it does not demand unseeing allegiance to things past." Commonwealth v. Doughty, 126 A.3d 951, 955 (Pa. 2015); see also Alexander, 243 A.3d at 196 ("No one would seriously maintain that stare decisis demands absolute fidelity to what came before."); Tincher v. Omega Flex, Inc., 104 A.3d 328, 336 (Pa. 2014) (quoting In re Carney, 79 A.3d 490, 505 (Pa. 2013) ("[W]e have long recognized that the doctrine of stare decisis is not a vehicle for perpetuating error, but a 'legal concept which responds to the demands of justice, and, thus, permits the orderly growth process of the law to flourish.'")).

C. Fischer v. Department of Public Welfare

In Fischer v. Department of Public Welfare, 502 A.2d 114 (Pa. 1985), the Court addressed arguments like those presented here that the Coverage Exclusion found in Section 3215(c) of the Abortion Control Act violated equal protection principles embodied in the Pennsylvania Constitution and the Equal Rights Amendment because it provided all medically necessary services-including those related to reproductive health-to men but excluded women from access to medically necessary services. The Court issued a unanimous opinion rejecting the constitutional challenges. Whereas the Commonwealth Court viewed Fischer as dispositive, Providers challenge Fischer's continued vitality. We begin our analysis with a detailed discussion of Fischer.

The Fischer Court based its analysis on the proposition that the case did not concern the right to abortion. It recognized that in Roe v. Wade, 410 U.S. 113 (1973),³¹the High Court "bottomed the right to expel an unwanted pregnancy on the choice of the private uses of one's body." Fischer, 502 A.2d at 116. The Fischer Court, however, framed the question as whether, "because this Commonwealth provides funds to indigent women for a safe delivery, [it is] therefore equally obliged to fund an abortion." Fischer, 502 A.2d at 116.

31 As previously noted, in 2022, while this appeal was pending in this Court, Dobbs v. Jackson Women's Health Organization, 142 S.Ct. 2228, 2279 (2022) overruled Roe, holding that the federal Constitution does not confer a right to abortion, and "the authority to regulate abortion must be returned to the people and their elected representatives." Id. The Fischer Court's opinion was written with the understanding that there existed a federal right to abortion. After Dobbs was announced, this Court issued an order granting Providers the opportunity to file supplemental briefing to address the impact of Dobbs on this case and directing the Prothonotary to accept all supplemental briefs for filing. Order, 8/18/2022.

In recounting the procedural history, the Fischer Court observed that the genesis of the dispute was a challenge to the constitutionality of the Coverage Exclusion brought by the appellants-a taxpayer, several medical assistance recipients who at the time the lawsuit was filed were pregnant and sought abortions, abortion providers, and a rape counseling organization ("Appellants").³² Appellants filed their challenges in state and federal court, the latter of which they withdrew. With regard to the state court challenge, the Commonwealth Court preliminarily enjoined enforcement of the Coverage Exclusion, and this Court affirmed the preliminary relief. Fischer v. Dep't of Public Welfare, 439 A.2d 1172 (Pa. 1982). The case was returned to the Commonwealth Court, where ultimately, an en banc panel upheld the Coverage Exclusion against the constitutional challenges. On appeal to this Court, Appellants raised three issues based in Pennsylvania constitutional law: they asserted that the abortion exclusion violated the equal protection guarantees of Article I, Section 1 and Article III, Section 32 of the Pennsylvania Constitution; that it violated the non-discrimination provision of Article I, Section 26 of the Pennsylvania Constitution;³³ and that it violated the Equal Rights Amendment in Article I, Section 28 of the Pennsylvania Constitution.

32 The lawsuit originally challenged 62 P.S. § 453 of the Public Welfare Code, Act of December 19, 1980, P.L. 1321 No. 239 § 1 ("Act 239"), prohibiting State and local government agencies from expending Commonwealth funds for the performance of an abortion except upon certification that the mother's life would be endangered, or for victims of rape or incest. 62 P.S. § 453. Act 239 was repealed and the Coverage Exclusion was reenacted in 18 Pa.C.S. § 3215(c) of the Abortion Control Act of 1982, Act of June 11, 1982, P.L. 476, No. 138. For present purposes, there is no meaningful difference in the language of Act 239, the 1982 version of Section 3215(c), and the present version of the Section 3215(c), which would call for a different analysis.

33 The Fischer Court addressed Article I, Section 26 separately from the other equal protection provisions, reviewing it as a standalone "non-discrimination clause" of our Constitution. Fischer, 502 A.2d at 123. However, Section 26 has been consistently applied and adopted by this Court as one of our Charter's equal protection provisions. See, e.g., Commonwealth v. Parker White Metal Co., 515 A.2d 1358, 1362-63 (Pa. 1986); Love v. Borough of Stroudsburg, 597 A.2d 1137, 1139 (Pa. 1991); Driscoll v. Corbett, 69 A.3d 197, 212 (Pa. 2013).

Although recognizing that Appellants did not raise any federal claims, the Fischer Court began with an extensive examination of what it referred to as the "relevant federal constitutional authorities." Fischer, 502 A.2d at 118. The Court observed that in our federal system, individual states may make certain choices "as long as they do not transgress certain constitutional parameters" as defined by the United States Supreme Court. Id. (citing Pruneyard Shopping Ctrs. v. Robins, 447 U.S. 74 (1980)).

The Court then summarized the then-relevant federal constitutional parameters of the right to abortion as established in Roe. It found relevant the Roe Court's acknowledgement that states have an interest in "potential life which may be destroyed," an interest which can justify certain restrictions on the performance of abortions. Id. (citing Roe, 410 U.S. at 162). Further, "the states' interest in potential life is a significant one 'existing throughout the course of the woman's pregnancy' and ... states may take certain steps 'to further this unquestionably strong and legitimate interest in encouraging normal childbirth.'" Id. at 118 (citing Beal v. Doe, 432 U.S. 438, 446 (1977)).³⁴

34 In Beal v. Doe, 432 U.S. 438, 440 (1977), a case involving statutory construction, the High Court held that Title XIX of the Social Security Act (a program "under which participating States may provide federally funded medical assistance to needy persons") did not require the funding of nontherapeutic abortions as a condition of participation in the joint federal-state medical program.

The Fischer Court also drew attention to the line of federal cases addressing state Medicaid funding and exclusions of abortion coverage. Namely, in Maher v. Roe,³⁵ the High Court held that states were not constitutionally required to "accord equal treatment to both abortion and childbirth." Id. (citing Maher v. Roe, 432 U.S. 464, 473-74 (1977)). Further, it was not unconstitutional for states to pay the expenses of childbirth while at the same time refusing to pay the expenses of abortions in non-life-threatening situations. Id. (citing Maher, 432 U.S. at 473-74). The Maher v. Roe Court explained:

35 In Maher v. Roe, 432 U.S. 464 (1977), the High Court addressed an Equal Protection Clause challenge to a Connecticut regulation under which Medicaid recipients received full coverage of childbirth medical services but no coverage of medical services incidental to nontherapeutic abortions. Ultimately, the High Court emphasized that the woman's indigency is at fault for the woman's difficulty. It therefore concluded that the Connecticut regulation "d[id] not impinge upon the fundamental right recognized in Roe." Id.

Roe did not declare an unqualified "constitutional right to an abortion" ... Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate the pregnancy. It implies no limitation on the authority of the State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.

Id. (citing Maher, 432 U.S. at 473-74).³⁶

36 The Fischer Court also highlighted that in Williams v. Zbaraz, 448 U.S. 358 (1980), the High Court held that a state may enact a statute limiting medically necessary abortion funding without offending the federal Constitution. Fischer, 502 A.2d at 118.

Three years later, in Harris v. McRae, 448 U.S. 297 (1980), the High Court addressed the constitutional validity of the Hyde Amendment, which was federal legislation providing for Medicaid funding and prohibiting the funds from being "used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest when such rape or incest has been reported promptly to a law enforcement agency or public health service." Id. at 119 (citing Pub.L. 96-123, § 109, 93 Stat. 926). The Fischer Court focused on two constitutional challenges raised and rejected in Harris as being most relevant, i.e., whether the Hyde Amendment impinged a fundamental right or violates the Equal Protection Clause.

First, in finding that the Hyde Amendment's restrictions did not impinge on a liberty interest protected by the Due Process Clause, the Harris Court cited to Maher's distinction "between direct state interference with a protected activity and state encouragement of an alternative activity consistent with legislative policy." Fischer, 502 A.2d at 119 (citing Harris, 448 U.S. at 315 (citing Maher, 432 U.S. at 475-76)). Further, "[c]onstitutional concerns are greatest when the state attempts to impose its will by force of law; the State's power to encourage actions deemed to be in the public interest is necessarily far broader." Id. (citing Harris, 448 U.S. at 315 (citing Maher, 432 U.S. at 475-76)). The High Court in Harris explained that, "regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in [Roe v.] Wade, it simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself to the full range of protected choices." Id. (citing Harris, 448 U.S. at 316-17). The Harris Court reiterated the reasoning from Maher that "although government may not place obstacles in the path of a woman's exercise of her freedom of choice, [the government] need not remove those not of its own creation. Indigency falls in the latter category." Id. (citing Harris, 448 U.S. at 316-17).

The Harris Court explained that indigency itself is to blame for restricting the indigent woman's ability to exercise her right to abortion, not governmental restrictions on access to abortions. According to the High Court, "the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all." Id. (citing Harris, 448 U.S. at 316-17). Reasoning that the Hyde Amendment merely encouraged childbirth and did not place obstacles or interfere with a woman's freedom of choice, the Harris Court concluded that the Hyde Amendment did "not impinge on the due process liberty rights" recognized in Roe. Id. (citing Harris, 448 U.S. at 318).

Next, the Fischer Court recognized that the Harris Court rejected an argument that the Hyde Amendment violates the Equal Protection Clause of the Fifth Amendment to the United States Constitution. Given that the High Court had not recognized indigency as a suspect classification for purposes of a federal equal protection analysis, the Harris Court stated that the Hyde Amendment did not operate to the detriment of a suspect class. Id. (citing Harris, 448 U.S. at 323). Therefore, the Harris Court reviewed the Hyde Amendment under rational basis, i.e., looking at whether it operates in a manner that "is rationally related to the legitimate governmental objective of protecting potential life." Id. at 120 (citing Harris, 448 U.S. at 325). It found that Congress used the Hyde Amendment to encourage childbirth except in the most urgent circumstances. Further, the incentives created by subsidizing medical expenses of indigent women who carry their pregnancies to term while not subsidizing those of indigent women who undergo abortions "bear a direct relationship to the legitimate congressional interest in protecting potential life." Id. (citing Harris, 448 U.S. at 325). Based on Maher and Harris, the Fischer Court observed that pursuant to the High Court's interpretation of the United States Constitution, "it is obvious that funding limitations which favor childbirth over abortion do not offend constitutional safeguards." Id.

Turning to the case before it, the Fischer Court recounted that the Commonwealth argued that the rights and privileges accorded Pennsylvania citizens are no greater than those afforded under the federal Charter with regard to abortion in this context, while the Appellants argued for the Court to interpret the Pennsylvania Constitution in a more expansive manner than its federal counterpart. Id. Specifically, Appellants argued that the analysis differs from that undertaken in Harris, urging the Court to "consider either that abortion, when necessary to preserve one's health, is a fundamental right, or that the classification of indigent women is a suspect one; and that the statute would not bear up under strict scrutiny." Id. Alternatively, Appellants argued that the statute would fail under rational basis review.

The Fischer Court began what it referred to as its equal protection analysis deriving from Article I, Section 1 and Article III, Section 32 by drawing from the previously discussed federal precedent. It recognized that merely because all have the right, it does not mean that the Commonwealth is required to fund the right. Nonetheless, when the Commonwealth offers to fund a right, it "must fund it for all, unless they [sic] have a constitutionally valid reason to specify only a certain class as their beneficiaries. It is the nub of equal protection that the Commonwealth cannot give or take from one and not the other unless their reason is to advance or protect a constitutionally recognizable interest of the common weal." Id. at 120-21. The Court further recognized that it was "free to interpret our Constitution in a more generous manner than the federal courts[]" interpret the federal Charter, and it observed that it has done so in the past. Id. (citing Commonwealth v. Sell, 470 A.2d 457 (Pa. 1983); Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981); Commonwealth v. DeJohn, 403 A.2d 1283 (Pa. 1979)).³⁷ However, the Court observed that it often turns to federal constitutional analysis "as an interpretational aid." Id. at 121.

37 In this trio of cases, this Court recognized that the Pennsylvania Constitution may provide greater protection than its federal counterpart. Sell, 470 A.2d 457 (holding that under Article I, Section 8, a defendant charged with a possessory offense has automatic standing to challenge the admissibility of evidence alleged to be the fruit of an illegal search or seizure despite that automatic standing had been abolished with regard to the Fourth Amendment); Tate, 432 A.2d at 1387 (recognizing that a state "may provide through its constitution a basis for the rights and liberties of its citizens independent from that provided by the Federal Constitution, and that the rights so guaranteed may be more (continued…) expansive than their federal counterparts[;]" then holding that appellants could not, consistent with their rights under the Pennsylvania constitution to freedom of speech, assembly and petition, be convicted for defiant trespass, when they staged a peaceful protest during the public presentation of then-FBI Director Kelley on the college campus); DeJohn, 403 A.2d at 1291-92 (holding that under the Pennsylvania Constitution, Article I, Section 8, defendant had a legitimate expectation of privacy in his bank record, despite not having such an interest under the Fourth Amendment).

It identified Kroger v. O'Hara Township, 392 A.2d 266 (Pa. 1978) as establishing "the preferred manner" to analyze state equal protection claims.³⁸ According to Kroger, though the High Court's interpretation of the federal Constitution is not binding on this Court's interpretation of the Pennsylvania Constitution, "we should be guided by the same principles in interpreting our Constitution." Fischer, 502 A.2d at 121 (citing Kroger, 392 A.2d at 274; Commonwealth v. Kramer, 378 A.2d 824 (Pa. 1977) (rejecting statutory challenge raised under Article III, Section 32 and treating it as a federal Equal Protection Clause challenge); Baltimore and Ohio R.R. v. Commonwealth, Dep't of Lab. and Indus., 334 A.2d 636 (Pa. 1975) (same)).

38 In holding that the Sunday Trading Law violated equal protection, the Kroger Court indicated that it was required to recognize the specific language in our Constitution insofar as it differed from that of the federal Constitution. Kroger, 392 A.2d at 274. The Court ultimately stated that it would be guided by the same principles in interpreting Article III, Section 32, as employed by the United States Supreme Court in interpreting the Equal Protection Clause. Id. at 274-75.

Next, the Fischer Court observed that James v. Southeastern Pennsylvania Transportation Authority, 477 A.2d 1302 (Pa. 1984), describes the analytical framework for reviewing government actions which affect disparate classes.³⁹ Namely, "classifications implicating neither suspect classes nor fundamental rights" are reviewed under a "rational basis" test. Fischer, 502 A.2d at 121 (citing James, 477 A.2d at 1306). "[W]here a suspect classification has been made or a fundamental right has been burdened, another standard of review is applied: that of strict scrutiny." Id. (citing James, 477 A.2d at 1306). Finally, "if 'important,' though not fundamental rights are affected by the classification, or if 'sensitive' classifications have been made, the United States Supreme Court has employed what may be called an intermediate standard of review, or a heightened standard of review." Id. The James Court explained that the applicability of any of these three standards depends upon "the type of right which is affected by the classification." Id. (citing James, 477 A.2d at 1306).

39 James was based on federal Equal Protection Clause precedent. James, 477 A.2d at 1305-07.

The Fischer Court identified the right with which it was confronted. It identified it as "the purported right to have the state subsidize the individual exercise of a constitutionally protected right, when it chooses to subsidize alternative constitutional rights[,]" a right which it stated was "found nowhere in our state Constitution," and therefore under the framework described in James, such a right cannot be considered fundamental. Id. Further, the Court stated that the statute does not affect a suspect class. It reiterated the High Court's reasoning that "financial need alone" does not identify a suspect class for purposes of equal protection analysis, and it stated that no other jurisdiction had recognized indigency as a suspect class. Id. at 122. Therefore, the Fischer Court reasoned, "since the statute affects neither a fundamental right nor a suspect class, the interest of the state need not be a compelling one in order to sustain the burden of justifying the disparate treatment of the two classes of women." Id.

Though it ultimately stated that the distinction only need be supported by rational basis, it alternatively explored and applied intermediate scrutiny. The Court reiterated that the second or intermediate level of scrutiny involves instances where "an 'important' interest has been affected,' and/or 'whether sensitive, though not suspect classifications have been made." Id. (citing James, 477 A.2d at 1306). Also, those rights important enough to warrant this heightened scrutiny "have been described as those affecting 'liberty' interests, or a 'denial of a benefit vital to the individual.'" James, 477 A.2d at 1306 (citing Laurence Tribe, American Constitutional Law, § 16-31 (1978)). The Fischer Court noted that the High Court in Harris determined that the Hyde Amendment's funding restrictions affected neither an important interest nor a sensitive classification. Fischer, 502 A.2d at 122.

Then it stated, "[h]owever, even assuming, as [A]ppellants impliedly argue, that the funding distinction made in the Abortion Control Act constituted a 'denial of a benefit vital to the individual' claimants," it would satisfy intermediate scrutiny. Id. Again, relying on James, it characterized intermediate scrutiny as requiring (1) that the governmental interest be an important one; (2) that the governmental classification be drawn so as to be closely related to the objectives of the legislation; and (3) that a person excluded from the benefit be permitted to challenge the denial on the grounds that his particular denial would not further the governmental purpose of the legislation. Id. at 121 (citing James, 477 A.2d at 1307).

In identifying the important governmental interest, the Fischer Court explained: "the importance of the governmental interest of preserving potential life has been consistently recognized by the United States Supreme Court[]" as "valid and important," Beal, 432 U.S. at 445; "important and legitimate," Harris, 448 U.S. at 324 (citing Roe v. Wade, 410 U.S. at 162); "significant" and, "unquestionably strong," Beal, 432 U.S. at 446. The Fischer Court next drew attention to the High Court's recognition of "the unique aspect of abortion as being the only medical procedure involving 'the purposeful termination of a potential life.'" Fischer, 502 A.2d at 122 (citing Harris, 448 U.S. at 325). Therefore, the Fischer Court announced that "the Commonwealth's interest in attempting to preserve a potential life" is important. Id. ("[T]o say that the Commonwealth's interest in attempting to preserve a potential life is not important, is to fly in the face of our own existence.").

Next, the Court explained that the classification was "specifically related to the ends sought[.]" Id. That is, the Act encouraged childbirth "in all situations except where another life would have to be sacrificed[,]" and thus, it preserved "the maximum amount of lives: i.e., those unaborted new babies and those mothers who will survive though their fetus be aborted." Id. at 122-23. Finally, the Court reasoned that Appellants had not shown how the "Commonwealth's denial of funds would fail to accomplish the governmental purpose of preserving the life of the unborn child." Id. at 123.

The Fischer Court therefore stated that, even if it were to find that the present classification warranted heightened scrutiny, it would nevertheless find that the distinction passed constitutional muster. However, it reiterated, as the United States Supreme Court concluded in Harris, the appropriate standard of review is rational basis. It observed that this test-i.e., the deferential standard by which legislative enactments are reviewed-is the standard it had traditionally used to assess the constitutionality of distinctions within government benefit programs. Id. (citing Martin v. Unemployment Comp. Bd. of Rev., 466 A.2d 107 (Pa. 1983)).⁴⁰

40 In Martin, this Court addressed an appeal of a denial of unemployment compensation benefits. Martin, 466 A.2d at 108. The appellant, a claimant denied unemployment benefits, asserted that the statutory scheme to determine the levels of monetary earnings qualifying a worker for unemployment benefits violated the Equal Protection Clause of the Fourteenth Amendment by creating an invidious eligibility classification. "The statute applicable to this case required that claimants earning $3,738.00 or more in their highest quarter also earn the maximum of $6,000.00 in fixed qualifying wages in their base year, with a minimum 20% of such base year wages earned outside their highest quarter. On the other hand claimants earning less than $3,738.00 in their highest quarter had to earn 35% to 38% of their wages outside their highest quarter without any higher fixed constant amount." Id. In determining the proper test to evaluate the challenge, the Court recalled that the United States Supreme Court "has consistently applied only minimal scrutiny to statutory (continued…) classifications employed in the regulation of economic activity or in the distribution of economic benefits so long as those classifications do not discriminate against 'suspect classes.'" Id. at 111. The Court observed that insofar as the unemployment compensation law creates a classification based on wealth, such a classification does not trigger heightened scrutiny. Id. at 113-14. Neither did the statutory scheme impact a fundamental right. Therefore, the Court concluded that there was a rational relationship between the classifications and the legitimate government interest, and thus, found that it did not violate the federal Equal Protection Clause. Id.

Under the rational basis standard, the classification "need only be directed at the accomplishment of a legitimate governmental interest, and to do so in a manner which is not arbitrary or unreasonable." Id. The Court recounted that on the reasons already stated, "and for those stated by the United States Supreme Court, [it had] no hesitation in concluding that the present classification had, and continues to have, a rational basis." Id.

Next, the Fischer Court addressed Article I, Section 26, what it characterized as "the Commonwealth's non-discrimination clause." Id. Appellants argued that the state impermissibly discriminated against persons who would have abortions, "by limiting funding to those mothers who elect to carry the baby to full term, or who are faced with a life threatening choice." Id. They argued also that Article I, Section 26 affords different and greater guarantees than the other equal protection provisions of the Pennsylvania Constitution. The Court disagreed.

In support, it recalled the Commonwealth Court's treatment of Article I, Section 26 in McIlvanie v. Pennsylvania State Police, 296 A.2d 630 (Pa. Commw. 1972), an opinion which this Court subsequently adopted, McIlvaine v. Pennsylvania State Police, 309 A.2d 801 (Pa. 1973),⁴¹ in which the Commonwealth Court stated that

41 See infra p. 186.

"Article I § 26 does not in itself define a new substantive civil right." ¹⁵ [McIlvanie, 296 A.2d] at 633. What Article I § 26 does is make more explicit the citizenry's constitutional safeguards

not to be harassed or punished for the exercise of their constitutional rights. It can not [sic] however be construed as an entitlement provision; nor can it be construed in a manner which would preclude the Commonwealth, when acting in a manner consistent with state and federal equal protection guarantees, from conferring benefits upon certain members of a class unless similar benefits were accorded to all.

¹⁵ In Harris v. McRae, 448 U.S. 297 (1980), the Majority's comments on the breadth of the equal protection clause are analogous.

The guarantee of equal protection under the Fifth Amendment is not a source of substantive rights or liberties, but rather a right to be free from invidious discrimination in statutory classification and other government activity.

Id. at 322.

Fischer, 502 A.2d at 123 & n.15.

The Fischer Court then considered the mode of analyzing Article I, Section 26, and in the following brief passage, opted to adopt the "penalty" analysis discussed in a footnote from Maher, as cited above. The Fischer Court observed that it had "not previously embraced a mode of analyzing claims under Article I, Section 26," and it found that the most appropriate analysis was that utilized by the United States Supreme Court in Shapiro v. Thompson, 394 U.S. 618 (1969)⁴² and Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974),⁴³ i.e., the "penalty" analysis, "whereby the focus is whether a person has been somehow penalized for the exercise of a constitutional freedom." Fischer, 502 A.2d at 123-24. The Fischer Court then recalled the footnote in Maher, providing that the penalty "analysis does not warrant relief in a situation such as here where a state merely seeks to encourage behavior by offering incentives, as distinct from where a state refuses to subsidize a person's exercise of a constitutional right." Id. It cited the following passage from the High Court:

42 In Shapiro v. Thompson, 394 U.S. 618 (1969), which implicated the fundamental right of interstate travel, the High Court held that statutory prohibitions in Connecticut, Washington and the District of Columbia that denied welfare assistance to residents of the state or district who had not resided within their jurisdictions for at least one year preceding their applications for welfare assistance created a "classification which constitute[d] an invidious discrimination denying them equal protection of the laws." Id. at 627. The High Court stated that "[t]he interests which appellants assert[ed] are promoted by the classification[,]" such as "to discourage the influx of poor families in need of assistance[,]" either may not constitutionally be promoted by government or are not compelling government interests. Id. at 627, 629. The High Court recalled that "[i]f a law (continued…) has 'no other purpose … than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it (is) patently unconstitutional.'" Id. at 631 (citing United States v. Jackson, 390 U.S. 570, 581 (1968)). The Court recognized that a state has a valid interest in preserving the fiscal integrity of its government programs, but explained that the state "may not accomplish such a purpose by invidious distinctions between classes of its citizens." Id. at 633. The Court recounted the traditional equal protection test, pursuant to which equal protections is denied only if the classification is without any reasonable basis, and it stated that the residency classification "would seem irrational and unconstitutional." Id. at 638 & n.20 (internal citations omitted). Then it explained that, rather than apply the traditional criteria, it would apply "the stricter standard of whether it promotes a compelling state interest" because the classification of welfare applicants "touches on the fundamental right of interstate movement[.]" Id. at 638. Under that standard, the "waiting-period requirement clearly violates the Equal Protection Clause." Id.

43 In Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974), relying upon Shapiro, the High Court held that an Arizona statute requiring a year's residence in a county as a condition of receiving nonemergency hospitalization or medical care at the county's expense was repugnant to the Equal Protection Clause. The High Court first looked to the "nature of the classification and the individual interests affected" to determine what burden of justification must be met. Id. at 253. Because the right of interstate travel is a "basic constitutional freedom" and because Arizona's "durational residence requirement for free medical care penalize[d] indigents for exercising their right to migrate to and settle in that State[,]" the classification would be unconstitutional, "unless shown to be necessary to promote a compelling government interest." Id. at 261-62 (citing Shapiro, 394 U.S. at 634). The High Court found that the classification was not justified by a compelling government interest. Instead, it stated, the durational residency requirement created invidious discrimination "that impinge[d] on the right of interstate travel by denying newcomers 'basic necessities of life.'" Id. at 269. The Arizona statute violated the Equal Protection Clause.

Penalties are most familiar to the criminal law, where criminal sanctions are imposed as a consequence of proscribed conduct. Shapiro and Maricopa County recognized that denial of welfare to one who had recently exercised the right to travel across state lines was sufficiently analogous to a criminal fine to justify strict judicial scrutiny.

If [a state] denied general welfare benefits to all women who had obtained abortions and who were otherwise entitled to the benefits, we would have a close analogy to the facts in Shapiro, and strict scrutiny might be appropriate under either the penalty analysis or the analysis we have applied in our previous abortion decisions. But the claim here is that the State "penalizes" the woman's decision to have an abortion by refusing to pay for it. Shapiro and Maricopa County did not hold that States would penalize the right to travel interstate by refusing to pay the bus fares of the indigent travelers. We find no support in the right-to-travel cases for the view that Connecticut must show a compelling interest for its decision not to fund elective abortions.

Fischer, 502 A.2d at 124 (citing Maher, 432 U.S. at 474, 475 n.8). The Fischer Court explained that "since the Commonwealth here has not otherwise penalized [A]ppellants for exercising their right to choose, but has merely decided not to fund that choice in favor of an alternative social policy, … the Commonwealth's actions are not offensive to the Constitutional guarantees protected under Article 1[, Section] 26." Id.

Turning next to Appellants' challenge under the Equal Rights Amendment, the Fischer Court briefly addressed the "purpose and intent" of the Equal Rights Amendment to "eliminate sex as a basis for distinction," and that "[t]he law will not impose different benefits or different burdens upon the members of a society based on the fact that they may be man or woman." Id. (citing Henderson v. Henderson, 327 A.2d 60, 62 (Pa. 1974)). The Fischer Court recognized that it had applied the Equal Rights Amendment numerous times to strike or modify rules of law which it "found to be offensive to its terms." Fischer, 502 A.2d at 124-25 (citing ten cases).

The Fischer Court observed that in each of the cases applying the Equal Rights Amendment, the Court "vigilantly protected the rights of women and men to be treated without reliance upon their sexual identity." Id. at 125. In doing so, this Court has "recognized that distinctions which 'rely on and perpetuate stereotypes' as to the responsibilities and capabilities of men and women are anathema to the principles of the [Equal Rights Amendment]." Id. (citing Hartford Accident and Indem. v. Insur. Comm'n, 482 A.2d 542, 548 (Pa. 1984)).

However, the Fischer Court decided that the challenge to the Coverage Exclusion did not implicate the Equal Rights Amendment because the distinction in Medical Assistance coverage was not made because of the sex of the individual. The Court gave two reasons. First, the Coverage Exclusion found in Section 3215(c) does not use sex as a basis for distinction. Instead, the distinction is based on abortion. In other words, the exclusion is not based on sex but "based on a voluntary choice made by the women." Id.

Second, the Fischer Court acknowledged that "only women are affected" by the challenged provision, but it stated that this fact "does not necessarily mean that women are being discriminated against on the basis of sex." Id. (emphasis added). The Court explained as follows:

In this world there are certain immutable facts of life which no amount of legislation may change. As a consequence there are certain laws which necessarily will only affect one sex. Although we have not previously addressed this situation, other [equal rights amendment] jurisdictions have; and the prevailing view amongst our sister state jurisdictions is that the [equal rights amendment] "does not prohibit differential treatment among the sexes when, as here that treatment is reasonably and genuinely based on physical characteristics unique to one sex." People v. Salinas, 551 P.2d 703, 706 (Colo. 1976). See, State v. Rivera, 612 P.2d 526 (Ha. 1980); City of Seattle v. Buchanan, 584 P.2d 918 (Wash. 1978). See also, Holdman v. Olim, 581 P.2d 1164 (Ha. 1978).

Id. at 125. The Fischer Court thus recognized an exception to the Equal Rights Amendment, i.e., where the distinction is based on physical characteristics unique to only one sex. According to Fischer, the Equal Rights Amendment is not implicated when a statute uses physical characteristics unique to one sex, but not sex itself, as a basis for distinction. Consequently, the Fischer Court held that when the state uses unique physical characteristics of a sex rather than sex itself to distinguish, no Equal Rights Amendment analysis follows.

After establishing that the government may discriminate on the basis of physical characteristics unique to one sex without implicating the Equal Rights Amendment, the Fischer Court briefly responded to Appellants' argument that treating women differently based on pregnancy or their unique physical properties constitutes sex-based discrimination. The Appellants asked the Court to recognize what had been firmly established under Pennsylvania case law relating to the Pennsylvania Human Relations Act ("PHRA"), that "to treat women differently on the basis of pregnancy is to discriminate on the basis of their sex." Fischer Appellants' Brief at 52 (citing, inter alia, Cerra v. East Stroudsburg Area Sch. Dist., 299 A.2d 277 (Pa. 1973)). In sum, the Appellants argued that the Cerra case precluded the Court from considering the unique reproductive capabilities of women as a basis for upholding the present statute.

The Fischer Court disagreed with the Appellants' characterization of Cerra. It explained that in Cerra, the Court invalidated a school district regulation that required women who were more than five months pregnant to resign, because it violated the Pennsylvania Human Relations Act. Fischer, 502 A.2d at 125 n.17. Cerra did not address the Equal Rights Amendment.

According to the Fischer Court, "[t]he basis of the Court's decision was that Ms. Cerra was the victim of a presumption that her pregnancy constituted a disability which warranted her dismissal, whereas men 'who might well be temporarily disabled from a multitude of illnesses, have not and will not be so harshly treated.'" Id. at 125. According to Fischer, the Cerra Court was "obviously" focused "on the varying treatment accorded the state of pregnancy, where despite objective evidence to the contrary, women were presumed to be totally disabled, yet there was not an equivalent presumption applicable to any disability attributable to men." Id. (citing Cerra, 299 A.2d at 280).

The Fischer Court found that Cerra's logic did not extend to abortion, stating that "the decision whether or not to carry a fetus to term is so unique as to have no concomitance in the male of the species." Id. at 126. According to the Fisher Court, the Coverage Exclusion was "solely directed to that unique facet" and it was "in no way analogous to those situations where the distinctions were based exclusively on the circumstance of sex, social stereotypes connected with gender, or culturally induced dissimilarities." Id. (internal citations omitted). Therefore, the Fischer Court stated that, in the context of the challenge to Section 3215(c), the Equal Rights Amendment afforded no basis for relief. Id.

D. Equal Rights Amendment Challenge

By its express terms, the Equal Rights Amendment prohibits the abridgment of rights based on the sex of the individual. As discussed, the Fischer Court held that discrimination based on physical characteristics unique to one sex does not implicate the Equal Rights Amendment. Thus, the question we need to decide is whether the Equal Rights Amendment prohibits statutory classifications based on "physical characteristics unique to one sex" just as it prohibits other statutory classifications that depend on the sex of a person. If so, the only remaining question is whether under principles of stare decisis, we are still bound to follow the Fischer Court's interpretation of the Equal Rights Amendment.

1. Parties' Arguments

Providers' Arguments

Providers argue that this Court has applied the Equal Rights Amendment to strike down legislative classifications that confer benefits or burdens unequally on women and men and that the Court has employed "intense and unflinching" judicial review of sex-based classifications rooted in traditional gender stereotypes. Providers' Brief at 31. According to Providers, the Fischer Court abandoned those principles and the language of the Equal Rights Amendment when it held that the Coverage Exclusion was beyond the reach of the Equal Rights Amendment because pregnancy is so "unique as to have no concomitance in the male of the species[.]" Id. at 34 (citing Fischer, 502 A.2d at 126). Providers urge this Court to overrule Fischer because it was not "adequately supported in reason." Id. at 34-35 (citing Commonwealth v. Resto, 179 A.3d 18, 22 (Pa. 2018) (providing that "the doctrine of stare decisis does not apply to pronouncements that are not adequately supported in reason")).

In contending that the Coverage Exclusion implicates the Equal Rights Amendment, Providers submit that the exclusion is explicitly sex-based, in that it treats women differently "on the basis of a physical condition peculiar to their sex[.]" Id. at 35. They state that the Fischer Court created a broad exception to the Equal Rights Amendment for "physical characteristics unique to one sex"-an exception which removed from the Equal Rights Amendment's reach the "very characteristic that has historically been invoked to justify unfavorable treatment of women[,]" i.e., their reproductive capacity. Id. at 36. Providers invoke this Court's jurisprudence holding that treating women differently based on their pregnant status is sex discrimination under the Pennsylvania Human Relations Act. Id. at 35 (citing Cerra, 299 A.2d at 280). To further illustrate their point, Providers posit that the Coverage Exclusion is "sex-based," in the same way that a hypothetical Medicaid program covering uterine cancer treatment but not prostate cancer treatment would necessarily be explicitly sex-based, and thus invalid under the Equal Rights Amendment. Id. at 36.

Providers argue that even if one views the Coverage Exclusion as "facially neutral," it runs afoul of the Equal Rights Amendment for two reasons. First, the Equal Rights Amendment prohibits legislative regimes that appear to be neutral but are discriminatory in fact. Id. at 38. Second, the Coverage Exclusion is entirely rooted in gender-based stereotypes regarding "the primacy of childbearing and childrearing for women[.]" Id. at 39-40. Because the Coverage Exclusion both relies on and perpetuates gender stereotypes, Providers insist that it violates the Equal Rights Amendment. Id. at 40.

Providers then assert that the Fischer Court's starting point was to define the classification not as sex but as abortion, a paradigm adopted from federal jurisprudence. Id. at 41 (citing Moe v. Sec'y of Admin. and Fin., 417 N.E.2d 387, 405 (Mass. 1981) (Hennessy, C.J., dissenting) (citing Harris, 448 U.S. 297)). Providers then contend that the application of the Edmunds framework,⁴⁴ a framework that did not exist at the time Fischer was decided, makes obvious the Fischer Court's interpretive error. Providers' Brief at 43 (citing Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa. 1991)).

44 This Court announced, in Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), that in assessing a claim that a provision of the Pennsylvania Constitution provides greater protection than its federal counterpart, courts employ a four-factor test considering: (1) the text of the Pennsylvania constitutional provision; (2) the history of the provision, including Pennsylvania case law; (3) related case law from other states; and (4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

Pursuant to Edmunds, Providers first emphasize that the text of the Equal Rights Amendment is distinct from the federal Constitution which contains no express prohibition against sex discrimination and only provides equal protection of the laws against sex discrimination through judicial interpretation. Id. at 44-45. Next, with regard to the history of the provision, Providers emphasize the historical backdrop: though the Equal Rights Amendment lacks a legislative history, various sources including the Pennsylvania Human Relations Commission, the Attorney General, and this Court, all have interpreted pregnancy discrimination as a form of sex discrimination in other contexts. Id. at 45-48 (citing, inter alia, Cerra, 299 A.2d 277 (holding that termination of a pregnant employee on the basis of a physical condition peculiar to her sex was "sex discrimination pure and simple" under the Human Relations Act); Pa. Hum. Rels. Comm'n, Guidelines on Discrimination Because of Sex, 1 (24) Pa. Bull. 707-08 (Dec. 19, 1970) (explaining that treating employees who took time away from work due to childbirth differently was sex discrimination); Pa. Att'y Gen. Op. No. 9 (1974) (explaining that three provisions of the Unemployment Compensation Law that presumed that women were incapable of working and hence ineligible for unemployment benefits "unlawfully discriminate against women on the basis of their sex")). Providers also argue that the Equal Rights Amendment provides greater protection than the federal Equal Protection Clause and that it would be unreasonable to equate the two. Id. at 48.

In addressing the third Edmunds factor, Providers draw attention to the practices of sister states, seventeen of which cover abortion in their state Medicaid programs. Id. at 49. In twelve of these states, courts have held that excluding abortion violates their state constitutions. In Connecticut and New Mexico, the courts have specifically held that exclusion of abortion from their states' Medicaid program coverage violated their states' Equal Rights Amendment. Id. (citing Doe v. Maher, 515 A.2d 134 (Conn. Super. 1986); New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841, 859 (N.M. 1998)). They argue that the Right to Choose opinion from New Mexico is persuasive given the similarities between the Equal Rights Amendment provisions of the constitutions of New Mexico and Pennsylvania. Id. at 49-51. By contrast, Bell v. Low Income Women of Texas, 95 S.W.3d 253 (Tex. 2002), the only case in which a state supreme court has held that a coverage exclusion does not violate the state's Equal Rights Amendment, is inapposite because the court exclusively followed federal jurisprudence, and because "Texas law uniquely requires that Medicaid coverage match federal law for all procedures[.]" Id. at 49-50 n.28.

Fourth, Providers suggest that policy considerations support the notion that "women need to be able to control their reproductive lives, including having real access to abortion, to be fully equal in society." Id. at 51. While "American abortion jurisprudence had little recognition of the importance of abortion access to women's equality at the time of Fischer, that has changed in the decades since." Id. at 52. In support, Providers focus on Justice Ginsburg's dissent in Gonzales v. Carhart, 550 U.S. 124, 172 (2007) (Ginsburg, J., dissenting), wherein she wrote that legal challenges to undue restrictions on abortion "center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature."

Providers further bolster their argument with reference to statistics-that one-quarter of Medicaid-eligible Pennsylvania women who would otherwise choose to have an abortion carry their pregnancies to term as a result of the exclusion. Providers' Brief at 53; see also Declaration of Terri-Ann Thompson, Ph.D., 1/11/2019 (Exhibit C), at 11-13, ¶¶ 21-23 (citing, inter alia, Ushma D. Upadhyay et al., Denial of Abortion Because of Provider Gestational Age Limits in the United States, 104 Am. J. Pub. Health 1687, 1692 (2014)). They detail the effects on the lives of women forced to carry their pregnancies to term, including that they are more likely to be impoverished, depressed, unemployed, and suffer physical and mental health problems than women who were able to obtain abortions. Providers' Brief at 53-54. For women on Medical Assistance who pay for an abortion, they can be pushed deeper into poverty. Id. at 55. Finally, Providers emphasize that these harms fall more on women of color. Id. (citing Harris, 448 U.S. at 344 (Marshall, J., dissenting)).

In sum, Providers argue that Fischer's Equal Rights Amendment holding should be overruled because it is wrongly tied to federal rather than Pennsylvania jurisprudence, and because in the nearly four decades since Fischer was decided, major doctrinal shifts and factual developments have taken place with respect to independent analysis of the Pennsylvania Constitution as well as connecting abortion and sex equality. According to Providers, these developments clearly demonstrate that the Fischer Court's Equal Rights Amendment analysis is "manifestly out of accord with modern conditions of life [and] should not be followed as controlling precedent." Id. at 56 (citing Ayala v. Phila. Bd. of Pub. Educ., 305 A.2d 877, 888 (Pa. 1973)).

DHS's Arguments

DHS's position rests entirely on stare decisis, describing Fischer in detail and citing the Attorney General's opinion letter indicating that Fischer is "directly on point here and … still good law[.]" DHS's Brief at 26-27 (citing OAG letter).⁴⁵, ⁴⁶ DHS highlights that stare decisis provides stability and certainty in our system of jurisprudence and that the doctrine demands that there be "'a special justification, over and above the belief that the precedent was wrongly decided,' to reverse a decision." Id. at 26 (citing Commonwealth v. Alexander, 243 A.3d 177, 196 (Pa. 2020) (internal citation omitted)). According to DHS, Providers do not present any special justification to overrule Fischer.

45 As previously noted, DHS asserts that it is defending the statute and regulations at issue pursuant to its duties under the Commonwealth Attorneys Act, following the binding advice of the Attorney General indicating that the Coverage Exclusion was constitutional. DHS's Brief at 21-22.

46 DHS reiterates two points that the Fischer Court made in determining that the Coverage Exclusion did not trigger further inquiry under the Equal Rights Amendment: first, that the basis for the distinction in coverage "was not sex, but abortion[;]" and second, that the statute accorded different benefits to one class of women against another class of women "based on a voluntary choice of whether or not to have an abortion." DHS's Brief at 25 (citing Fischer, 502 A.2d at 125-26).

Intervenors' Arguments

House Intervenors write in opposition to Providers, arguing that our Equal Rights Amendment is intended generally to equalize the benefits and burdens between the sexes, but it was "not intended to prohibit the recognition of, or erase the commonsense distinctions between, men and women." House Intervenors' Brief at 78. They argue that in the context of becoming pregnant and giving birth, "[c]omparing the treatment of women who can become pregnant to the treatment of men who can never become pregnant is not discrimination because you cannot discriminate between the sexes" where the different treatment is due to "innate fundamental biological differences[.]" Id. at 80.

Senate Intervenors also oppose Providers' position, arguing that Fischer did not adopt a broad exception to the Equal Rights Amendment for classifications based on physical characteristics unique to one sex. Senate Intervenors' Brief at 18. Instead, the Senate Intervenors read Fischer as simply explaining that a law that affects only one sex is not per se invalid. Id. at 18-19. Senate Intervenors find fault with Providers' analogy to a hypothetical Medical Assistance coverage exclusion for prostate cancer. They state that this analogy fails because "(1) there is no state interest in promoting life that would be advanced by the program; (2) there could be no possible reason, under any standard of review, not to fund treatment for [uterine and not prostate cancer]; and (3) cancer is life-threatening, and the Coverage Ban does not apply when a woman's life is endangered." Id. at 19 n.4. Senate Intervenors also suggest that it would be inconsistent to recognize (as amici in favor of Providers do) that public assistance programs may treat pregnant women favorably because that also would constitute discrimination based on reproductive capacity. Id. at 20. They argue that Fischer clearly and thoughtfully decided that the Coverage Exclusion did not violate the Equal Rights Amendment and that the Commonwealth Court's order should be affirmed. Id. at 21-22.

Senate Intervenors emphasize that the Fischer Court correctly decided that the distinction made here is based not on sex but on abortion. And the relevant question "is not whether a law affects only one sex because that sex has a unique immutable characteristic, but whether the law discriminates on the basis of sex, which the Coverage Ban does not." Id. at 24 n. 7. They argue that in 1972, a member of the General Assembly stated during the debate on the ratification of the proposed federal Equal Rights Amendment that she "did not believe adopting the federal [equal rights amendment] would affect abortion laws," and therefore, "one can only reasonably conclude that [the General Assembly] would have viewed Pennsylvania's [Equal Rights Amendment] the same way." Id. at 28.

Senate Intervenors then argue that nothing in an Edmunds analysis-not the text, history, case law from other states, or policy-would justify overturning Fischer. They contend that much of the focus of Providers' arguments is "that it has always been unlawful to discriminate 'on the basis of pregnancy.'" Id. at 29 (citing Providers' Brief at 45). This argument misses the mark, according to Senate Intervenors, because none of the decisions relate to laws governing abortion. Id. With regard to other states' case law, Senate Intervenors point out that thirty-three other states do not cover most abortions in their state Medicaid programs, positioning Pennsylvania in accord with the overwhelming majority of states. Id. at 31-33 (citing, inter alia, Bell, 95 S.W.3d at 253).

Finally, Senate Intervenors challenge Providers' policy arguments, highlighting, inter alia, that the United States Supreme Court has approved of state efforts to further "its legitimate goal of protecting the life of the unborn… even when in so doing the State expresses a preference for childbirth over abortion." Id. at 36 (citing Planned Parenthood v. Casey, 505 U.S. 833 (1992) (plurality)). They also claim that there is no limiting principle for Providers' novel constitutional argument that any law that implicates characteristics unique to one sex is immediately suspect under the Equal Rights Amendment, and they urge the Court to reject this approach. Id. at 37.

Providers' Reply

In their reply brief, Providers reiterate that the Coverage Exclusion is an inherently sex-based classification, drawing support from Intervenors' arguments that "[o]nly women can give birth or have an abortion[.]" Providers' Reply Brief at 6 (citing House Intervenors' Brief at 80-81; Senate Intervenors' Brief at 24 n.7). Because the Coverage Exclusion affects only women, and there is no other carve-out for medical coverage for men, the exclusion is subject to scrutiny. Id. at 6-7.

Providers address the Fischer Court's statement, as reiterated by DHS, that the Coverage Exclusion does not distinguish based on sex but, rather, on the choice to have an abortion versus childbirth, thus distinguishing only between two classes of women. Providers argue that this logic "manipulat[es] the delineation of the affected class" in a way that "would eviscerate the [Equal Rights Amendment]." Id. at 7-8. According to Providers, "[a]ny statute that exposes a subset of members of only one sex to harm (whether based on the biological functions that define their sex or in any other manner) has created a sex-based classification, regardless of whether every member of the disadvantaged class actually suffers harm." Id. at 8.

Providers state that another reason that the Coverage Exclusion is a sex-based classification is that it invokes the stereotype that birthing and raising children is the proper choice for pregnant women. Id. (stating that the exclusion "promotes and reinforces women's socially-prescribed, traditional maternal role and expresses distrust and disapproval of the reproductive decisions of women who deviate from such a role"). Next, Providers challenge DHS and its amici embracing the "unique physical characteristics" exception to the Equal Rights Amendment. Providers argue that the exception has no basis in Pennsylvania case law or the Equal Rights Amendment's text, and that it "largely swallows the rule, because sex-linked characteristics can easily serve as a proxy for sex." Id. at 9. Further, women's unique physical characteristics "have historically been the justification for disadvantageous treatment at work, at school, and in civic life." Id.

Providers then distinguish the four out-of-state cases relied on by the Fischer Court for recognizing that statutes regulating unique physical characteristics of a sex do not trigger the state Equal Rights Amendment, pointing out, inter alia, that these cases all relied on the work of influential equal rights amendment scholars to justify excepting from other state's equal rights amendments' protections any classifications based on the unique physical characteristics of one sex. However, the cases (including Fischer) ignored the same scholars' explanation that sex-based classifications should be subject to strict scrutiny. Id. at 11 (citing Brown, Emerson, Falk, and Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871, 893 (1971); Barbara A. Brown et al., Women's Rights and the Law: The Impact of the ERA on State Laws 16 (1977)). In Providers' view, once a court identifies that a statute is based on a unique physical characteristic, it should engage in a "searching examination into whether the disparate treatment of people with a unique physical characteristic is truly unavoidable, or whether it entrenches gender-based stereotypes and assumptions that the [Equal Rights Amendment] was designed to combat." Id. at 12 (internal footnote omitted).

Providers cite the New Mexico Right to Choose opinion as supporting this analysis. They highlight that the New Mexico Supreme Court situated its analysis within the historical context of the state's "evolving concept of gender equality." Id. (citing Right to Choose, 975 P.2d at 852). After the court determined that the New Mexico coverage exclusion disadvantaged women based on their reproductive capacity and that the unique physical characteristics of women did not except the exclusion from a searching judicial inquiry, the court analyzed whether the exclusion disadvantaged women such that it was presumptively unconstitutional. Id. at 13 (citing Right to Choose, 975 P.2d at 851-53). The court determined that it did and then conducted an inquiry into whether there was a compelling justification for the differential treatment of women and whether the abortion coverage exclusion was the least restrictive means of advancing those state interests. Id. (citing Right to Choose, 975 P.2d at 857). The New Mexico court concluded that the state's justifications were not sufficiently compelling and that the coverage exclusion was not the least restrictive means of advancing these interests. Id. Providers advocate that, if this Court conducts a similar analysis of Pennsylvania's Coverage Exclusion by looking behind the assertion of "unique physical characteristics," it will discover that there is no basis for the disadvantageous treatment of women. Id.⁴⁷

47 Multiple amicus briefs have been filed in support of both parties. For example, the Equal Rights Amendment Project at Columbia Law School grounds its argument, naturally, in our Article 1, Section 28, drawing attention to its proscription of laws that differentiate on two bases: sex and gender. See, e.g., Equal Rights Amendment Project's Brief at 9 (arguing that Section 28's prohibition applies to "sex-based classifications, including classifications based on pregnancy" as well as "lawmaking that is based on or perpetuates stereotypes about the proper roles and abilities of women and men"). Writing in support of DHS, the Pennsylvania Pro-Life Federation and the Thomas More Society argue that nothing in the text, history or interpretation of the Equal Rights Amendment can lead to a conclusion that it requires that Pennsylvania fund abortion. Thomas More Society Brief at 28-30.

2. Edmunds Analysis

We address the protections afforded by the Pennsylvania Constitution's Equal Rights Amendment and whether it prevents the General Assembly from electing to provide medical assistance for all reproductive healthcare for men, while only providing limited reproductive healthcare for women, excluding most abortions, as it does in Sections 3215(c) & (j). The Fischer Court explained that Section 3215(c) denies medical care coverage because of the voluntary choice of certain women to have abortions, i.e., because of a physical condition unique to their sex, which is a special category excepted from Equal Rights Amendment coverage. After the Fischer Court concluded that the provision did not implicate the Equal Rights Amendment, it declined to conduct any Equal Rights Amendment analysis. The following examination of the text of the Equal Rights Amendment demonstrates that its constitutional protections are triggered when the state treats a person differently because of the person's sex. Our consideration of the Edmunds factors leads to the unremarkable conclusion that to treat a woman differently based on a characteristic unique to her sex is to treat her differently because of her sex, which triggers enforcement of our Equal Rights Amendment.⁴⁸

48 The Chief Justice seems to question the propriety of conducting an Edmunds analysis to construe the meaning of Article I, Section 28 because it has no federal constitutional counterpart. Concurring & Dissenting Op. at 13 (Todd, C.J.). This Court has employed the Edmunds factors in cases implicating the Pennsylvania Constitution where no federal constitutional counterpart exists. See, e.g., League of Women Voters, 178 A.3d at 802-03 ("certain of the Edmunds factors obviously may assist us in our analysis[]"); Robinson Township, 83 A.3d at 944 ("some of the Edmunds factors obviously are helpful in our analysis[]"); see also McLinko, 279 A.3d 539 (although not labelled as an Edmunds analysis, all four factors discussed). Regardless of how we label the framework, we always begin with a text-driven analysis of constitutional provisions, which Fischer did not do. See, e.g., League of Women Voters, 178 A.3d at 802 ("The touchstone of interpretation of a constitutional provision is the actual language of the Constitution itself.") (internal citation omitted); see supra p. 53 (discussing how the plain language of the constitutional text is the polestar of the analysis). Our conclusions emanate from the text of the Equal Rights Amendment and our adherence to the principle that this Court has no authority to judicially modify the text or meaning of a provision of the Pennsylvania Constitution. The Chief Justice and Justice Mundy ultimately find themselves bound by Fischer which, in fact, modified the text of Article I, Section 28 to reach its conclusion.

a. Text of the Equal Rights Amendment

Article I, Section 28 provides:

§28. Prohibition against denial or abridgment of equality of rights because of sex

Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.

Pa. Const. art. I, § 28.

The meaning of the phrase-"equality of rights under the law⁴⁹ shall not be denied or abridged"-is unambiguous. It means that the government cannot "withhold the … enjoyment of" the rights. Deny, The Random House Dictionary of the English Language, College Edition, 356 (Laurence Urdang ed. 1968).⁵⁰ Separately, the equality of rights may not be "abridged," meaning that they can neither be "reduce[d] or lessen[ed] in … scope[,]" nor can they be "diminish[ed]" or "curtail[ed]." Abridge, The Random House Dictionary of the English Language, College Edition, 5 (Laurence Urdang ed. 1968); see also Abridge, Black's Law Dictionary, 8 (11th ed. 2019) (defining "abridge" as "To reduce or diminish <abridge one's civil liberties>"). Accordingly, the Commonwealth cannot withhold or diminish the scope of the rights of an individual under the qualifying circumstances: "because of the sex of the individual." Parsing this phrase, because means "by reason; on account (usually fol[lowed] by of)." Because, The Random House Dictionary of the English Language, College Edition, 119 (Laurence Urdang ed. 1968). Thus, we are concerned with whether a law withholds or diminishes the scope of the rights on account of an individual's sex.

49 We interpreted "under the law" in the context of Section 28 in Hartford Accident and Indemnity Co. v. Insurance Commissioner of the Commonwealth, 482 A.2d 542, 586 (Pa. 1984). We held:

The text of Article I, Section 28 makes clear that its prohibition reaches sex discrimination "under the law." As such, it circumscribes the conduct of state and local government entities and officials at all levels in their formulation, interpretation and enforcement of statutes, regulations, ordinances and other legislation as well as decisional law.

Id. In disassembling the equality of rights of women from those of men, Justice Mundy asks "equal to what" based on her perspective that only women have reproductive functions. Concurring & Dissenting Op. at 9 n.7 (Mundy, J.). We recall that the record in this appeal is the petition for review filed by Providers in which they plead that the Medical Assistance Program funds all male reproductive health procedures but not all female reproductive healthcare procedures. Petition for Review, 1/16/2019, ¶ 54; see also Providers' Brief at 35. This is the lack of "equality under the law" that Providers advance.

50 We look to definitions from dictionaries in circulation at the time of the adoption of Section 28.

"Sex" is defined as:

1. either the male or female division of a species, esp. as differentiated with reference to the reproductive functions.

2.the sum of the structural and functional differences by which the male and female are distinguished, or the phenomena or behavior dependent on these differences.

Sex, The Random House Dictionary of the English Language, College Edition, 1206 (Laurence Urdang ed. 1968).

The sum of the definitional parts of our Equal Rights Amendment is that the rights of an individual shall not be withheld or diminished on account of membership in either the male or female division of our species. The distinction is made with reference to the reproductive functions and the sum of the physical and functional differences that distinguish the male and the female.⁵¹

51 To the extent Justice Mundy engages in a textual analysis of the Equal Rights Amendment, she reverts to the reasoning of the Fischer Court that the Coverage Exclusion does not "treat[] men as a class more favorably than women so as to bring it within the scope" of the Equal Rights Amendment but instead treats a woman differently based on her "voluntary choice." Concurring & Dissenting Op. at 4 (Mundy, J.) (citing Fischer, 502 A.2d at 125); see similarly Concurring & Dissenting Op. at 9 (Todd, C.J.). This reasoning ignores the plain text of Section 28 prohibiting denial or abridgment of the equality of rights "because of the sex of the individual." Pa. Const. art. I, § 28 (emphasis added). Section 28 is triggered when an individual woman is treated unequally because of her sex. Further, the clear text of the Equal Rights Amendment is unequivocal and (continued…) prohibits denial of rights, regardless of whether biology is used as a pretext. It bears repeating that the voters approved the Equal Rights Amendment without exceptions, conditions, or qualifications.

b. History of the Equal Rights Amendment, including Pennsylvania case law History

The Equal Rights Amendment is located in Article I of our Charter, the Declaration of Rights. Article I "delineates the terms of the social contract between government and the people that are of such 'general, great and essential' quality as to be ensconced as 'inviolate.'" Robinson Township, 83 A.3d at 947. It embodies the recognition that certain rights are inherent to human nature, and thus, it can only preserve, rather than create, these rights. Id. at 948. The significance of Article I rights is clearly prescribed in Section 25:

§ 25. Reservation of powers in the people

To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.

Pa. Const. art. I, § 25.

There is no federal counterpart to our Equal Rights Amendment. Therefore, we do not find guidance from the federal Constitution, as there is no comparable provision to our Equal Rights Amendment.⁵² There is no question that our interpretation of the Equal Rights Amendment adheres to principles of state law and finds no guidance from the federal Constitution. While the federal Constitution and the debates surrounding the adoption of a proposed federal equal rights amendment do not guide our analysis of the text of the provision, they provide context to the history of the adoption of Article I, Section 28.

52 As Professor Nancy Burkoff from the University of Pittsburgh explained, the courts are able to address the Equal Rights Amendment "without the confusion of any parallel federal doctrine, since there is no comparable provision in the federal [C]onstitution." Nancy M. Burkoff, State Action and the Declaration of Rights, in The Pennsylvania Constitution: A Treatise on Rights and Liberties, § 35.3, 952 (Ken Gormley & Joy G. McNally eds. 2nd ed. 2020) (speaking to whether state action is required under the Equal Rights Amendment, Professor Burkoff writes that the answer "can be determined only by analyzing the specific provision of the state constitution, entirely divorced from the federal state action doctrine").

Our Court "regards the language of our Constitution as the embodiment of the will of the voters who adopted it," and therefore "it is instructive to begin our consideration" with a brief historical overview to establish the environment in which the Equal Rights Amendment was adopted. Washington, 188 A.3d at 1144. The historical origins of the unequal treatment of women under the law predates the creation of this Commonwealth. Centuries of inequality influenced the legal systems and principles that served as the foundation for all of Great Britain's American colonies, including, of course, Pennsylvania. See Linda Grant De Pauw, Women and the Law: The Colonial Period, 6 Hum. Rts. 107, 108-10 (1977). Colonial Americans adhered to the English tradition, which did not view women as equal to men. Id.

By way of example, the concept of "coverture" demanded that, once a woman married, her "legal existence disappeared." Id. By operation of this doctrine, a married woman's rights and obligations were entirely subsumed by her husband. Id. As provided by William Blackstone in his Commentaries on the Laws of England during the late-eighteenth century:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a feme-covert under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture...

1 William Blackstone, Commentaries on the Laws of England, *442 (1765). The malleability of a woman's very legal existence demonstrates the system of laws to which women were once subjected.

Even as society made significant and yet glacial progress toward legal equality, those interpreting the law continued to view women as not only having fewer legal rights than men but also as lesser human beings by design. For instance, when Caroline Burnham Kilgore-a pioneer for women's rights in this Commonwealth in the late-nineteenth century and the first female attorney admitted to the Pennsylvania bar-first sought admission to the bar,⁵³ one of the judges who rejected her admission explained that

53 At that time, "admission to the bar in Pennsylvania was county by county and court by court." Elizabeth K. Maurer, The Sphere of Carrie Burnham Kilgore, 65 Temp. L. Rev. 827, 832-41 (1992).

the Creator of the universe, for a reason which any reasonable being ought to consider self-evident, made a distinction between the sexes and saw fit ... to place under the protection of the male sex the female, simply because as a general and universal law applicable to all created living organisms the female requires protection.

Elizabeth K. Maurer, The Sphere of Carrie Burnham Kilgore, 65 Temp. L. Rev. 827, 845 (1992) (citing In re Kilgore, 14 Weekly Notes of Cases 255-56 (Phila. CCP 1884)).

These assumptions supporting the destiny of women to hold an inferior legal status were primarily justified by biological differences between men and women. Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. Pa. L. Rev. 955, 958 & n.13 (1984). "Since time immemorial, women's biology and ability to bear children have been used as a basis for discrimination against them." Doe v. Maher, 515 A.2d 134, 159 (Conn. Super. 1986) (citing Hoyt v. Florida, 368 U.S. 57, 62 (1961) (upholding a statute exempting women from jury duty because they are "regarded as the center of home and family life")); Muller v. Oregon, 208 U.S. 412, 421 (1908) (upholding a statute that restricted women's work hours but not men's); Bradwell v. Illinois, 86 US. (16 Wall.) 130, 141-42 (1872) (Bradley, J., concurring) (prohibiting women from the practice of law because of the "natural" differences between the sexes)). Justice Bradley's concurring opinion in Bradwell provides an insight into the law's view of women in the nineteenth century:

[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. …

The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things[.]

Bradwell, 83 U.S. at 141-42 (Bradley, J., concurring).

The High Court continued to espouse this view into the early twentieth century:

[T]hat woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity[,] continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effect upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.

Muller, 208 U.S. at 421.

Despite landmark achievements, such as women's suffrage in 1919, many of the Commonwealth's laws continued to reflect the common-law view that women were incapable of functioning independently from men, thereby forcing them into their predetermined societal roles as wives and mothers. See, e.g., Commonwealth ex rel. Krouse v. Krouse, 289 A.2d 233 (Pa. Super. 1972) (recognizing that husbands have a legal obligation to support their wives); Commonwealth ex rel. Glenn v. Glenn, 222 A.2d 465 (Pa. Super. 1966) (acknowledging that the law recognizes husbands and fathers as the head of the household). It was within this context of persistent relegation of women to subservient and dependent roles that Pennsylvania voters ratified the Equal Rights Amendment.

The impetus for an Equal Rights Amendment in Pennsylvania's Constitution came about during a 1969 meeting of the Pittsburgh Chapter of the National Organization for Women ("NOW"). Margaret K. Krasik, A Review of the Implementation of the Pennsylvania Equal Rights Amendment, 14 Duq. L. Rev. 683, 684 (1978). According to commentators, the failed federal effort to advance an equal rights amendment was the impetus for action at the state level, and many state equal rights amendment efforts in the 1970s were the result of frustrations inspired by the lack of success in adopting a federal equal rights amendment. Hon. Phyllis W. Beck & Patricia A. Daly, Prohibition Against Denial or Abridgment of Equality of Rights Because of Sex, The Pennsylvania Constitution: A Treatise on Rights and Liberties, § 31, 833 (Ken Gormley & Joy G. McNally eds. 2nd ed. 2020). Based on reports by advocates for the federal amendment, the Equal Rights Amendment was "needed because the United States Supreme Court had not responded more affirmatively to sex discrimination charges under the federal [C]onstitution." Krasik, supra, at 685. Although commentators have regarded the adoption of a state equal rights amendment⁵⁴ as a response to frustration at federal inaction both by the High Court and Congress in failing to pass a federal equal rights amendment, we emphasize that there is no legislative history accompanying what would be ratified as Section 28 of Article I of our Charter. Id. at 685-86.

54 Congress eventually passed a federal equal rights amendment in 1972, which included a preface providing seven years for ratification by three-fourths of the states' legislatures in order to become an amendment to the federal Constitution. H.R.J.Res. 208, 92d Cong. (1972) (providing that "[e]quality of rights under the law shall not be denied or abridged (continued…) by the United States or by any State on account of sex."). This has yet to occur although Congress extended the ratification period. H.J.Res. 638, 95th Cong. (1978).

The passage of Pennsylvania's Equal Rights Amendment brought on a flurry of legal action-in the executive, legislative and judicial branches-to bring the law into conformity with the new order in which sex was no longer a permissible factor in determining an individual's rights. Shortly after the ratification of the Equal Rights Amendment, the Governor and the Attorney General attempted to "cleanse both the statutory law and the regulations governing the conduct of the government and its agencies' discriminatory provisions, whether directed at men or women." Hon. Phyllis W. Beck & Joanne Alfano Baker, An Analysis of the Impact of the Pennsylvania Equal Rights Amendment, 3 Widener J. of Pub. L 743, 767 (1994). The Attorney General issued several opinions on the subject of sex discrimination at this time. Id. at 767-68. For example, the Attorney General directed the Liquor Control Board to no longer issue or renew liquor licenses to anyone who discriminated on the basis of sex in either employment or service to the public, and he authorized the Board to suspend or revoke licenses from people engaging in such practices. Id. (citing Pa. Op. Attorney General 55 (1974)). Other opinions concerned sex discrimination in government employment including discontinuing the prohibition of a parole officer of one sex being assigned to a parolee of the other sex; discontinuing the prohibition of women between the ages of twelve and twenty-one being news carriers; and directing the state police to no longer implement its requirement that applicants be at least five-feet-six inches tall, thereby excluding women of average height. Id. at 767 (citing Pa. Op. Attorney General 71 (1971); Pa. Op. Attorney General 150 (1972); Pa. Op. Attorney General 57 (1973)). It was also determined that married women could use their birth name instead of their husband's surname for purposes of voter registration or obtaining a driver's license after getting married. Id. (citing Pa. Op. Attorney General 62 (1973); Pa. Op. Attorney General 72 (1973)).

In 1975, the Governor established by executive order the Pennsylvania Commission for Women. Governor's Office, Executive Order, 1975-5 ("Commitment Toward Equal Rights"). The Commission was tasked with, inter alia, reviewing the law of Pennsylvania and recommending "legislative changes needed to further the goal of obtaining equal rights for all persons." Id. ¶ 2(a). The Commission recommended that twenty-six bills be passed to meet the goals of the Equal Rights Amendment. Beck & Alfano Baker, supra, at 768. These recommendations effected substantial changes to, inter alia, laws relating to intestacy and taxation.⁵⁵ In 1978, the Legislature likewise took action in response to the ratification of the Equal Rights Amendment. In 1978, it enacted the "Equalization Act,"⁵⁶ providing that a designation of a single sex will apply to both sexes generally when made in a statute, in public appointments requirements, and employment benefits and rights. 1 Pa.C.S. § 2301.

55 See, e.g., Act of July 9, 1976, P.L. 551, No. 135 (providing that neglect or failure to support by either spouse, rather than just a husband, forfeited any right or interest in the other spouse's real or personal estate); Act of July 15, 1976, P.L. 1047, No. 210 (defining "domicile" for purposes of earned income tax provisions as "the voluntarily fixed place of habitation of a person" rather than its previous definition of "the place in which a man has voluntarily fixed the habitation of himself and his family") (emphasis added).

56 Act of October 4, 1978, P.L. 909, No. 173.

The judiciary, too, oversaw significant changes in laws when challenges based on Article I, Section 28 were lodged. Pennsylvania's Equal Rights Amendment was one of the most litigated state equal rights amendment provisions in the country. Brown et al., Women's Rights and the Law, at 19. In 1974 alone, this Court invalidated two statutes and a common law presumption violative of the Equal Rights Amendment.⁵⁷ During the flurry of court decisions in our Equal Rights Amendment's first decade, this Court repeatedly and without hesitation applied the requirement that equality of rights under the law shall not be denied or abridged because of the sex of the individual to dismantle common law presumptions about the stereotypical gender roles of woman as mother, homemaker, and primary caretaker and man as sole breadwinner.⁵⁸ We also interpreted the Equal Rights Amendment as being offended by an insurance company's assessment of higher automobile insurance rates for men than women, Hartford Accident and Indemnity Co. v. Insurance Commission, 482 A.2d 542 (Pa. 1984), and by a law granting women leniency based on their sex in criminal sentencing, Commonwealth v. Saunders, 331 A.2d 193 (Pa. 1975).

57 Hopkins v. Blanco, 320 A.2d 139 (Pa. 1974) (holding that the right to recover for loss of consortium extended to wives, replacing the previous rule that only husbands were entitled to pursue such a cause of action); Commonwealth v. Butler, 328 A.2d 851 (Pa. 1974) (holding that statutory minimum sentences applied equally to women and men, invalidating a statutory exemption from minimum sentences applicable only to women); Henderson v. Henderson, 327 A.2d 60, 62 (Pa. 1974) (holding that laws allowing payment of alimony pendente lite, attorneys' fees, and expenses to a wife (but not a husband) in a divorce action could not stand, because, the Equal Rights Amendment barred the use of sex as a permissible basis for making legal distinctions).

58 See DiFlorido v. DiFlorido, 331 A.2d 174 (Pa. 1975); Butler v. Butler, 347 A.2d 477 (Pa. 1975); Adoption of Walker, 360 A.2d 603 (Pa. 1976); Commonwealth ex rel. Spriggs v. Carson, 368 A.2d 635 (Pa. 1977); Commonwealth ex rel. Stein v. Stein, 406 A.2d 1381 (Pa. 1979); George v. George, 409 A.2d 1 (Pa. 1979); cf. Estate of Grossman, 402 A.2d 726 (Pa. 1979) (overruling testimonial presumption based on unity of husband and wife without reference to the Equal Rights Amendment).

The momentum witnessed in the first decade of the Equal Rights Amendment tapered in the 1980s and beyond, with this Court engaging in substantive review of Equal Rights Amendment claims fewer times in the past forty years combined than it did during the first decade. Between 1981 and today, aside from Fischer, only three cases issued by the Court addressed the Equal Rights Amendment, the last being decided in 2009.⁵⁹Despite the profusion of cases applying Section 28, none of the decisions involved a textual construction of the provision.

59 Weaver v. Harpster, 975 A.2d 555 (Pa. 2009) (rejecting argument that the Equal Rights Amendment invalidated the legislative exception that limited the application of the PHRA in an at-will employment scenario); In re Estate of Geyer, 533 A.2d 423 (Pa. 1987) (discussing application of the Equal Rights Amendment to interpretation of antenuptial agreements); Snider v. Thornburgh, 436 A.2d 593 (Pa. 1981) (rejecting an argument that a financial disclosure requirement implicated the Equal Rights Amendment).

Pennsylvania case law

Following the Edmunds framework, we engage in a closer examination of Pennsylvania case law. Three years after the adoption of Section 28, this Court, in the seminal case Henderson v. Henderson, 327 A.2d 60 (1974), expressed a clear understanding of the meaning of the text of the provision that "the law will not impose different benefits or burdens upon the members of a society based on the fact that they may be man or woman." Id. at 62. The Court struck down a statute that allowed payment of alimony pendente lite, attorneys' fees, and expenses of a divorce action to the wife, but not to the husband. The Henderson Court elaborated:

The thrust of the Equal Rights Amendment is to insure equality of rights under the law and to eliminate sex as a basis for distinction. The sex of citizens of this Commonwealth is no longer a permissible factor in the determination of their legal rights and legal responsibilities. The law will not impose different benefits or different burdens upon the members of a society based on the fact that they may be man or woman. Thus, as it is appropriate for the law where necessary to force the man to provide for the needs of a dependent wife, it must also provide a remedy for the man where circumstances justify an entry of support against the wife. In short, the right of support depends not upon the sex of the petitioner but rather upon need in view of the relative financial circumstances of the parties.

Id. (emphasis added).

Again in 1974, in Commonwealth v. Butler, 328 A.2d 851 (Pa. 1974), we struck, as violative of the Equal Rights Amendment, a statute that required men to serve minimum prison sentences but prohibited minimum sentences for women. We reasoned "that one person … should be eligible for parole at a different time than another person solely because of his or her sex is discrimination of the most obvious sort." Id. at 856; see also Commonwealth v. Saunders, 331 A.2d 193 (Pa. 1975) (same).

Eschewing maternalistic stereotypes attached to women, in Adoption of Walker, 360 A.2d 603 (Pa. 1975), we struck down a provision of the Adoption Act providing that in the case of the adoption of an illegitimate child, only the consent of the mother to the adoption was required and not the consent of the father. Our holding was crisp:

This distinction between unwed mothers and unwed fathers is patently invalid under the Pennsylvania Constitution. Article I, section 28 of the Constitution provides that:

'Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.'

It is clear that, as a consequence of [the challenged provision], unwed fathers have no rights under the Adoption Act, while unwed mothers have all the rights of married parents. The only differences between unwed fathers and unwed mothers are those based on sex. This is an impermissible basis for denying fathers rights under the Act.

Id. at 605.

We did not spare from extinction sex-based common law principles created by the Court. In Conway v. Dana, 318 A.2d 324 (Pa. 1974), we held invalid a presumption that the father, "solely because of his sex and without regard to the actual circumstances of the parties," is primarily obligated to support his children. Id. at 326. "Such a presumption is clearly a vestige of the past and incompatible with the present recognition of equality of the sexes." Id.

That same year, in Hopkins v. Blanco, 320 A.2d 139 (Pa. 1974), we held that the right to recover for loss of consortium extended to wives, replacing the previous rule that only husbands were entitled to pursue such a cause of action. In so doing, we traced the "common law origin" of loss of consortium, noting that "at common law the wife was equated to a chattel of her husband … thus, the husband technically owned her." Id. at 140-41. However, we recognized that a "wife is her husband's equal, [and thus,] there is no valid justification for treating them differently in matters relating to the marital relationship." Id. at 141. Accordingly, we held that the Equal Rights Amendment required that the law extend the right to recover loss of consortium to women. Id. Likewise, in DiFlorido, we abandoned the presumption that household goods in the joint possession of a husband and wife belong to the husband. DiFlorido, 331 A.2d 174. The presumption created benefits based on the sex of the individual and thus violated the Equal Rights Amendment.

Consistent with the rationale of these decisions interpreting and applying Section 28, in Cerra, shortly after the passage of the Equal Rights Amendment, this Court held that a school district's termination of a tenured teacher on the basis of her pregnancy constituted sex discrimination under the PHRA.⁶⁰ In reaching that conclusion, the Court addressed the school's argument that the termination was justified by willful violation of school laws-namely, her failure to resign in violation of a School Board regulation requiring that "any employee who becomes pregnant shall resign effective not later than the end of the fifth (5^th) month of the pregnancy." Cerra, 299 A.2d at 278-79. The Court rejected this argument, finding that the termination was violative of the PHRA, and therefore illegal. Id. at 279. The Court reasoned that:

60 The relevant text of the PHRA provided that:

It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification …

(a) For any employer because of race, color, religious creed, ancestry, age, sex or national origin of any individual to refuse to hire or employ, or to bar or to discharge from employment such individual, or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, …

Act of Oct. 27, 1955, P.L. 744, as amended 43 P.S. § 955(a). This provision did not include an actionable claim for discrimination based on "handicap or disability" until 1974, the year after Cerra was decided. Act of Dec. 19, 1974, P.L. 966, No. 318. Thus, Cerra's claim unquestionably required that she prove

Mrs. Cerra's contract was terminated absolutely, solely because of pregnancy. She was not allowed to resume her duties after the pregnancy ended, even though she was physically and mentally competent. There was no evidence that the quality of her services as a teacher was or would be affected as a result of the pregnancy. Male teachers, who might well be temporarily disabled from a multitude of illnesses, have not and will not be so harshly treated. In short, Mrs. Cerra and other pregnant women are singled out and placed in a class to their disadvantage. They are discharged from their employment on the basis of a physical condition peculiar to their sex. This is sex discrimination pure and simple.

Id. at 280 (emphasis added). Like the Equal Rights Amendment, the PHRA, which predated it, uses the word "sex" in its statutory proscription against discrimination. In Cerra, we definitively established that treating a woman differently based on pregnancy was to treat her differently based on sex. There is no reason to conclude, based on the text of Section 28, that there was an intention to give a different meaning to sex than the meaning given to it in the PHRA that preceded it.⁶¹

61 As we have previously discussed, see supra note 60, the Fischer Court's treatment of Cerra was inconsistent with prior case law and simply incorrect. The Fischer Court's fatal missteps were mischaracterizing Cerra by framing it as a disability case and (continued…) distinguishing pregnancy from abortion. Fischer, 502 A.2d at 125-26. Although the Chief Justice is not wholly inaccurate in stating that Fischer discussed the same cases cited in our analysis, we do not quibble with the Fischer Court's statement of the holdings of any of those Pennsylvania cases with the exception of Cerra. See Concurring & Dissenting Op. at 13 (Todd, C.J.) (asserting that "every Pennsylvania case cited by the majority in its Edmunds analysis was discussed and/or acknowledged by this Court in Fischer"). Though Fischer did not cite and discuss every case to the degree of this opinion, that is of no moment. The crucial point is that Fischer's recharacterization stripped Cerra of its intended and actual meaning.

The text of Section 28 is unambiguous, and this Court's application of its protections prior to Fischer made clear that its coverage was broad. The Equal Rights Amendment prohibits the denial or abridgment of rights under the law based on whether a person is a man or a woman. Imbedded in any definition of sex is that reproductive functions differentiate men and women.

The Fischer Court's conclusion that the Equal Rights Amendment does not prohibit differential treatment among the sexes based on physical characteristics unique to one sex⁶² deviated from its own holding in Cerra applying the PHRA that used the same qualifier: sex. The Fischer Court's attempt to distinguish Cerra as a case involving discrimination based on disability ignores the central point that only women can become pregnant and that the discrimination was "on the basis of a physical condition peculiar to their sex." Cerra, 299 A.2d at 280. Cerra conclusively established that such differentiation is "sex discrimination pure and simple." Id. More critically, the Fischer Court ignored that reproductive functions, by definition, have historically been the primary basis for the distinction between men and women, i.e., physical characteristics that make one a member of the sex. The text of Section 28 does not support the exception created by Fischer that equality of rights can be denied or abridged based on a physical characteristic that makes a person a member of the male or female sex.

62 Fischer, 502 A.2d at 125.

c. Related case law from other states

Next, pursuant to Edmunds, we address related case law from other states. The Fischer Court relied on cases from Colorado,⁶³ Hawaii⁶⁴ and Washington⁶⁵ for its creation of the exception to our Equal Rights Amendment. Fischer, 502 A.2d at 125. It relied on these cases for what it referred to as the prevailing view that the Equal Rights Amendment "does not prohibit differential treatment among the sexes when, as here, that treatment is reasonably and genuinely based on physical characteristics unique to one sex." Id. (internal quotations omitted). Each of these cases in turn cited directly to a law review article recognized at the time as the leading scholarly writing on the topic of the proposed federal equal rights amendment. However, contrary to those state courts' interpretations relied on by Fischer, and even if there was a principled reason to look to a proposed federal amendment for guidance, Brown's The Equal Rights Amendment article does not support the adoption of a sweeping exception to the Equal Rights Amendment. Brown et al., The Equal Rights Amendment, supra, at 890-92. The authors, in fact, advocated for the federal equal rights amendment to be "applied comprehensively and without exception." Id. at 890 (emphasis added); see also id. at 892 ("[T]he constitutional mandate must be absolute. The issue under the [equal rights amendment] cannot be different but equal, reasonable or unreasonable classification, suspect classification, fundamental interest [of the state], or the demands of administrative expediency. Equality of rights means that sex is not a factor.").

63 People v. Salinas, 551 P.2d 703, 706 (Colo. 1976).

64 State v. Rivera, 612 P.2d 526 (Haw. 1980); Holdman v. Olim, 581 P.2d 1164 (Haw. 1978).

65 City of Seattle v. Buchanan, 584 P.2d 918 (Wash. 1978).

The authors of that article addressed various types of laws which might be subject to judicial review, including laws based on physical characteristics unique to one sex. In their view, a fundamental legal principle underlying the federal proposal was that the law "must deal with particular attributes of individuals, not with a classification based on the broad and impermissible attribute of sex." Id. at 893. Based on that principle, they hypothesized that laws addressing purely physical characteristics that are unique to one sex do "not ignore individual characteristics found in both sexes in favor of an average based on one sex." Id. Such legislation would not, without more, violate the basic principles underlying the federal proposal, although this would be determined through application of strict scrutiny. Id.

Brown's The Equal Rights Amendment article cautioned that laws making distinctions based on physical characteristics unique to one sex create legal issues that should be "carefully scrutinized by the courts." Id. at 894.

[W]hile differentiation on the basis of a unique physical characteristic does not impair the right of a man or a woman to be judged as an individual, it does introduce elements of a dual system of rights. That result is inevitable. Where there is no common factor shared by both sexes, equality of treatment must necessarily rest upon considerations not strictly comparable as between the sexes. This area of duality is very limited and would not seriously undermine the much more extensive areas where the unitary system prevails. But the courts should be aware of the danger.

Id.

It is clear that the Brown article was not advocating for courts to summarily determine that legislation making distinctions based on physical characteristics unique to one sex is excepted from judicial review. Instead, the authors were explaining that, faced with such laws, courts must be aware that equality of treatment necessarily rests upon considerations that are not strictly comparable as between the sexes, and courts must recognize that the duality could threaten an equal rights amendment. To achieve that end, the authors proposed a searching review of any such distinctions to ensure that they do not run afoul of equal rights amendment protections. They advocated for courts to apply a multi-factor inquiry to determine whether the regulation or law at issue "is closely, directly and narrowly confined to the unique physical characteristic" to avoid laws that, in effect, seriously discriminate against one sex. Id. Thus, The Equal Rights Amendment article consistently argued that distinctions based on physical characteristics unique to one sex must be thoroughly reviewed under strict scrutiny, not that they be excepted from the purview of the equal rights amendment. See id. at 930 (arguing that regulations concerning conditions of employment for women for physical conditions unique to their sex "would be subject to careful judicial review").

Two of the authors of the Brown article subsequently published a separate text on the federal equal rights amendment efforts.⁶⁶ They reiterated that "[w]hen classifications based on characteristics unique to one sex are incorporated into legislation or public policy, Congress intended [the] constitutional standard known as strict scrutiny to be applied to insure that the basic premise of sex equality under the [federal equal rights amendment] is preserved." Brown et al., Women's Rights and the Law, supra, at 15-16. In their view, "[a]lmost no sex-based classifications can pass this rigorous test." Id. at 16.

66 Specifically, Barbara A. Brown & Ann E. Freedman-who were students when the original article was produced-authored the book, Women's Rights and the Law, along with Harriet N. Katz & Alice M. Price.

Significantly, when the state courts cited specific passages of The Equal Rights Amendment article to justify adoption of this special exception for physical characteristics unique to one sex, they ignored the authors' starting point-that any federal equal rights amendment was to be applied comprehensively and without exception-and they ignored the authors' clear warnings regarding laws addressing physical characteristics unique to one sex. Fischer propagated this error and gave no reason for doing so aside from its illusive assertion regarding the "immutable facts of life[.]" Fischer, 502 A.2d at 125. We note again that there is no ambiguity in the text of Section 28 and it certainly contains no exception for physical characteristics unique to one sex.

Since Fischer, courts in other jurisdictions have concluded that the phrases "on account of sex" and "because of sex" encompass reproductive capabilities as well as stereotypical gender norms when applying their equal rights amendments to comparable Medicaid coverage exclusions. In Doe v. Maher, 515 A.2d 134 (Conn. Super. 1986) (hereinafter, "Doe (Conn.)"), the Connecticut Superior Court addressed an equal rights amendment challenge to Connecticut's regulation prohibiting Medicaid payment for medically necessary abortions.⁶⁷ Doe (Conn.), 515 A.2d at 135. Similar to the present case, Doe (Conn.) promulgated a Medicaid carveout for abortions that were not essential to save the life of the mother. Id. According to the court, by adopting the equal rights amendment, Conn. Const. art. I, § 20, the citizens of Connecticut and their legislators "unambiguously indicated an intent to abolish sex discrimination." Doe (Conn.), 515 A.2d at 159 (internal citation omitted).

67 The court used this term and therapeutic abortions synonymously to mean "abortions necessary to ameliorate a condition that is deleterious to a women's physical and psychological health." Doe v. Maher, 515 A.2d at 135 n.4.

The Connecticut court listed several reasons that the Medicaid exclusion discriminated "because of … sex" such that it triggered further inquiry under the equal rights amendment. First, Medicaid covered all medical expenses necessary to restore the male to health and likewise for the female "except for therapeutic abortions that are not life-threatening." Id. Second, Medicaid covered all medical expenses related to male and female reproductive health, including those conditions unique to their sex, "except for the medically necessary abortion that does not endanger [a woman's] life." Id.

Third, the Connecticut court concluded that the failure to fund abortion is a form of pregnancy discrimination, which was plainly barred by passage of the equal rights amendment. Id. (citing, inter alia, Mass. Elec. Co. v. Mass. Comm'n Against Discrimination, 375 N.E.2d 1192 (Mass. 1978) (providing that "any classification which relies on pregnancy as a determinative criterion is a distinction based on sex")). According to the court, this brand of discrimination has a devastating effect upon women, and the framers of the Connecticut equal rights amendment provision undoubtedly intended the prohibitions to reach pregnancy discrimination. Id. at 160. "In sum, by adopting the [equal rights amendment], Connecticut determined that the state should no longer be permitted to disadvantage women because of their sex including their reproductive capabilities." Id. (emphasis added).

Twelve years later, in 1998, the Supreme Court of New Mexico addressed whether a state Medicaid plan rule ("Rule 766") violated New Mexico's equal rights amendment provision. Like the statute at issue here, Rule 766 excluded payment for any abortions except those that were the result of rape, incest, or necessary to save the life of the pregnant woman. New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841, 851-52 (N.M. 1998). Adopted in 1973, New Mexico's equal rights amendment guarantees that "[e]quality of rights under the law shall not be denied on account of the sex of any person." N.M. Const., art. II, § 18. The court viewed New Mexico's equal rights amendment "as the culmination of a series of state constitutional amendments that reflect an evolving concept of gender equality in [that] state." Right to Choose, 975 P.2d at 852.

Based on the history and text of the provision, the New Mexico court viewed the equal rights amendment as "a specific prohibition that provides a legal remedy for the invidious consequences of the gender-based discrimination that prevailed under the common law and civil law traditions that preceded it." Id. at 853. It requires a "searching judicial inquiry" of state laws that employ gender-based classifications, an inquiry which begins from the premise that gender-based classifications are presumptively unconstitutional, and that it is the State's burden to rebut the presumption. Id.

The New Mexico court rejected arguments that Rule 766 did not warrant heightened judicial scrutiny because it was based on a condition unique to one sex. The court acknowledged that not all classifications based on characteristics unique to one sex offend the equal rights amendment, reiterating how the test operates: a gender-based classification is presumptively unconstitutional, and the state has the burden of rebutting that presumption. Id. at 854. It concluded "that classifications based on the unique ability of women to become pregnant and bear children are not exempt from searching judicial inquiry" under New Mexico's equal rights amendment. Id. As with Connecticut's Doe (Conn.) court, the Right to Choose court emphasized the fact that women's biology and ability to bear children historically have been used as a basis for discrimination. Id. (citing Doe (Conn.), 515 A.2d at 159). Further, the court noted that some physical characteristics, such as the ability to become pregnant, have profound health consequences. Id. at 855. Therefore, it concluded that "classifications based on the unique ability of women to become pregnant and bear children are not exempt from a searching judicial inquiry" under the equal rights amendment. Id.

Senate Intervenors call our attention to the Texas case of Bell v. Low Income Women of Texas, 95 S.W.3d 253 (Tex. 2002). Significantly, the Texas Court was faced with a unique statutory scheme created by the Texas Legislature which did not-unlike Section 3215 of the Abortion Control Act-contain a coverage exclusion for abortion. Instead, the Texas scheme provided that "no medical services may be included for which Federal matching funds are not available[,]" thereby tying all funding to the federal law. Id. at 261 (citing Medical Assistance Act of 1967, 60th Leg., R.S., ch. 151, § 5, 1967 Tex. Gen. Laws 312). As the court observed, "[t]his provision was plainly not directed at abortion funding, as abortion was illegal in Texas at the time it was enacted." Id. Further, the scheme was in effect even before the Hyde Amendment, and at that time, Texas "funded all medically necessary abortions." Id. at 261. The court emphasized the uniqueness of its scheme in stating that no other state appeals court addressing the constitutionality of an abortion coverage exclusion (whether pursuant to an equal rights amendment challenge or equal protection challenge) "had before it a statute similarly authorizing the provision of services only to the extent federal matching funds are available." Id. at 259 & n.5 (collecting cases).

Thus, the starting point for that court's analysis was a facially neutral statute. Id. at 263. It recounted its three-step equal rights amendment test: first identify whether equality under the law has been denied; second, determine "whether equality was denied because of a person's membership in a protected class of sex…[;]" and third, apply strict scrutiny. Id. at 257 (internal citation omitted). The court was focused on the second question, a question reminiscent, though not identical to that facing this Court in interpreting our Equal Rights Amendment.

In addressing that question, it observed that its prior case law "did not discuss how courts should decide the issue when the classification is not so overtly gender based and arises at least in part from a facially neutral law." Id. at 259. Further, though the Texas court recognized that the funding restrictions in that case impacted only women,⁶⁸ it found that the scheme did not explicitly create a suspect classification "because of sex." Id. at 261. The Texas court determined that its equal rights amendment, like the federal Equal Protection Clause, required a showing that the statute had a discriminatory purpose as established by consideration of multiple contextual factors.⁶⁹ Those factors included disproportionate impact, the context of the challenged action, the sequence of events leading up to it, departures from normal procedures and substantive course, and legislative or administrative history. Id. In addressing those factors, the court again emphasized the neutrality of Texas' statutory scheme, which, it pointed out, was not directed at abortion funding. Id. The court addressed the Hyde Amendment, too, and stated that it did "not believe that the discouragement of abortion through funding restrictions can, by itself, be considered purposeful discrimination against women as a class." Id. at 263. Thus, the court concluded that "[w]hatever one might think of the legislative policy choice that the [Texas] funding scheme embodies, plaintiffs have simply failed to demonstrate that it reflects a purpose to discriminate because of sex." Id. at 264. It therefore applied rational-basis review and determined that the statutory scheme was rationally related to legitimate governmental purposes and therefore did not violate the equal rights amendment. Id.

68 In that respect, the Texas court cited the reasoning from Fischer, wherein this Court indicated that the mere fact that a statute affects only women does not mean that it discriminates against women, given the "certain immutable facts of life which no amount of legislation may change[,]" and which may, as a consequence require "certain laws which necessarily … only affect one sex." Bell, 95 S.W.3d at 260-61 (citing Fischer, 502 A.2d at 125).

69 The court cited to Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977), in which the United States Supreme Court considered an Equal Protection challenge to a zoning decision refusing to change a tract from single-family to multi-family classification that resulted in the exclusion of low-income housing serving minorities. The High Court stated that official action is not unconstitutional "solely because it results in a racially disproportionate impact[,]" and instead "[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Id. at 264-65.

There are many distinctions which render that court's reasoning inapplicable in Pennsylvania, but most importantly, Bell addressed a unique statutory scheme that did not directly target abortion and, in fact, predated legalization of abortion in that state. Because the law was based on the requirement to follow the Hyde Amendment, the challenged scheme was, as the court stated, "a facially neutral statute." Id. at 259. By contrast, Connecticut and New Mexico's coverage exclusions were overtly based on abortion and sex, and they operated similarly to the one under review here. The reasoning of those courts - in determining that their abortion coverage exclusions were disadvantaging women because of their sex, including their reproductive capabilities - is more compelling. See Doe v. Maher, 515 A.2d at 120; Right to Choose, 975 P.2d at 854.

d. Policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence

Edmunds instructs that

… in analyzing any state constitutional provision, it is necessary to go beyond the bare text and history of that provision as it was drafted … and consider its application within the modern scheme of Pennsylvania jurisprudence.

Edmunds, 586 A.2d at 901. These considerations support our conclusion that our Equal Rights Amendment does not contain an exception from the prohibition against denying or abridging an individual's rights based on characteristics unique to one sex.⁷⁰

70 While we focus on the reproductive functions of women, a law designed only to apply to the sperm production of men would likewise be implicated.

The vestiges of discrimination against women based on their reproductive function remain. What the Fischer Court referred to as "an immutable fact," the biological ability to bear children, persists as a defining characteristic that gives rise to stereotypes. The danger of allowing legislation that makes distinctions based on reproductive capabilities is that such laws further engrain the socio-economic disparities that continue to exist as a result of the historic subjugation of women in society. Pregnancies present medical complications,⁷¹ and pregnancy and childrearing, a task disproportionately undertaken by women, can determine employment and career opportunities.⁷²

71 Declaration of Colleen M. Heflin, Ph.D., 1/10/2019 (Exhibit A) at 22 ("evidence suggests that self-reported physical effects of having an unwanted pregnancy are higher than those of having an abortion, including longer periods of limitations on physical activity, which likely interferes with the ability to work[]"); Declaration of Courtney Anne Schreiber, MD, MPH, 1/11/2019 (Exhibit D), at 9, ¶ 19 ("almost 13 women die within 42 days of the end of pregnancy for every 100,000 live births[;]"); id. at 10-18, ¶¶ 22-41 (describing how common conditions are exacerbated by pregnancy); Declaration of Sarah C. Noble, D.O., 1/10/2019 (Exhibit E), at 6, ¶ 15 ("up to 14.5 percent of pregnant women experience a new episode of major or minor depression during pregnancy").

72 Declaration of Colleen M. Heflin, Ph.D., 1/10/2019 (Exhibit A) at 21-22, ¶ 25 (citing evidence that women who were unable to obtain an abortion were "less likely six months later to be employed full-time and more likely to be receiving public assistance benefits and to have lower household incomes and to be poor[;]" also, "the negative consequences to economic well-being were shown to be long-lasting and to persist four years later compared to similar women who were able to obtain an abortion[]") (internal citations omitted).

Setting aside the foregoing public policy concerns that undoubtedly animated the People to adopt the Equal Rights Amendment to our Charter, we must consider the Equal Right's Amendment in light of jurisprudential concerns. Here, the overarching jurisprudential policy is stare decisis. Having determined that the Fischer Court's analysis was inconsistent with the plain text of the constitutional provision at issue and jurisprudence of the Court that preceded it, we consider whether, despite this error, we should nonetheless continue to adhere to Fischer's holding on the basis that it is precedential.

Quality of reasoning

In Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), this Court stated that its "general faithfulness to precedent is not sufficient to buttress judicial decisions proven wrong in principle or 'which are unsuited to modern experience and which no longer adequately serve the interests of justice.'" Id. at 336 (quoting In re Carney, 79 A.3d at 505). Similarly, the United States Supreme Court recognizes that prior decisions that are egregiously wrong as a matter of law must be overruled. See Ramos v. Louisiana, 140 S.Ct. 1390, 1414-15 (2020) (Kavanaugh, J., concurring in part) (citing numerous cases overturned due to egregious error) ("In conducting that inquiry, the Court may examine the quality of the precedent's reasoning, consistency and coherence with other decisions, changed law, changed facts, and workability, among other factors."). As such, the stare decisis doctrine cannot be used as an absolute shield to protect and perpetuate legal error regardless of whether the flaw existed at the time the decision was rendered or manifested itself through subsequent interpretations of the decision. Id. "The question thus arises as to whether we are bound to the [challenged] interpretation … when, by any rules of constitutional construction recognized at the time of those decisions or now, the interpretation is patently flawed. The answer is that we are not." McLinko, 279 A.3d at 573.

With respect to the Equal Rights Amendment, the Fischer Court's reasoning was patently flawed. The Fischer Court's creation of a judicial exception to the Equal Rights Amendment for "physical characteristics unique to only one sex" finds no support in the language of Section 28; it has no reasonable justification; and the cases it relied on for its conclusion were at least partially based on a flawed premise. See Fischer, 502 A.2d at 125 ("Although we have not previously addressed this situation, other [equal rights amendment] jurisdictions have; and the prevailing view amongst our sister state jurisdictions is that the [equal rights amendment] 'does not prohibit differential treatment among the sexes when, as here that treatment is reasonably and genuinely based on physical characteristics unique to one sex.'") (internal citations omitted)). This Court has no authority to judicially modify the constitutional text which prohibits denying or abridging equality of rights "because of the sex of the individual." Pa. Const. art. I, § 28. As such, any state action which operates to deny or abridge equality of rights because of the person's sex, including when it is based on physical characteristics unique to one sex, is subject to searching inquiry under the Equal Rights Amendment.

The Fischer Court's only bases for adopting the exception were undeveloped assertions that the biological differences between men and women justify unique laws and that the "prevailing view" among other jurisdictions with constitutional equal rights amendments was that the Equal Rights Amendment does not prohibit distinctions based on physical characteristics unique to one sex. The Fischer Court's statement that there exist "certain immutable facts of life which no amount of legislation can change," calls to mind the notions that "nature herself has always recognized a wide difference in the respective spheres and destinies of man and woman"⁷³ and "that woman's physical structure and her performance of maternal functions place her at a disadvantage" especially "when the burdens of motherhood are upon her."⁷⁴ These rejected stereotypes cannot justify the Fischer Court's affirmative conclusion that "there are certain laws which necessarily will affect only one sex[.]" Fischer, 502 A.2d at 125. This statement ignores the question: Is it constitutional for the General Assembly to enact laws that deny or abridge rights of only one sex? Even if certain laws will make distinctions based on physical characteristics unique to one sex and that such laws cannot be neutralized so that they impact both sexes and that the laws are necessary to our functioning society, such laws would trigger the Equal Rights Amendment, then be scrutinized thereunder. We cannot simply ignore the Equal Rights Amendment for certain types of legislation.

73 Bradwell, 83 U.S. at 141-42 (Bradley, J., concurring).

74 Muller, 208 U.S. at 421.

Further, the Fischer Court's reasoning that the Coverage Exclusion uses abortion-a "voluntary choice made by the women" thus merely creating two classes of women-as the basis for distinction and therefore does not use sex itself, is not "quality reasoning."⁷⁵ Laws that create subclasses within one sex have been found violative of the Equal Rights Amendment. For instance, in Hartford, this Court agreed with the Insurance Commissioner that an insurance company's calculation of motor vehicle insurance rates that took into account gender ran afoul of the non-discrimination principles of the Equal Rights Amendment. Hartford, 482 A.2d 542. The gender-based rates affected only a subset of men-those who made a voluntary choice to drive-but it triggered the Equal Rights Amendment nonetheless.

75 Relying on Fischer, DHS and Intervenors argue that the Coverage Exclusion creates a permissible classification within the female sex and not an impermissible distinction between men and women. They argue that this intra-sex classification is based on the voluntary choice of women to carry a pregnancy to term or to terminate a pregnancy. We reject this analysis because it is predicated on the false premise that the Coverage Exclusion is not a sex-based legislative provision in the first place.

By way of further example, the discriminatory sentencing provisions at issue in Butler, 328 A.2d at 852-53, affected only the subset of men convicted of the relevant crimes (as opposed to a majority of men who chose not to commit crimes) subjecting themselves to such punishments. Rather than delineating the affected classes to point out that the defendant was a member of a subset of men who voluntarily chose to commit crime, we focused on how the scheme "treats men less favorably than women[.]" Butler, 328 A.2d at 856. Heinous instances of discrimination often affect only a subset of women, and sometimes only individual women. See Providers' Reply Brief at 7 (hypothesizing that this illogic could be used to justify a state law that barred women but not men from the practice of medicine because it differentiates between women who choose to be doctors and those who choose another path). That a statute affects only a subset of women does not remove that statute from the protections of the Equal Rights Amendment, contrary to Fischer's rationale. To reiterate, the Equal Rights Amendment's breadth includes scenarios when sex is but one factor of many.

In light of Fischer, the arguments of the parties and Intervenors focused our inquiry on one question: Does the Equal Rights Amendment prohibit differential treatment among the sexes based on physical characteristics unique to one sex?⁷⁶

76 As stated, our focus is driven by the arguments of the parties. On the other hand, Justice Mundy posits that "equality of rights" necessarily involves a comparison. Concurring & Dissenting Op. at 9 n.7 (Mundy, J.). This case presents such a comparison. Given that we are addressing this case at the preliminary objection stage, we consider as true Providers' allegation in their petition for review that women's reproductive healthcare is treated differently than men's reproductive healthcare under the Medical Assistance Program. See Robinson Township, 83 A.3d at 917. They further allege that there is no parallel Coverage Exclusion for men, as all reproductive health services are covered for men, including all sex-based healthcare consultations and procedures. Petition for Review, 1/16/2019, ¶¶ 54, 90. The only reproductive health service excluded from coverage is abortion when the pregnancy is not life-threatening and not the result of incest or rape. Id.; see supra pp. 5-7. Abortion is healthcare. Thus, this Equal Rights Amendment challenge is, in part, based upon a comparison of men's and women's reproductive healthcare coverage under the Medical Assistance program in the same vein as all of our existing Equal Rights Amendment precedent. See Providers' Brief at 35 (asserting that the Coverage Exclusion apportions benefits "unequally, excluding funding for an extremely common, sex-linked medical need of women while funding all reproductive medical needs for men[]").

We conclude without hesitancy that there is no support in the text of Section 28 for the idea that differential treatment among the sexes based on physical characteristics unique to one sex is permissible. Section 28 prohibits the denial or abridgment of rights because of the sex of an individual. As developed, the first dictionary definition of sex establishes the first meaning as "either the male or female of a species, especially as differentiated with reference to the reproductive functions."⁷⁷ A physical characteristic unique to a female is her childbearing capability-the precise characteristic targeted by the Coverage Exclusion at issue in this case. We would have to conjure up a heretofore unimagined meaning of "sex" as used in Section 28 to validate an interpretation of its protection that excepts out physical characteristics unique to one sex.

77 See supra p. 85.

DHS and Senate Intervenors, relying on Fischer,⁷⁸ argue that the Coverage Exclusion is not based on sex but on abortion. They state the relevant question "is not whether a law affects only one sex because that sex has a unique immutable characteristic, but whether the law discriminates on the basis of sex, which the Coverage Ban does not." Senator Intervenors' Brief at 24 n.7.

78 Fischer, 502 A.2d at 125.

The distinction drawn by DHS and the Senate Intervenors emphasizes the medical procedure, abortion, as the basis for the challenged statutory exclusion. To accept that as the correct premise requires divorcing the analysis from the irrefutable fact that only women can use the medical procedure that is excluded from coverage. We recognize that the Fischer Court rejected the "rather simplistic argument that because only a woman can have an abortion then the statute necessarily utilizes 'sex as a basis for distinction[.]'" Fischer, 502 at 124 (citing Henderson, 327 A.2d at 62). With due respect to that Court, while the argument may be simple, it is not simplistic. As recognized in Fischer, the Appellants relied on Henderson for the proposition that "the thrust of the Equal Rights Amendment is to insure equality of rights under the law to eliminate sex as a basis for distinction." Henderson, 327 A.2d at 62. As previously discussed, Henderson invalidated the provisions of the divorce code that allowed, among other things, alimony pendente lite to women but not men. It was one of a long line of cases pre-dating Fischer that absolutely and without exception invalidated laws that conferred benefits or imposed burdens based on the sex of an individual. See supra pp. 94-98. The Fischer Appellants' argument was thus simple and correct: Based on the body of this Court's work examining the reach of the Equal Rights Amendment, no sex-based distinctions in the law were tolerated and thus, the Coverage Exclusion, which only impacted women in making reproductive health care decisions, could also not stand.

We recognize that our Equal Rights Amendment jurisprudence prior to Fischer did not address a law that distinguished between the sexes based on a physical characteristic unique to one sex. However, based upon the unambiguous text of the Equal Rights Amendment, there is no room for a carve out for laws that differentiate between the sexes for any reason. The Fischer Court contorted a simple, longstanding principle of Section 28 law by declaring that the basis for the Coverage Exclusion was not a distinction based on sex but abortion. To support this logic, the Fischer Court cited to a dissenting opinion in a Massachusetts Supreme Court case addressing that Commonwealth's Medicaid coverage exclusion. Moe v. Sec'y of Admin. and Fin., 417 N.E.2d 387 (Mass. 1981). In a robust opinion, the majority in Moe struck its analogous Medicaid exclusion as violative of Massachusetts' due process protections because it violated a woman's right to exercise autonomous decision-making protected by Massachusetts' constitutional privacy right. Given its disposition of that issue, the majority did not address the separate challenge under the state's equal rights amendment. Chief Justice Henessey, in a sole dissent, disagreed on all counts and separately addressed and rejected the equal rights amendment challenge:

I do not believe that this case involves a gender based classification cognizable under the [e]qual [r]ight [a]mendment. Inescapably, the motive for the challenged legislation lies in opposition to abortion and is based on the State's valid interest in preserving life. The legislation is directed at abortion as a medical procedure, not at women as a class.

Moe, 417 N.E.2d at 407 (Hennesey, C.J., dissenting).

The declaration by the Massachusetts dissenting justice relied on in Fischer does not grapple with the fact that its coverage exclusion only applies to women and that it is, thus, sex-based. The Moe dissent does however shed light on the basis for this line of thinking embraced by Fischer and the supporters of the Coverage Exclusion here. Instead of first recognizing the obvious sex-based discrimination as implicating the Equal Rights Amendment protection and then conducting a searching inquiry into the rationale supporting it, Fischer, following the Moe dissent, transposed and then collapsed these two independent inquiries: Fischer looked first and only to the motive of the Legislature (i.e., opposition to abortion, and the state interest in preserving life) and then stated its conclusion that the Coverage Exclusion is about preventing abortions, and women have no challenge under Section 28 based on an exclusion of Medical Assistance coverage that can only affect their sex. In other words, the Fischer Court's analysis started with the legislative policy when it should have first determined whether the legislative distinction was sex-based. It should have then scrutinized the legitimacy of distinction based on the Legislature's policy interests. Instead, Fischer considered the legislative policy, untethered from any scrutiny, to reach the conclusion that there was no sex-based distinction in the Coverage Exclusion.

Fischer's analytical device is contrary to the manner in which we conduct judicial review and subverts constitutional protections. It requires that we ignore that the Coverage Exclusion is inherently sex-based. The failure of Fischer's logic becomes apparent when applied to other sex-based distinctions. For example, in Butler, this Court held that mandatory minimum sentences applicable to men but not women violated the Equal Rights Amendment. If instead we applied Fischer's transposed analysis in Butler, we would have to find that the sentencing scheme was not based on a distinction between men and women, but instead concerned protection of society, and the legislative policy recognized that women present a lesser danger. That would be the beginning and end of the analysis, because, following Fischer's logic, as stated in the Moe dissent, we would conclude that "the legislation is directed at [sentencing schemes as public safety measures], not at women as a class." Moe, 417 N.E.2d at 407 (Hennesy, C.J., dissenting).

Fischer's analytical device that transposes the recognition of the legislative policy for a statute with the recognition of Section 28's constitutional protection guts the guarantee of the Equal Rights Amendment. The analytical device-by accepting legislative policy pronouncements in place of conducting any judicial scrutiny of sex-based classifications-avoids the difficult questions. While there may be a legitimate state interest in this Commonwealth for promoting potential life, the question remains whether that legislative determination trumps the constitutional guarantee expressed in the Equal Rights Amendment that individuals are to be treated equally under the law and that rights cannot be denied or abridged based on sex. It is for the courts, not the Legislature, to conduct a searching inquiry to determine whether the balance struck by the Legislature runs afoul of the constitutional promise that rights will not be denied or abridged based on sex.

Finally, and most fundamentally, the Fischer Court's adoption of an exception to the Equal Rights Amendment for "physical conditions unique to one sex" is so contrary to the text of the Equal Rights Amendment that contains no exceptions that it constitutes a special justification for overruling that analysis. Consequently, we will not perpetuate its error by considering the flawed framework when addressing Providers' claim.

Stare Decisis and constitutional issues

In Commonwealth v. Alexander, this Court recognized that "stare decisis is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions." Alexander, 243 A.3d at 197 (quoting Agostini v. Felton, 521 U.S. 203, 235 (1997)). Because the judiciary is the sole branch vested with the power to interpret the Constitution, stare decisis is less strict in this area to ensure courts "balance the importance of having constitutional questions decided against the importance of having them decided right." Ramos, 140 S.Ct. at 1413 (Kavanaugh, J., concurring in part). In this case, given that we are faced with questions of state constitutional interpretations, stare decisis is at its weakest.

Age and lineage

The likelihood that a court will apply stare decisis increases proportionally to the age of the decision. Alexander, 243 A.3d 177, 196 (quoting Gamble v. United States, 139 S.Ct. 1960, 1969, (2019)). Typically, when discussing age and lineage as a factor, courts cite two main concerns: First, "[c]ases with a long lineage tend to have multiple precedents to overcome," making it challenging to overrule one decision without disrupting an entire area of law. Id. Second, courts are generally more hesitant to overturn longstanding decisions involving questions of statutory interpretation, reasoning that the longer the decision has been on the books, the longer the legislature had to step in if they felt something needed to be corrected. See Hilton v. S.C. Pub. Rys. Comm'n, 502 U.S. 197, 202 (1991) ("Congress has had almost 30 years in which it could have corrected our decision [] if it disagreed with it, and has not chosen to do so. We should accord weight to this continued acceptance of our earlier holding."). Again, with constitutional interpretation, the age and lineage of an opinion is accorded less weight.

Fischer's Equal Rights Amendment analysis has not been approvingly cited or applied by this Court. If anything, Fischer's analysis of the Equal Rights Amendment claim disrupted this area of the law. Fischer reached the opposite result of the established precedent providing that to treat women differently based on their pregnant status, a physical condition unique to their sex, is sex discrimination under the PHRA. See Cerra, 299 A.2d at 280. There is no reason to conclude that "sex" as used in the Equal Rights Amendment has a meaning different than "sex" used in the PHRA that preceded it. Whereas Cerra established that "sex" encompasses, at least in part, the difference between individuals' reproductive biology, Fischer held that it did not. Therefore, for Equal Rights Amendment purposes, given its inconsistency with Cerra, the age and lineage of Fischer weighs against applying stare decisis.

Reliance

Finally, where there has been substantial public or private reliance on precedent- and where overruling a decision would "dislodge settled rights and expectations or require an extensive legislative response[,]" stare decisis has added force. Hilton, 502 U.S. at 202 (emphasis omitted). In that respect, we have "recognize[d] the importance of reliance on settled jurisprudence when asked to overturn precedent," and found there was force to legislators' arguments that "they rely on this Court's interpretation of the law and precedent when crafting legislation, and that such reliance should not be undercut except for good reason." Stilp, 905 A.2d at 967.

Outside of repeated reenactment of the Coverage Exclusion, we have no indication of the Legislature's reliance on the Fischer Court's interpretation of the Equal Rights Amendment. Further, the Legislature's reliance interests cannot exceed a citizen's constitutional rights under the Equal Rights Amendment.

3. Enforcement and Conclusion

a. Enforcement of the Equal Rights Amendment

Certainly, when this Court concluded that sex-based distinctions in statutes were based on traditional sex roles, social attitudes and questionable social stereotypes, we did not hesitate to invalidate the laws under the Equal Rights Amendment. To see the strength of the prohibition in Section 28, a case decided one year before Fischer is illustrative. In Hartford, a case involving the meaning of the phrase "unfairly discriminatory" in the Insurance Rate Act, we upheld the Insurance Commissioner's interpretation of the term by relying on the Equal Rights Amendment and the strong public policy expressed in it against gender-based discrimination. This Court rejected the insurance company's argument that actuarially sound gender-based rates were not "unfairly discriminatory." We did so, among other reasons, because although a rate may be justified by actuarial data it could be unfair in its underlying assumptions and application to individuals. Hartford, 482 A.2d at 547 . In making this assessment, without any balancing of policy concerns, we agreed with the insurance commissioner that a rate plan based upon gender is offensive to the spirit of Article I, Section 28-"unquestionably, sex discrimination in this Commonwealth is now unfair discrimination." Id. at 549.

Despite this Court's previous stringent enforcement of our Equal Rights Amendment,⁷⁹ no party or amicus argues for an absolutist approach in its enforcement. For example, Providers observe that there could exist constitutionally permissible state regulations that distinguish based on sex to ameliorate discrimination, to equalize the sexes, or to protect other constitutional rights. Providers' Reply Brief at 14-15; see also Senate Intervenors' Brief at 19-20 (stating that the Medical Assistance program affords preferential treatment of pregnant people through higher income eligibility thresholds). In our judicial review function, we consider the nuances of the scenarios implicating Article I rights and are rarely in a position to announce that a right is unfettered or a prohibition absolute. Moreover, in addressing Article I, Section 1 rights, this Court has acknowledged that "the General Assembly may, under its police power, limit those rights by enacting laws to protect the public health, safety, and welfare," but that "any such laws are subject to judicial review and a constitutional analysis." Nixon v. Commonwealth, 839 A.2d 277, 286 (Pa. 2003) (internal citations omitted). In our enforcement of other Article I rights, we have conducted at least a two-step analysis of challenged legislation. First, we determine the nature of the right-is it fundamental or something less. Depending on the nature of the right, we conduct a means-ends analysis, i.e., scrutiny tailored to the nature of the right, to determine whether the articulated government purpose is advanced by the legislation. For example, faced with a violation of an individual's fundamental right to privacy under Article I, Section 1 of the Pennsylvania Constitution, we rejected the approach of applying varying degrees of scrutiny depending on the type of governmental intrusion. Stenger v. Lehigh Valley Hosp. Ctr., 609 A.2d 796, 801 (Pa. 1992). We did so because "only a compelling state interest will override one's privacy rights" under the Pennsylvania Constitution. Id. at 802.

79 This Court's early jurisprudence applying the Equal Rights Amendment has been interpreted by some as an absolute bar against legislation making distinctions based solely on sex. Beck & Alfano Baker, supra, at 747 (citing, inter alia, Henderson, 327 A.2d at 62 (stating that the Equal Rights Amendment "eliminate[s] sex as a basis for distinction")); Paul Benjamin Linton, State Equal Rights Amendments: Making a Difference or Making a Statement?, 70 Temp. L. Rev. 907, 911 (1997); Krasik, supra, at 715-16.

Our Equal Rights Amendment affords rights beyond those guaranteed by our equal protection provisions. Section 28 was adopted in 1971, four years after the adoption of Article I, Section 26, "No discrimination by Commonwealth and its political subdivisions" in 1967.⁸⁰ The mere chronology strongly evidences an intent to provide distinct protections for the denial or abridgement of rights based on the sex of the individual. Courts in our sister states have also interpreted their equal rights amendments in this manner, as affording greater protection than the other equal protection provisions of the federal and state constitutions.

80 See infra Part III.F. (discussion of Article I, Section 26).

We agree with our sister courts that "[w]e construe the intent of this amendment as providing something beyond that already afforded by the general language of the Equal Protection Clause." Right to Choose, 975 P.2d at 851-52. In Right to Choose, the New Mexico Supreme Court observed that prior to adoption of its equal rights amendment, its constitution contained an equal protection provision akin to that in the federal Constitution. It provided: "No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws." Id. at 851 (citing N.M. Const. Art. II, § 18 (pre-1973)). Thereafter, a new sentence was added to New Mexico's constitution, i.e., the equal rights amendment providing that, "[e]quality of the rights under the law shall not be denied on account of the sex of any person." Id. The court relied on other states that interpreted their equal rights amendments as expanding the guarantees of their constitutions as well as its own rule of construction requiring that no part of the constitution may be rendered superfluous. Id. It therefore viewed the intent of the amendment as "providing something beyond that already afforded by the general language of the Equal Protection Clause." Id. at 851-52. The New Mexico court further noted that although federal courts apply an intermediate level of scrutiny to gender-based classifications, the New Mexico court's "rationale for conducting a searching judicial inquiry regarding such classifications under the New Mexico Constitution may accord with the criteria for invoking more stringent judicial scrutiny under federal law[.]" Id. at 853 (internal citations omitted). The criteria include that legislation on its face is within a specific prohibition of the constitution or that there is a history of purposeful unequal treatment. Id. The court reiterated its departure from the federal standards. Id. at 853-54 (providing that "our analysis is not inextricably tied to the standard of review employed by the federal courts").

Similarly, in Doe (Conn.), the Connecticut court rejected an argument by the state that federal Equal Protection Clause case law was applicable for reviewing a coverage exclusion, and that pursuant to federal jurisprudence, its coverage exclusion was subject to rational basis review. Doe (Conn.), 515 A.2d at 160-61. The court acknowledged that the Connecticut Supreme Court had previously stated that the equal protection provisions of the Connecticut and United States constitutions share meanings and limitations, but it highlighted that "those pronouncements were made without reference to the [equal rights amendment]." Id. at 160 (emphasis added). Further, the "traditional language" was utilized in cases not involving gender classification. The court then stated: "To equate our [equal rights amendment] with the [E]qual [P]rotection [C]lause of the federal [C]onstitution would negate its meaning given that our state adopted an [equal rights amendment] while the federal government failed to do so. Such a construction is not reasonable." Id. at 160-61. Therefore, the court explained that at the very least, the standard of review of sex classifications must be strict scrutiny. It reiterated that "[s]urely the effect of the [equal rights amendment] was to raise the standard of review." Id. at 161.

Likewise, the Supreme Court of Illinois, reviewing a statute providing for treating as adults juvenile male offenders, but not juvenile female offenders, observed the canon of constitutional construction that "it is incumbent upon the court to give meaning to every section and clause of the instrument." People v. Ellis, 311 N.E.2d 98, 101 (Ill. 1974) (internal citation omitted). Giving meaning to its equal rights amendment, the court stated the following:

In contrast to the Federal Constitution, which, thus far, does not contain the [e]qual [r]ights [a]mendment, the [Illinois] Constitution of 1970 contains section 18 of article I, and in view of its explicit language, and the debates, we find inescapable the conclusion that it was intended to supplement and expand the guaranties of the equal protection provision of the Bill of Rights and requires us to hold that a classification based on sex is a 'suspect classification' which, to be held valid, must withstand 'strict judicial scrutiny.'

Id.

While the United States Supreme Court applies an intermediate level of scrutiny to gender-based classifications (an approach cemented after 1971),⁸¹ following the adoption of the Equal Rights Amendment, this Court, unsurprisingly, did not follow the High Court's lead in its enforcement of our Equal Rights Amendment. Instead, this Court took a near absolute view of the protections.

81 See Reed v. Reed, 404 U.S 71, 76 (1971) (finding an Idaho statute that provides a preference for female administrators of estates was unconstitutional and violated Equal Protection Clause of the Fourteenth Amendment; stating that the question in that case was whether a difference in sex "bears a rational relationship to a state objective that is sought to be advanced" by the challenged statutes); Craig v. Boren, 429 U.S. 190 (1976) (holding that statute distinguishing drinking ages of men and women was subject to intermediate scrutiny) (citing to Reed, the High Court stated the following: "To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.").

We take seriously the express recognition of the right to equality of the sexes under the law and the magnitude of this special protection against the denial or abridgment of rights under the law based on sex contained in our Equal Rights Amendment. We are persuaded that the approach to enforcement of this right taken by the Supreme Court of New Mexico⁸² provides the appropriate framework. Thus, a challenge to a law as violative of Section 28 begins with the premise that a sex-based distinction is presumptively unconstitutional. It is the government's burden to rebut the presumption with evidence of a compelling state interest in creating the classification and that no less intrusive methods are available to support the expressed policy. The judicial inquiry will be searching, and no deference will be given to legislative policy reasons for creating sex-based classifications. Given these parameters, we acknowledge that few, if any, sex-based conferrals of benefits or burdens will be sustainable.

82 Right to Choose, 975 P.2d at 854-56.

This approach we adopt is aligned with the overwhelming precedent of this Court that strictly enforces the Equal Rights Amendment against laws benefitting or burdening rights based on whether the individual was a man or woman. It also takes into account that there may be classifications within laws that are based on a characteristic that is unique to one sex that may not violate the Equal Rights Amendment. As with all laws making classifications based on sex, such an enactment will be presumed unconstitutional and the government will have the high burden of rebutting the presumption.

b. Conclusion

Based on the foregoing interpretation of the Equal Rights Amendment, we overrule Fischer's interpretation of the Equal Rights Amendment. We further conclude that when a statute is challenged as violative of Section 28, a sex-based distinction is presumptively unconstitutional, and it is the government's burden to rebut the presumption with evidence of a compelling state interest in creating the classification and that no less intrusive methods are available to support the expressed policy.⁸³

83 Contrary to Justice Mundy's assertion, we have not ruled that the Coverage Exclusion is unconstitutional. Nor have we purposefully overridden legislative interests to the extent they represent taxpayers opposed to abortion. Concurring & Dissenting Op. at 19 (Mundy, J.). As a result of this decision, the Providers' claim that the Coverage Exclusion violates the Equal Rights Amendment will be adjudicated in the Commonwealth Court where we are confident there will be zealous advocacy supporting the state interests in the sex-based distinction. See id. at 7 (emphasizing the "state's important interest in promoting maternal health and protecting fetal life from destruction[]"); Concurring Op. at 8-20 (Wecht, J.) (discussing various state interests).

E. The Right to Reproductive Autonomy ⁸⁴

84 For purposes of Part III.E., all uses of "we" and "our" refer only to this author and Justice Wecht, who are the two Justices reaching and deciding the question of whether (continued…) the Pennsylvania Constitution secures the fundamental right to reproductive autonomy, which includes a right to decide whether to have an abortion or to carry a pregnancy to term.

In refusing to fund all medical care related to abortions while funding all medical care attendant to pregnancy, the Legislature evinces a partiality for pregnancy over abortion. Providers insist that this partiality violates the Pennsylvania Constitution because Article I, Section 1 of the Pennsylvania Constitution secures a fundamental right to reproductive autonomy, and Article I, Section 26 requires that legislative classifications that affect the exercise of fundamental rights do so neutrally and without discrimination.⁸⁵The first contention requires us to address the source and scope of Pennsylvania's right to privacy to determine whether it encompasses the right to reproductive autonomy.

85 To be clear, Providers, in advancing their equal protection and non-discrimination argument, are not raising any claim based on race, gender, sex, or indigency. Their only claim is that the Coverage Exclusion violates Article I, Section 26 of the Pennsylvania Constitution because it discriminates against people in the exercise of their fundamental right to reproductive autonomy.

1. Parties' Arguments ⁸⁶

86 We note that multiple amicus briefs have been filed in support of both parties. In support of Providers, the ACLU of Pennsylvania and Professors Seth Kreimer and Robert Williams provide a historical perspective of this Commonwealth's Constitution and the development of the equality guarantee, first set forth in Article 1, Section 1, and later augmented by, inter alia, Article 1, Section 26. They urge this Court to interpret the Commonwealth's Charter, and the rights secured thereunder, independently from federal law. They chronicle that Pennsylvania has long recognized that our Constitution provides a stronger right to privacy than does its federal counterpart. A similar position is raised by a number of faith-based organizations that include the National Council of Jewish Women and Catholics for Choice, who argue that this Court has long held that Pennsylvania's Constitution guarantees a robust right to privacy that surpasses the right recognized by federal law. They detail the varied and nuanced positions held by, and within, the Jewish, Catholic and Islamic faiths regarding when life begins and contend that at least some segments of practitioners of those faiths, and others, believe that abortion is moral and permissible and can be reconciled with their religious beliefs. In addition to Article I, Section 1, they cite to Article I, Section 3's protection of religious freedom for reflecting "the importance of protecting the exercise of individual conscience and autonomy essential to personal liberty[.]" National Counsel of Jewish Women's Brief at 16. They assert that our Commonwealth has a continued interest in maintaining government neutrality toward religious differences among the Commonwealth's citizens. Id. at 18. New Voices of Reproductive Justice and twenty-two additional organizations dedicated to reproductive justice and the health and wellbeing of Black women present heavily-sourced policy considerations surrounding the accessibility of healthcare generally, and abortion services specifically, to this segment of the population. These organizations contend that negative consequences that result from the abortion ban, such as the inability to control their reproductive lives, are disproportionally borne by Black women. In contrast, the leaders of eight organizations active in the Black community filed an amicus brief in which they refute the notion that Black women have been denied access to healthcare and abortion services. To the contrary, they assert that Black women have been targeted by abortion providers in a concerted effort to control the Black community and to enrich abortion providers. Similarly, a coalition of pro-life Jewish organizations and rabbis write in support of DHS, contending that abortion is abhorrent to their faith and that the use of their tax dollars (and the tax dollars of those who share their beliefs) causes them to violate their religious beliefs. These amici contend that Fischer controls and that the failure to adhere to stare decisis would amount to a usurpation by this Court of the General Assembly's prerogative to legislate and to declare public policy for the Commonwealth. The importance of stare decisis and this separation of powers concern are raised by the Life Legal Defense Fund and Judicial Watch, Inc., in their filings. The American Association of Pro-Life Obstetricians and Gynecologists, together with the Pro-Life Union of Greater Philadelphia, the Charlotte Lozier Institute and the Human Coalition discuss physical and mental health risks attendant to abortion. These concerns are reiterated in a brief filed by Texas Right to Life and Stephen J. Hilgers, M.D., and echoed by Guiding Star Ministries. Guiding Star Ministries also advises the Court of various private entities that provide funds for women seeking abortions, claiming that Providers failed to substantiate their claim that low-income women are denied access to abortion because of financial constraints. Members of the Republican Caucus of the Pennsylvania House of Representatives echo arguments made by Intervenors, explaining that it has long been the policy of the Commonwealth to protect unborn life and that the ban is a proper expression of that policy through the General Assembly's appropriation power. These amici point out that the General Assembly also appropriates significant funds for programs to support women through pregnancy and after birth. Democrats for Life of America raises policy-based arguments, contending that the ban respects the conscience of the taxpayers who morally oppose abortion. Although it acknowledges the General Assembly has no obligation to accommodate the moral convictions of taxpayers, this amicus contends that the General Assembly has the discretion to do so. Democrats for Life also illustrate how, in its view, the abortion ban serves as a bipartisan compromise that makes the passing of productive public welfare legislation possible. Americans United for Life argues that Pennsylvania's equal protection guarantees are coextensive with federal equal protection guarantees, pointing out that Providers provide no authority in support of their claim to the contrary. It contends that availability of abortion services has no correlation to women's social or economic success, citing the steadily decreasing rate of abortion in Pennsylvania since 1990 and a concurrent rise in women's social and economic success during the same period.

Providers' Arguments

Providers' core argument is that "when states subsidize health care, they must do so in ways that do not place unequal burdens on the exercise of constitutionally-protected rights." Providers' Brief at 57. As to the right protected, they rely on our jurisprudence regarding Article I, Section 1, as well as Article I, Section 8 of the Pennsylvania Constitution, to argue that our Constitution protects a woman's fundamental right to make reproductive decisions. When Fischer was decided, a woman had a federally protected right to abortion, and thus, the Court was not asked to decide whether the Pennsylvania Constitution guaranteed the right of a woman to make such decisions. The Commonwealth Court did not expressly address the Providers' claim under our Charter but implicitly assumed that a right to abortion existed.⁸⁷ As a result of Dobbs, the federal right is no longer recognized. Thus, Providers assert that we must decide the question⁸⁸and that an Edmunds analysis will confirm the right under our Charter. They generally provide such an analysis.⁸⁹

87 See supra note 11.

88 We address this premise first because it may be dispositive of the claim, and its resolution could allow us to avoid reconsideration of Fischer's Section 26 analysis. That is, in light of Dobbs, if we were to reject the existence of a constitutional right to abortion in Pennsylvania, there would be no constitutional right upon which to base consideration of the continued vitality of this aspect of Fischer.

89 For reasons that are unclear, Providers combined their right to reproductive autonomy Edmunds analysis with their equal protection Edmunds analysis. Providers' Brief at 58-73. We have attempted to separate them to eliminate confusion.

In arguing that the Pennsylvania Constitution protects the right to decide whether to carry a pregnancy to term, Providers state that Article I, Section 1 of the Pennsylvania Constitution provides stronger protection for individual autonomy and privacy than the federal Constitution. They assert that our Constitution embodies "powerful protection for individual autonomy," citing Nixon v. Department of Public Welfare, 839 A.2d 277, 287 (Pa. 2003), Ladd v. Real Estate Commission, 230 A.3d 1096, 1108 (Pa. 2020) and a concurring and dissenting opinion in Yanakos v. UPMC, 218 A.3d 1214, 1227 (Pa. 2019) (Donohue, J., concurring and dissenting) where members of this Court recognized the right to procreate and make child-rearing decisions as fundamental. Providers' Brief at 62-63.

Providers argue that Pennsylvania's enhanced privacy protections under Article I encompass "decisional autonomy and bodily integrity." Id. at 63 (citing Commonwealth v. Murray, 223 A.2d 102, 109 (Pa. 1966) (plurality); Alexander, 243 A.3d at 206). Decisional autonomy includes the "freedom to make certain important decisions[,]" including decisions over marriage, family formation and child rearing, Denoncourt v. Commonwealth, State Ethics Commission, 470 A.2d 945, 948 (Pa. 1983) (plurality), as well as the right to make decisions related to sex and sexuality "free from sanctions arising from the moral judgments of others," as established in, inter alia, Commonwealth v. Bonadio, 415 A.2d 47, 50-52 (Pa. 1980) (finding voluntary deviate sexual intercourse statute violated Pennsylvania's equal protections guarantees). Providers' Brief at 64. Given the paramount and life-altering importance of the decision whether to form a family, Providers state that the broad right to decisional autonomy in matters involving reproduction and sexuality encompasses "the right to choose to end or continue a pregnancy." Id. at 65.

According to Providers, the Court has treated the right to bodily integrity as a component of privacy, and bodily integrity "necessarily includes the right to decide whether or not to continue pregnancy because without it, a woman is no longer a 'master of her fate.'" Providers' Brief at 65 (citing John M. v. Paula T., 571 A.2d 1380, 1386 (Pa. 1990) (referring to the constitutional guarantee of "clear privacy interests in preserving [] bodily integrity") (citing Murray, 223 A.2d at 110)). Providers reason that based on the enhanced protections of individual autonomy and privacy, this Court should specifically hold that the Pennsylvania Constitution protects a woman's right to decide whether to continue a pregnancy.⁹⁰ Id. at 65.

90 Providers' Edmunds analysis focuses on other states that have addressed the constitutionality of a Medicaid exclusion, i.e., the entire equal protection issue, without specifically delineating other states' decisions recognizing (or rejecting) the existence of a constitutional right to abortion. Providers' Brief at 49-51.

With regard to Dobbs, Providers assert that federal constitutional historical analysis of the right to abortion⁹¹ is completely separate from any history relevant to this case because the pertinent Pennsylvania constitutional provisions were adopted at different times than the federal Equal Protection Clause. Providers' Supplemental Brief at 3. In fact, Providers submit that Dobbs bolsters their arguments that Fischer should be overruled. Id. at 1. Namely, they point out that in the wake of Dobbs, former Governor Tom Wolf highlighted distinctions between the Pennsylvania Constitution and the federal Constitution and issued an executive order recognizing that the Pennsylvania Constitution "has long provided a guarantee of reproductive health care rights independent of, and more expansive than, any protection provided by the United States Constitution." Id. at 2 (citing Executive Order 2022-01-Reproductive Health Care, 7/12/2022, available at https://www.governor.pa.gov/wp-content/uploads/2022/07/20220712-EO-2022-01.pdf). Further, they implore: "[w]ithout federal constitutional protection of this basic human right, which had formed the backdrop of the law regarding abortion in Pennsylvania for half a century, see Commonwealth v. Page, 303 A.2d 215 (Pa. 1973),⁹² this Court's role in protecting the right to abortion under our state constitution takes on new importance, providing the 'special justification' Respondents claim is needed[]" to overrule Fischer." Id. at 3-4.⁹³

91 Dobbs purported to trace the history of abortion generally in the United States, from the earliest days of the common law until 1973. Dobbs, 142 S.Ct. at 2249-54 (concluding that the right to abortion was not deeply rooted in the Nation's history and traditions because "an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973"). The Dobbs Court concluded, however, that the relevant historical context was the time of the adoption of the Fourteenth Amendment, 1868.

92 In Page, this Court held that convictions under Pennsylvania's antiabortion statute could not be sustained because they violated the Due Process Clause of the Fourteenth Amendment by failing to comport with the permissible scope of state regulation of abortion as established in Roe. Commonwealth v. Page, 303 A.2d 215, 217-18 (Pa. 1973) (citing Act of June 24, 1939, P.L. 872, 18 P.S. §§ 4718-4719).

93 Regardless of whether Fischer is overruled, under current Pennsylvania law, a woman may obtain an abortion, subject to statutory regulations, until the gestational age of the fetus is twenty-four weeks. 18 Pa.C.S. § 3211.

DHS's Arguments

With regard to Providers' arguments in favor of recognizing the right to abortion under our Constitution, DHS states the following:

Although Department Appellees agree with [Providers] regarding the fundamental health care rights under the Pennsylvania Constitution and the current statutory authority to obtain an abortion under the Commonwealth's Abortion Control Act (18 Pa.C.S. §§ 3201-3220), [Providers] do not contend there is a fundamental right to have an abortion funded by the State. The fundamental right to abortion is distinct from whether there is a fundamental right to have the Commonwealth fund an abortion.

DHS's Supplemental Brief at 2-3. Thus, DHS argues that the recognition under our Charter of a woman's right to reproductive decisional autonomy would not undermine Fischer.

Intervenors' Arguments

House Intervenors dispute Providers' derivation of the right at issue, insisting that "abortion is not - and never has been - a fundamental right in Pennsylvania." House Intervenors' Brief at 44. In support, they cite Mills v. Commonwealth, 13 Pa. 631, 633 (1850), where this Court stated that intent to procure an abortion, i.e., the "destruction of gestation[,]" is criminal "at all periods after conception[,]" and not just after quickening.⁹⁴House Intervenors' Brief at 61 n.10. They maintain that Pennsylvania's historical tolerance of abortion was only pursuant to federal mandate. With Roe and Casey overruled, "so is any underlying support … that abortion has historical roots in Pennsylvania." House Intervenors' Supplemental Brief at 2. Finally, House Intervenors declare: "Heretofore, Pennsylvania, through its elected representatives, has determined that abortion is neither a Pennsylvania Constitutional right nor an appropriate use of public funds." Id. at 4-5. They distinguish the various cases cited by Providers as establishing the broad right to privacy, the right to bodily integrity, and the right to decisional autonomy, on the grounds that none dealt with the right to abortion.

94 Quickening refers to "[t]he first motion felt in the womb by the mother of the fetus, usu. occurring near the middle of the pregnancy." Quickening, Black's Law Dictionary, 8 (11th ed. 2019).

Senate Intervenors argue that, in the wake of Dobbs and the fact that the United States and Pennsylvania equal protection provisions are interpreted using the same standards, "there is plainly no support for [any right to terminate a pregnancy] under the Pennsylvania Constitution's equal protection provisions." Senate Intervenors' Supplemental Brief at 4-5.⁹⁵ They maintain that because Roe and its progeny have been overruled, "there are no U.S. Constitutional limits on a state's authority to regulate abortion[,]" and therefore, it is less necessary to revisit the issues presented in Fischer because the claims are "even less tenable than before." Id. at 7. Additionally, Senate Intervenors contend that Fischer acknowledged the "constitutionally protected right" to abortion. Senate Intervenors' Brief at 50 (citing Fischer, 502 A.2d at 121). However, they insist that the Fischer Court correctly determined that the Commonwealth's decision to fund the exercise of some rights and not others does not violate equal protection provisions "when the Commonwealth has a constitutionally valid reason to specify only a certain class as beneficiaries." Id. at 50-51.

95 Senate Intervenors do not distinguish between the equality guarantee in Section I and the guarantee of certain substantive rights contained in the provision.

2. Edmunds Analysis

The initial premise of Providers' argument is that Article I of the Pennsylvania Constitution secures the right to reproductive autonomy⁹⁶ against governmental encroachment, regardless of the Dobbs decision. To answer this question, we use the framework established in Edmunds as an interpretive aid, which provides that we consider the text of Article I, Section 1; its history including relevant Pennsylvania case law involving the right to privacy; related case law from other states; and policy considerations including unique issues of state and local concern and applicability to modern jurisprudence.

96 Providers characterize the right at issue as the right to decide whether or not to carry a pregnancy to term. The right at issue has multiple equally true iterations, each of which is encompassed within the woman's right to autonomy with regard to reproductive healthcare decisions.

a. Text of Article I, Section 1

The text of Article I, Section 1 provides:

Art. I § 1. Inherent rights of mankind

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

Pa. Const. art. I, § 1.⁹⁷ The text of Article I, Section 1 cannot be viewed in isolation from its placement in our Charter. Article I of our Charter is titled Declaration of Rights. It delineates the terms of the social contract between government and the people that are of such "general, great and essential" quality as to be ensconced as "inviolate." Robinson Township, 83 A.3d 947. These are inherent, not created rights. Article I, Section 25 encapsulates the solemnity of the social contract and the depth of the source of the rights contained in Article I:

97 The text of Article I, Section 1, when first promulgated in the Constitution of 1776 provided:

Article I: That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

Pa. Const. ch. 1, art. 1 (1776). In the 1790 Constitution, the language was altered to provide:

Section 1. That all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

Pa. Const. art. IX, § 1 (1790). It has remained in its current form since the 1838 Constitution.

§ 25. Reservation of powers in the people

To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is

excepted out of the general powers of government and shall forever remain inviolate.

Pa. Const. art. I, § 25.

The Federal Constitution has no counterpart to Article I, Section 1. However, the United States Supreme Court has, in the past, settled on the Due Process Clause of the Fourteenth Amendment of the United States Constitution as the source of a right to privacy. Roe, 410 U.S. at 153; Planned Parenthood v. Casey, 505 U.S. 833, 846-51 (1992) (plurality); Griswold v. Conn., 381 U.S. 479, 499-501 (1965) (Harlan, J. concurring). The Due Process Clause provides: "nor shall any State deprive any person of life, liberty, or property, without due process of law… ." U.S. Const. amend. XIV.

There is no similarity between the texts of these two provisions. Article I, Section 1 secures rights that are "inherent and indefeasible[,]" whereas the Fourteenth Amendment's scope is more circumscribed. According to the High Court, the Fourteenth Amendment's protections only extend to those rights explicitly mentioned by the text or those that are deeply rooted in the nation's history and tradition and implicit in the concept of ordered liberty. Dobbs, 142 S.Ct. at 2242 (citing Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).

b. History of Article I, Section 1, including Pennsylvania case law

We address the history of Article I, Section 1, to "draw meaning from the provision" and consider the existence of the right to reproductive autonomy in the Pennsylvania constitutional scheme. Edmunds, 586 A.2d at 896. The Pennsylvania Constitution, first adopted in 1776, predated the ratification of the United States Constitution. It constituted the "first overt expression of independence from the British Crown," and it was meant to "reduce to writing a deep history of unwritten legal and moral codes which had guided the colonists from the beginning of William Penn's charter in 1681." Id. Unlike the Bill of Rights, the Declaration of Rights was an organic part of the Pennsylvania Constitution, appearing in the first iteration of the document. Id. Thus, the federal Bill of Rights was patterned off of the Declaration of Rights in many ways, such as in the establishment of freedom of speech and the press. Id.⁹⁸

98 Article I, Section 1's language can be traced to similar language in the Virginia Constitution, adopted on June 12, 1776, drafted by George Mason, as well as the writings of English political-philosopher Jeremy Bentham. Elizabeth Wachsman & Ken Gormley, Inherent Rights of Mankind: Article I, Section 1, in The Pennsylvania Constitution: A Treatise on Rights and Liberties, § 4.1, 92-93 (Ken Gormley & Joy G. McNally eds. 2nd ed. 2020). Article I, Section 1 closely resembles the preface of the Declaration of Independence, which provides, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by the Creator with certain and unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. - That to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed… ." Declaration of Independence, July 4, 1776. Unsurprisingly, many of the statesmen who participated in the drafting of the Pennsylvania Constitution - a convention chaired by Benjamin Franklin and convened from July 15 to September 28, 1776 - were also involved in drafting the Declaration of Independence just months earlier. Wachsman & Gormley § 4.1 at 91-92 & n.1.

Article I, Section 1 rights are inherent and indefeasible rights. Pa. Const. art. 1, § 1. That the rights are inherent, "secured rather than bestowed by the Constitution, has a long pedigree in Pennsylvania that goes back at least to the founding of the Republic." Driscoll v. Corbett, 69 A.3d 197, 208 (Pa. 2013) (citing W. Pa. Socialist Workers 1982 Campaign v. Conn. Gen. Life Ins. Co., 515 A.2d 1331, 1334 (Pa. 1986) (stating that the drafters of our state charter adhered to theories of natural law philosophers)). As explained by this Court in Driscoll, the "government established by the people is not the source of the individual liberties involved[.]"⁹⁹ Driscoll, 69 A.3d at 208 n.9 (emphasis added). Article I does not establish the rights but instead is "an enumeration of the fundamental human rights possessed by the people of this Commonwealth that are specifically exempted from the powers of Commonwealth government to diminish." League of Women Voters v. Commonwealth, 178 A.3d 737, 803 (Pa. 2018).

99 Driscoll considered and left open the question of whether the government or the people (by a majority vote) may remove an inherent right from constitutional protection through constitutional amendment, because it found that the right to hold office as a commissioned jurist beyond the age of seventy was not a fundamental or important right. Driscoll, 69 A.3d at 208 n.9, 213.

We have been asked to determine as a matter of first impression¹⁰⁰ whether Article I guarantees a right to reproductive autonomy, e.g., the right of the woman to make decisions about whether to bring a child into the world free of government interference. Providers argue that the specific right is housed within the general right to privacy secured by our Constitution. Thus, we review the history of the recognition of the right to privacy in our Commonwealth and our case law defining its scope. We likewise review the history of abortion in the Commonwealth. While the procedure is only one of the potential outcomes of the exercise of a right to reproductive autonomy, it is most often the focus of discussion of the right. While the history of the practice of this procedure in our Commonwealth is not determinative of the inherency of a right to reproductive autonomy, it is helpful in highlighting the distinction between a constitutional right and moral judgments.

100 Providers loosely argue that this Court has recognized the right to reproductive autonomy in previous cases, contending that this Court should expressly hold that Pennsylvania's Constitution protects women's right to decide whether or not to continue a pregnancy because "Article I, [S]ection 1's broad protections of individual rights include the fundamental rights to marry, procreate, and make child-rearing decisions, as well as a robust privacy right protecting decisional autonomy and bodily integrity in matters of reproduction[.]" Providers' Brief at 61-65. While we have enunciated the existence of a right to choose, we have done so in the context of recognizing the federal right announced in Roe v. Wade, not in terms of a Pennsylvania constitutional right. Justice Mundy mischaracterizes our constitutional inquiry as an exercise in "social policy creation." Justice Mundy draws support for this hyperbole by noting that "reproductive autonomy" does not appear in the Pennsylvania Constitution. Concurring & Dissenting Op. at 8 & 8 n.6. (Mundy, J.). As discussed, the word privacy does not appear in the text of our Charter but yet it is one of our most recognized and bedrock constitutional rights. See infra pp. 137-40. In view of Justice Mundy's analytical construct, we hope that this cherished principle is not likewise being questioned. Our approach to determining the existence of a right is consistent with how this Court has approached such questions of constitutional interpretation for centuries.

Right to privacy

The most prominent of the inherent rights of Article I, Section 1 is the right to privacy. "Ironically, one of the rights most consistently afforded broad protection under Section 1 (besides property rights) relates to the area of privacy, a subject not even explicitly mentioned in the 'Inherent Rights of Mankind' provision." Wachsman & Gormley § 4.1 at 91-92. Although not enumerated,¹⁰¹ its repeated recognition as an inherent right is not surprising. The importance of privacy in Pennsylvania was recognized long before the iteration of a formal Constitution. In a short poem penned in the 1690s, William Penn wrote that "Princes" and "their Grandees, of all Men, are the Unhappiest[,]" for, as he describes it, "they live least alone." Ken Gormley, One Hundred Years of Privacy, 1992 Wisc. L. Rev. 1335, 1344 n.42 (citing William Penn, Some Fruits of Solitude 96-97 (8th ed. 1749) (quoted in David H. Flaherty, Privacy in Colonial New England (1972)). The "[a]dvantage," according to Penn was to other men who "can be private, and have leisure for Family Comforts, which are the greatest Worldly Contents Men can enjoy." Id.

101 The rights specifically mentioned in Article I, Section 1 are not exclusive. Section 1 signals the inclusion of other inherent rights by use of the phrase "among others" before the specific references. Pa. Const. art. I, § 1.

It has been observed that the right to privacy is rooted in a person's inherent and indefeasible right to liberty and the pursuit of happiness. Commonwealth v. Murray, 223 A.2d 102, 109-10 (Pa. 1966) (plurality).¹⁰² Mirroring Penn's poetic description of privacy as the greatest worldly content, Justice Musmanno wrote:

102 Though Justice Musmanno's 1966 opinion was one of the first developed discussions of Pennsylvania's right to privacy, as early as 1938, this Court recognized the significance of the right. See Annenberg v. Roberts, 2 A.2d 612, 617-18 (Pa. 1938) (holding that subpoenas issued by a government legislative commission contemplated an unreasonable search and seizure because the legislative body was not invested with general powers to inquire into personal affairs and compel disclosures).

The greatest joy that can be experienced by mortal man is to feel himself master of his fate,-this in small as well as in big

things. Of all the precious privileges and prerogatives in the crown of happiness which every American citizen has the right to wear, none shines with greater luster and imparts more innate satisfaction and soulful contentment to the wearer than the golden, diamond-studded right to be let alone. Everything else in comparison is dross and sawdust.

Murray, 223 A.2d at 110.¹⁰³ In so writing, Justice Musmanno was speaking to the meaning of privacy as "protected by the organic law of the land[,]" and he noted that there were two relevant provisions of the Pennsylvania Constitution "dedicated to this right to be let alone[,]" Sections 1 and 8 of Article I. Id. at 109-10.¹⁰⁴

103 In Murray, the Court held that a private detective's conduct in listening in on a conversation using a telephone extension violated the proscriptions of the anti-wiretapping statute. Murray, 223 A.2d at 110-11.

104 Section 8 is typically but not exclusively implicated in criminal cases. See Pa. State Educ. Ass'n v. Commonwealth, 148 A.3d 142, 149 (Pa. 2016) ("PSEA") (stating that the right to privacy "most frequently discussed under our Constitution" is the protection against unreasonable searches and seizures). Section 8 provides the following:

§ 8. Security from searches and seizures

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Pa. Const. art. I, § 8.

As Murray itself illustrates, this Court's jurisprudence regarding the right to privacy is predicated on the relationship of Article I rights. For instance, in Denoncourt v. Commonwealth, State Ethics Commission, 470 A.2d 945 (Pa. 1983) (plurality), a plurality of this Court affirmed that the right of privacy encompassing the freedom from disclosure of personal matters finds explicit protection in Article I, Section 1. The Court referred to Article I, Section 8 case law as well as Article I, Section 1 case law when it stated that "[i]n all these cases there is implicit a balancing of an individual's right to privacy against a counterveiling state interest which may or may not justify, in the circumstances, an intrusion on privacy." Id. at 948. In Commonwealth v. Shaw, 770 A.2d 295, 296 (Pa. 2001), in holding that Article I, Section 8 protects the results of a blood alcohol test performed by a hospital for medical purposes, the Court looked to precedent applying Article I, Section 1. More recently, in Commonwealth v. Alexander, 243 A.3d 177, 206 (Pa. 2020), we drew from privacy jurisprudence under both sections to determine whether Article I, Section 8 provided broader protections than the Fourth Amendment vis-à-vis automobile searches.

Alexander cemented the conclusion that "[w]e must consider our charter as a whole in terms of establishing a set of normative values that limits the government's authority[.]" Id. Like Article I, Section 8, Article I, Section 1's protection of privacy "must be read in conjunction with more abstract considerations of how far the government may encroach on the rights of citizens[.]" Id.¹⁰⁵ One such consideration that permeates our privacy rights jurisprudence is the right to be let alone. In 1991, in Edmunds, a landmark Article I, Section 8 privacy rights case,¹⁰⁶ the Court cited to the plurality opinion in Denoncourt (an Article I, Section 1 case) to focus on that principle:

105 Although Providers primarily focus on Article I, Section 1 as the source of the alleged right to abortion, they also draw from Article I, Section 8 case law. See Providers' Brief at 65 (citing John M. v. Paula T., 571 A.2d 1380 (Pa. 1990)). John M. v. Paula T. arose out of a paternity dispute in which John M., a paramour of the biological mother, sought to compel the husband of the biological mother (and presumed father of the child) to submit to blood tests to establish paternity. In addressing the privacy interests at play, the Court stated that the person whose blood is sought "has clear privacy interest in preserving his or her bodily integrity, and the constitutional right to be free from unreasonable searches and seizures[,]" thus clearly invoking the language of Article I, Section 8. Id. at 1386.

106 Edmunds rejected the good faith exception to the exclusionary rule refusing to follow United States v. Leon, 468 U.S. 897 (1984), because the strong notion of privacy embodied in Article I, Section 8 required adherence to the warrant requirement. Edmunds, 586 A.2d at 905-06.

As Mr. Justice Flaherty noted in Denoncourt, supra, in echoing the wisdom of Justice Brandeis over 60 years ago: "The makers of our Constitution overtook to secure conditions favorable to the pursuit of happiness … They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men." Id. [] 470 A.2d at 948-49, quoting Olmstead v. United States, 277 U.S. 438, 478 … (1928) (Brandeis, J., dissenting).

Edmunds, 586 A.2d at 98-99; see also, Murray, 223 A.2d at 110.

In advancing this comprehensive right to be left alone, this Court has interpreted the right to privacy under Article I, Section 1 to contain at least two often overlapping interests: the interest in avoiding disclosure of personal matters and the interest in having independence to make certain kinds of important decisions. In doing so, we adopted the view espoused by the United States Supreme Court in Whalen v. Roe, 429 U.S. 589 (1977).¹⁰⁷

107 For a detailed discussion of the interplay between the constitutional privacy interests identified in Whalen and the development of tort law in the privacy arena, see Commonwealth v. Hayes, 414 A.2d 318, 324-27 (Pa. 1980)

At issue in Whalen was a claim that a New York statute requiring the state government to maintain a database of prescriptions of Schedule II controlled substances invaded patients' privacy not only because the statute required disclosure of private information, but also because it interfered with their interest in making important decisions independently because the required disclosure made the patients and physicians reluctant to use and prescribe the drugs. Though it ultimately rejected these arguments as being too attenuated under the facts to constitute infringement of privacy rights, the High Court observed that its cases protecting privacy have "in fact involved at least two kinds of interests[,]" i.e., "the individual interest in avoiding disclosure of personal matters" and "the interest in independence in making certain kinds of important decisions." Id. at 599-600 (internal footnotes omitted).¹⁰⁸

108 The Court rejected plaintiffs' arguments, holding that the program "[did] not, on its face, pose a sufficiently grievous threat to either interest to establish a constitutional violation." Whalen, 429 U.S. at 600.

Following Whalen, in Bellotti v. Baird, 443 U.S. 622 (1979) (plurality), the High Court determined that a Massachusetts statute requiring either a judicial order or parental consent before an abortion could be performed on an unmarried woman under the age of eighteen was unconstitutional. Writing for four Justices, Justice Stevens' concurrence addressed the connection between the two interests protected by the right to privacy, observing that "[t]he constitutional right to make the abortion decision affords protection to both of the privacy interests recognized in" Whalen. Id. at 655-56 (Stevens, J., concurring). He wrote that it was "inherent in the right to make the abortion decision that the right may be exercised without public scrutiny and in defiance of the contrary opinion of the sovereign or other third parties." Id.¹⁰⁹

109 Justice Stevens expressed concern that "the need to commence judicial proceedings in order to obtain a legal abortion would impose a burden at least as great as, and probably greater than, that imposed on the minor child by the need to obtain the consent of a parent[.]" Bellotti, 443 U.S. at 655-56 (Stevens, J., concurring). Further, it opens the door for the judge to impose his judgment-a reflection of "personal and societal values and mores whose enforcement upon the minor-particularly when contrary to her own informed and reasonable decision-is fundamentally at odds with privacy interests underlying the constitutional protection afforded to her decision." Id.

As illustrated by Whalen and Justice Stevens' concurrence in Bellotti, these two privacy interests are not mutually exclusive, and instead, often involve overlapping concerns for an individual's right to live free from disclosure of personal information and free from intrusion into her decision-making. We repeated Whalen's description of the privacy paradigm first in In re June 1979 Allegheny County Investigating Grand Jury, 415 A.2d 73 (Pa. 1980) (plurality).¹¹⁰ The two interests were subsequently restated in Denoncourt v. Commonwealth, State Ethics Commission, 470 A.2d 945, 948 (Pa. 1983) (plurality)¹¹¹ and thereafter in majority opinions in Stenger v. Lehigh Valley Hospital Center, 609 A.2d 796, 800 (Pa. 1992) and Pennsylvania State Education Association v. Commonwealth, 148 A.3d 142, 150 (Pa. 2016) ("PSEA").

110 In re June 1979 Allegheny County Investigating Grand Jury considered the subpoena of certain patient medical reports of tissue specimens to a grand jury investigating the County Coroner's Office. The Court, in a splintered decision, issued on non-constitutional grounds, enforced the subpoena.

111 Denoncourt addressed the constitutionality of the Public Officials Ethics Act, which required the filing of a statement by every public official disclosing the financial affairs of the public official as well as those of her immediate family members; further, the Act provided for criminal penalties for non-disclosure. Rather than resolve the matter on privacy grounds, a majority of the Justices agreed that imposition of the criminal liability offends due process because "it is axiomatic that criminal liability may not be imposed for a failure to perform acts which a person has no power to perform." Denoncourt, 470 A.2d at 947.

Although we have recognized that the privacy right secured by Article I, Section 1 encompasses two interests-avoiding disclosure of personal information and making certain important decisions-much of our Article I, Section 1 case law has addressed the first interest. Some of those cases addressed a subset of that interest which has come to be referred to as informational privacy. For example, relying on Denoncourt, this Court decided a trilogy of cases,¹¹² recognizing the constitutional right to informational privacy including protection for, among other things, names, addresses, social security numbers, and telephone numbers. We reaffirmed this recognition of the informational privacy right in PSEA relative to the Right to Know Law.¹¹³ PSEA, 148 A.3d at 158.

112 Sapp Roofing Co. v. Sheet Metal Workers' Int'l Ass'n, Local Union No. 12, 713 A.2d 627 (Pa. 1998) (plurality); Pa. State Univ. v. State Emps.' Ret. Bd., 935 A.2d 530 (Pa. 2007); Tribune-Review Pub. Co. v. Bodack, 961 A.2d 110 (Pa. 2008). As we explained in PSEA, the trilogy of cases establish a constitutional balancing test weighing an individual's privacy interest against the public benefit or interest in disclosure of the records. PSEA, 148 A.3d at 157-58.

113 Act of February 14, 2008, P.L. 6, as amended 65 P.S. §§ 67.101-67.3104.

In a broader context, in Commonwealth v. Shaw, 770 A.2d 295 (Pa. 2001), this Court found greater protection under Article I, Section 8 than the Fourth Amendment related to an investigatory procedure used in connection with driving under the influence ("DUI") charges. The Court concluded that the results of a blood draw test performed for treatment purposes could not be used in the patient's DUI prosecution because the warrantless acquisition of the test result violated Article I, Section 8, which extends to areas where an individual has a reasonable expectation of privacy. The Court held that the right to privacy extends to medical records of patients. The Shaw court relied on In re June 1979 Allegheny County Investigating Grand Jury and Denoncourt in so concluding. Shaw, 770 A.2d at 299.

We likewise recognized the right to privacy in medical records and, more saliently, the right of an individual to be let alone, in Stenger v. Lehigh Valley Hospital Center, 609 A.2d 796 (Pa. 1992). This civil case involved a discovery order allowing the release of anonymized blood donor records to a plaintiff who contracted Acquired Immune Deficiency Syndrome (AIDS) allegedly as a result of a contaminated blood transfusion. In reviewing the discovery order, this Court engaged in an analysis of the privacy issues under both the federal and Pennsylvania Constitutions. Recognizing that we adopted the dual privacy interests articulated in Whalen, the Court observed that the discovery order implicated the interest in avoiding disclosure of personal matters that could impugn his character and subject him to ridicule and persecution. Id. at 800. However, it noted that this privacy interest also subsumes the right to be let alone, a right recognized under our Charter. Id. It was the infringement of this right that was argued in opposition to the post- donation questioning of donors. The blood center feared that in the future, people would not donate blood if the questioning were allowed.¹¹⁴ Id. at 801.

114 This argument was similar to that advanced by the Petitioners in Whalen that the data collection at issue in that case would interfere with the decision to prescribe and take the drugs being monitored. In Whalen, the argument was made in the context of the interest in making certain important decisions.

Although the Court recognized that the discovery order implicated the privacy interests asserted, it concluded that there was a compelling government interest in protecting blood transfusions and the anonymized discovery was the least intrusive means to protect that interest. Id. at 802-03. In performing its analysis, the Stenger Court recognized that unlike in federal jurisprudence, which uses a flexible, sliding scale approach in assessing alleged infringement of privacy rights,¹¹⁵ under the law of this Commonwealth, only a compelling state interest will override one's privacy rights. Id. at 802 (citing Fabio v. Civil Service Commission, 414 A.2d 82 (Pa. 1980)). We affirmed that privacy rights are fundamental and that a law may only be deemed constitutional if it is narrowly tailored to a compelling state interest in Nixon, 839 A.2d at 287 and John M. v. Paula T., 571 A.2d at 1385-86.

115 The Stenger Court cited Nixon v Administrator of General Services, 433 U.S. 425, 458 (1977) and Second, Third and Ninth Circuit jurisprudence which used a sliding scale to weigh the privacy intrusion against the public interest asserted. The Stenger Court concluded that most circuits appear to apply an "intermediate standard of review." Stenger, 609 A.2d at 801 (citing, inter alia, Fraternal Ord. of Police, Lodge 5 v. Phila., 812 F.2d 105, 110 (3d Cir. 1987)).

As previously discussed, the scope of the privacy protections afforded under our Charter cannot be neatly packaged into either Article I, Section 1 or Section 8, and the right to be let alone is an overriding principle found in all of our right to privacy jurisprudence - it is embedded in the Article I, Section 1 interest in avoiding disclosure of personal matters and the interest in making certain kinds of important decisions. It is likewise embedded in Article I, Section 8 as evidenced by Edmunds' reliance on Justice Brandeis' dissent in Olmstead invoking, as against the government, the right to be let alone as the most comprehensive of rights. Edmunds, 586 A.2d at 888-89.¹¹⁶ In keeping with this principle, freedom from government intrusion into an individual's bodily integrity is a clearly recognized privacy right under our jurisprudence. In John M. v. Paula T., we held that a person whose blood is sought (there for paternity testing) has a clear privacy interest in preserving his bodily integrity. John M. v. Paula T., 571 A.2d at 1386 (citing Koleski v. Park, 525 A.2d 405 (Pa. 1987) (Fourth Amendment and Article I, Section 8 protect right to be free from unreasonable searches and seizures, and blood test falls within the constitutional scope)).

116 Further, as recognized by this Court, "Article I, Section 8 of the Pennsylvania Constitution, as consistently interpreted by this Court, mandates greater recognition of the need for protections from illegal government conduct offensive to the right to privacy." Commonwealth v. Sell, 470 A.2d 457, 459 (Pa. 1983) (rejecting elimination of automatic standing to challenge evidence in pretrial proceedings involving possessory crimes). See, e.g., Alexander, 243 A.3d at 177 (holding that warrantless search of vehicle required both probable cause and exigent circumstances pursuant to Article I, Section 8); Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996) (holding that pursuit by a police officer without probable cause or reasonable suspicion constitutes a seizure and there required suppression of contraband discarded during the chase); Edmunds, 586 A.2d at 887 (rejecting federal good faith exception to the exclusionary rule); Commonwealth v. DeJohn, 403 A.2d 1283 (Pa. 1979) (holding that defendant had a legitimate expectation of privacy in his bank record under Article I, Section 8, despite not having such an interest under the Fourth Amendment); Commonwealth v. Melilli, 555 A.2d 1254 (Pa. 1989) (providing that Article I, Section 8 of the Pennsylvania Constitution was violated by the installation of a pen register device without probable cause whereas such conduct was not considered a search for Fourth Amendment purposes).

Further, in Coleman v. WCAB, 842 A.2d 349 (Pa. 2004),¹¹⁷ we linked the constitutional privacy interest of individuals in preserving their bodily integrity recognized in John M. v. Paula T. to the common law right to be free of bodily invasion and to refuse medical treatment as applied in In re Fiori, 673 A.2d 905, 910 (Pa. 1996). Coleman, 842 A.2d at 354. The line drawn by Coleman between the constitutional right to bodily integrity and the common law right to refuse medical treatment was apt. In Fiori, this Court held that under the common law, an individual has a right to self-determination in regard to the acceptance or rejection of life-sustaining medical treatment for a patient in a persistent vegetative state.¹¹⁸ In the Whalen categorization of privacy rights which we have adopted in our Article I, Section 1 jurisprudence, this self-determination question falls squarely into the privacy category of making certain important decisions and, as implied in Coleman, it involves a right to protect one's bodily integrity, i.e., the right to be free from intrusion into the person. Fiori made this point by noting that the concept of informed consent derives from the right to self-determination. In re Fiori, 673 A.2d at 910. Thus, while Fiori was not decided based on the constitutional right to privacy, Coleman's reference to it in relation to the constitutional right to bodily integrity illustrates the interwoven texture and fabric of our constitutional privacy jurisprudence.¹¹⁹

117 Coleman involved a challenge on multiple grounds to conducting certain diagnostic testing pursuant to the Workers Compensation Act, 77 P.S. §§ 1-1041.4, 2501-2710.

118 The Fiori Court chose to avoid a constitutional decision based on the privacy right of the patient to make a decision regarding the cessation of treatment. In re Fiori, 673 A.2d 909 and n.9. The Court noted that it was preferable to avoid constitutional questions where possible. Id. We note that the case had complicating factors in that the adult patient left no advance directives, and consequently, the request was based on the substituted judgment of a close relative with the consent of two physicians.

119 In terms of activities protected by the right to privacy, we have held that individuals in Pennsylvania have the right to engage in extramarital sexual relationships free of government interference. We did so based on: (1) an amalgamation of federal privacy right jurisprudence; (2) the recognition that the crimes code eliminated the crime of adultery in 1972; and (3) the court's abolition of the civil cause of action for criminal conversion. Fabio v. Civil Service Commission, 414 A.2d 82, 89 (Pa. 1980). Implicit in the right to engage in the private activity is the right to make the decision to engage in the activity.

The right to reproductive autonomy calls into play the most rudimentary of the privacy interests interwoven throughout Article I and recognized in our case law. The private life situations, economic and relational, surrounding pregnant women; the obvious, overt and consequential effects on the physical being of a woman carrying a pregnancy, giving birth or aborting; and the consequences of the reproductive choice decision, one way or the other, on the course of the rest of a woman's life. These specific factors impact private information, bodily integrity and the right to self-determination implicit in making important decisions. The body of work that is our privacy jurisprudence not only supports, but also dictates explicit recognition of the right to make decisions about reproductive autonomy.

There is longstanding precedent from the United States Supreme Court delineating the right to make certain bedrock decisions. Meyer v. Nebraska, 262 U.S. 390, 399-401 (Pa. 1923) (stating that the right to liberty in the Fourteenth Amendment denotes, inter alia, the right "to marry, establish a home and bring up children, to worship God according to the dictates of [one's] own conscience" and the right of parents "to control the education of their own[]"); Pierce v. Soc'y of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534 (1925) (recognizing the "liberty of parents and guardians to direct the upbringing and education of children under their control"); Skinner v. State of Okl., 316 U.S. 535, 541 (1942) (referring to marriage and procreation as the basic civil rights of man); Griswold v. Connecticut, 381 U.S. 479, 482, 485-86 (1965) (recognizing right to privacy in the intimacies of marriage which extends to decisions related to the use of contraceptives); Loving v. Virginia, 388 U.S. 1, 12 (1967) (stating that the "freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men"). As a result, we have repeatedly enforced those rights. As a further result, we have not been asked to enforce these rights to make the important decisions based on our own Charter's privacy guarantees. Complacency with the status quo established by the United States Supreme Court jurisprudence applying the federal Constitution stalled development of our Charter's protections in this arena.

So too, the constitutional right to make decisions involving reproductive autonomy was recognized in 1973 in Roe v. Wade. Over the past fifty years, given that the right was firmly ensconced in the federal Constitution, there has been no opportunity to address the question of whether our Constitution protects the right to make decisions involving reproductive autonomy until Dobbs, when the federal right was retracted.

As illustrated, our privacy jurisprudence is strong and deep, and founded in the basic notion that it is the inherent right of an individual to be let alone - to live a private life, to have security in one's bodily integrity and to make important decisions free of government intrusion. These rights are embedded in the inherent Article I, Section 1 rights to pursue happiness and enjoy liberty and the interrelated Article I, Section 8 right to bodily integrity. The right to make healthcare decisions related to reproduction is a core important right encompassed by the enmeshed privacy interest protected by our Charter. Whether or not to give birth is likely the most personal and consequential decision imaginable in the human experience. Any self-determination is dependent on the right to make that decision.

Because our Article I rights are inherent, we are not constrained, as the Dobbs Court believed it was, to determine whether abortion is "deeply rooted" in the "history or traditions" of the Commonwealth. See Dobbs, 142 S.Ct. at 2242 (under the Due Process Clause of the Fourteenth Amendment, "any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty[]'"). That is not our Constitution's analytical framework since our Article I rights are inherent. As important, this reproductive decision is not one dimensional. It is a decision, and like all decisions, it involves choices, one of which is to terminate a pregnancy, and another is to give birth. These choices deeply impact a woman's life. It is, however, helpful to clarify the status of abortion in Pennsylvania, which was selectively referenced in Dobbs.¹²⁰Thus, we review the history of abortion around the time when the Pennsylvania Constitution was adopted which highlights the contrast between varying moral judgments and inherent constitutional rights.

120 For instance, Dobbs relied on an 1850 Pennsylvania case to disprove arguments that a right to abortion was deeply rooted in the nation's history. Dobbs, 142 S.Ct. at 2252 & n.32, 2255 (citing Mills v. Commonwealth, 13 Pa. 631 (1850) as evidence that abortions were criminalized at all points of pregnancy in Pennsylvania and that, in other areas of the law, a fetus was regarded as a "person in being")). The Dobbs opinion also discussed the generic common law in the colonies and United States over the decades but ultimately settled on the time frame for the adoption of the Fourteenth Amendment as the appropriate marker. Id. at 2252-53.

Abortion in Pennsylvania

For context, in Pennsylvania, under the common law, women had few rights. As detailed in our discussion of the history of women's rights relative to the adoption of our Equal Rights Amendment, see supra pp. 86-94, women were either an extension of their husbands and had no independent rights or, if not married, had only undefined rights. Consequently, the common law addressing abortion developed in a society where any rule elevating the continuation of the growth of a fetus was largely untempered by consideration of the impact on the woman who bore the brunt of the rule.

Although we have not uncovered any Pennsylvania specific discussion of the common law from the late eighteenth or early nineteenth century, scholars on both sides of the abortion debate have asserted that the quickening doctrine was a settled part of the common law at the opening of the seventeenth century.¹²¹ One such scholar summarized the state of abortion in America in the early nineteenth century as follows:

121 Compare Cyril C. Means Jr., The Law of New York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of Constitutionality, 14 N.Y.L.F. 411 (1968), Cyril C. Means Jr., The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty, 17 N.Y.L.F. 335 (1971), James C. Mohr, Abortion in America: The Origins and Evolution of National Policy 3 (1978) and James S. Witherspoon, Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment, 17 St. Mary's L.J. 29, 31-32 (1985).These authors draw on the writings of Coke, Hawkins, Hale and Blackstone. 1 William Hawkins, A Treatise of the Pleas of the Crown: Or, a System of the Principal matters Relating to that Subject, Digested Under Proper Heads 188 (7th ed.) (1795); 1 William Blackstone, Commentaries on the Laws of England, 129-130 (1765); 3 Edward Coke, The Institutes of the Laws of England 50 (1644); 1 Matthew Hale, The History of the Pleas of the Crown 433 (1736). The Dobbs' Court acknowledged that "a pre-quickening abortion was not itself considered a homicide" but a woman's death during an attempted abortion was, and therefore, it downgraded the significance of the quickening rule. Dobbs, 142 S.Ct. at 2250.

In the absence of any legislation whatsoever on the subject of abortion in the United State in 1800, the legal status of the practice was governed by the traditional British common law as interpreted by the local courts of the new American states. For centuries prior to 1800 the key to the common law's attitude toward abortion had been a phenomenon associated with normal gestation known as quickening. Quickening was the first perception of a fetal movement by a pregnant woman herself. Quickening generally occurred near the midpoint of gestation, late in the fourth or early in the fifth month, though it could and still does vary a good deal from one woman to another. The common law did not formally recognize the existence of a fetus in criminal cases until it had quickened. After quickening, the expulsion and destruction of a fetus without due cause was considered a crime, because the fetus itself had manifested some semblance of a separate existence: the ability to move.

James C. Mohr, Abortion in America: The Origins and Evolution of National Policy 3 (1978). The author further notes that our Commonwealth imported the common law traditions that criminalized abortion after quickening and that though there is some dispute, there is no definitive evidence that any common law criminal prohibition against abortion itself and prior to quickening was enforced until the mid-nineteenth century. Id. at 6 & n.5.

This status of the common law is confirmed by an unpublished decision of this Court in 1846, Commonwealth v. Demain, 6 Penn. Law Jour. 29 (Pa. 1846). The case involved the sufficiency of an indictment for assault on a woman based on an abortion resulting in a miscarriage. The first count averred that the woman was "big, quick and pregnant." Id. at 29-30. The subsequent counts did not aver quickness. The prosecuting attorney general responded that quickness was not a necessary allegation because "at every period of gestation, the rights of an infant en ventre sa mere, are equally respected." Id. at 31. The Supreme Court ruled: "2. The indictment is in proper form, and sufficiently avers that she (the party injured) was pregnant and quick with child, which was destroyed and killed, &c." Demain, 6 Penn. Law Jour. at 32. The holding established that quickness was a necessary averment and thus, the indictment was sufficient because it pled that the woman was "quick" in the first count.¹²²

122 Amicus Pennsylvania Pro-Life Federation and the Thomas More Society argue that Demain establishes that abortion, pre-quickening, was illegal. Pennsylvania Pro-Life Federation and the Thomas More Society Brief at 22 (asserting that the Court in Demain, "recognized that abortion was a common law crime throughout pregnancy[,]" and cited Demain as holding that it was not necessary "to aver quickness on the part of the mother"). Amicus apparently relies on the reporter's note that precedes the actual opinion in the Pennsylvania Law Journal. The commentary states: "(3) It is not necessary, it seems, in an indictment for the production of an abortion, to aver quickness on the part of the mother; it is sufficient to set forth that she was "big and pregnant." Demain, 6 Penn. Law Journal at 29 (emphasis in original). The actual holding belies the commentary.

This understanding of the Demain holding was contemporaneously expressed by the New Jersey Supreme Court in State v. Cooper, 22 N.J.L. 52 (N.J. 1849) (procuring of an abortion by the mother or by another with her assent, unless the mother be quick with child, is not an indictable offence at common law). The New Jersey Supreme Court cited to treatises of Francis Wharton, the deputy attorney general for Philadelphia who drafted the indictment in the Demain case, who ultimately became one of the most influential advocates for the broader criminalization of abortion as well as a lecturer and rector in the Protestant Episcopal Church. Stephen A. Siegel, Francis Wharton's Orthodoxy: God, Historical Jurisprudence, and Classical Legal Thought, 46 Am. J. of L. Hist. 422, 423-24 (2004); Francis Wharton, A Treatise on the Criminal Law of the United States § 1220 (4th rev. ed. 1857). The New Jersey Supreme Court dismissed Wharton's position as follows:

In a recent American treatise upon criminal law, the proposition, that the procuring of an abortion was indictable at the common law, had been stated, and advocated with much learning. Wharton's Crim. Law 308; Wharton's Prec. 108. The only direct authority cited in support of the doctrine, is the case of The Commonwealth v. Demain, decided by the Supreme Court of Pennsylvania, at January term, 1846, and reported in 6 Penn. Law Journal 29. Although in that case the point appears to have been elaborately argued by counsel, it does not appear to have been decided by the court. On the contrary, the court are reported as declaring the indictment before them sufficiently averred that the party injured was pregnant and quick with child, which was destroyed and killed. The obvious inference would seem to be, that the court regarded the fact, that the child was quick (either by direct averment or necessary implication), as essential to the validity of the indictment.

State v. Cooper, 22 N.J.L. at 58.¹²³

123 Contemporaneous medical writings demonstrate that the Pennsylvania medical community considered abortion legal until quickening. For instance, in his lecture at University of Pennsylvania medical school, Hugh L. Hodge, though he advocated for abrogation of the quickening rule, wrote that "[t]he English law, which governs generally in this country, as laid down by the celebrated Blackstone, does not even notice the crime of abortion before quickening, and even after this process, affirms that it is not murder, but a serious misdemeanor." Hugh L. Hodge, M.D., An introductory lecture to the course on obstetrics, and diseases of women and children: delivered in the University of Pennsylvania, November 6, 1839, at 14. He acknowledged also that the English had, by 1803, revised their laws to criminalize pre-quickening abortion, but that "[i]n our own country there has been but little legislation on this subject[,]" and we continue to be governed by the common law. Id. at 15. See similarly, Charles D. Meigs, M.D., Females and their Diseases; A series of letters to his class 479 (1848) (criticizing lawyers for not criminalizing conduct antecedent to quickening).

As repeatedly referenced in Dobbs, 142 S.Ct. at 2252 & n.32, 2255, in Mills v. Commonwealth, 13 Pa. 631 (1850), this Court concluded that it was not necessary to aver quickening in the woman to establish a crime associated with abortion: "The moment the womb is instinct with embryo life, the gestation has begun, the crime may be perpetrated." Id. at 633. However, as developed, the common law as recent as four years prior to Mills did not recognize abortion as a crime until after quickening.¹²⁴

124 Finally, we note that abortion was openly available during the first half of women's pregnancies during the early to mid-nineteenth century. Its availability was widely advertised in newspapers. Philadelphia (along with Boston) was the location of one of the most prominent nationally known abortion providers' clinics. Mohr, supra, at 48-64.

Thus, at the time our Charter was adopted, abortions were available and performed and the government did not interfere in a woman's pregnancy until quickening. As discussed, that history is not determinative in the resolution of the issue presented in this case, i.e., whether under our Charter, an individual has the inherent right to make autonomous decisions about reproductive matters. To focus the issue on the abortion procedure itself denigrates the monumental impact on a woman making the decision to carry a pregnancy to birth or not. The constitutional question is whether that decision is the type of important decision that the privacy right protects. Put simply, if the Article I rights that this Court has recognized do not encompass this decision, it is hard to imagine a decision that would be encompassed.

What the history of the common law in Pennsylvania establishes is that views of morality may change regarding abortion and other practices. For example, adultery was a crime at common law and, for a period of time, under our crimes code, but then it was not. It was once a tort at common law but no longer. Fadgen v. Lekner, 365 A.2d 147 (Pa. 1976). The recognition of the right to engage in private sexual relationships removes the conduct from the winds of prevailing views on morality. When the crime of voluntary deviate sexual intercourse was put to the constitutional test, Justice Flaherty wrote that the statute had only one purpose: to regulate the private conduct of consenting adults and thus, could not stand, Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980) (plurality). On the issue of morality and its place in government, Justice Flaherty wrote:

Many issues that are considered to be matters of morals are subject to debate, and no sufficient state interest justifies legislation of norms simply because a particular belief is followed by a number of people, or even a majority. Indeed, what is considered to be 'moral' changes with the times and is dependent upon societal background. Spiritual leadership, not the government, has the responsibility for striving to improve the morality of individuals.

Id. at 50.

We are cognizant of the deeply held views on both sides of the abortion issue. The interpretation of our Charter and the inherent rights of individuals protected by it are not part of the debate. The breadth and strength of our Article I rights is that they are inherent and thus, timeless. It is our task to interpret our Charter based on its text and history to discern the intent of the people adopting it. As shown by our prior case law, the privacy rights guaranteed by Article I, Sections 1 and 8 have long been found to protect private matters, decision making on certain important issue and security in one's bodily integrity. The right to make decisions about reproductive health falls squarely within the parameters of our existing jurisprudence.

Justice Dougherty dissents from this Court's resolution of the question of whether the Pennsylvania Constitution guarantees the right to reproductive autonomy to the citizens of this Commonwealth. Concurring & Dissenting Op. at 2-3 (Dougherty, J.). Procedurally and substantively, this is the appropriate time to address the issue.

The petition for review in this case was filed on April 16, 2019 and included, inter alia, a request for a declaration that our Charter guarantees the right to reproductive autonomy. Petition for Review, 1/16/2019, at 30. The Providers' equal protection claim under Article I, Section 26 was predicated solely on the anticipated recognition of the right to reproductive autonomy. After two years of litigation, in March 2021, the Commonwealth Court adjudicated the preliminary objections to the petition for review and dismissed it, in part, because it found that Providers lacked standing. Having so concluded, the trial court could have stopped there; the decision could have been appealed and, if reversed, the case would have been remanded for consideration of the remaining preliminary objection - a demurrer to the petition for review based on the Providers' inability to prevail in light of Fischer. The Commonwealth Court acted prudently by not taking this path. Instead, it granted the demurrer, allowing a direct appeal to this Court of the dismissal of Providers' claims for relief as opposed to a piecemeal appeal and prolonged litigation, delaying a case involving pure questions of law that could only be finally decided by this Court.

Two and three-quarter years after the commencement of this appeal, there is no reason to punt the question of our Charter's guarantee of reproductive autonomy back to the trial court. In order to grant the demurrer, it was perfectly appropriate for the trial court to assume that the Pennsylvania Constitution embodied a right coterminous with the right recognized in Roe v. Wade or that the existing federal right was a baseline protection. See supra note 11. Nowhere is that approach more appropriate than when presented with an issue involving the existence of a fundamental right, given that "matters concerning the proper interpretation and application of our Commonwealth's organic charter are at the end of the day for this Court - and this Court only." League of Women Voters v. Commonwealth, 178 A.3d 737, 822 (Pa. 2018) (citing Pap's A.M. v. City of Erie, 812 A.2d 591, 611 (Pa. 2022) (recognizing that this Court has "the final word on the meaning of our own charter")). Justice Dougherty's reliance on Commonwealth v. Koger, 295 A.3d 699, 711 n.12 (Pa. 2023) for the proposition that "this Court's preferred course in this type of situation is ordinarily a remand …, not to seize the opportunity to decide the [unresolved] question ourselves[,]" is totally inapt. Concurring & Dissenting Op. At 2 (Dougherty, J.). We remanded in Koger for the Superior Court to address a fact-bound sufficiency question, not for a lower court to announce new law interpreting our Charter.

Justice Dougherty states that this issue regarding the right to reproductive autonomy deserves reconsideration by the trial court so that the bench, bar and public have full notice that such a decision will be made. Concurring & Dissenting Op. at 3. (Dougherty, J.). The suggestion that the consideration of the current appeal and this issue has gone under the radar, precluding public and professional community knowledge is belied by reality: the public was given notice of this case in 2019 when the Pennsylvania Courts' website listed the case as of one of "public interest" before the Commonwealth Court and publicly posted the complaint;¹²⁵ twenty-seven state legislators attempted to intervene and participate in the proceedings before the Commonwealth Court and this Court;¹²⁶ twenty-eight amici participated in the proceedings before the Commonwealth Court,¹²⁷ for which oral argument was broadcast and available online; no fewer than twenty-one amici¹²⁸ - not including the Intervenors who we have held to be amici in this matter, see supra Part II.B. - participated in the proceedings before this Court, which was also televised and remains available for public viewing on this Court's website; and, moreover, the case has been the subject of numerous published articles detailing Providers' arguments and highlighting that the Providers specifically sought a declaration that the Pennsylvania Constitution recognized a fundamental right to reproductive autonomy.¹²⁹ It is safe to say that the public and the legal profession have had more awareness of this case, this appeal and the pendency of a decision on the right to reproductive autonomy than any other in recent memory.

125 AOPC, Cases of Public Interest, http://web.archive.org.web.20190130224838/http://www.pacourts.us/news-andstatistics/cases-of-public-interest (Jan. 30, 2019).

126 See supra note 8.

127 The amici that participated in the Commonwealth Court were as follows: Alliance for Police Accountability; Black Women for Wellness; Black Women's Health Imperative; Center for Women's Health Research & Innovation; Democratic Caucus of Pennsylvania Senate and House of Representatives; Gwen's Girls; Healthy Start Inc.; In Our Own Voice: National Black Women's Reproductive Justice Agenda; Let's Get Free: The Women & Trans Prisoner Defense Committee; Mary's Daughter for the Formerly Incarcerated; National Asian Pacific American Women's Forum; National Health Law Program; New Voices for Reproductive Justice; Oshun Family Center; Pennsylvania Religious Coalition for Reproductive Justice; Pittsburgh Action Against Rape; SPARK Reproductive Justice NOW!, Inc.; SisterLove Inc.; SisterReach; SisterSong Women of Color Reproductive Justice Collective; The Afiya Center; The Midwife Center for Birth & Women's Health; The Opportunity Fund; The Pennsylvania Immigration & Citizenship Coalition; The Womanist Working Collective; Women with a Vision, Inc.; Women & Girls' Foundation; The Women's Center & Shelter of Greater Pittsburgh.

128 ACLU of Pennsylvania and Law Professors Seth Kreimer and Robert Williams; American Center for Law and Justice; Americans United for Life; Democrats for Life in America; Guiding Star Ministries; Equal Rights Amendment Project at the Center for Gender and Sexuality Law at Columbia Law School; Jewish Pro-Life Foundation, Institute for Judaism and Civilization, Inc., Beit Emunah, LLC, Rabbi Menashe Bovit and Rabbi Yakov David Cohen; Judicial Watch, Inc.; Life Legal Defense Foundation; Members of the Democratic Caucuses of the Pennsylvania Senate and House of Representatives; Members of the Republican Caucus of the Pennsylvania House of Representatives; National Council of Jewish Women, Catholics for Choice, and other faith-based organizations; Nationally Recognized Organizations and Leaders in the Black Community; National Women's Law Center; National Health Law Program; New Voices for Reproductive Justice and Pennsylvania and National Organizations Advocating for Black Women and Girls; New Wave Feminists and Feminists Choosing Life of New York; Obstetrical Society of Philadelphia, Philadelphia County Medical Society, the Midwife Center for Birth and Women's Health, Physician for Reproductive Health, Medical Students for Choice, and Individual Healthcare Providers; Pennsylvania Pro-Life Federation and the Thomas More Society; Pro-Life Obstetricians and Gynecologists, the Pro-Life Union of Greater Philadelphia, the Charlotte Lozier Institute, and Human Coalition; and Texas Right to Life, Stephen J. Hilgers, MD.

129 See, e.g., Tara Murtha, Say No to the Status Quo: It's Time to Fight for a Better Post-Roe Pennsylvania, Pa. Capital Star (June 29, 2023) ("Critically, [the Providers] also requested that [the Pennsylvania Supreme Court] declare that abortion is a fundamental right under the Pennsylvania Constitution. We are currently awaiting a ruling."); Hannah Albarazai, Abortion Litigation To Watch as Dobbs Decision Turns 1, Law 360 (June 22, 2023) ("[The Providers] seek a court declaration that abortion is a fundamental right under the Pennsylvania Constitution. The case, launched in 2019, remains pending in the Pennsylvania Supreme Court."); Jonathan Lai and Jeremy Roebuck, The Latest Battle Over Abortion Rights in Pa. is All About the State Constitution, Philadelphia Inquirer (Jul. 22, 2022) (recognizing that "underlying the [Providers'] arguments is the idea that abortion access is a right inherent in the state constitution."); Greer Donley, A Different Abortion Case is Pending in Pennsylvania, Pittsburgh Post Gazette (Dec. 9, 2021) (continued…) ("Importantly, the litigants are asking [the Pennsylvania Supreme Court] to recognize the right to abortion under the Pennsylvania Constitution."); Carrie N. Baker, Pennsylvania Medicaid Abortion Coverage Ban Challenged Under State ERA: "Sex Discrimination, Pure and Simple, Ms. Magazine (Oct. 19, 2021) ("[The Providers] seek a court order recognizing abortion as a fundamental right[.]").

Finally, the principle of constitutional avoidance has no application here. See Concurring & Dissenting Op. at 3 n.2 (Dougherty, J.) (finding it "proper to address Fischer's continued vitality without weighing in on the constitutional issue at this time[]") (citing In re B, 394 A.2d 419, 422 (Pa. 1978) (explaining courts should "avoid" "constitutional question[s] if possible")). Where we are faced with two issues concerning constitutional rights, "the doctrine of constitutional avoidance does not provide any meaningful guidance in determining which issue we should deem dispositive." J.S. by M.S. v. Manheim Twp. Sch. Dist., 263 A.3d 295, 326 (Pa. 2021) (Dougherty, J., dissenting). Here, where Providers base every claim on the Pennsylvania Constitution, there is no room to resolve this matter on anything but constitutional grounds. Only this Court would be avoiding the issue. Moreover, to postpone a decision on this issue and the Providers' Article I, Section 26 equal protection claim by remanding to the trial court that will be adjudicating the merits of the Providers' Equal Rights Amendment claim kicks the determination of the Pennsylvania Constitution's guarantee of reproductive autonomy into a procedural morass. The constitutional question will not be avoided by the proposed remand. The critical recognition of the right to reproductive autonomy will only be avoided by this Court after four and one-half years of litigation and fulsome advocacy while the Providers, Medical Assistance recipients, the Legislature and the public are deprived of a determination by this Court on the existence of a right to reproductive autonomy under the Commonwealth's Charter.

c. Related case law from other states

Pennsylvania's strong embrace of the privacy rights of individuals is not unique in the nation. The Kansas Supreme Court explained that the heart of its natural rights philosophy (a tradition shared with our Commonwealth) is a principle that "individuals should be free to make choices about how to conduct their own lives, or, in other words, to exercise personal autonomy." Hodes & Nauser v. Schmidt, 440 P.3d 461, 483 (Kan. 2019). It explained that "[f]ew decisions impact our lives more than those about issues that affect one's physical health, family formation, and family life." Id. It viewed this as the right to "personal autonomy" and stated that it is "firmly embedded" with their natural rights guarantee and its concepts of liberty and happiness. Id. The Kansas Court explained:

At the core of the natural rights of liberty and the pursuit of happiness is the right of personal autonomy, which includes the ability to control one's own body, to assert bodily integrity, and to exercise self-determination. This ability enables decision-making about issues that affect one's physical health, family formation, and family life. Each of us has the right to make self-defining and self-governing decisions about these matters.

Id. at 484.

The Montana Supreme Court has also been loyal to a strong tradition of privacy. In fact, the Montana Constitution explicitly provides for a right of privacy. In a discussion reminiscent of this Court's analysis of inherent rights in Driscoll, the Montana Supreme Court explained that the legal notions of privacy trace their roots to philosophies of John Locke, who maintained that "each individual has an inherent property interest in his own person and has the capacity for and the right of rational self-determination which must be promoted and protected by civil society and political institutions." Armstrong v. State, 989 P.2d 364, 372-73 (Mont. 1999). The Montana court also relied on Mill's articulation of the fundamental right of self-determination and personal autonomy from On Liberty, as well as Mill's view that an individual's right to self-determination encompasses her own body. Id. at 373-75. As in our Commonwealth, in Montana, the right to privacy is expansive and includes protecting citizens from disclosure of information and interference with an individual's autonomy to make personal decisions. Id. From that tradition, the court easily concluded that "the right of each individual to make medical judgments affecting her or his bodily integrity and health in partnership with a chosen health care provider free from the interference of the government" is "protected under the personal autonomy component of the fundamental right of individual privacy set out in" the Montana Constitution. Id. at 376. It then found that "a woman's right to seek and obtain pre-viability abortion services[,]" what it termed procreative autonomy, "is a protected form of personal autonomy." Id.¹³⁰

130 These are just two examples where state courts interpret inherent rights secured by their state constitutions to encompass the right to abortion. The New Jersey Constitution which likewise enshrines "natural and unalienable rights," N.J. Const. Art. I, ¶ 1, "incorporates within its terms the right of privacy and its concomitant rights, including a woman's right to make certain fundamental choices." Planned Parenthood of Cen. New Jersey v. Farmer, 762 A.2d 620, 629 (N.J. 2000). The court, keenly aware of the principle of individual autonomy embodied in its constitution as well as the woman's right to make reproductive decisions, explained that a woman's "right to control her body and future" is a right "fundamental to individual liberty." Id. at 632. Other state courts have reached the same conclusion focusing on the strength of their commitments to privacy. In 1981, the Massachusetts Supreme Judicial Court recognized the right to abortion embedded amongst the protected guarantees of privacy. Moe, 417 N.E.2d at 399. The Massachusetts court stated that Massachusetts cases dealing specifically with a woman's right to make the abortion decision privately "express but one aspect of a far broader constitutional guarantee of privacy. These cognate cases are linked by their recognition that '[t]he existence of a private realm of family life which the state cannot enter,' is a cardinal precept of our jurisprudence." Id. at 398-99 (internal citations omitted). However, the decision interwove principles of privacy laid in federal constitutional law (i.e., Roe) whereas we are interpreting the Pennsylvania Constitution independent from federal precedent. See also Valley Hosp. Ass'n, Inc. v. Mat-Su Coal. for Choice, 948 P.2d 963, 968 (Alaska 1997) (holding that "'few things are more personal' than a woman's control of her body, including the choice of whether and when to have (continued…) children[,]" and therefore, reproductive rights are fundamental and encompassed within the privacy rights of Article I, Section 22 of the Alaska Constitution); Gainesville Woman Care, LLC v. State, 210 So.3d 1243, 1254 (Fla. 2017) ("Florida's constitutional right of privacy encompasses a woman's right to choose to end her pregnancy.").

Since Dobbs, various state courts have been called upon to address whether specific laws restricting access to abortion violate their state constitutions. In some, the courts announced for the first time that their constitutions provided some protection of reproductive choice, although many of these decisions are most notable for precisely addressing only the challenged statutes before them. Those courts addressed challenges that emanated from legislative attempts to limit access to abortion in specific ways; for instance, by providing circumstantial or temporal restrictions. See, e.g., Okla. Call for Reprod. Just. v. Drummond, 526 P.3d 1123, 1130-31 (Okla. Mar. 21, 2023) (striking down a statute prohibiting abortion "except to save the life of a pregnant woman in a medical emergency[,]" given its constitutionally-based fundamental right to abortion to preserve the life of the mother, and stating twice that it made no ruling regarding elective termination of a pregnancy); Wrigley v. Romanick, 988 N.W.2d 231 (N.D. Mar. 16, 2023) (upholding preliminary injunction of total abortion ban, N.D. Cent. Code § 12.1-31-12, that went into effect shortly after Dobbs, because the protections of its constitution "implicitly include the right to obtain an abortion to preserve the woman's life or health").

The South Carolina Supreme Court struck down a law prohibiting abortion after six weeks gestation, holding that it violated the state constitution's prohibition against unreasonable invasions of privacy. Planned Parenthood S.A. v. State, 882 S.E.2d 770, 776 (S.C. 2023) (plurality) ("Planned Parenthood S.A. I"). Subsequently, the same court upheld a new iteration of the law prohibiting abortion "after the detection of a fetal heartbeat." Planned Parenthood S.A. v. State, 892 S.E.2d 121, 126 (S.C. Aug. 23, 2023) (citing S.C. Code §§ 44-41-610-660) ("Planned Parenthood S.A. II"). In finding the earlier law unconstitutional, the plurality emphasized that unlike Dobbs, it was not bound solely by an historical analysis of the intention of the drafters to ascertain the existence of a constitutional right. Planned Parenthood S.A. I, 882 S.E.2d. at 778-79 ("We cannot relegate our role of declaring whether a legislative act is constitutional by blinding ourselves to everything that has transpired since the amendment was adopted."). In reaching its determination that the privacy right was implicated by that law prohibiting abortion, the plurality provided the following analysis:

[W]e are persuaded by the logic replete in the opinions we have surveyed that few decisions in life are more private than the decision whether to terminate a pregnancy. Our privacy right must be implicated by restrictions on that decision. As stated by the Supreme Court in Eisenstadt, "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." [Eisenstadt,] 405 U.S. at 453, 92 S.Ct. 1029.

Id. at 782. The court did not address the "right to abortion" per se, and in fact stated that the fundamental question before it was whether the challenged law "constitutes an 'unreasonable invasion of privacy.'" Id. at 776.¹³¹ Taking a similar tact in addressing the newer legislation, the court again avoided the question of abortion per se-this time by assuming that Article I, Section 1 of the South Carolina Constitution "reaches beyond the search and seizure context to include bodily autonomy." Planned Parenthood S.A. II, 892 S.E.2d at 130. Whereas the court deemed the earlier iteration of the law unreasonable, it viewed the latter, which largely addressed the court's earlier critiques, as adequately weighing competing interests and within the range of possible, reasonable choices available to the legislature in promoting the government's "compelling interest in protecting the lives of unborn children." Id. at 132. Thus, both holdings-and the court's silence on the right to abortion per se-are a function of, at least partly, the question before it.

131 The relevant South Carolina constitutional provision states:

Searches and seizures; invasions of privacy

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained.

S.C. Const. art. I, § 10.

However, at least one state supreme court, that of Idaho, flatly rejected that its constitution protects a right to abortion, interpreting its constitution in a manner nearly identical to that utilized by the Dobbs Court. The Idaho court stated that, "to read a fundamental right into the Idaho Constitution, we must examine whether the alleged right is so 'deeply rooted' in the traditions and history of Idaho at the time of statehood that we can fairly conclude that the framers and adopters of the Inalienable Rights Clause intended to implicitly protect that right." Planned Parenthood Great Nw. v. State, 522 P.3d 1132 (Idaho 2023). Once it identified 1889 as the pertinent point in time for its analysis, it found that its constitution contained no protections for the right to an abortion. Id. at 1148-52.

In many other states, post-Dobbs challenges to statutes prohibiting abortion are pending, some having been temporarily restrained¹³² and others not,¹³³ while the courts resolve the challenges before them.

132 In states which had already recognized a fundamental constitutional right to abortion under their state constitution such as Minnesota and Montana, trial courts enjoined laws restricting abortion access, which were subsequently affirmed by the appellate courts in those states. See, Doe v. State, 2022 WL 2662998 (Minn. Dist. Ct. July 11, 2022); Planned Parenthood of Montana v. State by and through Knudsen, 515 P.3d 301, 317 (Mont. 2022). In Ohio, a state that had not previously recognized a constitutionally-based right to abortion, a six-week abortion ban is currently enjoined, pending resolution of the appeal on the merits. See Preterm-Cleveland v. Yost, 2022 WL 16137799, at *21 (Ohio Com.Pl.) (granting temporary restraining order); Preterm-Cleveland v. Yost, 2022 WL 17744345, slip op. ¶ 29 (Ohio Ct. App. Dec. 16, 2022) (denying review of TRO), appeal accepted, Preterm-Cleveland v. Yost, 204 N.E.3d 564 (Ohio 2023) (granting appeal and leaving TRO unaffected). See similarly Johnson v. State, 2023 WL 2711603, at *2 (Wyo. Dist. Ct. Mar. 22, 2023) (TRO of abortion prohibition granted in view of the Wyoming Constitution's protection of the right for "competent adults … to make his or her own health care decisions[,]" Wyo. Const. art. 1, § 38). Presumably, the adoption of Article I, Section 22 "The Right to Reproductive Freedom with Protections for Health and Safety" of the Ohio Constitution fundamentally impacts the court's decision.

133 In Florida, a preliminary injunction on a partial abortion ban, Fla. Stat. §§ 390.011, 390.0111 (eff. 2022) (prohibiting abortions after gestational age of fifteen weeks, with few exceptions), granted by a trial court was subsequently reversed because the challengers were abortion providers who complained of economic harm only, i.e., the type of harm that is inadequate to constitute irreparable injury as required for a temporary injunction. State v. Planned Parenthood of S.W. & C. Florida, 342 So.3d 863, 867-68 (Fla. 1st Dist. App. 2022). The trial court relied on Gainesville Woman Care, LLC v. State, 210 So.3d 1243 (2017) (holding that the right of privacy under the state constitution encompasses a woman's right to choose to end her pregnancy). The Florida Supreme Court accepted jurisdiction over the case without reinstating the preliminary injunction, and without any discussion of the right to abortion. Planned Parenthood of S.W. and C. Fla., 2023 WL 356196 (Fla. Jan. 23, 2023).

From the consideration of related case law from other states, we observe that a pivotal factor in determining whether a right exists in a given state is the genesis of the constitutional right. Those states with inherent rights, like Montana and Kansas, consider the contours of privacy and conclude that a right to reproductive choice exists. By contrast, those states with static rights-rights determined by a point-in-time analysis of society at the time of adoption of their constitution-have been disinclined to recognize the right of a woman to choose to have an abortion.

d. Policy considerations including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence

We consider, as Edmunds requires, the policy issues associated with recognizing (or rejecting) a right to reproductive decision-making.¹³⁴ Given our Commonwealth's strong historical tradition of privacy, and this Court's repeated recognition of the strength of the right to privacy, excluding from those protections the autonomy of women to decide whether to carry a pregnancy and give birth would require a radical departure from the recognized force of the right to privacy.

134 Providers focus on policy concerns related to the ultimate question of how the Coverage Exclusion affects Pennsylvanians. We, however, view the appropriate focus of the Edmunds policy consideration factor to be jurisprudential. The public policy is the realm of the other branches of government.

Moreover, the right we address transcends the privacy rights embedded in Sections 1 and 8 of Article I of our Constitution. In 1971, the People amended our Constitution and Article I by adopting the Equal Rights Amendment. As discussed,¹³⁵ the Amendment was intended to enshrine equality of the sexes in our Commonwealth and to rectify centuries of subjugation of the rights of women. This would be a hollow promise if women did not possess the ability to control their destiny. Whether or not to carry a pregnancy, whether or not to give birth, whether or when to expand the size of their families, whether or when to make career, employment or other changes in the course of their lives are all decisions central to self-determination and ultimately, to equality in society.

135 See supra pp. 86-94.

The right to reproductive autonomy is the right to self-determination. While the right has been presented to us in terms of making the decision "to choose to end or continue a pregnancy,"¹³⁶ it implicates the broader proposition that individuals have the right to make important reproductive healthcare decisions-a gender neutral right to make decisions without governmental intrusion into those private matters that play a defining role in the course of a lifetime. Our Constitution guarantees equality in the exercise of this right. The right of all individuals to be left alone to pursue happiness and enjoy liberty is central to our compact with the government.

136 Providers' Brief at 65.

While the right to reproductive decision-making is fundamental, like our other privacy rights, it is not absolute. As discussed in relation to the rights secured by our Equal Rights Amendment,¹³⁷ our jurisprudence has not, to date, identified an absolute Article I right. Consequently, in keeping with this precedent, the legislative policy here, the governmental interest in "attempting to preserve a potential life" argued by the Intervenors and recognized by the Fischer Court,¹³⁸ is not eliminated from the General Assembly's consideration in enacting laws. However, the fundamental right of a woman to decide whether to give birth is not subordinate to policy considerations favored by transient legislatures. Thus, the enforcement of the right to make reproductive decisions as a fundamental right is firmly planted in the existing analytical framework of our privacy jurisprudence.

137 See supra pp. 119-20.

138 Fischer, 502 A.2d at 122.

3. Conclusion

For the foregoing reasons, we conclude that the Pennsylvania Constitution secures the fundamental right to reproductive autonomy, which includes a right to decide whether to have an abortion or to carry a pregnancy to term.

F. Equal Protection under Article I, Section 26

The next question is whether the state's Medical Assistance scheme discriminates against the exercise of a woman's reproductive choice. Providers broadly allege that this discrimination violates what they refer to as the "equal protection provisions" of the Pennsylvania Constitution: Article I, Sections 1 and 26 and Article III, Section 32. Some scholars refer to these as the "equality provisions" of the Pennsylvania Constitution, while the Fischer Court referred to Article I, Section 1 and Article III, Section 32 as the "equal protection provisions" and Article I, Section 26 as the "non-discrimination" provision of the Pennsylvania Constitution.¹³⁹ Despite identifying three provisions that collectively guarantee equal protection of the law and prohibit discrimination, Providers' argument hinges on whether Article I, Section 26 requires that the Legislature treat the exercise of the asserted fundamental right neutrally.¹⁴⁰

139 See Providers' Brief at 59 (describing Article I, Sections 1 and 26, and Article III, Section 32, as collectively "guarantee[ing] equal protection of the law and prohibit[ing] discrimination based on the exercise of a civil right"); Robert F. Williams, A "Row of Shadows": Pennsylvania's Misguided Lockstep Approach to its State Constitutional Equality Doctrine, 3 Widener J. Pub. L. 343, 346 (1993) (referring to various provisions of the Pennsylvania Constitution, including the three mentioned by Providers, as the "state constitutional equality provisions"); Fischer, 502 A.2d at 120, 123 (stating that Article I, Section 1 and Article III, Section 32 "have generally been considered to guarantee the citizens of this Commonwealth equal protection under the law" whereas Article I, Section 26 is "known as the Commonwealth's non-discrimination clause"); but see Love, 597 A.2d at 1139 (referring to Article I, Sections 1 and 26 as "the equal protection provisions of the Pennsylvania Constitution").

140 We agree with Justice Mundy that the primary focus of the Article I, Section 26 challenge to the Coverage Exclusion is not on "who women are, but on what they do." Concurring & Dissenting Op. at 22 (Mundy, J.); see similarly id. at 11 (emphasizing that the classification at issue is not about indigency but about the choice between childbirth (continued…) and abortion). To address the Section 26 challenge before us, we need not consider that the law primarily impacts women, indigent women, and minority women. For Providers' argument does not hinge on the existence of any suspect classification. Instead, we are addressing the Commonwealth's non-neutral treatment of a person's exercise of a purported fundamental right.

In answering that question, we identify the applicable framework to assess an Article I, Section 26 challenge. To date, our jurisprudence has operated from the premise that the federal framework used to assess an Equal Protection Clause challenge applies to an Article I, Section 26 challenge. See, e.g., Love, 597 A.2d at 1139; Fischer, 502 A.2d at 121.

In James, this Court summarized the federal framework to assess an Equal Protection Clause challenge:

Under a typical [F]ourteenth [A]mendment analysis of governmental classifications, there are three different types of classifications calling for three different standards of judicial review. The first type-classifications implicating neither suspect classes nor fundamental rights-will be sustained if it meets a "rational basis" test. Singer v. Sheppard, [346 A.2d 897, 904-05 (Pa. 1975)]. In the second type of cases, where a suspect classification has been made or a fundamental right has been burdened, another standard of review is applied: that of strict scrutiny. San Antonio School District v. Rodriguez, 411 U.S. 1 … (1973). Finally, in the third type of cases, if "important," though not fundamental rights are affected by the classification, or if "sensitive" classifications have been made, the United States Supreme Court has employed what may be called an intermediate standard of review, or a heightened standard of review. U.S. Dept. of Agriculture v. Murry, 413 U.S. 508[, 517] … (1973) [(Marshall, J., concurring)], citing Stanley v. Illinois, 405 U.S. 645 … (1972). There are, in summary, three standards of review applicable to an equal protection case, and the applicability of one rather than another will depend upon the type of right which is affected by the classification.

At the outset, then, we must determine what type of right the present classification affects ("fundamental rights," "important rights," or rights which are neither "fundamental" nor

"important"); whether the classification is suspect or involves a sensitive area; the state purpose in making the classification; and what type of relationship there is between the classification and the purpose of the classification.

James, 477 A.2d at 1305-06.

While the framework's applicability in Pennsylvania is generally undisputed in this case, the question before us is whether the Fischer Court strayed from the language and intent of Article I, Section 26 by following federal precedent and applying a penalty analysis to the legislation's classification to determine whether the legislation burdens or impinges a fundamental right. Fischer, 502 A.2d at 123-24 (stating test as "whether a person has been somehow penalized for the exercise of a constitutional freedom"). Requiring a penalty may be appropriate under the federal Equal Protection Clause, but the question before this Court is whether a penalty analysis is reflective of Article I, Section 26's prohibition against "discrimination" in the exercise of a right.

1. Parties' Arguments

Providers' Argument

Providers assert that the Coverage Exclusion violates the equal protection guarantees under our Charter because the exclusion operates to favor one exercise of the right to reproductive autonomy (deciding to carry a pregnancy to term) over another (deciding to terminate a pregnancy). Citing to Article I, Section 26 and Article III, Section 32, Providers argue that legislation placing unequal burdens on the exercise of a fundamental right - here, the right to decide whether to continue a pregnancy - is subject to strict scrutiny. They assert that it fails this constitutional means-ends test.

Arguing for this Court to overrule Fischer's equal protection provisions analysis, Providers assert that the Fischer Court mischaracterized the protected equality interest at stake as the "right to have the state subsidize the individual exercise of a constitutionally protected right." Fischer, 502 A.2d at 121. Instead, Providers emphasize that they are arguing that once the Commonwealth undertakes to provide Medical Assistance for those who are indigent, "if pregnancy and childbirth are covered, abortion must be as well." Providers' Brief at 57. They analogize this circumstance to a government-run voter transportation service that would refuse to convey Republicans to the polls. This action would violate equal protections not because there is a right to be driven to the polls but because, if the government undertakes to provide such a service, it must do so evenhandedly. Id. at 57 n.30.

Providers also fault the Fischer Court for addressing the issue solely based on federal precedent. They urge this Court to apply the Edmunds factors, insisting that an Edmunds analysis will show that (1) the Pennsylvania Constitution protects the right to decide whether to carry a pregnancy to term;¹⁴¹ and (2) the Pennsylvania Constitution prohibits the state from discriminating against people in the exercise of their civil rights.

141 The Fischer Court did not address this issue because, at the time of that decision, the right was recognized as a federal constitutional right, Roe v. Wade, 410 U.S. 113 (1973), and Appellants in that case grounded their claims on the federal right. Fischer Appellants' Brief at 38.

Providers state that once the right is recognized, the other equal protection provisions-Article I, Section 26, and Article III, Section 32-require that "the government cannot favor one exercise of the right over another." Id. at 66. They argue that these two provisions are interpreted more broadly than the federal Equal Protection Clause as "prohibiting discrimination against people exercising their civil rights." Id. Further, Providers contend that most state courts that have reviewed similar coverage bans have declined to follow the federal Equal Protection Clause doctrine and instead have concluded that denying coverage for abortion while fully funding childbirth "is coercive and violates their right to reproductive choice under their respective state constitutions." Id. at 70 (citing Dep't of Health and Soc. Servs. v. Planned Parenthood of Alaska, 28 P.3d 904, 909 (Alaska 2001); Doe (Conn.), 515 A.2d 134; Right to Choose v. Byrne, 450 A.2d 925, 935 (N.J. 1982); Comm. to Def. Reprod. Rts. v. Myers, 625 P.2d 779, 798 (Cal. 1981)). Thus, Providers fault the Fischer Court for applying our state constitutional provisions in accordance with the federal Equal Protection Clause doctrine and failing to recognize that our Constitution provides a different threshold prohibiting the Commonwealth from "us[ing] criteria which discriminatorily burden[] the exercise of a fundamental right." Id. at 67 (citing Planned Parenthood of Alaska, 28 P.3d at 909 (quoting Moe, 417 N.E.2d at 401)).

Providers further assert that Fischer "ignores the practical realities of its calamitous impact." Id. at 71. Women enrolled in Medical Assistance are by definition poor and lack the resources to afford medical services absent the Medical Assistance program. Id. An abortion is one such medical service. Citing the legislative history of the Coverage Exclusion, Providers point out that it is designed to impact the women least able to overcome the financial coercion and force them to choose between paying for an abortion or using money for daily necessities. Id. (citing H. Pa. Legis. Journal No. 164-62, at 2244-45 (1980)).¹⁴² On this basis, Providers urge this Court to overturn Fischer and hold that "the coverage ban impinges on the fundamental right to choose abortion by discriminating against women for seeking to exercise their right to reproductive choice." Id.

142 "The coverage ban forces women with low incomes seeking abortion to choose between continuing an unwanted pregnancy and using money that they would have otherwise used for daily necessities, such as shelter, food, clothing, electricity or diapers, to pay for the procedure." Providers' Brief at 72 (citing Petition for Review, 1/16/2019, ¶ 79).

Having concluded that the Coverage Exclusion impinges on a fundamental right, consistent with Pennsylvania jurisprudence involving fundamental rights, Providers analyze the exclusion under strict scrutiny and find that it fails both parts of the test. Id. at 73. Providers cite Section 3202(a) of the Abortion Control Act as establishing the compelling government interest in "preserving the life and health of fetuses and women[.]" 18 Pa.C.S. § 3202(a). They assert that the state's interest does not justify overriding a woman's right to make choices about her life's course, health, and well-being. Id. at 73-74. They highlight that their petition for review alleged numerous risks associated with pregnancy that wreak profound harm on a woman's health and well-being. Id. at 74 (citing Petition for Review, 1/16/2019, ¶¶ 65-75). Providers claim that the majority of courts that have addressed similar funding restrictions under heightened standards of review support their view that a woman's decisional autonomy regarding her health and well-being come first. Id.

Next, Providers state that the Coverage Exclusion is not narrowly tailored to achieve the state's interest in preserving the life and health of fetuses or women. They assert that the Coverage Exclusion harms women's health and compromises women's future ability to have healthy pregnancies. Id. at 75 (citing Petition for Review, 1/16/2019, ¶¶ 54, 65-83). They also claim that there are less restrictive means to advance the state's professed interest, providing, by way of example, that the state could implement policies and programs that increase early and adequate prenatal care. Id. at 75-76 n.34.

DHS's Argument

DHS rests its equal protection argument on stare decisis, describing Fischer in detail, then citing the Attorney General's opinion letter indicating that Fischer is "directly on point here and … still good law[,]" then asserting that Providers have offered no basis to overturn Fischer. DHS's Brief at 26-27 (citing OAG letter).¹⁴³

143 In summarizing Fischer, DHS reiterates many points, including the Court's adoption of federal constitutional law principles that "there is no limit on a state's authority to favor childbirth over abortion and implement that determination through the allocation of public funds." DHS's Brief at 23 (citing Fischer, 502 A.2d at 118 (citing Maher, 432 U.S. at 473)). DHS emphasizes that the Fischer Court determined that rational basis was the proper (continued…) standard to evaluate the constitutionality of the Coverage Exclusion. Id. at 24 (citing Fischer, 502 A.2d at 123). Also, DHS highlights that the Fischer Court interpreted Article I, Section 26, as protecting against harassment or punishment for the exercise of constitutional rights. Id. at 24-25 (citing Fischer, 502 A.2d at 122). Thus, the question, according to DHS's summary of the Fischer Court opinion, is whether a person has been penalized for exercising a constitutional right. Id. at 25 (citing Fischer, 502 A.2d at 124). The Fischer Court explained that the state is merely encouraging behavior "by offering incentives[,]" and it is not penalizing individuals for exercising their right to choose. Consequently, DHS contends that the statute did not violate Article I, Section 26. Id.

DHS highlights that the doctrine of stare decisis requires "'a special justification, over and above the belief that the precedent was wrongly decided,' to reverse a decision." Id. at 26 (citing Alexander, 243 A.3d at 196) (internal citation omitted). According to DHS, Providers do not present any special justification to overrule Fischer. Further, DHS contends that the Fischer Court was correct to state that this Court "often turn[s] to federal constitutional analysis as an interpretational aid." Id. at 27-28 (citing Fischer, 502 A.2d at 121). DHS insists that Dobbs does not impact this case because it does not address the public funding issue. DHS's Supplemental Brief at 2.

House Intervenors' Argument

In advancing the Fischer Court's construction of Pennsylvania's equal protection provisions, House Intervenors submit that Pennsylvania courts analyze Pennsylvania equal protection provisions (Article I, Sections 1 and 26) in the same way as the Fourteenth Amendment Equal Protection Clause. House Intervenors' Brief at 56-58 (citing Love, 597 A.2d at 1139, for the proposition the state and federal provisions are analyzed under the same standard). They distinguish the cases cited by Providers, arguing that few of them addressed Article I, Section 1 and Article I, Section 26 of the Pennsylvania Constitution. Id. at 65-67. Therefore, House Intervenors insist that the Coverage Exclusion is subject to rational basis review and that it passes muster. Id. at 52-54.

Senate Intervenors' Argument

With regard to the analysis of equal protections, Senate Intervenors assert that consideration of the Edmunds factors is not a valid reason for this Court to depart "from decades of equal protection jurisprudence." Senate Intervenors' Brief at 40-45. They emphasize that Providers have not cited a single decision that applied the Edmunds factors to conclude that the factors changed the standard applicable to Pennsylvania equal protection challenges. Id. Rather, Senate Intervenors cite to various post-Edmunds decisions that they interpret as tying the construction of our state equality provisions to that of the federal Equal Protection Clause. Id. at 46-47. They also make the point that this Court has relied upon Fischer's equal protection analysis repeatedly since Edmunds was decided. Id. at 48 (citing Love, 597 A.2d at 1139-40; Commonwealth v. Wolf, 632 A.2d 864, 868 n.8 (Pa. 1993); McCusker v. WCAB, 639 A.2d 776, 781 (Pa. 1994); Probst v. Commonwealth, Dep't of Transp., 849 A.2d 1135, 1143-44 (Pa. 2004); Kramer v. WCAB, 883 A.2d 518, 531 n.12 (Pa. 2005); Driscoll v. Corbett, 69 A.3d 197, 212 (Pa. 2013)). While not suggesting that the Court was asked to do so, Senate Intervenors contend that if this Court believed that Edmunds required an overhaul of equal protection jurisprudence, we would have done so in one of those cases. Id. at 48.

Senate Intervenors argue that Providers have not drawn any meaningful connections between the Pennsylvania Constitution and those of the other states to justify departing from this Court's "long-standing practice of relying on federal precedent in favor of precedent from these other states." Id. at 51. Senate Intervenors find it significant that only two states have rendered holdings contrary to Fischer since Fischer was decided; in contrast, they highlight six states that have addressed this issue after Fischer and decided that their state constitutions do not prohibit abortion exclusions. Id. at 52.

According to Senate Intervenors, Providers' argument is truly premised on an assumption that indigency should be treated as a protected class, an argument that this Court rejected in both Fischer and Probst. Id. at 53 (citing Probst, 849 A.2d at 1144). Having established that the Coverage Exclusion does not burden a fundamental right, Senate Intervenors urge this Court to reject Providers' arguments for strict scrutiny. Id. at 54. In the alternative, Senate Intervenors argue that the Coverage Exclusion would still survive strict scrutiny. Id. at 54-56.

Providers' Reply

Though Providers recognize that this Court has adopted the three-tiered means-end framework developed under federal equal protection case law,¹⁴⁴ they nonetheless maintain that the textual differences between the federal and Pennsylvania provisions, as well as our precedent, establish that this Court "does not walk in lockstep with federal law" in applying this framework under the state Constitution. Providers' Reply Brief at 16. According to Providers, in League of Women Voters, the Court clarified that we apply the same jurisprudential framework that federal courts apply to federal Equal Protection Clause challenges, but not the same interpretations of the law. See League of Women Voters, 178 A.3d at 784 n.54 (clarifying that Love, 597 A.2d 1137 "merely remarked" that the federal and Pennsylvania standards "involve the same jurisprudential framework"). They argue that the advent of the Edmunds framework for addressing claims that the Pennsylvania Constitution provides greater protection than its federal counterpart is "yet another reason for this Court to revisit" Fischer. Providers' Reply Brief at 18.

144 Under the federal Equal Protection Clause, the test takes into account a law's use of a suspect classification, its burdening of fundamental rights, and its justification in light of its objectives. League of Women Voters, 178 A.3d at 784 n.54. The restriction is balanced against its rationale on a sliding scale.

Providers continue to advance the argument that under the correct formulation of the issue, the Coverage Exclusion burdens the fundamental right to decide whether to carry a pregnancy to term. Id. at 18-19. Alternatively, Providers argue, even if this Court determines that the Coverage Exclusion does not trigger heightened scrutiny, it will still fail rational basis review. Id. at 22. They insist that the Commonwealth cannot focus on promoting childbirth alone because it also must recognize the state's interest in protecting the health and lives of women. Id. They allege that the Coverage Exclusion "prevents women from receiving timely abortion care, if not from accessing abortion care altogether." Id.

Providers reiterate their argument that the weight of authority from other state courts supports invalidating the Coverage Exclusion on constitutional grounds. Whereas fourteen state courts have struck down coverage exclusions on constitutional grounds, only six other state courts have upheld bans on funding for abortion. Id. at 23. They criticize those cases for committing the same errors as the Fischer Court, i.e., following the federal equal protection doctrine, identifying the right at issue as the right to have the state pay for abortions, and ignoring the state's interest in the lives and health of women. Providers' Reply Brief at 23-24.¹⁴⁵ Finally, they distinguish Bell v. Low Income Women of Texas, 95 S.W.3d 253, 255-56 (Tex. 2002), based on the unique nature of the Texas statutory scheme which is tied to federal funding and not animated by a preference for potential fetal life.

145 In particular, Florida and Michigan courts have followed Harris and Maher, a path which Providers attribute to the fact that their state equal protection provisions do not provide greater protections than the federal counterpart. See, e.g., Providers' Brief at 71; Providers' Reply Brief at 23-24 (citing, inter alia, Renee B. v. Fla. Agency for Health Care Admin., 790 So.2d 1036, 1041 (Fla. 2001); Doe v. Dep't of Soc. Servs., 487 N.W.2d 166, 174-76 (Mich. 1992)).

2. Edmunds Analysis

We reiterate that Providers argue that, "[o]nce the right is recognized, Article I, [S]ection 26 and Article III, [S]ection 32 require that the government cannot favor one exercise of the right over another." Providers' Brief at 66. Thus, although Providers observe that Article I, Sections 1 and 26 and Article III, Section 32 "collectively guarantee equal protection of the law and prohibit discrimination based on the exercise of a civil right[,]" id. at 59, their argument relative to Section 1 concerns the recognition of the inherent right to reproductive autonomy, id. at 62, and not its equal protection under the law. As for Article III, Section 32, Providers' advocacy does not demonstrate that it applies in the instant matter.¹⁴⁶ We focus instead on Section 26.

146 Providers argue that Article I, Section 26 and Article III, Section 32 work in conjunction to render the coverage exclusion unconstitutional. Article III, Section 32 prohibits local and special laws, providing as follows:

The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law and specifically the General Assembly shall not pass any local or special law:

1. Regulating the affairs of counties, cities, townships, wards, boroughs or school districts:

2. Vacating roads, town plats, streets or alleys:

3. Locating or changing county seats, erecting new counties or changing county lines:

4. Erecting new townships or boroughs, changing township lines, borough limits or school districts:

5. Remitting fines, penalties and forfeitures, or refunding moneys legally paid into the treasury:

6. Exempting property from taxation:

7. Regulating labor, trade, mining or manufacturing: (continued…)

8. Creating corporations, or amending, renewing or extending the charters thereof:

Nor shall the General Assembly indirectly enact any special or local law by the partial repeal of a general law; but laws repealing local or special acts may be passed.

Pa. Const. art. III, § 32. This provision dates to 1874, at a time when there were concerns that "[t]he concentration of money held by private, powerful corporations exerted a disproportionate, if not all-consuming, influence on the [Pennsylvania] legislature." Donald Marritz, Making Equality Matter (Again): The Prohibition Against Special Laws in the Pennsylvania Constitution, 3 Widener J. Pub. L. 161, 186 (1993). At that time, general legislation was given little attention as compared to "special legislation," which concerned "one person, one company, one county, or even one horse-protective association." Id. at 187 n.124 (quoting William A. Russ, Jr., The Origin of the Ban on Special Legislation in the Constitution of 1873, in 11 Pennsylvania History 260, 263-64 (1944)). In fact, "[i]n the seven years preceding the constitutional convention of 1873[, when the predecessor to Section 32 was drafted,] 475 general laws had been passed and 8,755 private acts," or "special laws" had been passed. Thomas Raeburn White, Commentaries on the Constitution of Pennsylvania, xxvi (1907). In other words, special laws outnumbered general laws about twenty-one to one. Marritz, supra, at 187 n.124. It was in the face of such legislative abuses that the constitutional convention set forth the first prohibition against special laws. While we agree that Section 32 was adopted in a much different historical context than the federal Equal Protection Clause, both provisions generally "embod[y] the principle that 'like persons in like circumstances should be treated similarly by the sovereign.'" William Penn Sch. Dist., 170 A.3d at 458 (citing Robinson Township, 83 A.3d at 987). Based on the brief discussion above, we do not foreclose the notion that Section 32 has the potential to secure broader protection of our citizens' rights than the federal Equal Protection Clause. See generally Marritz, supra. The mere fact of its adoption may be evidence that the people of this Commonwealth did not believe that the Equal Protection Clause was broad enough to address all other concerns regarding equality under the law. However, the advocacy with respect to Section 32 has not sufficiently demonstrated that its specific protections apply here. Thus, we do not further explore Section 32.

This Court has reviewed Section 26 and the federal Equal Protection Clause under the same standards.¹⁴⁷ However, in more recent years, we have acknowledged that there may be an occasion to revisit Section 26 in the context of an Edmunds analysis should the parties raise such an issue. League of Women Voters, 178 A.3d at 784 n. 54; Lohr v. Saratoga Partners, L.P., 238 A.3d 1198, 1209 n.16 (Pa. 2020); Zauflik v. Pennsbury Sch. Dist., 104 A.3d 1096, 1117 n.10 (Pa. 2014). Providers have raised the issue.

147 See, e.g., James, 477 A.2d at 1305 ("James' challenge ... is also grounded on the equal protection clause of the Fourteenth Amendment to the United States Constitution and Art. I, § 26 of the Pennsylvania Constitution ... The claims made under these separate constitutional provisions are in essence the same."); Kramer, 883 A.2d at 532 ("In evaluating equal protection claims under the Pennsylvania Constitution, this Court has (continued…) employed the same standards applicable to federal equal protection claims."); Commonwealth v. Albert, 758 A.2d 1149, 1151 (Pa. 2000) ("This Court has held that 'the equal protection provisions of the Pennsylvania Constitution are analyzed … under the same standards used by the United States Supreme Court when reviewing equal protection claims under the Fourteenth Amendment to the United States Constitution.'"); McCusker v. WCAB (Rushton Min. Co.), 639 A.2d 776, 777 (Pa. 1994) ("The equal protection provisions of the Pennsylvania Constitution are analyzed by this Court under the same standards used by the United States Supreme Court when reviewing equal protection claims under the Fourteenth Amendment to the United States Constitution.").

We will address the relevant question by conducting an Edmunds analysis of Article I, Section 26 of our Constitution, beginning with an examination of the text.

a. The text of the Pennsylvania constitutional provision

Article I, Section 26 provides as follows:

Art. I § 26. No discrimination by Commonwealth and its political subdivisions

Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.

Pa. Const. art I, § 26. Section 26 is notably different from the standalone federal Equal Protection Clause: "No State shall … deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend XIV, § 1. While the federal Equal Protection Clause prohibits "deny[ing]" equal protection of the laws, Section 26, more specifically, secures two protections. It prohibits the Commonwealth from "deny[ing] any person the enjoyment of any civil right" and "discriminating against any person in the exercise of any civil right." U.S. Const. amend XIV, § 1; Pa. Const. art. I, § 26. Thus, Section 26 protects against not only the denial of civil rights but also discrimination by the government when a person exercises a civil right.

In one respect, Article I, Section 26 and the Equal Protection Clause share a similar general purpose, i.e., equal treatment under the laws. However, to stop there in the analysis does not account for Section 26's language and the importance of the two separately recognized protections in our Charter. Accordingly, we must give meaning to the unique language employed in Section 26, which is distinct from what is explicitly contained within the federal Equal Protection Clause. In interpreting this provision, we acknowledge that its language has an ordinary meaning that voters would have been familiar with when they ratified the amendment.¹⁴⁸

148 It is accepted that dictionaries are a source of the common meaning. Greenwood Gaming & Ent., Inc. v. Commonwealth, 263 A.3d 611, 620 (Pa. 2021) (citing Bruno v. Erie Ins. Co., 106 A.3d 48, 75 (Pa. 2014)). For this purpose, we rely on dictionaries in use around the time of the adoption of Section 26.

Both the federal Equal Protection Clause and Section 26 use the word "deny," which means to "withhold … the enjoyment." Deny, The Random House Dictionary of the English Language, College Edition, 356 (Laurence Urdang ed. 1968). However, Section 26 also expressly declares that the government shall not "discriminate" against any person in the exercise of any civil right. Pa. Const. art. I, § 26. "Discriminate" means "to make a distinction in favor of or against a person or thing on a categorical basis rather than according actual merit … to make or constitute a distinction in or between; differentiate[.]" Discriminate, The Random House Dictionary of the English Language, College Edition, 379 (Laurence Urdang ed. 1968).

While the prohibitions against denial of "any civil right"¹⁴⁹ or "equal protection of the laws"¹⁵⁰ indicate that the government may not withhold the enjoyment of a right from any person, Section 26's explicit protection against discrimination signals something broader: the government is prohibited from treating any person differently in the exercise of their civil rights. In other words, the Commonwealth may not demonstrate partiality for how a person exercises any civil right. This constitutional language clearly demonstrates that Section 26 mandates that the Commonwealth maintain neutrality with respect to how individuals exercise their civil rights.

149 Pa. CONSt. art. I, § 26.

150 U.S. Const. amend XIV, § 1.

We have previously considered the meaning of "civil rights," and found that the term is generally understood to mean "constitutional freedoms" or "constitutional rights." See Driscoll v. Corbett, 69 A.3d 197, 212 (Pa. 2013); Fischer, 502 A.2d at 123. Pennsylvania courts have also previously "[a]ssum[ed]" that statutorily created civil rights fall under the protections of Section 26, as well. McIlvaine v. Pa. State Police, 296 A.2d 630, 633 (Pa. Commw. 1972). While we continue to assume that certain statutory rights are encompassed by the notion of "civil rights," for the purposes of addressing Providers' claim based on the assertion of a fundamental right to reproductive autonomy,¹⁵¹ we need only affirm that "civil rights," as used in Section 26, includes constitutional rights and freedoms.

151 See Providers' Brief at 68 (asserting that the Pennsylvania Constitution "protects the abortion right as a fundamental right, and the [Coverage Exclusion] is a discriminatory funding scheme that impinges on that fundamental right in violation of the Constitution's equal protection provisions[]").

Thus, based on the text alone, Section 26 is implicated when the Commonwealth applies differential treatment to persons based on their exercise of a constitutional right. Section 26's broad protection becomes even more apparent upon examination of the history of the provision.

b. The history of Article I, Section 26, including Pennsylvania case law

Section 26, adopted in 1967, would seem, as some scholars suggest, to go farther than the federal Equal Protection Clause by design. See generally Robert F. Williams, A "Row of Shadows": Pennsylvania's Misguided Lockstep Approach to its State Constitutional Equality Doctrine, 3 Widener J. Pub. L. 343 (1993). The predecessor to Section 26 emerged as a proposal by the Committee on the Bill of Rights of the Pennsylvania Bar Association's "Project Constitution."^{152 153} Id. at 362. The bill introduced in the state Senate proposed the same language as that recommended by the Committee, which prohibited discrimination on the grounds of "race, color, or national origin." Williams, supra, at 363 (citing S.B. 530, printer no. 551, at 2, 149th Gen. Ass. (1965)). The bill was later amended in the House to prohibit discrimination based on "race, creed, color, sex, or national origin." Id. (citing S.B. 530, printer no. 1281, at 2, 149th Gen. Ass. (1965)). This language was ultimately rejected in favor of more expansive language prohibiting discrimination "against any person in the exercise of any civil right." Id. (citing 149 Pa. Legis. J., House, 2771-72 (1965)). It was this version of Section 26 that was ratified by the people in 1967 and adopted into our Constitution.¹⁵⁴ Id.; see also Pa. Const. art. I, § 26.

152 Specifically, the following language was proposed by the Committee:

Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right, because of race, color, or national origin.

Constitutional Report, A Revised Constitution for Pennsylvania, 34 Pa. Bar. Ass'n Q. 147, 247, 249 (1963). From the Committee's report and its proposed language, it is clear that its concern was primarily directed towards raced-based discrimination; however, the language that the People ultimately adopted in Section 26 suggests that the scope of the anti-discrimination principles of Section 26 addresses all forms of discrimination.

153 At the same time that the Committee proposed the initial version of Section 26, it also recommended a redrafting of Article I, Section 10 to include a separate clause "with the addition of an 'equal protection' clause, from the Federal Constitution." Williams, supra, at 362. At that time, Article I, Section 10 provided:

No person shall, for any indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger, or by leave of the court for oppression or misdemeanor in office. No person shall for the same offense, be twice put in jeopardy of life or limb; nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.

Constitutional Report, A Revised Constitution for Pennsylvania, 34 Pa. Bar. Ass'n Q. 147, 247, 248 (1963) (quoting Pa. Const. art. I, § 10)). The Committee proposed that Section 10 be amended to instead provide the following:

No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws; nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.

Id. at 248-49. While the Committee recommended that the "double jeopardy" language be removed from Section 10 and instead added to Article I, Section 9, it viewed grand juries as no longer serving as "an essential or even always a desirable part of the initiation of criminal proceedings," and thus it wanted the language from the beginning of the provision to be cut. Id. at 248. Instead, the Committee wanted the Legislature to be left free to determine how to charge persons with criminal violations. Id. Ultimately, the proposed redrafting of Article I, Section 10 containing the federal type of equal protection guarantees was not successful. Id. at 363. Perhaps this was because the proposed Section 10 language was considered duplicative of the equal protections already guaranteed by the federal Equal Protection Clause, see id., or perhaps it was a rejection of the Committee's view on grand juries. Regardless, we can infer that the Committee, at least, viewed the proposed language of what became Article I, Section 26 to contain something separate and distinct from the federal Equal Protection Clause. Williams, supra, at 363. Otherwise, the Committee would not have attempted to include nearly identical language from the federal Equal Protection Clause as an amendment to Section 10 at the same time it was proposing what became Section 26.

154 Notably, Section 26 was voted on separately by the citizens in May of 1967. It was not part of the broad package of amendments to the state Constitution that emerged from the Constitutional Convention at that time.

We cannot ignore that this provision was adopted in the midst of the Civil Rights Movement. This helps to inform us of the spirit with which the amendment was drafted, proposed, and adopted. In fact, as previously discussed, the Committee that initially drafted this provision expressly referenced preventing the Commonwealth from discriminating "on the basis of race" in its report. Constitutional Report, A Revised Constitution for Pennsylvania, 34 Pa. Bar. Ass'n Q. 147, 247, 249 (1963). However, while some versions of the proposed constitutional amendment attempted to identify specific classes of people against whom discrimination was prohibited, the language ultimately adopted by the people was far broader, as it prevented the denial or discrimination against the enjoyment of the exercise of any civil right by any person. We cannot discount that this deliberate decision broadens the circumstances in which Section 26 may be implicated.

While the text and the history of Section 26 signal that the drafters and the citizens of Pennsylvania intended to afford broader protection than what already existed at that time, our underdeveloped case law has not acknowledged Section 26's breadth. One of the first occasions Section 26 was construed at the appellate level was in 1972 by the Commonwealth Court. McIlvanie, 296 A.2d at 630. In that case, after thirty-seven years of service, a Pennsylvania State Police officer was involuntarily retired by the Commissioner of Police pursuant to Section 205(d) of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, 71 P.S. § 65(d) (providing for a mandatory retirement at sixty years of age). Ultimately, the Commonwealth Court addressed the officer's challenge to Section 205(d) based upon his claim, among others, that it violated Article I, Section 26 of the Pennsylvania Constitution and the PHRA. In rejecting that challenge, President Judge James S. Bowman recalled a 1940 case in which this Court upheld a Philadelphia ordinance providing a mandatory retirement age (set at sixty-five years old) for certain firemen and policemen against a statutory challenge, Boyle v. City of Philadelphia, 12 A.2d 43 (Pa. 1940), as well as a similar case in which this Court upheld a mandatory retirement age (sixty-five) applied to policemen in the City of Duquesne, as against a challenge that it was an unauthorized act by council, Soltis Appeal, 135 A.2d 744 (Pa. 1957). Judge Bowman relied on this Court's statement in Boyle that "in the absence of express statutory prohibition, the power is inherent in a municipality to prescribe reasonable and nondiscriminatory superannuation classifications, similar to those here set up, with respect to its firemen and policemen." McIlvanie, 296 A.2d at 632 (citing Boyle, 12 A.2d at 44-45).

Judge Bowman interpreted Article I, Section 26 to serve not as a provision of substantive rights but rather as a declaration that "neither the State government nor local governments shall deny to any person the enjoyment of such rights nor discriminate against them in the exercise thereof." Id. at 633. Then, combining his analysis of Article I, Section 26 with his discussion of the Pennsylvania Human Relations Act, Judge Bowman stated the following:

Assuming but not deciding that statutorily created 'civil rights' are within the protection of Article I, Section 26, of our Constitution, plaintiff's argument is, nevertheless, without merit, as it ignores the very essence of the statute and its provisions which he says protects him. The Pennsylvania Human Relations Act does not absolutely protect one against discharge from employment by reason of age; it does not guarantee retention of employment until death or proof of the employee's inability to perform. Rather, it is designed to protect against Discrimination in discharge from employment by reason of age and in doing so recognizes a 'bona fide

occupational qualification' as nondiscriminatory, as are terminations of employment by reason of retirement and pension plans and other like programs. In essence, with respect to termination of employment by reason of age, it proscribes such terminations on a discriminatory basis. To reach the conclusion plaintiff would have us reach as to this contention, we would have to hold that the Pennsylvania Human Relations Act prohibits discharge from employment by reason of age without exception, a conclusion which the statute does not permit us to reach. Alternately, plaintiff appears to assert, without any supporting proof in the record, that a mandatory retirement age for State police officers as a class is not a bona fide occupational qualification. To merely say so is not enough, particularly in light of the Soltis and Boyle cases, Supra. The fact that a particular police officer is physically fit and able to perform his duties or that minds may differ upon the particular mandatory retirement age selected by the legislature is not proof of want of bona fides as to the qualification otherwise applied uniformly and nondiscriminatorily to the selected class.

Id.

Thereafter, we "affirm[ed] the order of the Commonwealth Court on the opinion of President Judge Bowman." McIlvaine v. Pa. State Police, 309 A.2d 801, 803 (Pa. 1973). Justice Eagan concurred in the result. Justice Roberts, joined by Justice Nix, filed a dissenting opinion, expressing the view that the mandatory retirement provision violated Article I, Section 26 of the Pennsylvania Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Justice Roberts faulted the Majority and the Commonwealth Court for relying on decisions approving of the constitutionality of a mandatory retirement age for police officers that predated Section 26, such as Boyle. He wrote that while this "may have at one time represented the prevailing view," the adoption of Article I, Section 26 "denuded those cases of all precedential value." Id. at 807 (Roberts, J., dissenting).

When claims under Section 26 later came before this Court, we considered the protections under Section 26 to be "in essence the same" as those afforded by the federal Equal Protection Clause, without acknowledging the difference in language or history of our provision. James, 477 A.2d at 1305; see also Astemborski v. Susmarski, 466 A.2d 1018 (Pa. 1983).¹⁵⁵ Accordingly, we reasoned that Section 26 is subject to the same equal protection framework for analyzing government classifications as employed by the High Court under the Fourteenth Amendment. James, 477 A.2d at 1305-06. In other words, legislative classifications challenged under Section 26 are reviewed pursuant to the means-end test, i.e., the varying levels of scrutiny. Id.

155 In James, a pedestrian filed suit for injuries he suffered when he fell on stairs owned and maintained by SEPTA. The trial court granted SEPTA's motion for summary judgment pursuant to a former provision of the Metropolitan Transportation Authorities Act requiring that notice of a claim be served on SEPTA within six months of injury or accrual of the cause of action. On appeal, the pedestrian asserted, inter alia, that the notice requirement violated the Fourteenth Amendment's Equal Protection Clause and the Pennsylvania Constitution's Article I, Section 26 because it treated those injured by government tortfeasors in one way while treating those injured by non-government tortfeasors in another way. James, 477 A.2d at 1305. The pedestrian did not present an argument that Section 26 is broader than the Fourteenth Amendment. Thus, the Court characterized the two constitutional provisions as essentially the same, and it treated the claims identically, citing exclusively to jurisprudence addressing Equal Protection Clause claims raised under the Fourteenth Amendment. Id. (citing Singer v. Sheppard, 346 A.2d 897 (Pa. 1975) (rejecting claim that Pennsylvania's No-Fault Motor Vehicle Insurance Act violated Equal Protection Clause of the Fourteenth Amendment)). The James Court applied the Fourteenth Amendment Equal Protection Clause framework to the claim, determining that the notice provision restricted pedestrian's important right. i.e., access to the courts to sue the Commonwealth in cases where the Commonwealth has consented to suit. The Court applied intermediate scrutiny, and it determined that the notice requirement passed constitutional muster. In sum, the James Court, faced with a Fourteenth Amendment Equal Protection Clause claim, addressed the claim pursuant to the federal test. The Court's opinion does not address the meaning of Article I, Section 26 of the Pennsylvania Constitution because the claim grounded in that provision was merely tacked on to a federal claim without any development. Therefore, James does not support the conclusion, much less stand for the proposition that Article I, Section 26 and the Fourteenth Amendment Equal Protection Clause are coterminous. Similarly, Astemborski merely highlighted that a statute of limitations was being challenged under both the Fourteenth Amendment and Article I, Section 26. Astemborski, 466 A.2d at 1019. The Astemborski Court relied exclusively on equal protection case law from the United States Supreme Court, holding that the challenged statute of limitations was constitutional "consistent with the recent decision of the Supreme Court of the United States[.]" Id. at 1022.

The Fischer Court subsequently endorsed McIlvanie's conclusion that Section 26 does not itself define a substantive right, stating that Section 26 did no more than "make more explicit the citizenry's constitutional safeguards not to be harassed or punished for the exercise of their constitutional rights." Fischer, 502 A.2d at 123. As previously discussed in the context of the other equality provisions, the right on which Fischer was focused was not one of a fundamental nature, such as the purported right to reproductive autonomy, but rather whether a woman was entitled to a subsidized abortion. Id.

After the Fischer Court stated that the Court had "not previously embraced a mode of analyzing claims under Article I, Section 26," for purposes of determining when a government action offends Section 26, it adopted a penalty analysis derived from federal Equal Protection Clause jurisprudence¹⁵⁶ to assess whether government action implicates a fundamental right. Fischer, 502 A.2d at 123. Although the Fischer Court did not articulate its analysis with precision, to apply a penalty analysis, the Fischer Court had to first accept the James Court's Fourteenth Amendment Equal Protection Clause framework, which required, as the first inquiry, whether a fundamental right was implicated; more particularly, whether the government is penalizing the exercise of a fundamental right. Shapiro, 394 U.S. at 634 ("[A]ny classification which serves to penalize the exercise of [a constitutional] right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.").

156 The Fischer Court relied on Shapiro and Maricopa County as establishing the penalty test. In Shapiro v. Thompson, 394 U.S. 618 (1969), the High Court applied strict scrutiny to statutory prohibitions denying welfare assistance based on applicants' length of residency in the jurisdiction because the statutes operated "to chill the assertion of constitutional rights by penalizing those who choose to exercise them[.]" Id. at 631. See supra note 42 (detailed discussion of Shapiro). In Memorial Hospital v. Maricopa County, 415 U.S. 250, 261-62 (1974), the High Court held that an Arizona statute requiring a year's residence in a county as a condition of receiving nonemergency hospitalization or medical care at the county's expense "penalize[d] indigents for exercising their right to migrate to and settle in that State[,]" and therefore was subject to strict scrutiny. See supra note 43 (detailed discussion of Maricopa County).

In line with this assumption that Section 26's prohibition operated like its federal counterpart to protect only against "harassment" or "punishment," the Fischer Court employed a "penalty analysis." To Fischer, the "penalty analysis" focused on whether a law somehow penalized a person for the exercise of a constitutional freedom. Fischer, 502 A.2d at 123-24. Based on this and its adoption of the High Court's rationale in Maher, the Fischer Court reasoned that the Commonwealth's express partiality for encouraging childbirth over abortion does not constitute a penalty and is therefore not offensive to the protections of Section 26. Id. at 124. The Fischer Court offered no context as to when a "penalty" analysis applies in the larger equal protections framework, but based on its language, it seemed that Fischer intended for this "penalty" analysis to operate as the primary "mode" for analyzing Section 26 claims.

However, shortly after Fischer, this Court signaled that it would not solely review alleged violations of Section 26 pursuant to a "penalty analysis." See Commonwealth v. Parker White Metal Co., 515 A.2d 1358 (Pa. 1986) (plurality). Instead, in keeping with the notion that our equal protection analysis mirrors that of the federal courts, this Court applied the standard federal equal protection framework to Section 26 by first addressing "whether the State has created a classification for the unequal distribution of benefits or imposition of burdens." Id. at 1363. This Court restated the standard federal Equal Protection Clause framework, without mention of Fischer's penalty analysis.

Following Fischer, this Court cited Fischer's general recitation of the principle that the analysis of Article I, Section 26 is the same as that conducted under the Equal Protection Clause, without questioning that proposition until League of Women Voters.

We have identified only one instance in which this Court applied an analysis that bore some resemblance to Fischer's penalty analysis, and it did so when addressing, without distinguishing, a challenge made under the federal Equal Protection Clause and Article I, Section 26 together. That is, like the vast majority of cases, the Court in McCusker v. WCAB, 639 A.2d 776, 779 (Pa. 1994) addressed the two challenges together because there was no argument for interpreting Article I, Section 26 differently than its federal counterpart.

In McCusker, this Court rejected a claim that a provision of the Worker's Compensation Act - providing for termination of benefits when a dependent of a deceased worker either remarried or was living in meretricious relationship - violated "the equal protection guarantees of both the U.S. Constitution and the Pennsylvania Constitution[,]" i.e., the Fourteenth Amendment and Article I, Sections 1 and 26 of the Pennsylvania Constitution. Id. at 777-78. Applying the federal equal protection framework, the Court determined that the relevant classification encompassed "dependent spouses of deceased employees who remarry or are living with another in a meretricious relationship[.]" Id. at 778. The Court explained that the law did not "prohibit or criminalize" McCusker's choice of living or family arrangements but merely set forth eligibility requirements, and therefore, it held that the law did not violate McCusker's right to privacy in his intimate affairs. Id. at 779 (citing Bowen v. Gilliard, 483 U.S. 587, 601-02 (1987) and Zablocki v. Redhail, 434 U.S. 374, 368-78 (1978) for the premise that eligibility requirements which do not "directly and substantially" interfere with family living arrangements do not burden a fundamental right, and therefore, are subject to rational basis review). Having determined that no fundamental right was penalized, the Court identified "rational relationship" as the proper standard of review.¹⁵⁷ The Court found that the scheme rationally promoted the governmental interest of judicious distribution of worker's compensation benefits, and therefore, did not violate the equal protection provisions of the Pennsylvania and federal Constitutions. Id. at 780-81.

157 The single proposition for which McCusker relied on Fischer (as cited by Love) was the recitation of the rational basis test. McCusker, 639 A.2d at 781 (citing Love, 597 A.2d at 1139 (citing Fischer, 502 A.2d at 114)).

In sum, McCusker fits within a line of cases that followed James, Love and Fischer, which assumed, without question, that the federal Equal Protection Clause analysis applied to claims brought under Article I, Section 26 of the Pennsylvania Constitution. McCusker asked whether the statute prohibited or criminalized the exercise of a fundamental right - in essence conducting a "penalty" analysis - in observance of federal precedent interpreting the Fourteenth Amendment, but it did not cite to Fischer for such a premise.

Subsequently, in Driscoll v. Corbett, 69 A.3d 197 (Pa. 2013), the most recent Section 26 case from this Court to cite Fischer, this Court addressed Section 26 without conducting a penalty analysis. This Court reviewed constitutional challenges to the mandatory retirement provision of the Pennsylvania Constitution applicable to judicial officers. Petitioners argued, inter alia, that any governmental action requiring them to retire at a certain age violated the guarantee of equal protection derived from Article I, Section 1, as well as the nondiscrimination provision of Article I, Section 26 of the Pennsylvania Constitution. Id. at 212. In rejecting the petitioners' argument regarding Article I, Section 1, the Court explained that "judicial review for compliance internal to the foundational document must be highly deferential." Id. at 210. In view of that deference, it rejected petitioners' contention that the age-related basis for classification implicated a heightened level of scrutiny and found that the provision survived rational basis review. Id. at 210-11.

The Driscoll Court next addressed petitioners' arguments that the forced retirement age violated Article I, Section 26 of the Pennsylvania Constitution. The Court highlighted that the adoption of Section 26 coincided with the adoption of the judicial retirement provision. The fact that Section 26 was of recent vintage weakened the force of petitioners' argument regarding age-related classifications "insofar as they [sought] to characterize the provision as enshrining rights that are 'so fundamental to human beings' (as they expressed it at oral argument), that they have been recognized as pre-existing the Constitution." Id. The Court noted as well that in Fischer, this Court "determined that Section 26 does not define any new substantive civil rights, but clarifies that an individual may not be harassed or penalized for the exercise of his or her constitutional freedoms." Driscoll, 69 A.3d at 212 (citing Fischer, 502 A.2d at 123-24). The Court then stated:

Petitioners have not provided grounds to suggest that our reasoning relative to Article I, Section 1 should have any less force in the context of the anti-discrimination clause. Thus, as we have concluded that Petitioners' constitutional right to equal protection is not otherwise injured by the retirement mandate, Article I, Section 26, as construed in Fischer, does not provide a separate basis for relief, either independently or in combination with Article I, Section 1.

Driscoll, 69 A.3d at 212-13. As with the many Section 26 cases that came before and after Fischer, the Court was merely reciting the proposition that the equal protection provisions of the Pennsylvania Constitution operated conterminously with the federal Equal Protection Clause, and therefore, Article I, Section 26, did not provide a different basis for a claim. The Court did not apply the penalty test, nor did it consider the possibility that Article I, Section 26 affords greater protections than the federal equal protection framework.

Like Driscoll, multiple cases cited Fischer's general recitation of Article I, Section 26 as being coterminous with the Equal Protection Clause, without questioning that proposition.¹⁵⁸ However, until League of Women Voters, such a request for a broader interpretation of Section 26 had not been properly raised before this Court. See, e.g., Lohr, 238 A.3d at 1209 n.16 (recognizing that the parties did not argue that the equal protection analysis differs under the state and federal constitutions, and thus, this Court would continue to apply the same analytical tests to both texts); Zauflik, 104 A.3d at 1117 n.10 (observing that Section 26's federal counterpart is the federal Equal Protection Clause, but declining to conduct an Edmunds analysis because there was "no suggestion that the Pennsylvania provision is other than coextensive, and the parties have not engaged in a formal Edmunds analysis").

158 See Kramer, 883 A.2d 518 (refusing to consider separate Article I, Section 26 claims for lack of developed argument, holding instead that challenged provision in the Workers' Compensation Act did not violate federal equal protection guarantee because classification regarding receipt of severance benefits did not implicate fundamental property right or create a suspect classification); Probst, 849 A.2d at 1142 n.14 (citing Fischer's articulation of the legal framework for evaluating an equal protection challenge and for the general proposition that claims made under the Pennsylvania Constitution are analyzed under the Fourteenth Amendment's Equal Protection Clause. This Court declined to address the Section 26 question for lack of a developed argument.); Love, 597 A.2d 1137 (citing to Fischer as additional basis after citing James for utilization of federal equal protection standards in analyzing Article I, Section 26 claims); Klein v. Commonwealth, State Employees' Ret. Sys., 555 A.2d 1216 (Pa. 1989) (Opinion Announcing Judgment of the Court) (Larsen, J.) (citing to Fischer for applying the federal Equal Protection Clause framework).

In League of Women Voters, this Court overruled the proposition set forth in Erfer v. Commonwealth, 794 A.2d 325 (Pa. 2002), that we are required to utilize the same standard to adjudicate a claim for a violation of the Free and Equal Elections Clause, Pa. Const. art. I, § 5, as we would under the federal Equal Protection Clause. League of Women Voters, 178 A.3d at 812-13. The Erfer Court arrived at this holding because, in its view, any claim predicated on equal protections of our Charter, such as the right to vote, could not be afforded broader protections than those guaranteed under the federal Equal Protection Clause. Erfer, 794 A.2d 332. To Erfer, our equal protection jurisprudence stood for the proposition that Pennsylvania's equal protection guarantees under Article I, Section 26 as well as those under Article I, Sections 1 and 5 were coterminous with the protections of the federal Equal Protection Clause. Id. Relying on Erfer and other equal protections analyses from this Court, the Commonwealth Court in League of Women Voters held similarly.

Addressing the appeal in League of Women Voters, this Court corrected course. Aside from decoupling the analysis of an Article I, Section 5 challenge from our equal protection analysis, this Court in League of Women Voters also distinguished and clarified the problematic assumption that utilizing the same standards for analysis is equivalent to saying that Section 26 and the federal Equal Protection Clause are coterminous.

Notably, in Erfer, our determination that the Equal Protection Guarantee was to be adjudicated as coterminous with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution was predicated on Love, in which we merely remarked that the Equal Protection Guarantee and Equal Protection Clause involve the same jurisprudential framework-i.e., a means-ends test taking into account a law's use of suspect classification, burdening of fundamental rights, and its justification in light of its objectives. See Erfer, 794 A.2d at 331-32; Love, 597 A.2d at 1139. The same was true in Kramer, where we remarked that we had previously employed "the same standards applicable to federal equal protection claims" and that the parties therein did not dispute "that the protections [were] coterminous[.]" Kramer, 883 A.2d at 532. Moreover, our affirmance in Zauflik was rooted in the parties' failure to conduct an analysis under Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). See Zauflik, 104 A.3d at 1117 n.10; …. Finally, concerning [Doe v. Miller, 886 A.2d 310 (Pa. Commw. 2005), affirmed by Doe v. Miller, 901 A.2d 495 (Pa. 2006) (per curiam)], the issue was not meaningfully litigated before the Commonwealth Court, and, in any event, this Court affirmed its decision per curiam, rendering it of no salient precedential value in the instant case. See Commonwealth v. Tilghman, 673 A.2d 898, 903-05 (Pa. 1996) (noting that orders affirming a lower court's decision, as opposed to its opinion, per curiam should not be construed as endorsing its reasoning).

League of Women Voters, 178 A.3d at 784 n.54.

A conclusion that our Constitution's equal protection provisions are to be read in lockstep with the federal Equal Protection Clause runs the risk of rendering our own constitutional text, history, traditions, and jurisprudence "a mere row of shadows." See generally Robert F. Williams, A "Row of Shadows": Pennsylvania's Misguided Lockstep Approach to its State Constitutional Equality Doctrine, 3 Widener J. Pub. L. 343 (1993). That we generally apply the same means-ends test to state equal protection claims as articulated by federal courts for Equal Protection Clause cases does not mean that we are bound by federal interpretations of the test, nor does it mean that we defer to or are bound by Equal Protection Clause analyses of similar claims. Certainly we are not bound by interpretations of the scope of the protections of the Equal Protection Clause when interpreting provisions of our Charter that speak, as Article I, Section 26 does, to prohibiting discrimination in the exercise of a civil right.

In League of Women Voters, we clarified that our past references to this coterminous analysis were merely this Court's recognition that Section 26's "Equal Protection Guarantee and Equal Protection Clause involve the same jurisprudential framework-i.e., a means-ends test taking into account a law's use of suspect classification, burdening of fundamental rights, and its justification in light of its objectives." League of Women Voters, 178 A.3d at 784 n.54. We recognized, as confirmed by our analysis in this case, that our more recent references to the coterminous nature of Section 26 and the federal Equal Protection Clause stem from a failure of the parties to properly develop an argument that Section 26 affords broader protection than its federal counterpart. Id.

We continue to recognize, as we did in League of Women Voters, that we apply the same jurisprudential framework to equal protections challenges under the Pennsylvania Constitution as is applied under the federal Equal Protection Clause, i.e., the means-ends test, and Providers do not argue that we should apply a different analytical framework. We further continue to recognize the unremarkable proposition that Section 26 does not itself create new substantive rights. As it falls under Article I's Declaration of Rights, it is a recognition of inherent rights that are preserved by our Charter, not created. Robinson Township, 83 A.3d at 948. More specifically, Section 26 guarantees that no person shall be denied the enjoyment of rights and that the government will not discriminate against a person based on the manner in which a right is exercised. We conclude that this prohibition against discrimination requires that the government act neutrally to the manner in which a right is exercised. Although Fischer maintained that Section 26 made our constitutional safeguards "more explicit," Fischer, 502 A.2d at 311, any suggestion that Section 26-ratified more than one-hundred years after the adoption of the federal Equal Protection Clause-amounts to mere surplusage of the federal Equal Protection Clause ignores the unique text of Section 26, the historical context, and League of Women Voters.

c. Related case law from other states

Adhering to federal jurisprudence without reference to the text or history of Article I, Section 26, the Fischer Court blindly followed Harris v. McRae, 448 U.S. 297 (1980),¹⁵⁹holding that the rights of women eligible for public medical assistance are not violated by the Coverage Exclusion. However, other states have found themselves not so bound. As illustrated by our consideration of the third Edmunds factor (related case law from other states), various other states have interpreted their respective constitutions as requiring the government to act neutrally when allocating health care benefits.

159 See supra pp. 58-67 (discussion of Fischer and its reliance on Harris)

For instance, the Supreme Court of Alaska read its equal protection provision, which mandated the "equal treatment of those similarly situated," as providing a more robust protection for Alaskans' right to non-discriminatory treatment as compared to the federal Equal Protection Clause.¹⁶⁰ Dep't of Health and Soc. Servs. v. Planned Parenthood of Alaska, 28 P.3d 904, 909 (Alaska 2001). It found that the logic to extending equal protection to their abortion coverage exclusion was "straightforward:"

160 Article I, Section 1 of Alaska's Constitution provided as follows:

This constitution is dedicated to the principles that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State.

Alaska Const. art. I, § 1.

[W]hen state government seeks to act for the common benefit, protection, and security of the people in providing medical care for the poor, it has an obligation to do so in a neutral manner so as not to infringe upon the constitutional rights of our citizens.

Id. at 908 (quoting Women's Health Ctr. of W.Va. v. Panepinto, 446 S.E.2d 658, 660 (W.Va. 1993)). To the court, the coverage exclusion "affect[ed] the exercise of a constitutional right, the right to reproductive freedom." Id. at 909.

Alaska's Supreme Court recognized that the challenged statute "did not forbid the individual exercise of constitutional rights; rather, it limited the government benefits distributed to the class of individuals who exercised that right." Id. at 910. However, the court highlighted that it would look to "the real-world effects of the government action to determine the appropriate level of scrutiny." Id. The court observed that pursuant to Alaska's equal protections, its government was not required to provide limitless health care services, but it was "constitutionally bound to apply neutral criteria in allocating health care benefits, even if considerations of expense, medical feasibility, or the necessity of particular services otherwise limit the health care it provides to poor Alaskans." Id. Viewing the "right to reproductive freedom" as a "fundamental right," the Alaska Supreme Court applied strict scrutiny. Id. at 909-10.

In a case contemporary to Fischer, the Supreme Court of New Jersey also responded directly to the High Court's decision in Harris. Right to Choose v. Byrne, 450 A.2d 925 (N.J. 1982). In highlighting the "more expansive language" in its Charter and comparing it to the language of the federal Equal Protection Clause, the New Jersey Supreme Court concluded that its Constitution afforded stronger protections than the federal Constitution.¹⁶¹ Id. at 933-34. Although the New Jersey Supreme Court recognized that neither "poverty nor pregnancy gives rise to membership in a suspect class[,]" and that there does not exist a "fundamental right to funding for an abortion[,]" the court still applied a balancing test akin to strict scrutiny because "individual states may accord greater respect than the federal government to certain fundamental rights." Id. at 931, 934. According to that court, the right to choose whether to have an abortion "is a fundamental right of all pregnant women[.]" Id. The exclusion, it found, impinged on the "fundamental right of a woman to control her body and destiny." Id. According to the court, the exclusion, per the government's admission, sought to influence the decision between abortion and childbirth. Id. The court reasoned that "[o]nce [the state government] undertakes to fund medically necessary care attendant upon pregnancy … [it] must proceed in a neutral manner." Id. at 935.

161 New Jersey derives its state equal protections from the following constitutional provision:

All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.

N.J. Const. art. I, ¶ 1.

In Doe (Conn.), the Superior Court of Connecticut concluded that its courts had recognized, as an aspect of privacy, "procreative choice" as a fundamental right. Doe (Conn.), 515 A.2d at 150. It further determined that the High Court's equal protection analysis in Harris was "difficult to accept," suggesting that it viewed its own equal protections as affording greater protections than the federal Equal Protection Clause.¹⁶² Id. at 158. In reviewing its abortion coverage exclusion, the Superior Court of Connecticut reasoned that its equal protection provisions "require the state when extending benefits to keep them free of unreasoned distinctions that can only impede [the] open and equal exercise of fundamental rights." Id. (internal quotations citations omitted). According to the court, "the selective funding of medically necessary abortions and the willingness of the state to fund all necessary medical procedures to bring the fetus to term at least implicitly impinges on the fundamental right of privacy guaranteed to all pregnant women-rich and poor alike-and that is, the right to choose whether to have an abortion." Id. at 159. As this "impinge[d]" on a fundamental right, the court determined that the coverage exclusion was subject to strict scrutiny. Id.

162 The Connecticut court reached its conclusion by relying upon two equal protections provisions, one of which was its equal rights amendment.

All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.

Conn. Const. art. I, § 1.

No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.

Conn. Const. art. I, § 20.

In Committee to Defend Reproductive Rights v. Myers, 625 P.2d 779 (Cal. 1981), the Supreme Court of California, in examining a similar abortion coverage exclusion, determined that its Constitution expressly extended more protections to its citizens than the federal Charter.¹⁶³ Id. at 783-84. Among these protections, the California court observed that all women in California, "rich and poor alike possess a fundamental constitutional right to choose whether or not to bear a child." Id. at 784 (citing People v. Belous, 458 P.2d 194 (Cal. 1969)). Applying the unconstitutional conditions doctrine¹⁶⁴and its own test of constitutional scrutiny, the court held that "[o]nce the state furnishes medical care to poor women in general, it cannot withdraw part of that care solely because a woman exercises her constitutional right to choose to have an abortion." Id. at 798.

163 California's Constitution provided as follows:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Cal. Const. art. I, § 1.

164 The unconstitutional conditions doctrine is the notion that the government extends a benefit or privilege upon the surrender of constitutional rights. Unconstitutional Conditions, 73 Harv. L. Rev. 1595, 1595 (1960).

Faced with another similar coverage exclusion, in Moe v. Secretary of Administration and Finance, 417 N.E.2d 387 (Mass. 1981), the Massachusetts Supreme Court reviewed its privacy jurisprudence and announced that its Declaration of Rights¹⁶⁵ protected women's right to abortions. Id. at 398-99 (citing, inter alia, Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417 (Mass. 1977); In re Spring, 405 N.E.2d 115 (Mass. 1980)). While recognizing that the enactments at issue were "substantially identical to those challenged" and upheld by the United States Supreme Court in Harris, the Moe court explained that it was "not bound by Federal decisions, which in some respects are less restrictive than our Declaration of Rights." Id. at 399, 400 (internal quotations and citations omitted). Indeed, with respect to the challenge to the coverage exclusion, it determined that its Declaration of Rights afforded "a greater degree of protection to the right asserted … than does the Federal Constitution as interpreted" in Harris. Id. at 400.

165 The Massachusetts constitutional provisions were, in relevant part, as follows:

All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.

Mass. Gen. L. Const. art. I.

Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws.

Mass. Gen. L. Const. art. X.

According to its examination of its own constitutional protections and Roe v. Wade, the Moe court found that "the limitation on State action which is imposed by the fundamental right of privacy declared in Roe v. Wade, supra,¹⁶⁶ is one of neutrality." Id. Thus, it found that while the government may retain "wide latitude" to determine how to allocate benefits, it could not use criteria which would "discriminatorily burden the exercise of a fundamental right." Id. at 401 (citing, inter alia, Mass. Pub. Int. Rsch. Grp. v. Sec'y of the Commonwealth, 375 N.E.2d 1175 (Mass. 1978)). The Moe court determined that it was irrelevant whether a selective grant of benefits imposed a direct or indirect burden, because once the government "chooses to enter the constitutionally protected area of choice, it must do so with genuine indifference" and "may not weigh the options open to the pregnant woman by its allocation of public funds[.]" Id. at 402. The court found the funding scheme to be a means for the government to inject "coercive financial incentives favoring childbirth into a decision that is constitutionally guaranteed to be free from government intrusion … depriv[ing] the indigent woman of her freedom to choose abortion over maternity, thereby impinging on the due process liberty right recognized in Roe v. Wade." Id.

166 Roe v. Wade, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women's Health Organization, 142 S.Ct. 2228 (2022).

After concluding that the funding scheme was not neutral to the protected area of choice, the Moe court conducted an interest balancing, akin to strict scrutiny but less rigid, pursuant to principles it had developed in Massachusetts case law. Id. at 403. In so doing, the court found that the balance was "decisively in favor of the individual right involved[,]" and thus concluded that the coverage exclusion at issue was invalid. Id. at 403-04.

We acknowledge Senate Intervenors' claim that other state courts have upheld bans on abortion funding against constitutional challenges. Senate Intervenors' Brief at 52. Indeed, there are cases in which state (trial level) courts have tracked Fischer's logic, applied federal principles and reached the same conclusion as the Fischer Court. See, e.g., Planned Parenthood of Idaho v. Kurtz, 2002 WL 32156983 (Id. Dist. 2002). And we observe that the Supreme Court of Michigan, in Doe v. Department of Social Services, 487 N.W.2d 166 (Mich. 1992), did the same, despite the fact that its constitution contains a non-discrimination clause.¹⁶⁷ However, we are convinced beyond doubt that the text of Article I, Section 26 along with its history demands a distinct interpretation and application.¹⁶⁸ The provision commands that the government will not "discriminate against any person in the exercise of any civil right." If the government is not neutral in its treatment of the exercise of a right, Section 26 is implicated. If the right is one that is fundamental, then only evidence of a compelling government interest and a finding that there are no less intrusive means to advance the interest will save the government action.

167 The Michigan Constitution's equal protection and non-discrimination clause provides:

No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation.

Mich. Const. art. I, § 2. The Michigan Supreme Court viewed the passage of the non-discrimination provision as evidence of a "deliberate effort to duplicate the protection secured by the federal clause." Doe v. Dep't of Soc. Servs., 487 N.W.2d at 175. For the reasons expressed herein, this was not the effort undertaken with Section 26. See supra Part III.F.2.b. ("the history of Article I, Section 26, including Pennsylvania case law").

168 The Michigan court discounted the textual differences between its equal protection provision and the federal Equal Protection Clause as insignificant, and it viewed the timing of the Civil Rights Movement as proof that its provision was merely emblematic. Doe, 487 N.W.2d at 175. We find the textual differences between Section 26 and the Equal Protection Clause significant and the context of its adoption indicative of its unique purpose. In fact, we find these factors dispositive in determining the intent behind Section 26 to do more than the federal Equal Protection Clause.

Providers' sole argument in this respect is that the privacy protections in our Charter protect the right to reproductive autonomy, a right that, like other privacy rights, is fundamental. This asserted right is clearly implicated by the partiality towards carrying a pregnancy to term embedded in the Coverage Exclusion.

Addressing the argument with regard to the then-constitutionally recognized right to abortion under Roe v. Wade, the Fischer Court eschewed the argument that the Coverage Exclusion implicated Roe v. Wade's right to choose an abortion over carrying a pregnancy to term. Instead, the Court flipped the table: the case was not about abortion-it was about the right to a government-funded abortion. Fischer, 502 A.2d at 121.¹⁶⁹ In so doing, it followed the lead of the United States Supreme Court in Maher and Harris, where the focus was likewise upended from consideration of the substantive right impacted by the unequal treatment created by the coverage exclusions to the mechanism for unequal treatment.

169 Senate Intervenors advance this same argument, insisting that the challenge does not implicate the right to abortion, but rather, "concerns whether there exists a right to have the Commonwealth fund an abortion when it is unnecessary to protect the life of the woman, or when the pregnancy does not result from rape or incest[.]" Senate Intervenors' Brief, at 40-41.

While we express no opinion on the legitimacy of the inventive analytical phrasing under the federal Equal Protection Clause, it makes no sense under Article I, Section 26. This recasting of the issue requires us to ignore that funding by the General Assembly is government action subject to constitutional review.¹⁷⁰ This is an untenable proposition. One of the principal purposes of the government is to provide for the health and safety of its citizens. Pa. Env't Def. Found. v. Commonwealth, 161 A.3d 911, 930 (Pa. 2017) (recognizing that the Constitution grants the General Assembly "broad and flexible police powers to enact laws for the purpose of promoting public health, safety, morals, and the general welfare") (citing Robinson Township, 83 A.3d at 946); Nebbia v. People of New York, 291 U.S. 502 (1934) ("[T]his court from the early days affirmed that the power to promote the general welfare is inherent in government."). All legislative power in this Commonwealth is vested in the General Assembly. Pa. Const. art. II, § 1 ("The legislative power of this Commonwealth shall be vested in a General Assembly[.]"). When the Legislature enacts funding bills it is engaging in action on behalf of the Commonwealth. Article I, Section 26 sets limits on the permissible range of this activity: "the Commonwealth … shall [not] … discriminate against any person in the exercise of any civil right." Pa. Const. art. I, § 26. While the General Assembly is not obligated to provide any specific benefits and it has wide latitude to determine how to allocate benefits, once it decides to do so in a way that implicates a civil right, it must do so "with genuine indifference." Moe, 417 N.E.2d at 42.¹⁷¹ If a funding statute implicates the exercise of a constitutional right and it is not neutral with respect to how any person exercises that right, then the courts will engage in a means-end review based on the right at issue and the appropriate level of inquiry.

170 Justice Mundy predicts a deluge of litigation as a result of this decision. See Concurring & Dissenting Op. at 20 n.13 (Mundy, J.). Given the experience in other jurisdictions adopting a similar approach, this is unlikely. In any event, this Court is duty-bound to apply the Constitution to each challenge before it. Marbury v. Madison, 5 U.S. 137, 178 (1803) ("Could it be the intention of those who gave this [judicial] power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.") We may not insulate government action from constitutional review by referring to it as a "funding decision."

171 While Moe found a neutrality requirement in the constitutionally protected right to choose, id., we conclude that the neutrality principle is embedded in the non-discrimination clause of Article I, Section 26.

Any challenge under Article I, Section 26 begins with the question of whether a constitutional right is implicated by the funding scheme. It is the right at issue and not the fact that there have been legislative policy choices that determines the level of scrutiny. Contrary to Fischer and its federal jurisprudential sources, a challenge to a legislative allocation for the provision of benefits does not start with the presumption that such funding decisions are entitled to deference by the Court, least of all when they involve a fundamental right. See Fischer, 502 A.2d at 121 ("As we view it, the right with which we are here concerned is the purported right to have the state subsidized the individual exercise of a constitutionally protected right, when it chooses to subsidize alternative constitutional rights.").

d. Policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence

As we discussed earlier with respect to the Equal Rights Amendment, Edmunds instructs to "go beyond the bare text and history of that provision as it was drafted … and consider its application within the modern scheme of Pennsylvania jurisprudence." Edmunds, 586 A.2d at 901. Given that we are faced with the same question answered by this Court in Fischer, judicial policy as expressed in the doctrine of stare decisis is implicated. "[S]tare decisis is a principle of policy," Alexander, 243 A.3d at 199 (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)), which "commands judicial respect for prior decisions of this Court and the legal rules contained in those decisions[,]" Stilp, 905 A.2d at 954 n.31. While this Court honors stare decisis to maintain reliable and consistent jurisprudence, we "should not perpetrate error solely for the reason that a previous decision although erroneous, has been rendered on a given question." Olin Mathieson Chem. Corp. v. White Cross Stores, Inc., No. 6, 199 A.2d 266, 268 (Pa. 1964). We determine "whether it is appropriate for this Court to overrule prior precedent [based] on a number of factors, all of which are implicated under the doctrine of stare decisis." Alexander, 243 A.3d at 196 (quoting Freed v. Geisinger Med. Ctr., 5 A.3d 212, 216 (Pa. 2010)).

Quality of reasoning

One of the questions before us is "whether we are bound to the [challenged] interpretation … when, by any rules of constitutional construction recognized at the time of those decisions or now, the interpretation is patently flawed. The answer is that we are not." McLinko, 279 A.3d at 573. We have previously recognized that "general faithfulness to precedent is not sufficient to buttress judicial decisions proven wrong in principle or 'which are unsuited to modern experience and which no longer adequately serve the interests of justice.'" Tincher, 104 A.3d at 336 (quoting In re Carney, 79 A.3d at 505). To disregard the text of Section 26 along with its history, as the Fischer Court did, would only serve to perpetuate error. The doctrine of stare decisis cannot be used as an absolute shield to protect and perpetuate such legal error.

In presuming-without employing an actual analysis of the text or history-that challenges under Section 26 reach identical results to those under a federal equal protections analysis, the Fischer Court relied on the High Court's decisions in Maher and Harris, which serve as the closest federal analogs to the questions presented to the Fischer Court as well as the Court today.

In Maher, the High Court addressed an equal protections challenge to a Connecticut regulation under which Medicaid recipients received full coverage of childbirth medical services but no coverage of medical services incidental to nontherapeutic abortions. It first addressed whether the legislation operated to disadvantage a suspect class or burden a fundamental right. According to the High Court, the case did not involve discrimination against a suspect class given that indigency is not recognized as a suspect classification. Maher, 432 U.S. at 471. In its fundamental right analysis, the High Court explained that the Connecticut regulation "place[d] no obstacles absolute or otherwise in the pregnant woman's path to an abortion." Id. at 474. It stated that the indigent woman "suffer[ed] no disadvantages as a consequence of Connecticut's decision to fund childbirth[.]" Id. The High Court emphasized that the woman's indigency (not the regulation) is at fault for the woman's difficulty. It therefore concluded that the Connecticut regulation "d[id] not impinge upon the fundamental right recognized in Roe." Id.

The Maher Court rejected the plaintiffs' reliance on Shapiro and Maricopa County,¹⁷² two cases in which the High Court found that durational residence requirements for the receipt of public welfare benefits were unconstitutional because they penalized the exercise of the constitutional right to travel. Maher, 432 U.S. at 475 n.8. The High Court stated that there was only a semantic difference between an assertion that the law "unduly interferes" with the constitutional right and that it "penalizes" the exercise of the right. Id. It observed that penalties are most familiar to criminal law, and indeed, in Shapiro and Maricopa County, the Court considered denial of welfare to be "sufficiently analogous to a criminal fine to justify strict judicial scrutiny." Id. The situations were distinguishable, according to the High Court, because Connecticut was not denying general welfare benefits to all women who had obtained abortions. It highlighted that "Shapiro and Maricopa County did not hold that States would penalize the right to travel interstate by refusing to pay the bus fares of indigent travelers." Id. Therefore, it found no support in the right-to-travel cases for the view that Connecticut was required to show a compelling interest to justify its decision not to fund elective abortions. Id.

172 See supra notes 42 and 43.

As previously discussed, in Harris, the High Court reviewed the Hyde Amendment, which restricted federal funding for abortion, to determine whether it violated any substantive rights secured by the federal Constitution. Harris, 448 U.S. 297. In addressing whether the coverage exclusion constituted an unlawful infringement, the Court reasoned:

The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde

Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.

Id. at 316-17. Accordingly, the Court viewed the woman's indigency as the cause of the infringement of her right to terminate her pregnancy. Id. at 317. Thus, the High Court concluded that the government may refuse to fund abortion coverage without impinging on the right recognized in Roe v. Wade, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women's Health Organization, 142 S.Ct. 2228 (2022). Harris v. McRae, 448 U.S. at 317.

Fischer's reliance on Maher and Harris ignores the unique protections afforded by Section 26; particularly, Section 26's express prohibition of governmental discrimination in any person's exercise of any civil right. The Fischer Court embraced a penalty analysis for determining when a law implicates a right for purposes of applying Section 26, reciting only Maher's footnote discussion regarding the "penalty" analysis. Fischer, 502 A.2d at 124 (citing Maher, 432 U.S. 474 n.8). Although the Fischer Court made explicit its adoption of the "penalty" analysis when considering a Section 26 challenge, it failed to contextualize how that part of the analysis fits within the larger equal protection framework. Based on Fischer's inquiry as to whether the "right to choose" was being penalized, Fischer must have presumed that it was being confronted with the fundamental right to choose, as understood in Roe v. Wade. Fischer, 502 A.2d 124. This is in direct contradiction with what the Fischer Court stated at the outset of its opinion, namely, that "[t]his case does not concern the right to an abortion." Id. at 116. When addressing the other two equal protections provisions earlier in its opinion, the Fischer Court made its position clear that it viewed the right at issue as "the purported right to have the state subsidize the individual exercise of a constitutionally protected right, when it chooses to subsidize alternative constitutional rights." Id. at 121. In other words, the Fischer Court proceeded as if it was confronted with a fundamental right under its Section 26 analysis, despite that it had already concluded, under its Article I, Section 1 and Article III, Section 32 analysis, that it was not. Because the Fischer Court considered our equal protection provisions to be analyzed identically with the federal Equal Protection Clause, then it should have addressed the three challenges identically, and, at the very least, consistently.

Even more critically, the Fischer Court skipped over the part of the analysis that is crucial to any equal protection claim: identifying what level of scrutiny applied to the Section 26 claim brought before it. Knowing how Shapiro, Maricopa County and other cases challenging the allocation of welfare benefits operated, we know that when no fundamental right is penalized, prohibited or denied, strict scrutiny does not apply, and courts would, at least, apply rational basis. See, e.g., Bowen v. Gilliard, 483 U.S. at 602-03. The Fischer Court did not, within this section of the opinion, apply any level of scrutiny, nor did it explicitly incorporate its preceding application of intermediate scrutiny or rational basis, despite the notion that, based on its analysis, rational basis would have been required. Thus, even Fischer's adoption of a penalty analysis for Section 26 claims was flawed in its application.

Moreover, Fischer offered no insight as to what constitutes a "penalty" for purposes of our constitutional analysis. We hesitate to say for certain that the High Court has provided a straightforward application of what constitutes a "penalty," given that, as some scholars have highlighted, the High Court has never indicated "what a 'penalty' is or does, nor what level of burden on a right rises to the level of a penalty[.]" Charles R. Bogle, "Unconscionable" Conditions: A Contractual Analysis of Conditions on Public Assistance Benefits, 94 Colum. L. Rev. 193, 208 (1994).¹⁷³ This Court has certainly never expounded on what constitutes a penalty in this context.¹⁷⁴ Nevertheless, even if penalty is a clear and workable standard for federal equal protections, our review has demonstrated that Section 26 does not accommodate a penalty analysis.

173 In attempting to frame a definition, one scholar stated that the High Court "considers a government benefits allocation to be a burden or penalty on the exercise of a constitutional right if the benefit allocation permits individuals to exercise the constitutional right only by forfeiting either another a constitutional right, a property right, or statutory entitlement to something other than direct funding of the constitutional right at stake." Yvette Marie Barksdale, And the Poor Have Children: A Harm-Based Analysis of Family Caps and the Hollow Procreative Rights of Welfare Beneficiaries, 14 L. & Ineq. 1, 26 (1995).

174 Contrary to Chief Justice Todd's citation to Probst as a case offering insight as to what constitutes a penalty under Section 26, Concurring & Dissenting Op. at 13-14 (Todd, C.J.), Probst merely recited Fischer's unhelpful language that a penalty is a penalty. Probst, 849 A.2d at 1142 n.14 (stating that the focus of the penalty analysis "is whether a person has been somehow penalized for the exercise of a constitutional freedom"); Fischer, 502 A.2d at 124 (stating that the focus of the penalty analysis "is whether a person has been somehow penalized for the exercise of a constitutional freedom"). The Probst Court went no further because the appellee in that case did not develop (and the trial court did not address) an Article I, Section 26 challenge.

Pursuant to its most natural meaning, the term "discriminate," does not mean punishment, but rather partiality. Thus, Section 26's prohibition against partiality toward any person's exercise of any civil right mandates that the government maintain neutrality with respect to citizens' exercise of their rights, unless the Commonwealth can otherwise demonstrate that a classification is justified, pursuant to our means-end review. For purposes of enforcement of Section 26's non-discrimination provision, the question is straightforward: has the government expressed a preference for the manner in which a right is exercised? By the design of Section 26, the threshold is less rigid than an amorphous penalty analysis and it is a more workable standard. See Alexander, 243 A.3d at 196-97 (citing "workability of the rule" established by precedent as a consideration for stare decisis); Ramos, 140 S.Ct. at 1414-15 (Kavanaugh, J., concurring in part) (same); Franchise Tax Bd. of Cal. v. Hyatt, 139 S.Ct. 1485, 1506 (2019) (Breyer, J., dissenting) (suggesting that a logical basis for overruling precedent is when it "defies practical workability").

Following Edmunds, we must give the Pennsylvania Constitution meaning, and unique meaning where appropriate. See Edmunds, 586 A.2d 887. As explained, Article I, Section 26 requires unique meaning. Fischer's treatment of this Pennsylvania constitutional claim suffers from incomplete reasoning and a disregard of our unique constitutional provisions in favor of blind (and incomplete) adherence to federal principles of Equal Protection. See Robinson Township, 83 A.3d at 946 ("[W]here prior decisional law had obscured the manifest intent of a constitutional provision as expressed in its plain language, engagement and adjustment of precedent as a prudential matter is fairly implicated and salutary[.]").

We also observe that the foundation on which Fischer's equal protection analyses were built has been overruled. That is, with Roe overruled, the case law in its wake, including the primary cases Fischer cited in order to justify its penalty analysis, is also disrupted. All of these cases were premised on the existence of a right to abortion based in the federal Constitution. Therefore, following Dobbs, it is logical and necessary for this Court to reconsider the premise of Fischer and address the unique state constitutional questions that are otherwise unanswered.

Stare Decisis and constitutional issues

As we recognized earlier in our discussion of the Equal Rights Amendment, the weight of stare decisis is lowest when we interpret the Constitution "because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions." Alexander, 243 A.3d at 197 (quoting Agostini v. Felton, 521 U.S. 203, 235 (1997)). This is to ensure courts "balance the importance of having constitutional questions decided against the importance of having them decided right." Ramos, 140 S.Ct. at 1413 (Kavanaugh, J., concurring in part). Because we are tasked with a constitutional interpretation of Article I, Section 26, the power of stare decisis is at its weakest.

Age and lineage

Despite its incomplete reasoning, in Fischer's thirty-eight year history, this Court has cited Fischer multiple times for its equal protection analysis framework. See, e.g., Commonwealth v. Parker White Metal Co., 515 A.2d 1358 (Pa. 1986) (plurality); Driscoll v. Corbett, 69 A.3d 197 (Pa. 2013); Klein v. Commonwealth, State Employees' Ret. System, 555 A.2d 1216 (Pa. 1989) (Opinion Announcing Judgment of the Court) (Larsen, J.). In these instances, the Court has recited Fischer's incantation of the equal protection framework, including that the framework tracks federal Equal Protection Clause jurisprudence. However, as we have discussed at length in addressing McCusker and Driscoll,¹⁷⁵ Fischer's unique holding with respect to Section 26, i.e., that we embrace a "penalty" analysis, has been seldom cited and never applied.

175 See supra pp. 190-93.

While subsequent judicial reliance evidences a sort of age and lineage which would indicate a need for deference, Alexander, 243 A.3d at 196, here there is none. League of Women Voters explained the defect in equating adherence to the federal equal protection analytical framework with a conclusion that Article I, Section 26 and its federal counterpart are substantively coterminous. It also signaled a departure from any such jurisprudence. Moreover, to hold otherwise would be contrary to our emphatic holding in Edmunds that we must give the Pennsylvania Constitution meaning, and unique meaning where it so provides. Edmunds, 586 A.2d 887. Absent a compelling Edmunds analysis justifying treating the provisions as coterminous-to date, there has been none- Fischer's summary dismissal of the Pennsylvania constitutional claim is not entitled to greater deference than the commands of Edmunds.

Reliance

We restate that when overruling a decision would "dislodge settled rights and expectations or require an extensive legislative response[,]" stare decisis has added force. Hilton, 502 U.S. at 202 (emphasis omitted). Moreover, we have acknowledged that there is force to legislators' arguments that "they rely on this Court's interpretation of the law and precedent when crafting legislation, and that such reliance should not be undercut except for good reason." Stilp, 905 A.2d at 967.

While the General Assembly has continued to fund the current Medical Assistance scheme with the Coverage Exclusion in place, no legislation has been brought to our attention and our review has uncovered no evidence that the General Assembly has otherwise crafted any statutes since Fischer that have relied upon the Fischer Court's interpretation of Section 26 and its adoption of a penalty analysis. Similarly, as we did in our discussion with respect to the Equal Rights Amendment, we again emphasize that the General Assembly's reliance interests cannot exceed a citizen's constitutional rights under Article I, Section 26.

3. Conclusion and Application

a. Conclusion

Given the Fischer Court's incomplete reasoning and the lack of reliance on such reasoning in our subsequent case law, we find no basis to continue following Fischer's flawed holding relative to Article I, Section 26. Accordingly, we overrule Fischer in this respect. With the benefit of an Edmunds analysis, it becomes clear that Section 26 of our Charter affords broader protections than the federal Equal Protection Clause. As commanded by the text and history of Section 26, we adopt an analysis that adheres to principles of neutrality. Thus, when a court is presented with a legislative classification that touches on the exercise of a civil right and it is being challenged on the basis that it is discriminatory, the court shall determine whether the classification operates neutrally with regard to the exercise of that right. If it does not, the court shall then conduct a commensurate means-end review.

In essence, equal protections generally provide that like persons in like circumstances will be treated similarly. Albert, 758 A.2d at 1151. That does not necessarily require that all persons enjoy identical protection under the law; thus, the Commonwealth is not absolutely prohibited from classifying individuals for the purposes of receiving different treatment, so long as those classifications are appropriately justified. Id. Based upon judicial review, pursuant to the means-end test, the courts must determine whether such a classification is constitutional. By its express terms, the Abortion Control Act creates a classification. The Coverage Exclusion differentiates between pregnant women on Medical Assistance who would seek to obtain abortions and pregnant women on Medical Assistance who would seek to carry their pregnancies to term. The former receives no government funding for the reproductive care they seek, whereas the latter receives full coverage for the reproductive care they seek. The controlling factor influencing the statutory funding scheme is how a pregnant woman on medical assistance decides to exercise her reproductive choices.

Section 26 prohibits not only the denial to any person the enjoyment of any civil right, but it explicitly prohibits the discrimination against any person in the exercise of any civil right. Pa. Const. art. I, § 26. Despite the Fischer Court's adoption of an ambiguous "penalty" analysis, we recognize that, based on its plain meaning, the term "discriminate," as used in Section 26, does not presume punishment; but rather, it presumes partiality. In other words, "to discriminate" suggests a lack of neutrality. Thus, the government must maintain a position of neutrality with regard to citizens' exercise of their constitutional rights. It may only depart from this neutrality when there is a justification to sustain a legislative classification.

b. Application of Article I, Section 26's neutrality requirement to the Coverage Exclusion ¹⁷⁶

176 This author and Justice Wecht have identified the right at issue as the fundamental right to reproductive autonomy. See Part III.E. The use of "we" and "our" in Part III.F.3.b. refer only to this author and Justice Wecht.

Based on our analysis, the right to reproductive autonomy, like other privacy rights, is fundamental. In our view, the right to reproductive autonomy is clearly implicated by the partiality towards carrying a pregnancy to term embedded in the Coverage Exclusion. Accordingly, we would remand to the Commonwealth Court to apply strict scrutiny based on the framework of the Section 26 analysis discussed above.

The government does not bear a constitutional obligation to provide medical care to the indigent, nor is the government required to financially support the exercise of a fundamental right, including a woman's exercise of her right to reproductive autonomy. However, once the government chooses to provide medical care for the indigent, including necessary care attendant to pregnancy for those women exercising their right to reproductive autonomy who decide to carry a pregnancy to term, the government is obligated to maintain neutrality so as not to intrude upon the constitutional right to full reproductive autonomy, which includes the right to terminate a pregnancy. The General Assembly's decision to "encourag[e] childbirth over abortion," 18 Pa.C.S. § 3202(c), as embodied by the Coverage Exclusion, demonstrates that the government has not maintained a position of neutrality with respect to this choice.

This choice between carrying a pregnancy to term or terminating the pregnancy is inherent in the right itself. While the Fischer Court relied on a perceived continued ability to make an unsubsidized choice as a basis to conclude that the Coverage Exclusion is not discriminatory, the government is prohibited from discriminating against, i.e., treating differently, a woman based on the choice she makes. The right cannot be so encumbered. Under Medical Assistance, the government funds one of these options but not the other. The Coverage Exclusion thus discriminates against those women who choose to exercise their fundamental right to terminate a pregnancy. By so doing, the government is not maintaining a position of neutrality with respect to women's exercise of these rights, as is required by Article I, Section 26 of our Constitution. This lack of neutrality triggers an analysis under Section 26 for discrimination against a civil right. Pursuant to an equal protection analysis under Article I, Section 26, the Coverage Exclusion fails to treat the fundamental right to reproductive autonomy neutrally and therefore is subject to strict scrutiny to determine whether the legislative classification is justified.

A statute that discriminates against any person in the exercise of a fundamental right is deemed unconstitutional unless the state can demonstrate it is "necessary to the achievement of a compelling state interest." Commonwealth v. Bell, 516 A.2d 1172, 1178 (Pa. 1986). In other words, the lower court "must determine if the infringement is supported by a compelling state interest and if the infringement is narrowly tailored to effectuate that interest." Hiller v. Fausey, 904 A.2d 875, 885-86 (Pa. 2006). The state bears a heavy burden of justification, and the statute must be closely scrutinized in light of its asserted purposes. Dunn v. Blumstein, 405 U.S. 330, 342-43 (1972). The statute must be drawn with precision and tailored to serve its legitimate objectives. Id. at 343 (internal citations omitted). "[I]f there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose 'less drastic means.'" Id. (internal citation omitted).

The Coverage Exclusion treats the fundamental right to reproductive autonomy non-neutrally. Thus, at the appropriate point in this litigation, on remand, the Coverage Exclusion should be subject to strict scrutiny.¹⁷⁷

177 Contrary to Justice Mundy's statements, see Concurring & Dissenting Op. at 19 (Mundy, J.), we do not resolve the question of the constitutionality of the Coverage Exclusion under Article I, Sections 1, 8 or 26, nor do we consider arguments regarding legislative interests. See supra note 83.

IV. Mandate

In this appeal by Providers from the orders of the Commonwealth Court, we rule as follows:

1.On the issues raised in preliminary objections, we decide that it was error to conclude that Providers lacked standing to assert the Pennsylvania constitutional claims raised in the petition for review.

2. We conclude that the lower court erred in granting the petitions to intervene filed by certain individual Pennsylvania Senators and Legislators.

3.Further, on the Commonwealth Court's apparent alternative grounds for dismissing the petition for review by the grant of a preliminary objection demurring to the claims raised in the petition based upon this Court's prior decision in Fischer v. Department of Public Welfare, 502 A.2d 114 (Pa. 1985), we reverse.

4. We overrule Fischer's interpretation of Article I, Section 28, and we hold that when a statute, such as the Coverage Exclusion, is challenged as violative of Section 28, a sex-based distinction is presumptively unconstitutional, and it is the government's burden to rebut the presumption with evidence of a compelling state interest in creating the classification and that no less intrusive methods are available to support the expressed policy.

5. We overrule Fischer's interpretation of Article I, Section 26, and we hold that a court, presented with a challenge to a legislative classification that touches on the exercise of a civil right on the basis that it violates Article I, Section 26, must determine whether the classification operates neutrally with

regard to the exercise of that right. If it does not, the court shall then conduct a commensurate means-end review.

This appeal does not resolve the ultimate issues challenging the constitutionality of the Coverage Exclusion under the Pennsylvania Constitution. In response to the issues raised in the appeal, we reverse the January 28, 2020 order of the Commonwealth Court granting intervention, and we reverse the March 26, 2021 order of the Commonwealth Court sustaining the preliminary objections of DHS and dismissing the petition for review. We remand to the Commonwealth Court for further proceedings consistent with the mandate contained in Part IV of this opinion.

Justice Brobson did not participate in the consideration or decision of this matter.

CONCURRING OPINION

WECHT JUSTICE

Since 1776, the Constitution of the Commonwealth of Pennsylvania has opened with a "Declaration of Rights," a declaration that begins by identifying the "Inherent rights of mankind."¹ The "inherent and indefeasible rights" identified therein include the rights to enjoy and defend life and liberty and to pursue happiness. Our Constitution further states that "everything" contained in the Declaration of Rights "is excepted out of the general powers of government and shall forever remain inviolate."² In 1971, Pennsylvania became the first state in the nation to amend its constitution to add an explicit guarantee of equality of the sexes.³ With these founding enactments, our Constitution places certain guarantees beyond the reach of the legislature and establishes them as legal promises enforceable in Pennsylvania's courts. "[T]he talismanic words, I am a citizen of Pennsylvania, secures [sic] to the individual his [or her] private rights" as guaranteed by our organic charter.⁴

1 "All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness." Pa. Const. art. I, § 1.

2 "To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate." Pa. Const. art. 1, § 25.

3 "Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual." Pa. Const. art. 1, § 28 ("ERA").

4 Brown v. Hummel, 6 Pa. 86, 91 (1847) (emphasis in original).

I join the Majority's detailed articulation and application of these constitutional promises in this case, which addresses a challenge involving Pennsylvania's Medical Assistance Program ("the Program"). This program provides payment directly to health care providers for covered medical services available to enrollees. The Abortion Control Act imposes a coverage exclusion under which the Program will not provide funds to cover abortions unless the pregnancy is the result of rape or incest, or unless an abortion is necessary to avert the death of the pregnant woman (hereinafter, "Coverage Exclusion").⁵ The Program covers all other costs associated with pregnancy and childbirth, and it also covers all health care for men, including male reproductive health services. No equivalent or comparable coverage exclusion applies to men.

5 18 Pa.C.S. §§ 3215(c), (j); see also 55 Pa. Code §§ 1141.57, 1163.62, 1221.57.

Several abortion providers ("Providers") filed a petition for review against the Department of Human Services ("DHS"), which administers the Program, seeking declaratory and injunctive relief from the Coverage Exclusion. Providers argued that the Coverage Exclusion violates the ERA and the equal protection provisions⁶ of the Pennsylvania Constitution. In support of these claims, Providers averred that the Coverage Exclusion significantly harms women, as the Majority describes.⁷ The Commonwealth Court permitted several lawmakers from the Pennsylvania Senate ("Senate Intervenors") and House of Representatives ("House Intervenors") to intervene in the matter (collectively, "Intervenors").⁸ DHS and the Intervenors filed preliminary objections, arguing that the petition for review raised claims that had been decided by this Court in Fischer v. Department of Welfare.⁹ DHS also asserted that Providers lack standing. The Commonwealth Court sustained the preliminary objections and dismissed the petition for review.¹⁰

6 Pa. Const. art. I, §§ 1, 26 & art. III, § 32.

7 Maj. Op. at 7-9.

8 Allegheny Reprod. Health Ctr. v. Pa. Dep't of Hum. Servs., 225 A.3d 902 (Pa. Cmwlth. 2020).

9 502 A.2d 114 (Pa. 1985).

10 Allegheny Reprod. Health Ctr. v. Pa. Dep't of Hum. Servs., 249 A.3d 598 (Pa. Cmwlth. 2021).

The Majority reverses the Commonwealth Court's orders permitting intervention, sustaining the preliminary objections, and dismissing the petition for review. I fully join the thorough and incisive Majority Opinion. I write separately to address several important issues that this case implicates:

• the application of standing principles in light of Robinson Township v. Commonwealth;¹¹

• the way in which courts frame the issues before them;

• judicial consideration of the state's interest purportedly advanced by the Coverage Exclusion;

• alternative arguments for recognizing a right to reproductive autonomy under both the United States and Pennsylvania Constitutions in the wake of Dobbs v. Jackson Women's Health Organization;¹² and

• judicial consideration of history and tradition in constitutional analyses.

11 83 A.3d 901 (Pa. 2013).

12 597 U.S. 215, 240 (2022).

I. Provider Standing

Providers have standing in this case because they have plainly established that they are aggrieved as medical organizations that provide abortion services.¹³ To the extent that the Majority analyzes standing through the invocation of Robinson Township,¹⁴I note my ongoing disagreement with descriptors used throughout that 2013 opinion, descriptors that tend to understate "the severity of the position in which a plaintiff must find herself in order to establish standing."¹⁵ In my view, it is not merely an undesirable choice that confers standing, but rather the dilemma of "[b]eing forced to choose between abdicating one's rights or willfully violating the law and subjecting oneself to sanctions."¹⁶In Robinson Township, Dr. Khan was forced into such a position.¹⁷ Notwithstanding my disagreement with the adjectives upon which the Robinson Township Court relied to identify the types of choices that will confer standing in pre-enforcement challenges, the Court's analysis in Robinson Township supports our finding of standing in this case.

13 Maj. Op. at 34.

14 83 A.3d at 923-25; Maj. Op. at 29 (repeating Robinson Township's application of standing principles to pre-enforcement review of statutory provisions where the parties "must choose between equally unappealing options and where the third option is equally undesirable").

15 Firearm Owners Against Crime v. Papenfuse, 261 A.3d 467, 495 (Pa. 2021) (Wecht, J., concurring).

16 Id.

17 Robinson Township, 83 A.3d at 924.

II. Issue Framing

The Coverage Exclusion is a sex-based classification that applies only to health care sought by women, apportioning access to health care depending upon one's sex and excluding funding for abortion, while simultaneously funding all reproductive health care for men.¹⁸ Any statute that singles out and targets the reproductive health choices of women, that creates a sex-based classification, or that arises from and perpetuates sex-based stereotypes, will trigger scrutiny under our ERA.

18 See New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841, 856 (N.M. 1998) (holding that a coverage exclusion that denied state funding for medically necessary abortions singled out for unfavorable treatment a sex-linked condition that is unique to women and is presumptively unconstitutional); Doe v. Maher, 515 A.2d 134 (Conn. Super. 1986) ("Since only women become pregnant, discrimination against (continued…) pregnancy by not funding abortion when it is medically necessary and when all other medical expenses are paid by the state for both men and women is sex oriented discrimination.").

Intervenors characterize this case as having nothing to do with the right to an abortion. Rather, Intervenors perceive the question implicated here as involving solely the right to government funding.¹⁹ In Fischer v. Department of Public Welfare, this Court made the same mistake, identifying the right that it was confronting as "the purported right to have the state subsidize the individual exercise of a constitutionally protected right, when it chooses to subsidize alternative constitutional rights."²⁰ The Court found this right "nowhere in our state Constitution," and indicated that such a right could not be considered fundamental.²¹

19 See Maj. Op. at 22.

20 502 A.2d at 121; Maj. Op. at 63.

21 Fischer, 502 A.2d at 121; Maj. Op. at 63.

It is a familiar tactic of courts that are about to deny the existence of a civil right to define the right so narrowly that the right, so defined, will not be found in the applicable constitution. In Bowers v. Hardwick, for example, the Supreme Court of the United States disparagingly and crassly characterized the issue as "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy."²² Unsurprisingly, like this Court in Fischer, the Court did not discover this right on the face of the Constitution. The Court corrected its mischaracterization in Lawrence v. Texas, recognizing that such framing "disclose[d] the Court's own failure to appreciate the extent of the liberty at stake."²³ Explaining that the Bowers formulation of the issue demeaned the claim that the individual put forward, "just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse,"²⁴ the Lawrence Court recognized that the laws involved in Bowers and in Lawrence touched upon nothing less than the liberty of personal relationships.²⁵

22 478 U.S. 186, 190 (1986).

23 539 U.S. 558, 567 (2003).

24 Id.

25 Id. (recognizing that the challenged statutes reached "the most private human conduct" and "the most private of places," seeking to control a personal relationship that, "whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals").

In Dobbs, the Court likewise reduced the issue before it to the narrowest possible articulation: the right to abortion, rather than the broader right to personal autonomy.²⁶Such thin constructions of rights myopically disregard the broader guarantees within which they sit. Framing the issue before us as implicating a right to abortion funding instead of a right to equal health care would repeat the mistakes of Bowers and Fischer, dishonoring the broader right at stake: the guarantee of equal treatment under the law.

26 597 U.S. at 216 ("[T]he Fourteenth Amendment does not protect the right to an abortion.").

This case is no more about a right to state funding of abortion, as Intervenors declare, than our decision in Hartford Accident and Indemnity Company v. Insurance Commissioner of the Commonwealth was about the right to insurance discounts,²⁷ or our decision in Cerra v. East Stroudsburg Area School District was about the right to continued employment.²⁸ Unlike the Fischer Court, and contrary to Intervenors' framing, we will not minimize the claim for equal access to health care and the right to non-discrimination in the exercise of civil rights as merely a right to state funding. If the ERA is to have any meaning, it must guarantee equal treatment for women's health care. The state cannot restrict women's access to health care in ways that the government does not restrict men's access. Referring to this case as involving merely a funding issue assumes the premise that women are not entitled to all that the law provides to men, belittling the lives of women and casting them as second-class participants in a state-funded health care scheme.

27 482 A.2d 542, 548 (Pa. 1984) (holding that the ERA is violated by an insurance company's assessment of higher insurance rates for men than for women).

28 299 A.2d 277, 280 (Pa. 1973) (holding that the termination of a pregnant woman's employment on the basis of a physical condition unique to her sex was "sex discrimination pure and simple").

III. State Interest

I agree with the Majority that, under the Equal Rights Amendment to the Pennsylvania Constitution, a sex-based distinction is presumptively unconstitutional.²⁹The right of citizens to be free from sex-based distinctions in the law, like many constitutional individual rights, partially cabins the General Assembly's authority, under its police power, to enact laws to protect the public health, safety and welfare of Pennsylvanians.³⁰ When individual rights conflict with the exercise of the government's police power, it falls to the courts to subject such legislative enactments to a constitutional analysis.³¹ Under the constitutional analysis mandated by the ERA, the government bears the burden of rebutting the presumption that a sex-based distinction is unconstitutional with evidence of a compelling state interest and evidence that there are no less intrusive means to support that expressed interest.³²

29 Maj. Op. at 123.

30 Id. at 119-20.

31 Id. at 120 (citing Nixon v. Commonwealth, 839 A.2d 277, 286 (Pa. 2003) (acknowledging that, although "the General Assembly may, under its police power, limit those rights by enacting laws to protect the public health, safety, and welfare," such laws are "subject to judicial review and a constitutional analysis")).

32 Maj. Op. at 123.

This presumption mirrors our treatment of the Non-Discrimination Provision of the Pennsylvania Constitution, under which the Commonwealth is prohibited from discriminating against any person in the exercise of a civil right.³³ When it seeks to classify individuals for different treatment on the basis of their exercise of a civil right, the Commonwealth is required to establish that those classifications are justified.³⁴ Because the Coverage Exclusion discriminates against women on the basis of their exercise of a fundamental right, it similarly can survive only if it can weather strict judicial scrutiny under which the government establishes that the classification is necessary to achieve a compelling state interest and that the classification is narrowly tailored to effectuate that interest.³⁵

33 Pa. Const. art. I, § 26 ("Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.").

34 Maj. Op. at 211.

35 Id. at 217.

Because DHS and the Commonwealth Court relied exclusively upon Fischer to support their preliminary objections and to dismiss the petition for review, the parties have not yet had the opportunity either to support or to rebut the purported state interest behind the Coverage Exclusion. They will have this opportunity on remand. An attentive reader understandably might perceive and question the absence of any substantial discussion of the state's ostensible interests in the Majority Opinion in this case. This absence does not presuppose or presume the lack of any state interest but instead simply reflects the current procedural posture of this case. At this juncture, we are deciding only the nature of the constitutional rights that are implicated by the Coverage Exclusion. It is for the court on remand to hear in the first instance from the parties about the state interest purportedly advanced by the Coverage Exclusion.

Candor compels acknowledgment of the strong and closely held beliefs of many people in this Commonwealth and their representatives who view fetal life as fully vested human life, and who place the state's interest in preserving fetal life above all other interests. For many people in this Commonwealth, the presence of a fetus renders the evaluation of the state's interest in the context of abortion restrictions such as the Coverage Exclusion inherently different from the state's interest in other contexts because abortion restrictions uniquely involve destroying embryos or fetuses. I reserve judgment regarding the nature and impact of the state's interest vis-à-vis the constitutional rights that we recognize today. Here, I offer a few observations.

At some basic level, the debate is irreducible, the competing perspectives irreconcilable, partaking as they do of profound questions about the meaning of human life and when it begins. Pennsylvania's Constitution is invoked in this appeal, and so this Court must interpret that charter as we weigh the challenge before us. Hence, while we acknowledge the reality that profound moral claims cannot always be neatly resolved with logical certainty, judgment must be had. This case having come before us, such judgment is our role.

The parties agree that the state interest advanced by the Coverage Exclusion is the preservation of the life and health of fetuses and women.³⁶ To this end, the House Intervenors add that the state interest also generally encompasses promoting childbirth.³⁷We need look no further than the Coverage Exclusion itself, as the legislation articulates the interest that it purportedly advances: to "protect hereby the life and health of the woman subject to abortion and to protect the life and health of the child subject to abortion."³⁸

36 Providers' Brief at 73; Senate Intervenors' Brief at 54; House Intervenors' Brief at 51.

37 House Intervenors' Brief at 69.

38 18 Pa.C.S. § 3202(a).

Presently, Intervenors rely upon Fischer's characterization of this interest as important and legitimate,³⁹ and further assert that this interest is compelling. The Fischer Court relied upon the state's interest as articulated in Roe v. Wade,⁴⁰ an interest in "potential life which may be destroyed" that may justify certain restrictions upon the performance of abortion.⁴¹ The Senate Intervenors assert that the state's interest bears the approval of the Supreme Court of the United States, which recognized in Roe the state's efforts to further "its legitimate goal of protecting the life of the unborn [ ] even when in so doing the State expresses a preference for childbirth over abortion."⁴²According to the Senate Intervenors, the Coverage Exclusion is narrowly tailored to serve the government's interest in protecting life because it withholds funds that would end the life of the fetus while making an exception to this restriction to protect the life of the mother. Intervenors and their amici attempt to demonstrate the consistency of the government's interest in protecting life by referring to various legislative initiatives promoting childbirth and newborn care. For example, the House Intervenors rely upon annual appropriations to fund Real Alternatives, a program to support alternatives to abortion.⁴³ The House Intervenors further rely upon the following legislation effectuating the state's interest in protecting the life and health of unborn fetuses: the Newborn Protection Act, otherwise known as the Safe Haven Law;⁴⁴ the Crimes Against the Unborn Child Act;⁴⁵ the elimination of the cause of action for wrongful birth and wrongful life;⁴⁶the prohibition of a defense against a cause of action for an injury sustained in utero;⁴⁷the Newborn Child Testing Act;⁴⁸ the Keystone Mothers' Milk Bank Act;⁴⁹ the Freedom to Breastfeed Act;⁵⁰ and the Maternal Mortality Review Act.⁵¹

39 Fischer, 502 A.2d at 122 (characterizing the governmental interests of preserving life as important and legitimate); see also Dobbs, 597 U.S. at 301 (applying rational basis review and holding that the state's interest in protecting unborn life is legitimate).

40 410 U.S. 113 (1973), overruled by Dobbs, 597 U.S. at 231.

41 Fischer, 502 A.2d at 118 (citing Roe, 410 U.S. at 162).

42 Senate Intervenors' Brief at 36.

43 House Intervenors' Brief at 52 (citing https://www.realalternatives.org/ (last viewed June 21, 2023) (describing the Real Alternatives Program as "the non-profit, charitable organization that administers the Pregnancy and Parenting Support Services for . . . Pennsylvania . . . funded by the Commonwealth.")).

44 23 Pa.C.S. §§ 6501-09.

45 18 Pa.C.S. § 2601-2609 (requiring the killing or injury of an unborn child to be charged as homicide or aggravated assault).

46 42 Pa.C.S. § 8305.

47 42 Pa.C.S. § 8306 ("Where a person has, by reason of the wrongful act or negligence of another, sustained injury while in utero, it shall not be a defense to any action brought to recover damages for the injury, or a factor in mitigation of damages, that the person could or should have been aborted.").

48 35 P.S. §§ 621-625 (mandating newborn screening).

49 35 P.S. §§ 5011-5024.

50 35 P.S. §§ 636.1-636.4.

51 35 P.S. §§ 10241-10248.

The House Intervenors also highlight administrative programs that demonstrate the state's interest in favoring childbirth, including: infant and pre-natal health services and programs administered by the Bureau of Family Health within the Department of Health; programs directed at reducing infant mortality and improving birth outcomes administered by the Division of Child and Adult Health Services, such as lead poisoning prevention and SIDS education; the provision of baby formula, newborn services, and breastfeeding support by the Division of Newborn Screening; and programs attending to the special health care needs of children and youth by the Division of Community Systems Development and Outreach. Amici support these arguments by referring to additional state-level programs and initiatives.⁵² House Intervenors and the Senate Intervenors separately invoke the state's interest in protecting women's health, supported by their amici.⁵³

52 See Amicus Curiae The Pennsylvania Pro-Life Federation at 3 (relying upon the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 5429, which bars the withholding of life sustaining treatment for a pregnant patient pursuant to a living will or health care directive); Amicus Curiae Members of the Republican Caucus of the Pennsylvania House of Representatives at 16 (relying upon the Down Syndrome Prenatal and Postnatal Education Act, 35 P.S. §§ 6241-6244 and the regulation of abortion clinics in the Health Care Facilities Act, 35 P.S. §§ 448.101-448.904b).

53 See Amicus Curiae Guiding Stars Ministries Brief at 6 (speculating that the public funding of abortions will lead to the coercion of women to obtain abortions and will subject women who refuse to obtain an abortion to violence by the father); id. at 15 (asserting that abortion has negative health consequences for women, including risk of death, cancer, birth defects, and behavioral changes); Amicus Curiae Texas Right to Life Brief at 6-8, 10-12 (including, among purported physical threats to women's health posed by abortion, a higher risk of breast cancer, organ damage, ectopic pregnancies, infections, obstetric hemorrhage, placenta previa, low birth weight in future pregnancies, stillbirth or preterm birth in future pregnancies, miscarriage in future pregnancies, and psychological injuries).

By contrast, the petition for review presents the myriad ways in which the Coverage Exclusion increases risks to women's health, including the medical risks of delayed abortion,⁵⁴ a fourteen-fold increase in maternal mortality associated with childbirth as compared to abortion,⁵⁵ the aggravation of health problems caused by pregnancy,⁵⁶ and the psychosocial harm associated with being forced to have a child that the woman does not want.⁵⁷ Providers' Amici also emphasize the increasing maternal mortality rates in the Commonwealth of Pennsylvania.⁵⁸

54 Providers' Brief at 5.

55 Id. at 5-6, 75 (observing that the rate of maternal death has more than doubled since 1994).

56 Id. at 6.

57 Id.

58 Amicus Curiae New Voices for Reproductive Justice and Pennsylvania and National Organizations Advocating for Black Women and Girls Brief at 7 (observing that although eleven percent of women in the Commonwealth are black, black women account for thirty-one percent of pregnancy-related deaths).

Providers believe that the state could advance its interest in preserving the health and life of fetuses in a more narrowly-tailored fashion that does not infringe upon a constitutional right by, for example, addressing racial and ethnic inequities in pregnancy outcomes and increasing early prenatal care.⁵⁹ The Senate Intervenors respond by asserting that it is the role of government to strike "the appropriate balance between a woman's right to reproductive choice and the Commonwealth's interest in preserving life."⁶⁰ In the Senate Intervenors' view, addressing racial and ethnic inequities in pregnancy outcomes or increasing early prenatal care would not prevent pregnancies from being terminated and therefore would not be tailored to the government's interest in protecting life.

59 Providers' Brief at 76 n.34.

60 Senate Intervenors' Brief at 55.

Although we are remanding for the development of the state's interest, I observe that, by design, the Coverage Exclusion coerces women who cannot afford private health care into carrying pregnancies to term. Any interest advanced by the Coverage Exclusion, therefore, can be understood only as an interest that is advanced at the cost of forcing women to bear children against their will. It will be DHS's unenviable burden on remand to establish that a state interest that is advanced through the coercive use of women's bodies is constitutionally compelling and that the Coverage Exclusion is narrowly tailored.

When it develops its interest, the state cannot rely upon any notion of enforcing sex roles, as any interest that relies upon sex-based stereotypes will run afoul of the ERA.⁶¹ The provision of unequal health care and the coercion of women to give birth against their will would seem to serve archaic and stereotypical notions about women, rooted in beliefs about the primacy of childbearing and the disapproval of women who feel compelled to discontinue their pregnancies. To manifest respect for a woman as a mother while manifesting disrespect for a woman's health care decisions is to perpetuate a value-laden, sex-based stereotype. Women's reproductive capacity and their ability to become mothers traditionally has long been used as justification for perpetuating distinctions between the sexes.⁶² The state may not constitutionally advance its purported interest in promoting motherhood by pre-ordaining that role for all women.

61 Hartford, 482 A.2d at 548 ("Gender-based rates such as Hartford's rely on and perpetuate stereotypes similar to those condemned in [prior] cases."); Ex rel Spriggs v. Carson, 368 A.2d 635, 639 (Pa. 1977) ("We also question the legitimacy of a doctrine that is predicated upon traditional or stereotypic roles of men and women in a marital union.").

62 Maj. Op. at 88-90; see also, e.,g., Muller v. Oregon, 208 U.S. 412, 421 (1908) (upholding legislation that limited the number of hours a woman could work in a laundry based upon a woman's "physical structure and the performance of maternal functions," as well as her historical dependence upon a man, as essential to "vigorous offspring" and "the strength and vigor of the race").

A sex equality approach to reproductive rights under the ERA requires the court below to probe the state's purported interests rather than to accept them at face value. Analyzing the state's proffer could require an examination of whether the state's purported interest in women's health and potential life is asserted only against women who do not conform to legislators' expected sexual and parenting roles or whether the state uses its policy prerogative consistently to protect potential life in other contexts and supports women who choose to give birth.⁶³ Where the legislature uses the law to coerce but not to support women in bearing children, its purported interest in potential life rings hollow.

63 See Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression, 56 Emory L. J. 815, 821 (2007) (suggesting that courts ought to evaluate the state's interest by examining whether the interest manifests only in ways that coerce women or if the state acts consistently to protect potential life in other ways).

To assess whether the Coverage Exclusion in particular is narrowly tailored to advance a compelling government interest in potential life, it may be helpful to analyze the exclusion in the larger context in order to determine whether the state advances its interest selectively in ways that depend upon controlling women.⁶⁴ A state concerned with protecting potential life could show that it advances this interest in ways that support women who choose to have children in their efforts to bear and raise a healthy child by, for instance, providing effective sex education, ensuring access to contraception, offering comprehensive health care aimed at reducing infant and maternal mortality, enacting policies that seek to reduce the negative health consequences of pregnancy, addressing the financial reasons that may cause women to choose to end a pregnancy, supporting mothers in their education and continued employment, or directing resources at reducing infant mortality.⁶⁵

64 There is nothing novel in strictly scrutinizing legislation in context to ensure that it is narrowly drawn to accomplish compelling governmental interests. In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993), for example, the Court held that challenged ordinances were "overbroad or underinclusive in substantial respects" because the government failed to pursue its proffered objectives in alternative ways that would not have burdened constitutional rights.

65 See, e.g., Reva Siegel, Prochoicelife: Asking Who Protects Life and How-and Why it Matters in Law and Politics, 93 Ind. L.J. 207, 210-11 (2018) ("As theorists of reproductive justice emphasize, many kinds of laws shape the conditions in which women conceive and bear children. Laws on sexual education, contraception, abortion, health care, welfare, and employment all can play a role in protecting new life as they change the contexts in which women make decisions about conception, abortion, and childbearing, and as they alter the resources available to pregnant women and new mothers. A government that wished to reduce the number of abortions would not rely on abortion law alone, even in jurisdictions where it is permissible to criminalize the practice.") (citations omitted).

Others have noted that the state's interest in potential life rings hollow if the state chooses to burden the rights of women while simultaneously refusing to protect actual life once a fetus becomes a child.⁶⁶ As this argument goes, without committing to protecting the welfare of human lives after they are born, the state cannot rely in good faith on the narrow tailoring of its purported interest in protecting the lives that are forming inside of human beings. If the state declines to abate the risks inherent to being born to mothers who may struggle to support children financially, it may be unpersuasive for the state to rest upon its purported interest in protecting fetal life.

66 See Leah A. Plunkett & Michael S. Lewis, The Wages of Crying Life: What States Must do to Protect Children After the Fall of Roe, 2022 Pepp. L. Rev. 14, 17-18 (2022) (asking that "those who say they are 'Pro-life' in politics and law demonstrate that they protect vulnerable life beyond the abortion context, and they do so in the most minimal and obvious fashion by committing, at least, to protecting the basic welfare of the most vulnerable children").

The state will also bear the burden of demonstrating that the Coverage Exclusion manifests the state's purported interest in fetal health. The Coverage Exclusion contains no exception for an abortion that the woman seeks because the fetus is not viable or because it suffers from a fatal impairment. Thus, it will be incumbent upon the state to explain how the Coverage Exclusion serves the state's interest in fetal health.⁶⁷

67 See New Mexico Right to Choose, 975 P.2d at 857 (finding that a coverage exclusion was not the least restrictive means of advancing the state's interest in potential life because it permitted the denial of an abortion that was necessary because of the health of the fetus).

To the extent that DHS relies upon the purported state interest in the health of the woman seeking an abortion, it bears noting that the Coverage Ban contains no exception for abortions that are medically necessary for the woman's health. Providers and their Amici have raised a plethora of evidence showing that the Coverage Exclusion operates contrary to that interest by sacrificing women's health in service of the interest in protecting fetal life. A state interest that truly was concerned with protecting women's health would contain an exception to the Coverage Exclusion for the health of the woman even when she does not face death, yet the Coverage Exclusion omits any such exception.⁶⁸ As this case proceeds on remand, and as the lower court subjects the purported government interest to a searching judicial inquiry, it will be incumbent upon the state to demonstrate how the Coverage Exclusion's denial of abortions that are medically necessary for the woman's health-which denial, according to Providers' assertions, severely undermines women's health-is somehow serving the state's interest in protecting women's health.

68 See Maher, 515 A.2d at 156-57 (rejecting as support for a coverage exclusion the proffered state interest in protecting the health of pregnant women because this interest had no application to funding restrictions for medically necessary abortions that are in service of women's health).

In establishing its interest, the Commonwealth may not run afoul of other constitutional provisions. For instance, the First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ."⁶⁹ Religiously inspired abortion restrictions may constitute the establishment of religion and prohibit individuals in the exercise of their faith (or lack thereof).⁷⁰ In Harris v. McRae, the challengers argued that the Hyde Amendment, a statute precluding the use of public funds to fund abortions, contravened the Establishment Clause because it incorporated religious doctrines regarding the sinfulness of abortion and the time at which life begins.⁷¹ The United States Supreme Court rejected this argument.⁷² Although Harris suggests that the Supreme Court is unlikely to invalidate abortion restrictions on Establishment Clause grounds, the Establishment Clause could limit the range of interests that the state is entitled to advance. The same limitation applies to the state's interest through the religious freedom guaranteed by the Pennsylvania Constitution.⁷³ As suggested by the range of amicus briefs on both sides of this case, religious perspectives often inform individual understandings of when life begins.⁷⁴ The state's interest in protecting fetal life cannot be based upon a religious view of morality or upon religious notions of when life begins or ensoulment occurs. Such spiritual matters have no more role in government policy than government has in religious doctrine.

69 U.S. Const. amend. I. These provisions are applicable to the states via the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1 (1947); Cantwell v. Connecticut, 310 U.S. 296 (1940); Hamilton v. Regents of the Univ. of California, 293 U.S. 245 (1934).

70 See Karen F. B. Gray, An Establishment Clause Analysis of Webster v. Reproductive Health Services, 24 Ga. L. Rev. 399, 402 (1990) ("Under the establishment clause . . ., the Court should have emphasized the importance of freedom from proscribed religious beliefs: prohibiting the government from showing any favoritism to a religious sect, or religion itself, and from taking any action that will be perceived as showing favoritism.").

71 448 U.S. 297, 319 (1980).

72 Id. at 320 ("The fact that the funding restrictions in the Hyde Amendment may coincide with the religious tenets of the Roman Catholic Church does not, without more, contravene [the Establishment] Clause.").

73 Pa. Const. art. I, § 3 ("[N]o human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.").

74 Compare Amicus Curiae Jewish Pro-Life Foundation, Institute for Judaism and Civilization, Inc., Beit Emunah, LLC, Rabbi Menashe Bovit and Rabbi Yakov David Cohen, Brief at 8-10 (relying upon faith to advocate for the Coverage Exclusion) with Amicus Curiae National Council of Jewish Women, Catholics for Choice, and Other Faith-Based Organizations, Brief at 5 (asserting that "[r]eligious teachings on abortion make clear that reproductive choice is fundamentally a matter of personal conscience that is informed by faith-based beliefs").

Should the Commonwealth establish a compelling government interest that is narrowly tailored, this interest will be balanced against a woman's right to equality and against her fundamental right to make decisions about her own life and well-being, particularly in the context of the serious threats upon which Providers rely. Many courts that have engaged in this kind of balancing under heightened scrutiny have held that women's decisional autonomy regarding their own well-being is primary.⁷⁵ In today's case, however, the Majority Opinion correctly leaves such matters to be decided at another time.⁷⁶

75 See, e.g., Department of Health v. Planned Parenthood of Alaska, 28 P.3d 904, 913 (Alaska 2001) ("[A]lthough the State has a legitimate interest in protecting a fetus, at no point does that interest outweigh the State's interest in the life and health of the pregnant woman."); Maher, 515 A.2d at 157 (concluding that under the federal and state constitutions the government's interest in protecting potential life "cannot outweigh the health of the woman at any stage of the pregnancy"); Right to Choose v. Byrne, 450 A.2d 925, 937 (N.J. 1982) ("A woman's right to choose to protect her health by terminating her pregnancy outweighs the State's interest in protecting a potential life at the expense of her health."); Comm. to Defend Reprod. Rights, 625 P.2d 779, 781 (Cal. 1981) ("[T]he asserted state interest in protecting fetal life cannot constitutionally claim priority over the woman's fundamental right of procreative choice.").

76 See Maj. Op. at 116 (recognizing that the question remains whether the legislative determination trumps the constitutional guarantee expressed in the Equal Rights Amendment).

IV. Federal Constitutional Law

The present opportunity to explore the demands of the ERA, the right to reproductive autonomy, and Pennsylvania's Non-Discrimination Provision arises in the wake of the Supreme Court of the United States' decision in Dobbs.⁷⁷ Although federal law in general and Dobbs in particular do not govern claims brought under the Pennsylvania Constitution, a discussion of the federal constitutional underpinnings of reproductive freedom is instructive here.

77 597 U.S. 215.

Prior to Dobbs, Roe had been the law of the land for nearly fifty years. The federal right to abortion announced in Roe ⁷⁸ and reaffirmed in Planned Parenthood v. Casey ⁷⁹was predicated upon liberty and privacy interests ostensibly protected by the Due Process Clause of the Fourteenth Amendment, which provides: "nor shall any State deprive any person of life, liberty, or property, without due process of law."⁸⁰ As a textual matter, the Due Process Clause guarantees fair legal procedures, obligating the government to engage in a fair process before depriving anyone of his or her right to life, liberty, or property. Over time, the guarantee of procedural due process began to be understood also to include substantive limitations upon the sort of laws the government could enforce.⁸¹

78 410 U.S. at 153 (holding that the right to privacy, "whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people," encompassed a woman's right to terminate her pregnancy).

79 505 U.S. 833, 851 (1991) ("These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment."), overruled by Dobbs, 597 U.S. 215.

80 U.S. Const. amend. XIV.

81 Casey, 505 U.S. at 846 ("Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years. . . the Clause has been understood to contain a substantive component.").

I have recently explored the oxymoronic extension of the Due Process Clause from procedural guarantees to substantive rights in the context of the limitations that federal substantive due process imposes upon punitive damages.⁸² Relying upon the Due Process Clause as the textual basis for substantive federal constitutional rights has been problematic from its inception, from the paradoxical framing of the concept of substantive due process to its expansion to encompass an immense body of law.⁸³ The substantive iterations of the Due Process Clause have never aligned with its procedural predicate.⁸⁴Although I believe that the United States Constitution protects unenumerated rights, I have expressed elsewhere my belief that the judicially-manufactured construction of substantive due process as a home for those rights has proven inadequate.⁸⁵ My disagreement with substantive due process is not a rejection of federal constitutional recognition of unenumerated rights but is rather an objection to tasking the procedural framework of the Due Process Clause to protect those substantive rights. As I explained in The Bert Company, the fundamental rights that the Supreme Court has attached to the Due Process Clause generally fall within the category of "none of the government's damn business," and are so fundamental to the "realm of personal liberty" that they warrant federal constitutional protection.⁸⁶

82 The Bert Co. v. Turk, 298 A.3d 44, 86-95 (Pa. 2023) (Wecht, J., concurring).

83 See Saenz v. Roe, 526 U.S. 489, 527 (1999) (Thomas, J., dissenting) (observing that "the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence").

84 See, e.g., Akhil Reed Amar, The End of Roe v. Wade, Wall St. J., (May 14, 2022) (observing that the Due Process Clause of the Fourteenth Amendment guarantees fair legal procedures, that the Texas abortion law at issue in Roe provided fair courtroom procedures, and that Roe's due process argument was "textual gibberish").

85 The Bert Co., 298 A.3d at 86-95 (Wecht, J., concurring).

86 Id. at *34 (Wecht, J., concurring).

As the Supreme Court now conceives of the Fourteenth Amendment, that provision protects only rights that are explicitly mentioned in the text of the Constitution or those that are "deeply rooted in the nation's history and tradition" and "implicit in the concept of ordered liberty."⁸⁷ After Dobbs, it is particularly important for advocates to advance and develop new legal theories, and to seek the abrogation of precedent that stands in the way. As the U.S. Supreme Court recently has demonstrated an eagerness to reconsider established precedent-even in the face of decades of reliance-advocates should not be dissuaded by the uphill battle that awaits those who might seek to enshrine unenumerated fundamental rights somewhere other than the unduly elasticized Due Process Clause.

87 Dobbs, 597 U.S. at 231 (holding that the Due Process Clause of the Fourteenth Amendment "has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty'").

Although the right to abortion as developed in Roe was held to derive from substantive due process under the Fourteenth Amendment, abortion rights supporters critical of Roe's substantive due process analysis have long examined alternative federal constitutional provisions upon which to ground such a right. In What Roe v. Wade Should Have Said, eleven scholars wrote mock judicial opinions deciding Roe upon alternative grounds.⁸⁸ Of the eight scholars writing in support of abortion rights, four of them relied in whole or in part upon theories of gender equality instead of or in addition to theories of personal autonomy or privacy.⁸⁹

88 See Jack Balkin, Roe v. Wade: An Engine of Controversy, in What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision 3, 17-18 (Jack M. Balkin ed., 2005); Scott A. Moss & Douglas M. Raines, The Intriguing Federalist Future of Reproductive Rights, 88 B.U.L.Rev. 175, 185 (2008) ("The extent to which abortion rights supporters are abandoning Roe for better arguments is perhaps clearest in Jack Balkin's bold and controversial book, What Roe v. Wade Should Have Said, in which eleven scholars wrote mock judicial opinions for Roe. Eight supported constitutional limits on abortion bans, but in a striking consensus none of the opinions adopted Justice Blackmun's original trimester framework.").

89 Moss & Rains, supra note 88, at 188.

The Supreme Court's decision to ground a right to abortion in substantive due process was not inevitable. The litigants in Roe settled upon advocating for a right to privacy in order to fit their case within the right to privacy that had been established in Griswold v. Connecticut and defined as the right to control personal matters without government interference.⁹⁰ Although Justice William O. Douglas' majority opinion in Griswold relied upon "penumbras" and "emanations" in the Bill of Rights, and ultimately settled upon the logic of privacy to strike down restrictions on contraception,⁹¹ earlier challenges to these laws had been grounded on theories of sex equality.⁹² Similarly, prior to Roe, litigants brought challenges to abortion restrictions on a number of bases, including sex inequality⁹³ as well as race and class inequality.⁹⁴ In Hall v. Lefkowitz, for example, a group of women challenged an abortion ban as being void for vagueness, as invading the right to privacy, as violating equal protection, and as denying due process.⁹⁵Activism surrounding the Hall lawsuit prompted the legislature to legalize abortion until the twenty-fourth week of pregnancy, effectively mooting the case.⁹⁶ In Abele v. Markle, lawyers emphasized the gendered and racial impact of an abortion ban (at a time when there was no heightened scrutiny for sex discrimination) under the Equal Protection Clause.⁹⁷ The action proved successful, and the court invalidated Connecticut's criminal abortion statute.⁹⁸

90 381 U.S. 479, 485-86 (1965); see also id. at 484 (holding that the "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance," and that "[v]arious guarantees create zones of privacy").

91 Id. at 485 (holding that the right to privacy permits married couples to obtain and use contraceptives); see also Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (holding that a Massachusetts statute permitting married persons to obtain contraceptives to prevent pregnancy but prohibiting distribution of contraceptives to single persons for that purpose violates the Equal Protection Clause).

92 See Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 Harv. L. Rev. 2025, 2047-48 (2021) ("Early challenges to contraceptive bans noted that such laws placed heavier burdens on women than men, while other challenges emphasized privacy as a necessary precondition for structuring intimate life along more gender-egalitarian lines").

93 Id. at 2048 ("As feminists integrated abortion into their public discourse around sex equality, calls for sex equality were central to feminist legal challenges to abortion bans. In contrast to early abortion challenges, which were framed in terms of the professional obligations and rights of physicians, feminists challenging nineteenth-century abortion bans in the 1970s explicitly framed their claims in terms of liberty, women's equality, and sexual freedom."); see also Linda Greenhouse & Reva Siegel, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling 174 (2d ed. 2012) (tracing how the "arguments for liberalizing abortion law in the name of public health gave way over time to claims of the women's movement seeking for women liberty, equality, and dignity: women's right to control their own bodies and lives; to have their voices and decisions treated with respect; and to participate as equals in private and public life").

94 See Reva B. Siegel, Roe's Roots: The Women's Rights Claims that Engendered Roe, 90 B. U. L. Rev. 1875, 1889 (2010) (reviewing arguments that "emphasized the ways in which the social organization of motherhood varied across lines of socioeconomic class and race" and that asserted that "the criminalization of abortion specially harmed poor and minority women).

95 305 F.Supp. 1030, 1031 (S.D.N.Y. 1969) ("These are four separate actions challenging New York State's abortion laws on various grounds of constitutional infirmity, including but not limited to vagueness, invasion of right of privacy, denial of equal protection of the laws and due process.").

96 See Siegel, supra note 94, at 1886.

97 452 F.2d 1121, 1123 (2d Cir. 1971) (discussing the initial claims as including an allegation that the abortion prohibition discriminated against women on the basis of sex); Abele v. Markle, 342 F.Supp. 800 (D. Conn. 1972) (on remand), vacated as moot, 410 U.S. 951 (1973).

98 Abele, 342 F.Supp. at 801-02.

Several similar lawsuits were filed around the same time, appealing for authority to a range of constitutional sources. These included arguments that abortion restrictions violated: a woman's right to life and liberty under the Fourteenth Amendment; a woman's right to equal protection under the Fourteenth Amendment; the right of poor women to equal protection under the Fourteenth Amendment; the right to privacy as protected by the Ninth Amendment; the Eighth Amendment by imposing motherhood as a punishment for engaging in sex, a form of cruel and unusual punishment; the Thirteenth Amendment as a form of involuntary reproductive servitude; and the Nineteenth Amendment by forcing women to become mothers while organizing the core activities of citizenship to exclude caregivers.⁹⁹ Broader concerns about sexual freedom and government intrusion into private, intimate life also contributed to efforts to repeal and liberalize abortion laws.¹⁰⁰All of this history indicates that, prior to Roe, litigants had advanced a number of theories to support their arguments against abortion bans and restrictions that reflected concerns independent of substantive due process.

99 See Siegel, supra note 94, at 1881-82 (collecting cases).

100 See Melissa Murray, Essay, Griswold's Criminal Law, 47 Conn. L. Rev. 1045, 1059 (2015) (discussing the concerns about selective enforcement of morals offenses).

Although amicus in Roe had advanced an argument premised upon equal protection,¹⁰¹ the parties' advocates made a strategic decision to advance their claims under substantive due process.¹⁰² The equality challenges central to the earlier cases did not make their way into the Court's articulation of abortion rights in Roe. Consequently, the Roe decision itself reflected a narrow understanding of the rights involved, focusing upon the role of physicians (rather than women), the state's police power, and the right to privacy through the lens of substantive due process.¹⁰³ Roe therefore said nothing about the relationship between the freedom to make one's personal decisions and equality for women.¹⁰⁴ In recognizing a woman's right to choose abortion in consultation with her physician as a matter of substantive due process, Roe effectively precluded the development of the right to abortion on other constitutional grounds, or at least rendered such development unnecessary. After Roe anchored the right to abortion in substantive due process, sealing off other potential wellsprings of the right under the federal Constitution, litigants and courts focused their arguments and resources upon the right as narrowly recognized in Roe.

101 See Amicus Curiae New Women Lawyers et al., at 26, Roe v. Wade, 410 U.S. 113 (1971).

102 Murray, supra note 92, at 2049 ("And critically, unlike the feminist lawyers who litigated Abele and Lefkowitz, the Roe lawyers, Linda Coffee and Sarah Weddington, did not frame their arguments in terms of sex equality or race and class inequality, choosing instead to root their claims in the privacy logic that had undergirded the Court's earlier contraception decisions.").

103 Roe, 410 U.S. at 153, overruled by Dobbs, 597 U.S. 215.

104 See Amar, supra note 84 (criticizing Roe for failing to discuss "the relationship of abortion rights to women's equality" and Dobbs for "saying little-too little-about sex and gender equality").

Meanwhile, nascent sex equality claims under the federal Equal Protection Clause struggled to gain traction. Although the federal promise of equal protection applied to women as well as to men, for the first one hundred years after the ratification of the Fourteenth Amendment, the Supreme Court did not find any law unconstitutional because it discriminated on the basis of sex. It was not until 1971, the year that the ERA was adopted in Pennsylvania, that the United States Supreme Court concluded that unequal treatment of women on the face of the law could violate the federal constitutional guarantee of equal protection.¹⁰⁵

105 Reed v. Reed, 404 U.S. 71 (1971) (applying rational basis review to hold that a statute distinguishing between men and women in estate administration violated the Equal Protection Clause of the Fourteenth Amendment).

Even then, the court declined to apply heightened scrutiny and instead applied a rational basis standard of review. In the 1973 case of Frontiero v. Richardson,¹⁰⁶ Justice William Brennan, writing for himself and three other Justices, called for the Court to recognize classifications on the basis of sex as inherently suspect, warranting strict judicial scrutiny.¹⁰⁷ In a concurring posture and writing for himself and two other Justices, Justice Lewis Powell disagreed that sex discrimination warranted strict scrutiny, citing the fact that the federal Equal Rights Amendment had been sent to the states for ratification just months before; if ratified, the Amendment would elevate sex to a suspect classification.¹⁰⁸ Justice Powell's concurrence deprived the Court of the requisite votes to subject sex discrimination to strict scrutiny under the Equal Protection Clause.

106 411 U.S. 677, 682 (1973).

107 Id. As discussed, Justice Brennan's position did not garner a majority.

108 Id. at 692 (Powell, J., concurring).

In 1974, the Supreme Court held that the Equal Protection Clause was not offended by the exclusion of pregnancy-related disability from a state disability insurance program because pregnancy "is an objectively identifiable physical condition with unique characteristics."¹⁰⁹ Accordingly, discrimination on the basis of pregnancy was not sex discrimination under the federal Constitution.¹¹⁰ In 1976, the Supreme Court adopted heightened or "intermediate" scrutiny for sex-based classifications, requiring the government to establish that the classification serves important governmental objectives that are substantially advanced by the sex-based classification.¹¹¹ Shortly thereafter, the Court resolved the abortion funding cases under the federal Constitution, holding that federal and state restrictions that barred Medicaid from funding abortions did not discriminate against a suspect class¹¹² and did not warrant heightened scrutiny.¹¹³

109 Geduldig v. Aiello, 417 U.S. 484 (1974). This characterization of pregnancy was part of the Majority's defense of its analysis from criticism by the dissent. The Geduldig Majority believed that pregnancy discrimination has nothing to do with gender discrimination because it is a physical condition:

The dissenting opinion to the contrary, this case is thus a far cry from cases like Reed v. Reed, 404 U.S. 71 (1971), and Frontiero v. Richardson, 411 U.S. 677 (1973), involving discrimination based upon gender as such. The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition- pregnancy-from the list of compensable disabilities. While it is true that only women can become pregnant it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in Reed, supra, and Frontiero, supra. Normal pregnancy is an objectively identifiable physical condition with unique characteristics. . . [L]awmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.

The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups- pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes. Id. at 497 n.20.

110 Id. at 494-95.

111 See Craig v. Boren, 429 U.S. 190, 197 (1976) ("[C]lassifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.").

112 Maher v. Roe, 432 U.S. 464, 470 (1977).

113 Harris v. McRae, 448 U.S. 297, 322-23 (1980).

While gender equality as a matter of equal protection struggled to gain traction with a majority of the United States Supreme Court, Justice Harry Blackmun cited feminist views about the equality of women in his responsive opinion in Casey.¹¹⁴ Similarly, in her dissent in Gonzales v. Carhart, Justice Ruth Bader Ginsburg attempted to tie the right to abortion to women's equality rather than to privacy.¹¹⁵ Although a majority of the Supreme Court has never adopted the rationale that reproductive rights are derived from equality principles, academics steadfastly have continued to advance that rationale for recognizing the right to abortion in the federal Constitution.¹¹⁶

114 505 U.S. at 928 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part) (recognizing that abortion restrictions implicate "constitutional guarantees of gender equality").

115 550 U.S. 124, 171-72 (2007) (Ginsburg, J., dissenting) (recognizing that abortion restrictions implicate a woman's control over her own destiny and that women have the "right to participate equally in the economic and social life of the Nation").

116 See Siegel, supra note 63, at 829; Ruth Bader Ginsburg, Essay, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375 (1985); Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. Pa. L. Rev. 955, 962-63 (1984).

Although the parties did not brief an equal protection argument in Dobbs, amicus there offered an equal protection argument which asserted that laws regulating pregnancy are sex discrimination and are subject to heightened scrutiny; that the purported state interest reflected sex-role stereotypes; and that the state deliberately chose not to adopt less discriminatory and less coercive (but more effective) means of achieving its purported goal of protecting women's health and fetal life.¹¹⁷ Dobbs without equivocation closed the door on federal equality arguments as a basis for the constitutional right, rejecting the argument advanced by amici because that theory was "squarely foreclosed by our precedents, which establish that a State's regulation of abortion is not a sex-based classification and is thus not subject to the 'heightened scrutiny' that applies to such classifications."¹¹⁸ Opening the door to arguments rooted in equal protection would require the Court to abrogate substantial precedent within its equal protection jurisprudence. The federal Equal Protection Clause presently is not primed to advance a right to abortion in terms of women's equality.

117 See Amicus Curiae Equal Protection Constitutional Law Scholars Serena Mayeri, Melissa Murray & Reva Siegel as Amicus Curiae Supporting Respondents at 1, Dobbs, 597 U.S. 215.

118 Dobbs, 597 U.S. at 236.

Nevertheless, litigants should develop and advance alternative arguments for federal equal protection and for unenumerated rights under the federal Constitution. Dobbs' rejection of federal due process as the basis for a federal right to abortion opens the door to arguments that the right to abortion is rooted elsewhere in the federal Constitution. To highlight a few possibilities in addition to the Equal Protection Clause, I discern intriguing arguments premised upon the Ninth Amendment, the Privileges or Immunities Clause, the Thirteenth Amendment, the First Amendment's Establishment Clause, the Eighth Amendment, and the Fifth Amendment.

The text of the Ninth Amendment, which provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," plainly provides that the rights enumerated in the Constitution are not an exhaustive list.¹¹⁹ I have discussed elsewhere the viability of the Ninth Amendment as "[t]he most obvious constitutional source for the recognition of unenumerated rights."¹²⁰Addressing the concern that the enumeration of certain rights in the Bill of Rights may imply the exclusion of others, the Ninth Amendment makes explicit the existence of those unenumerated rights that are protected from government infringement.¹²¹ These unenumerated rights exist alongside-and in addition to-those rights enumerated in the Bill of Rights.

119 U.S. Const. amend. IX.

120 The Bert Co., 298 A.3d at 95 (Wecht, J., concurring).

121 Id. at 20 (Wecht, J., concurring) (reviewing the debate at the nation's founding between the Anti-Federalists, who advocated for the inclusion of the Bill of Rights in the federal Constitution, and the Federalists, who feared that enumerating the Bill of Rights would suggest that other rights were not protected); see also Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 Tex. L. Rev. 1, 14 (2006) (concluding the Ninth Amendment guarantees the protection of unenumerated "individual, natural, preexisting rights"); James Wilson, Remarks in Pennsylvania Constitution Debates (Nov. 30, 1787), reprinted in 2 The Documentary History of the Ratification of the Constitution, 436 (Merrill Jensen ed., 1976) ("A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, everything that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete.").

Before Roe made its way to the Supreme Court, the lower court had anchored its ruling in the Ninth Amendment, specifically holding that this Amendment rendered the abortion regulation unconstitutional.¹²² The Supreme Court did not analyze this reasoning.¹²³ After the Supreme Court settled upon the Due Process Clause as the source of the right to abortion, courts have not attempted to return to the Ninth Amendment as the root of that right. Although largely ignored by the Supreme Court,¹²⁴the Ninth Amendment may provide a solid foundation for reproductive autonomy. In a concurring opinion in Griswold, for example, Justice Arthur Goldberg persuasively developed his position that the Ninth Amendment's protection of unenumerated rights encompasses "the right of privacy in marriage," including the right to contraception.¹²⁵While this idea has yet to find traction in the Court, academics and scholars have continued to afford the Ninth Amendment more careful and thorough consideration.¹²⁶With the overruling of Roe in Dobbs, the Ninth Amendment is ripe for reinvigoration.

122 Roe v. Wade, 314 F.Supp. 1217, 1221 (N.D. Tex. 1970) (holding "that the Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couples of their right, secured by the Ninth Amendment, to choose whether to have children"), aff'd in part, rev'd in part by Roe, 410 U.S. 113.

123 Roe, 410 U.S. at 153 ("This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.").

124 See Chase J. Sanders, Ninth Life: An Interpretive Theory of the Ninth Amendment, 69 Ind. L. J. 759, 769-72 (1994) (observing that the Supreme Court has played a negligible role in Ninth Amendment rights jurisprudence).

125 See Griswold, 381 U.S. at 495-96 (Goldberg, J., concurring) ("The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family-a relation as old and as fundamental as our entire civilization-surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution.").

126 See, e.g., Christopher J. Schmidt, Revitalizing the Quiet Ninth Amendment: Determining Unenumerated Rights and Eliminating Substantive Due Process, 32 U. Balt. L. Rev. 169, 189-90 (2003); Sanders, supra note 124, at 764-69 (advocating that "[t]he Ninth Amendment protects the right to engage in, and prevents governmental encroachment into, any activity or practice which entails no possibility of harm to either the actor or other people. Only the significant possibility of tangible physical or economic harm, not 'harm' in the form of public disapproval or moral offense, can justify governmental intrusion under the Ninth Amendment.").

In addition to the Due Process Clause and the Equal Protection Clause, the Fourteenth Amendment is home to the Privileges or Immunities Clause, which provides that "[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."¹²⁷ The text of this provision is broad enough, on its own or together with the Ninth Amendment, to anchor unenumerated rights in the federal Constitution and to protect such rights against state infringement.¹²⁸ The United State Supreme Court, however, long ago stymied the development of the Privileges or Immunities Clause as a fount of unenumerated rights, holding in the Slaughter-House Cases that the clause protects citizens only against state infringement of rights created by the federal government, as opposed to rights that predated the creation of the federal government.¹²⁹ Roundly criticized,¹³⁰ the Slaughter-House Cases "sapped the [Privileges or Immunities] Clause of any meaning."¹³¹ Although the Court has never overturned the Slaughter-House Cases, Justice Clarence Thomas has shown particular interest in revisiting the Privileges or Immunities Clause as a constitutionally legitimate source or protector of fundamental rights.¹³² Should the Supreme Court show the same willingness to revisit its precedent limiting the Privileges or Immunities Clause that it applied to precedent expanding substantive due process, that clause may, on its own or together with the Ninth Amendment, prove ripe for reconsideration as a source for protecting and guaranteeing fundamental, unenumerated rights.

127 U.S. Const. amend. XIV.

128 See Adam Lamparello, Fundamental Unenumerated Rights Under the Ninth Amendment and the Privileges or Immunities Clause, 49 Akron L. Rev. 179, 181 (2016) ("The Ninth Amendment's language means what it says: fundamental rights exist independently of the Constitution's text, and citizens are entitled to full enjoyment of those rights. These fundamental rights are the Fourteenth Amendment's Privileges or Immunities.") (emphasis in original).

129 Slaughter-House Cases, 83 U.S. 36, 79 (1872).

130 See The Bert Co., 298 A.3d at 98-101 (Wecht, J., concurring) (reviewing scholarship critical of the Slaughter-House Cases).

131 Saenz, 526 U.S. at 527 (Thomas, J., dissenting).

132 Id. at 521 (Thomas, J., dissenting) (explaining that "the terms 'privileges' and 'immunities' (and their counterparts) were understood to refer to those fundamental rights and liberties specifically enjoyed by English citizens and, more broadly, by all persons").

Several commentators have suggested that abortion restrictions may be vulnerable under the Thirteenth Amendment, the first section of which prohibits "slavery" and "involuntary servitude," except as a punishment for a crime, "within the United States, or any place subject to their jurisdiction."¹³³ Involuntary servitude encompasses "the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property and services."¹³⁴ The Thirteenth Amendment argument suggests that forcing women to give birth, to endure the dangers of pregnancy and childbirth, is tantamount to involuntary servitude, and a dystopian attempt to turn back the clock to the days of coverture, before a woman could vote or own her own property. As Professor Andrew Koppelman has argued, women who are forced to carry a pregnancy to term and to give birth against their will arguably are placed in involuntary reproductive servitude.¹³⁵

133 U.S. Const. amend. XIII.

134 Plessy v. Ferguson, 163 U.S. 537, 542 (1896) (overruled on other grounds by Brown v. Board of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483, 492 (1954)).

135 Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480, 484 (1990); see also Jamal Greene, Thirteenth Amendment Optimism, 112 Colum. L. Rev. 1733, 1739 n.36 (2012) (citing Laurence H. Tribe, American Constitutional Law § 15-10, at 1354 n.113 (2d ed. 1988) (contending that "[t]he (continued…) [T]hirteenth [A]mendment's relevance [to laws requiring a woman to continue an unwanted pregnancy] is underscored by the historical parallel between the subjugation of women and the institution of slavery")); id. (citing Donald H. Regan, Rewriting Roe v. Wade, 77 Mich. L. Rev. 1569, 1619-20 (1979) (suggesting that the constitutional argument against abortion statutes could be based on nonsubordination and physical integrity values of the Thirteenth Amendment); Siegel, supra note 94, at 1884 n.34, 1891, 1896 n.98.

This argument builds upon other creative invocations of the Thirteenth Amendment in academia.¹³⁶ According to Professor Koppelman, "abortion prohibitions violate the amendment's guarantee of personal liberty, because forced pregnancy and childbirth, by compelling the woman to serve the fetus, creates 'that control by which the personal service of one man is disposed of or coerced for another's benefit which is the essence of involuntary servitude.'"¹³⁷ Because forcing women to continue pregnancies against their will and to become mothers "makes them into a servant caste," Professor Koppelman argues, abortion prohibitions inflict "the same kind of injury that antebellum slavery inflicted" upon the enslaved, contrary to the Thirteenth Amendment.¹³⁸ Professor Laurence Tribe also believes that judicial recognition of the similarities between the historical plight of women and the enslaved underscores the Thirteenth Amendment's relevance, and has asserted that a "woman forced by law to submit to . . . carrying, delivering, and nurturing a child she does not wish to have is entitled to believe that more than a play on words links her forced labor with the concept of involuntary servitude."¹³⁹The Tenth Circuit recognized the logical force of this argument when it reversed the imposition of attorneys' fees for frivolous litigation, relying upon Professor Tribe's comments and the analogy between "restrictive state regulation of abortion and involuntary servitude."¹⁴⁰

136 See Greene, supra note 135, at 1739 (drawing upon prior examples of "Thirteenth Amendment Optimism," i.e., arguments regarding the application of the Thirteenth Amendment that deserve to "be taken seriously"); Moss & Raines, supra note 88, at 189 n.79 (reviewing Thirteenth Amendment arguments against abortion restrictions); Akhil Reed Amar, Comment, The Case of the Missing Amendments: R.A.V. v. City of St. Paul, 106 Harv. L. Rev. 124, 126 (1992) (contending that hate speech may "constitute [a] badge[] of servitude that may be prohibited under the Thirteenth and Fourteenth Amendments"); Akhil Reed Amar & Daniel Widawsky, Commentary, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 Harv. L. Rev. 1359 (1992).

137 Koppelman, supra note 135, at 484 (quoting Bailey v. Alabama, 219 U.S. 219, 241 (1911)); see also Michele Goodwin, Opinion, No, Justice Alito, Reproductive Justice Is in the Constitution, N.Y. Times (Jun. 26, 2022), https://perma.cc/E2QX-GH6W ("This Supreme Court . . . ignores the intent of the 13th and 14th Amendments, . . . which extended . . . to shielding [black women] from rape and forced reproduction.").

138 Id. at 485.

139 See Moss & Raines, supra note 88, at 189 n.80 (quoting Lawrence H. Tribe, American Constitutional Law § 15-10, at 1354 (2d. ed. 1988)).

140 Jane L. v. Bangerter, 61 F.3d 1505, 1515 (10th Cir. 1995); see also Casey, 505 U.S. at 928 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part) ("By restricting the right to terminate pregnancies, the State conscripts women's bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care.").

Blending the Thirteenth and Fourteenth Amendments together, Professor Jed Rubenfeld has argued that there is a freedom to choose one's occupation that extends to abortion rights.¹⁴¹ Relying upon the Thirteenth Amendment's prohibition of states compelling individuals to fulfill employment contracts, and finding a right to privacy in the Privileges or Immunities Clause of the Fourteenth Amendment that includes the right to choose one's calling in life, Professor Rubenfeld asserts that, "[i]f a state cannot force a man to till a field, it cannot force a woman to mother a child."¹⁴²

141 Jed Rubenfeld, Concurring in the Judgment Except as to Doe, in What Roe v. Wade Should have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision, 109, 111 (Jack M. Balkin ed., 2005)); Moss & Raines, supra note 88, at 189.

142 Id.

Before Dobbs, the Establishment Clause also had garnered interest as a potential limitation upon abortion restrictions.¹⁴³ Under this theory, closely held beliefs about when life begins and the relative value of potential life balanced against the health of the pregnant woman are to a large extent informed by one's religious views.¹⁴⁴ The Establishment Clause argument suggests that the state's interest in protecting fetal life advanced by abortion restrictions is susceptible to being rejected as an endorsement of a particular religious tenet or philosophy.¹⁴⁵ As I have noted elsewhere, under prevailing Supreme Court jurisprudence, the Free Exercise Clause has in many ways swallowed the Establishment Clause.¹⁴⁶ Nonetheless, considerable persuasive force remains in the argument that religiously infused state interests supporting abortion restrictions are "wholly illegitimate" as a violation of the Establishment Clause.¹⁴⁷

143 Gray, supra note 70, at 417 ("The establishment clause line of reasoning affords a superior basis for allowing individual free choice in abortion decisions than the right to privacy argument.").

144 See supra, note 74.

145 Gray, supra note 70, at 417-18 ("Empirical proof establishes that: (1) the general public views the issue as a religious one; (2) no consensus exists in other disciplines supplying a nonreligious ground for the alleged religious endorsement; (3) the challenged view is aligned with a particular religious belief; and (4) the government enacts abortion statutes so based upon the legislators' own religious beliefs or pressure from the groups aligned with religiously motivated, anti-abortion beliefs.") (footnotes omitted).

146 David N. Wecht, Majoritarianism Run Riot: Christian Supremacism and the Religion Clauses, 58 Gonzaga L. Rev. 93 (2023) (reviewing Am. Legion v. Am. Humanist Ass'n, 139 S.Ct. 2067, 2089 (2019) (using history and tradition to insulate the Bladensburg Cross from an Establishment Clause challenge); Shurtleff v. City of Boston, 142 S.Ct. 1583, 1593 (2002) (rejecting a challenge to a crucifix flag in front of city hall under the Establishment Clause); Kennedy v. Bremerton Sch. Dist., 142 S.Ct. 2407, 2433 (2022) (approving of public prayer by a public school football coach on the public school football field against an Establishment Clause challenge); and Town of Greece v. Galloway, 572 U.S. 565, 591-92 (2014) (approving of sectarian Christian prayers at government meetings)).

147 David R. Dow, The Establishment Clause Argument for Choice, 20 Golden Gate U. L. Rev. 479, 488 (1990); see also id. at 494 ("interests rooted in orthodox religiosity are not even legitimate, and certainly not compelling."); Abigail Sellers, How the First Amendment's Commitment to Religious Freedom Could Ironically Save Roe v. Wade…If We Let It, 94 S. Cal. L. Rev. 691, 718 (2021) (observing that, despite the unsuccessful Establishment Clause challenge in Harris, the "time has come for a potentially successful Establishment Clause challenge to a restrictive abortion law"); John Morton Cummings, Jr., The State, the Stork, and the Wall: The Establishment Clause and Statutory Abortion Regulation, 39 Cath. U. L. Rev. 1191, 1193 (1990) (suggesting that statutory abortion restrictions "lack a secular purpose, benefit specific religious organizations, unnecessarily entangle church and state, and place the state on one side of a political issue which is divided along religious lines, thus violating the establishment clause").

Prior to Roe, and in an amicus brief filed in Roe, advocates relied in part upon the Eighth Amendment to inform their understanding of abortion restrictions that carry criminal consequences and threaten cognizable harm to women or to physicians, arguing that "abortion laws inflicted cruel and unusual punishment on women not imposed on men for conduct no longer fairly understood as criminal."¹⁴⁸ Another argument views abortion regulations as takings that demand just compensation under the Fifth Amendment.¹⁴⁹And yet another argument draws upon Griswold's description of marriage as an association to ground a right to reproductive privacy in the First Amendment's freedom of intimate association.¹⁵⁰

148 Siegel, supra note 63, at 824. The Amicus Curiae Brief in Roe asserted that "[s]uch punishment involves not only an indeterminate sentence and a loss of citizenship rights as an independent person . . . [and] great physical hardship and emotional damage 'disproportionate' to the 'crime' of participating equally in sexual activity with a man . . . but is punishment for her 'status' as a woman and a potential child-bearer." Brief of Amicus Curiae on Behalf of New Women Lawyers et al. at 24, Roe, 410 U.S. 113.

149 See Nicole Knight, American Motherhood-A Taking, 43 Mitchell Hamline L.J. Pub. Pol'y & Prac. 162 (2022); Rebecca L. Rausch, Reframing Roe: Property over Privacy, 27 Berkeley J. of Gender L. & Just. 28 (2012); Susan E. Looper-Friedman, "Keep Your Laws Off My Body": Abortion Regulation and the Takings Clause, 29 New Eng. L. Rev. 253, 256 (1995); Jeffrey D. Goldberg, Comment, Involuntary Servitudes: A Property-Based Notion of Abortion-Choice, 38 U.C.L.A. L. Rev. 1597, 1609-12 (1991).

150 Kenneth L. Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 641 (1980) ("Coerced intimate association in the shape of forced childbearing or parenthood is no less serious an invasion of the sense of self than is forced marriage or forced sexual intimacy.").

I offer no judgment on these arguments, some of which strike me as more persuasive than others. Shifting the right to have an abortion from substantive due process will require the advancement of novel legal theories and the abrogation of substantial precedent. The Supreme Court that overturned Roe might not be open to alternative arguments which maintain that the right that Roe protected is located elsewhere in the Constitution. I merely observe that, in the wake of Dobbs, litigants have the opportunity to craft what may prove to be better arguments than the rickety analysis upon which Roe landed. This journey will be neither quick nor easy.

V. State Constitutional Law

Prior to Dobbs, the right to abortion articulated in Roe protected women from unduly burdensome interference with the freedom to make their own decisions. Because this right was established as a matter of federal law, there was no cause to resolve the extent to which a state constitution independently protects reproductive autonomy. Now that this federal floor has been demolished, states have a fresh opportunity to resolve with renewed vigor claims of equality and reproductive autonomy that are untethered to any possible limitations imposed by the federal constitution.¹⁵¹ This court's interpretation of our organic charter does not rely in any respect upon the tenuous hook of federal substantive due process in particular or upon the federal constitution more generally.

151 See Providers' Supplemental Brief at 1-4 (arguing that, in the wake of Dobbs, "this Court's role in protecting the right to abortion under our state constitution takes on new importance").

As the Majority develops, Article I, Section 1's broad protections for individual rights protect a woman's right to decide whether to continue a pregnancy.¹⁵² Indeed, bodily autonomy is so essential to the foundational concept of liberty that it is hard to imagine any liberty that is more fundamental than the right to make decisions about one's own body. In this respect, the guarantee of reproductive autonomy is a safeguard against tyranny. Without this guarantee,

152 Maj. Op. at 132-168.

the state would become omnipresent: It would be in its subjects' values, beliefs, opinion, worldviews, politics, and so forth. If the state is present in its subjects' minds and hearts-indeed, if the state forms its subjects' minds and hearts-the state, in very important ways, would form the institutions in civil society that individuals create. . . . And if the state forms the institutions of civil society, this is totalitarianism.¹⁵³

153 Khiara M. Bridges, The Poverty of Privacy Rights 104 n.1 (Stanford Law Books, 1st ed. 2017).

Although state control over the bodies of women and over the intimate decisions of families may not strike one as problematic if one's conscience aligns with the interests advanced by the state, this discrete and momentary alignment is no protection against the state shifting its target. Empowering the state to direct and occupy the lives of individuals in ways that serve our personal interests also empowers the state to direct and occupy our lives in ways that do not.

The right to reproductive autonomy anchored in Article I, Section 1 may also be supported by other provisions in our Constitution, including the ERA itself and Article I, Section 3. The Majority correctly foreshadows this possibility, linking the right to reproductive autonomy in Article I, Section 1 to the ERA and observing that equality would mean little if women did not possess autonomy over their own destinies.¹⁵⁴

154 Maj. Op. at 165.

As federal equal protection was sidelined as a basis of reproductive autonomy in favor of substantive due process, equality began to emerge as the dominant rationale to protect abortion access in the states.¹⁵⁵ The Majority's overview of the history leading up to the adoption of the ERA in the Commonwealth and the intent of its supporters demonstrates that the ERA's express guarantee provides fertile ground to recognize the right to abortion as a matter of sex equality. Although Providers are not arguing that the right to reproductive autonomy rests upon the ERA, focusing instead upon Article I, Section 1, the ERA may provide independent authority requiring courts to strike down abortion related restrictions that perpetuate gender-based inequality.¹⁵⁶

155 See, e.g., Maher, 515 A.2d at 159; New Mexico Right to Choose, 985 P.2d at 852-55.

156 See, e.g., Grace Kavinsky, Comment, An Opportunity for Feminist Constitutionalism, 75 Stan. L. Rev. 1209, 1221 (2023) (advocating for states to adopt a new abortion right, one based upon the express guarantees of sex equality that "lies untapped in many state constitutions in the form of an equal rights amendment. . .").

Under our ERA, legislative sex-based classifications presumptively are unconstitutional.¹⁵⁷ As we stated unequivocally in Henderson v. Henderson,

157 Maj. Op. at 123.

[t]he sex of citizens of this Commonwealth is no longer a permissible factor in the determination of their legal rights and legal responsibilities. The law will not impose different benefits or different burdens upon the members of a society based on the fact that they may be man or woman.¹⁵⁸

158 327 A.2d 60, 62 (Pa. 1974) (invalidating a statutory scheme awarding alimony pendente lite and counsel fees only to wife and not husband); see also Spriggs, 368 A.2d at 639-40 (plurality) (questioning the legitimacy of the tender years doctrine as predicated upon "traditional or stereotypic roles of men and women in a marital union" and being offensive to the equality of the sexes); Adoption of Walker, 360 A.2d 603, 605 (Pa. 1976) (invalidating statutory distinction between unwed mothers and unwed fathers); Butler v. Butler, 347 A.2d 477, 480 (Pa. 1975) (invalidating a presumption that, where a husband obtains his wife's property without adequate consideration, a trust is created in the wife's favor); Commonwealth v. Santiago, 340 A.2d 440, 445-46 (Pa. 1975) (invalidating the (continued…) presumption under the common law concept of coverture that presumed that a married woman, committing a crime in her husband's presence, was an unwilling participant); DiFlorido v. DiFlorido, 331 A.2d 174, 180 (Pa. 1975) (holding that property acquired in anticipation of or during marriage and which has been possessed and used by both spouses will, in absence of contrary evidence, "be presumed to be held jointly by the entireties."); Commonwealth v. Butler, 328 A.2d 851, 85-57 (Pa. 1974) (invalidating statutory parole eligibility for women but not men); Hopkins v. Blanco, 320 A.2d 139, 140 (Pa. 1974) (affording equal treatment of loss of consortium claims brought by husbands and wives); Conway v. Dana, 318 A.2d 324, 326 (Pa. 1974) (refusing to follow the presumption that the father must bear the principal burden of financial support for couple's children).

The state may not rebut the presumption of unconstitutionality if the legislative enactment perpetuates traditional gender stereotypes. ¹⁵⁹

159 Hartford, 482 A.2d at 548 ("[W]e have not hesitated to effectuate the [ERA]'s prohibition of sex discrimination by striking down statutes and common law doctrines 'predicated upon traditional or stereotypic roles of men and women.'") (quoting Spriggs, 368 A.2d at 639); DiFlorido, 331 A.2d at 180 (validating the equal financial contributions of both spouses in a marriage).

There is ample support in the ERA to go beyond invalidating explicit gender-based distinctions to also invalidate laws and policies that operate to perpetuate sex-based inequality. As we have recognized, "[t]he thrust of the Equal Rights Amendment is to insure [sic] equality of rights under the law . . . ."¹⁶⁰ When we talk about reproductive autonomy, what is really at stake is the prospect of equal citizenship. Although federal jurisprudence has done little to recognize reproductive autonomy as an issue of equality, it is apparent that equality is illusory without the ability to control one's body, including one's reproductive decisions. As Justice Ginsburg tirelessly articulated, equality demands "woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature."¹⁶¹ Being empowered under the law to determine the timing of motherhood protects a woman's status as an equal citizen by affording her autonomy over her sexuality, her relationships, her education, her career, her family, and her life.¹⁶²This remedial purpose is served by invalidating legislative schemes that may appear neutral on their face but operate in fact in a discriminatory manner.¹⁶³ In this respect, the ERA can be read as barring the government from singling out and targeting the reproductive health choices of women.

160 Henderson, 327 A.2d at 62.

161 Gonzales, 550 U.S. at 172 (Ginsburg, J., dissenting); see also Ginsburg, supra note 116 (arguing that grounding the right to abortion in equal protection, rather than substantive due process, would not have prompted such social opposition and backlash); Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 1185, 1200 (1992) (opining that Roe should have focused "on the women's equality dimension of the issue. . . ."). Although Justice Ginsburg understood abortion rights as a matter of equality, the Court majority continued to view challenges to abortion restrictions through the lens of substantive due process.

162 As explained by Kathryn Kolbert and David H. Gans,

Singling out abortion services for proscription or special regulation violates the core meaning of equality: it singles out women for adverse treatment. Because only women obtain abortions, the direct impact of abortion restrictions falls on a class composed only of women, while men are able to protect their health and exercise their pro-creative choices free of governmental interference. Restrictive legislation coerces only women to continue their pregnancies to term. Only women bear the harmful consequences of dangerous, illegal abortions, where the state has made safe, legal abortions unavailable.

Responding to Planned Parenthood v. Casey: Establishing Neutrality Principles in State Constitutional Law, 66 Temp. L. Rev. 1151, 1167 (1993).

163 See, e.g., DeFlorido 331 A.2d at 179 (invalidating a facially neutral policy in favor of one that would "acknowledge the Equally important and often substantial nonmonetary contributions made by either spouse"); Kemether v. Pa. Interscholastic Athletic Ass'n, 1999 WL 1012957, at *20 (E.D. Pa. 1999) (finding a violation of the ERA where a law purported to treat men and women equally but had the effect of perpetuating discriminatory practices and unfairly burdening women); see also Hon. Phyllis W. Beck & Patricia Daly, Prohibition Against Denial or Abridgement of Equality of Rights Because of Sex, The Pennsylvania Constitution: A Treatise on Rights and Liberties, § 30.1, 708 (Ken Gormley & Joy G. McNally eds. 2^nd ed. 2020) (observing that the courts of this Commonwealth have recognized that the ERA triggers "a comprehensive eradication of gender bias" and provides "protections far more extensive than afforded by the federal law.").

As the Majority observes, our own Pennsylvania Constitution was amended to protect against sex discrimination at a time when the country as a whole was debating the federal equal rights amendment.¹⁶⁴ Though ultimately unsuccessful, this federal effort was the impetus for considering state equal rights amendments across the nation and for the adoption of the ERA in Pennsylvania.¹⁶⁵ Federal proponents believed that women were relegated to an inferior social position and were exploited or were prevented from realizing their full potential.¹⁶⁶ These proponents sought an equal rights amendment at the federal level because of dissatisfaction with the Supreme Court of the United States' treatment of claims of sex-based discrimination under the federal Equal Protection Clause.¹⁶⁷ Federal opponents, on the other hand, made the case that sex equality implicated a right to abortion.¹⁶⁸ As the debates about the federal ERA evolved, reforming criminal abortion laws became a central focus of the debate, driven by arguments of equality. This constitutional dialogue led to the birth of Pennsylvania's ERA in 1971.

164 Maj. Op. at 87, 90-91.

165 Beck & Daly, supra note 163, at § 30.2, 709.

166 Id.

167 Maj. Op. at 90-91.

168 Siegel, supra note 63, at 828 ("Paradoxically, throughout the 1970s and into the early 1980s, it was the ERA's opponents rather than its proponents who were most likely to assert that abortion was a sex equality right."); Reva B. Siegel, Constitutional Culture, Social Movement Conflict and the Constitutional Change: The Case of the De Facto ERA, 94 Calif. L. Rev. 1323, 1390 (2006) ("[Phyllis] Schlafly linked together the ERA, abortion, and homosexuality in ways that changed the meaning of each, and mobilized a grassroots, 'profamily constituency' to oppose this unholy trinity.").

At the time that our Constitution was amended to protect equality of the sexes in 1971, classifications that disadvantaged women on the basis of pregnancy were already considered sex discrimination. The Pennsylvania Human Relations Commission disseminated Guidelines on Discrimination Because of Sex in 1970 and construed the Human Relations Act's bar on sex discrimination to include discrimination against employees who took time away from work due to childbirth.¹⁶⁹ We validated those guidelines in Cerra, holding that pregnancy discrimination is "sex discrimination pure and simple."¹⁷⁰

169 Pa. Human Relations Comm'n, Guidelines on Discrimination Because of Sex, 1 (24) Pa. Bull. 707-08 (Dec. 19, 1970); see also Maj. Op. at 75.

170 299 A.2d at 280.

In the aftermath of the adoption of the ERA, this Court immediately heeded its call to enshrine equality of the sexes by equalizing the availability of loss of consortium claims between husbands and wives based upon the understanding of marriage as an equal partnership.¹⁷¹ In DeFlorido, after eliminating the common law presumption that all property acquired during a marriage is owned by the husband, the Court was faced with the lower court's adoption of an alternative method of determining ownership according to who paid for the property.¹⁷² Although that approach appeared facially neutral, the Court looked deeper and determined that it was discriminatory as applied because it "would fail to acknowledge the [e]qually important and often substantial nonmonetary contributions made by either spouse."¹⁷³ This jurisprudence recognizes that the ERA may reach beyond legislation that explicitly treats men and women differently and require judicial scrutiny of laws that perpetuate sex-based inequality while appearing neutral.

171 Hopkins, 320 A.2d 139, 140 (rejecting the disparate treatment of loss of consortium claims as having "no rational or proper foundation at law" because "husband and wife are equal partners in the marital relationship, and, as such, should be treated equally under the law with respect to that relationship").

172 331 A.2d at 179-80.

173 Id. at 179.

At the time that Pennsylvanians were considering the ERA, the Supreme Court of the United States was interpreting the federal Constitution anemically, in a manner that did not effectively rectify sex discrimination. In particular, the Supreme Court requires state action, imposes a formal model of equality, applies intermediate rather than strict scrutiny, and is unwilling to examine disparate impact.¹⁷⁴ In each respect, the ERA has the capacity to provide broader protections than federal equal protection. Whatever limitations the Supreme Court perceives in the federal Equal Protection Clause, those have no bearing upon our interpretation of our own ERA.

174 Linda J. Wharton, State Equal Rights Amendments Revisited: Evaluating Their Effectiveness in Advancing Protection Against Sex Discrimination, 36 Rutgers L.J. 1201, 1205 (2005) (observing that several factors have limited the scope of protection available under the Equal Protection Clause: "(1) the requirement of state action; (2) the failure of the Supreme Court to subject claims of sex discrimination to the 'strict scrutiny' standard of review applied to claims of race discrimination; (3) the Supreme Court's application of a formal equality model of analysis that further reduces the protection afforded claims of sex discrimination when men and women are deemed not similarly situated; and (4) the unwillingness of the Supreme Court, based proof of intentional discrimination, to closely scrutinize facially neutral governmental regulations or policies that disparately impact women").

Because the U.S. Supreme Court has limited the promise of equal protection by requiring state action, it provides no protection against discrimination that occurs in the private spheres of civil society and within the family.¹⁷⁵ There is no such requirement under the ERA. "The rationale underlying the 'state action' doctrine is irrelevant to the interpretation of the scope of the Pennsylvania Equal Rights Amendment, a state constitutional amendment adopted by the Commonwealth as part of its own organic law."¹⁷⁶ Rather than adhering to federal precepts, this Court looked to the language of the ERA. Hartford suggests that "Pennsylvania ERA protections against gender discrimination are greater than those protections typically provided in federal cases requiring state action."¹⁷⁷

175 See, e.g., Shelly v. Kraemer, 334 U.S. 1, 13 (1948) ("Since the decision of the Court in the Civil Rights Cases, the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action that may fairly because said to be that of the States. That Amendment erects no shield against merely private conduct."); Civil Rights Cases, 109 U.S. 3, 11 (1883).

176 Hartford, 482 A.2d at 586 (rejecting the argument that a claim under the ERA requires state action); see also Welsch v. Aetna Insurance Co., 494 A.2d 409, 412 (Pa. Super. 1985) (extending the rationale of Hartford to claims brought directly against insurance companies).

177 Beck & Daly, supra note 163, at § 30.3, 715.

In addition, the United States Supreme Court has developed an understanding similar to Fischer's conception of "physical characteristics unique to one sex"¹⁷⁸ that was grounded upon what Professor Reva Siegel has termed "physiological naturalism": the idea that reproduction is a physiological process divorced from judgments about social roles and that it is therefore permissible to regulate reproduction through the female body.¹⁷⁹ The requirement of formal equality premised upon physiological naturalism under the Equal Protection Clause insulated from heightened scrutiny any legal burdens imposed upon women as a result of biological differences between the sexes. This framing, in turn, led to the Court's failure to understand laws discriminating on the basis of pregnancy as a form of sex discrimination. In Geduldig, the Court upheld an insurance plan that provided benefits for all work-disabling conditions except pregnancy, refusing to consider the classification as sex-discrimination because "[n]ormal pregnancy is an objectively identifiable physical condition with unique characteristics."¹⁸⁰ As Professor Siegel has argued, "this mode of reasoning about reproductive regulations obscures the possibility that such regulation may be animated by constitutionally illicit judgments about women."¹⁸¹

178 Fischer, 502 A.2d at 125.

179 See Reva Siegel, The Pregnant Citizen, from Suffrage to the Present, 19th Amend. Ed.,108 Geo. L. J. 167, 189 n.127 (2020) ("[A]ccording to the logic of physiological naturalism, because reproductive differences are objective, real, and categorically distinguish the sexes, (1) judgments about pregnancy are free of stereotypes and constitutionally suspect assumptions about social roles and (2) laws imposing unique burdens on one sex are reasonable."); Reva Siegel, Reasoning From the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 265 (1992) (describing the tendency of the courts to address "reproduction as if it were primarily a physiological process" and to evaluate "its regulation in terms focused on the female body" as "physiological naturalism"); see also Michael M. v. Superior Court, 450 U.S. 464, 469 (1981) (Stewart, J., concurring) (opining that, although gender classifications may violate the federal constitution, "they do not always do so, for the reason that there are differences between males and females that the Constitution necessarily recognizes"); id. at 498 n.4 (Stevens, J., dissenting) ("In cases involving discrimination between men and women, the natural differences between the sexes are sometimes relevant. . . . [I]f, as in this case, there is an apparent connection (continued…) between the discrimination and the fact that only women can become pregnant, it may be appropriate to presume that the classification is lawful.").

180 417 U.S. at 496 n.20; see also Cleveland Bd. of Educ. v. LaFluer, 414 U.S. 632 (1974) (applying rational basis review to a mandatory maternity leave policy that forbade teachers from working after their fourth or fifth month of pregnancy); see also Harris, 448 U.S. 297 (holding that the federal restriction contained in the Hyde Amendment was not predicated upon a constitutionally suspect class); Maher, 432 U.S. 464 (state restrictions on abortion funding involve no discrimination against a suspect class).

181 Siegel, supra note 182, at 264.

Reviewing claims of sex discrimination through a lens of formal equality that affords protection against sex discrimination only when men and women are similarly situated sets men as the standard by which women (and equality) are measured, allowing women to claim equality only to the extent that they are just like men.¹⁸² By making men the constitutional standard by which women are measured, this approach disavows equality. Without an understanding of equality that includes, rather than excepts, physical characteristics unique to one sex, reproductive capabilities would continue to justify disparate treatment of men and women. In Geduldig and elsewhere,¹⁸³ the Supreme Court's focus upon formal equality has obscured and immunized the myriad ways in which women are treated unequally precisely because of their unique physical characteristics.¹⁸⁴ Contrary to federal equal protection jurisprudence, the ERA recognizes that women's reproductive capabilities inherently are sex-based characteristics.¹⁸⁵

182 See Law, supra note 116, at 1007 ("But pregnancy, abortion, reproduction, and creation of another human being are special-very special. Women have these experiences. Men do not. An equality doctrine that ignores the unique quality of these experiences implicitly says that women can claim equality only insofar as they are like men. Such a doctrine demands that women deny an important aspect of who they are. Such a doctrine is, to say the least, reified.").

183 See Michael M., 450 U.S. at 468-69 (plurality) (extending Geduldig to uphold sex-based classifications based upon the capacity to become pregnant).

184 As it evolved, the Supreme Court's sex discrimination jurisprudence briefly began to recognize that physical differences between the sexes may only justify discriminatory laws that compensate one sex for the inequities that sex historically has suffered. In U.S. v. Virginia, the Supreme Court declared that "inherent differences" between men and women could not be used to denigrate either sex or "for artificial constraints on an individual's opportunity." 518 U.S. 515, 533-34 (1996). Rather,

[s]ex classifications may be used to compensate women for particular economic disabilities they have suffered, to promote equal employment opportunity, to advance full development of the talent and capacities of our Nation's people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.

Id. This recognition that sex-based classifications based upon biological differences deserved close scrutiny was short-lived. In Nguyen v. INS, 533 U.S. 53 (2001), the Court upheld a law distinguishing between parents based on sex, and, according to Justice Sandra Day O'Connor, further watered-down intermediate scrutiny by perpetuating stereotypes masquerading as biological differences. Id. at 78-79 (O'Connor, J., dissenting).

185 See Maj. Op. at 88-89.

The Supreme Court also limits the reach of the federal guarantee of equal protection through its standard of judicial review. Claims of racial classifications under the Equal Protection Clause are reviewed through strict scrutiny, which requires the government to establish that racial classifications are necessary to advance a compelling governmental interest.¹⁸⁶ At the same time, the Court has turned down every invitation to subject sex-based distinctions to strict scrutiny.¹⁸⁷ And it was not until 1976 that the Supreme Court adopted intermediate scrutiny for sex-based classifications, requiring the government to establish that the sex-based classification substantially advances important governmental objectives.¹⁸⁸ Under this standard, the government does not have to prove that it has compelling objectives or that less discriminatory alternatives are unavailable. As it has developed, intermediate scrutiny has proven difficult to apply and has done little to afford sufficient guidance in particular circumstances to connect a purported important government interest to a challenged sex-based classification.¹⁸⁹Rather than leading to the relatively more predictable outcomes of strict scrutiny and rational basis review, intermediate scrutiny instead delivers malleable, unpredictable results that have done little to root out and rectify sex-based classifications as highly suspect under the law.¹⁹⁰

186 See, e.g., Johnson v. California, 543 U.S. 499, 505 (2005).

187 See Frontiero, 411 U.S. at 682 (plurality) (opining that sex-based classifications "are inherently suspect and must therefore be subjected to close judicial scrutiny"); id. at 691 (Powell, J., concurring in the judgment) (refusing to provide a fifth vote to apply strict scrutiny to sex-based classifications).

188 See Craig, 429 U.S. at 197 ("classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives").

189 See, e.g., Craig, 429 U.S. at 221 (Rehnquist, J., dissenting) (opining that the test of intermediate scrutiny is "so diaphanous and elastic as to invite subjective judicial preferences or prejudices relating to particular types of legislation, masquerading as judgments"); Contractors Ass'n of Eastern Pa., Inc. v. City of Phila., 735 F.Supp. 1274, 1303 (E.D.Pa. 1990) (observing that intermediate scrutiny provides "relatively little guidance in individual cases," and that the three-tiered scrutiny "provides the court with 'buzz words'-i.e. 'compelling state interest,' 'important governmental interest' and 'rational basis"-that in practice are at times both difficult to distinguish and to apply") (citations omitted); aff'd in part and vacated in part, 945 F.2d 1260 (3d Cir. 1991).

190 See Wharton, supra note 174, at 1213 (reviewing an argument by Professor Deborah Brake that "the history of intermediate scrutiny in the lower courts demonstrates widespread confusion and inconsistent results").

In the years after the adoption of the ERA, this Court interpreted the ERA expansively, and we robustly extended its protection of sex equality beyond that afforded at the federal level.¹⁹¹ Before Fischer, the ERA had always been understood as establishing an absolute ban on sex-based classifications,¹⁹² and the Majority's adoption of strict scrutiny for sex-based distinctions returns our jurisprudence to that understanding.¹⁹³ It is a reset, placing the development of the law back on the track it was on before Fischer.

191 See Maj. Op. at 120, 123.

192 Maj. Op. at 93-98; see also Hartford, 482 A.2d at 548; Spriggs, 368 A.2d at 639 (plurality); Walker, 360 A.2d at 605; Butler, 347 A.2d at 480; Commonwealth v. Santiago, 340 A.2d 440, 445-46 (Pa. 1975); DiFlorido, 331 A.2d at 180; Henderson, 327 A.2d at 62; Commonwealth v. Butler, 328 A.2d 851, 855-57 (Pa. 1974); Conway, 318 A.2d at 326; Hopkins, 320 A.2d at 140.

193 Although the Majority does not designate its approach as strict scrutiny, I understand the searching judicial inquiry that it articulates to be just that. As the Majority describes it, "[i]t is the government's burden to rebut the presumption [of unconstitutionality] with evidence of a compelling state interest in creating the classification and that no less intrusive methods are available to support that expressed policy." Maj. Op. at 123.

The federal equal protection argument against abortion restrictions is grounded less upon asserting that restricting abortion intentionally discriminates against women and more upon asserting that such laws negatively impact women. Under the federal Constitution, laws that merely have a disparate impact on a particular group are permissible and beyond the reach of the Equal Protection Clause.¹⁹⁴ In Personal Administrator of Massachusetts v. Feeney, for example, the Court rejected a challenge to a state policy that afforded lifetime hiring preferences in state civil service to veterans, ninety-eight percent of whom were men.¹⁹⁵ Even though this policy overwhelmingly operated to the advantage of men and to the disadvantage of women, the Court relied upon its facial neutrality and the lack of any indication that the policy was the result of intentional, invidious gender discrimination to uphold it against an equal protection challenge.¹⁹⁶

194 See, e.g, Washington v. Davis, 426 U.S. 229, 239 (1976) (reviewing one hundred years of precedent to conclude that "our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional [s]olely because it has a racially disproportionate impact").

195 442 U.S. 256, 280-81 (1979).

196 Id. at 259, 274, 279 (holding that the requirement that the policy evince a discriminatory purpose requires that the decisionmaker chose a course of action "because of, not merely in spite of, its adverse effects upon an identifiable group").

In DiFlorido, this Court extended scrutiny under the ERA to laws and policies that are facially neutral but that disproportionally impact men or women.¹⁹⁷ After we invalidated the common-law rule that would have made household goods acquired during a marriage presumptively the property of the husband, we invalidated the trial court's alternative sex-neutral presumption that the owner is the spouse that purchased the property. Such a presumption "would fail to acknowledge the equally important and often substantial non-monetary contributions made by either spouse."¹⁹⁸ The Court chose instead to presume that household goods acquired during the marriage are held jointly by both spouses.¹⁹⁹ Applying Pennsylvania law, a federal court followed course and sustained a jury verdict premised upon a disparate impact claim under the ERA.²⁰⁰

197 331 A.2d 174.

198 Id. at 179.

199 Id. at 179-80.

200 Kemether, 1999 WL 1012957 at *20 (expressly rejecting the defendant's claim that the ERA did not extend to facially neutral policies: "While a practice may purport to treat men and women equally, if it has the effect of perpetuating discriminatory practices, thus placing an unfair burden on women, it may violate the ERA").

Perhaps the reason that the federal Equal Protection Clause of the Fourteenth Amendment has proven unable effectively to redress gender discrimination and inequality is that it was never intended to do so. Before she became a Justice on the United States Supreme Court, Ruth Bader Ginsburg opined that the Fourteenth Amendment was necessary to redress racial discrimination apparent during Reconstruction and was intended to enshrine constitutional protection for formerly enslaved men.²⁰¹ There is, of course, a counterargument which posits that the framers of the Fourteenth Amendment sought to ensure true freedom and to redress the subjugation of the formerly enslaved by affording the basis for the right of bodily autonomy.²⁰² But without finding a historical basis for gender equality in the Fourteenth Amendment, the Supreme Court has demonstrated a reluctance to construe the Equal Protection Clause as promising gender equality. This is particularly so following the reasoning of Geduldig, which divorced claims of discrimination on the basis of pregnancy from claims of discrimination on the basis of sex.

201 See Ruth Bader Ginsburg, Sexual Equality Under the Fourteenth and Equal Rights Amendments, 1979 Wash. U. L. Q. 161, 161 (1979) (recognizing that "the framers of the fourteenth amendment did not contemplate sex equality").

202 David H. Gans, No, Really, the Right to an Abortion Is Supported by the Text and History of the Constitution, The Atlantic (Nov. 4, 2021), https://www.theatlantic.com/ideas/archive/2021/11/roe-was-originalist-readingconstitution/620600 (last viewed July 17, 2023) ("The right of 'having a family, a wife, children, home,' as Senator Jacob Howard, who played a central role in drafting the Fourteenth Amendment, put it, guarantees to the individual free choice in matters of family and childbirth, in the same way that the freedom of speech also includes the right to not speak.").

Against this historical backdrop, the ERA can be understood as a mandate from Pennsylvania voters to do better. Rather than waiting for federal judicial opinions to catch up to popular will or for the states to ratify the federal Equal Rights Amendment, the people of this Commonwealth elevated to constitutional magnitude the guarantee of equality on the basis of sex that depends in no respect upon federal precedent.²⁰³

203 Other states have recognized the same effect of their own equal rights amendment. For example, the Washington Supreme Court has said of its state's ERA:

Presumably the people in adopting [the ERA] intended to do more than repeat what was already contained in the otherwise governing constitutional provisions, federal and state. Any other view would mean the people intended to accomplish no change in the existing law. Had such a limited purpose been intended, there would have been no necessity to resort to the broad, sweeping, mandatory language of the [ERA].

Darrin v. Gould, 540 P.2d 882, 889 (Wash. 1975).

I therefore agree that a presumption of unconstitutionality for laws based upon distinctions between sexes is the appropriate starting point to analyze the Coverage Exclusion, for the reasons set out by the Majority. My agreement in this respect does not foreclose my openness to considering other ways to effectuate the promise of the ERA. Scholars have long proposed various approaches under state equal rights amendments, some of which may warrant consideration by this Court in future cases.²⁰⁴ For example, Professor Reva Siegel has argued that "courts can enforce equal citizenship values by evaluating restrictions on reproductive decision making to ensure that such restrictions do not reflect or enforce gender stereotypes about women's agency and their sexual and family roles."²⁰⁵ In this vein, laws that constrain the reproductive freedom of women are sex discrimination because they rely upon the premise that biology is destiny, and that the capacity of women to carry and bear children determines their role in society and limits their personal autonomy.

204 See Kavinsky, supra note 156, at 1231 (reviewing a few approaches to enforce constitutional sex equality).

205 Siegel, supra note 63, at 824.

Professor Sylvia Law has proposed that abortion restrictions be scrutinized to ensure that "(1) the law has no significant impact in perpetuating either the oppression of women or culturally imposed sex-role constraints on individual freedom or (2) if the law has this impact, it is justified as the best means of serving a compelling state purpose."²⁰⁶Another approach simply focuses upon whether the law or policy perpetuates the inequality of women based upon their reproductive capacity.²⁰⁷

206 See Law, supra note 116, at 1007.

207 Kavinsky, supra note 156, at 1231. Under this view, abortion restrictions are unconstitutional because they limit the ability of pregnant individuals to decide for themselves whether to end the pregnancy, creating "a social and economic underclass based on the ability to bear children." Id. at 1232.

Future cases may call upon this Court to examine generally whether the ERA independently protects reproductive autonomy as a matter of equality, or to examine whether specific abortion restrictions codify gender inequality based upon reproductive capacity in violation of the ERA. In another case, I would be open to considering the argument that there is no equality without access to abortion, and that the ERA requires courts to strike down unsupported restrictions on reproductive autonomy that perpetuate social inequality based upon childbearing capacity, forcing women to become mothers, denying women the right to make decisions to shape their own future, or enforcing stereotypes that a woman's primary function is to beget and bear children.²⁰⁸ The ERA will continue to evolve beyond what this case demands.

208 Catharine MacKinnon, Reflections on Sex Equality Under the Law, 100 Yale L. J. 1281, 1319 (1991) ("Forced motherhood is sex inequality. Because pregnancy can be experienced only by women, and because of the unequal social predicates and consequences pregnancy has for women, any forced pregnancy will always deprive and hurt one sex only as a member of her gender. Just as no man will ever become pregnant, no man will ever need an abortion, hence be in a position to be denied one by law. On this level, only women can be disadvantaged, for a reason specific to sex, through state-mandated restrictions on abortion.").

I also observe the role that Pennsylvania's guarantee of religious freedom and freedom of conscience may play in evaluating limitations upon laws restricting reproductive autonomy. Article I, Section 3 provides that:

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience; no man can be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.²⁰⁹

209 Pa. Const. art. 1, § 3.

These provisions reflect our founders' view of religious tolerance. Where the Establishment and Free Exercise Clauses of the First Amendment are tied to religion, Article I, Section 3 expressly extends to the more sweeping realm of "conscience." One's freedom of conscience includes concepts of morals and ethics that lay beyond the structures of established religions. Article I, Section 3 therefore exceeds the limitations of the First Amendment, in both breadth and emphasis.²¹⁰ Construed broadly, Article I, Section 3 may support arguments that freedom of conscience prevents the state from interfering in decisions that involve deeply held moral and ethical views, particularly when such decisions will have a profound effect on the individual's life. To the extent that convictions of conscience and religion inform personal views on reproductive choices, freedom of conscience may protect a woman's freedom to act in accord with her own moral and ethical views and to make her own decisions.

210 See State v. Herchberger, 462 N.W.2d 393, 397 (Minn. 1990) (construing a freedom of conscience provision in the Minnesota Constitution virtually identical to ours and concluding that it is broader and stronger than the religion clauses of the federal Constitution).

VI. History and Tradition

In its historical review of the law's treatment of women prior to the enactment of the ERA,²¹¹ and in its review of reproductive autonomy in Pennsylvania,²¹² the Majority contextualizes the ERA and the common law criminalization of abortion in Pennsylvania. I agree with the Majority's historical recitation. Unlike the United States Supreme Court in Dobbs, the Majority in this case recognizes that we cannot examine particular laws in their historical context without also examining the society in which those laws developed.

211 Maj. Op. at 87-91.

212 Id. at 146-153.

For fifty years, Roe guaranteed a qualified federal right to abortion.²¹³ Roe also held that the state has an interest in "potential life which may be destroyed."²¹⁴ In Casey, the Court struck a balance between these interests, protecting the freedom of pregnant women to terminate their pregnancies without unduly burdensome interference by the state.²¹⁵

213 Roe, 410 U.S. at 153 (holding that the Due Process Clause of the Fourteenth Amendment protected "a woman's decision whether or not to terminate her pregnancy"); see also Casey, 505 U.S. at 860 (plurality) (affirming Roe's guarantee of "the constitutional liberty of the woman to have some freedom to terminate her pregnancy").

214 Roe, 410 U.S. at 162.

215 Casey, 505 U.S. at 878 ("An undue burden exists, and therefore a provision of the law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.").

In 2022, the Supreme Court of the United States overruled Roe and Casey and held that the federal constitution confers no right to abortion.²¹⁶ The Dobbs majority stated without qualification that the Due Process Clause of the Fourteenth Amendment protects unenumerated rights only to the extent that such rights are "deeply rooted in the Nation's history and tradition" and "implicit in the concept of ordered liberty."²¹⁷ Applying this test to the right to abortion, the Dobbs majority purported to examine the history of abortion legislation from the founding of the nation until 1973 in order to ascertain whether abortion was firmly rooted in the tradition and history of the United States.²¹⁸ Although the Dobbs majority dwelled on the views of common law theorists like Lord Matthew Hale, the Court grounded its holding on the point in American history surrounding the adoption of the Fourteenth Amendment in 1868, because Roe premised the right to abortion on the Due Process Clause of the Fourteenth Amendment.²¹⁹ Its historical review convinced the Dobbs majority that, at that time, three-quarters of the states prohibited abortion at all stages of pregnancy.²²⁰ Consequently, the Court held that a right to abortion could not be "deeply rooted in this Nation's history and tradition."²²¹

216 Dobbs, 597 U.S. at 292 ("We therefore hold that the Constitution does not confer a right to abortion.").

217 Id. at 231.

218 Id. at 242-50.

219 Id. at 231 (because "three quarters of the States made abortion a crime at all stages of pregnancy" at the time "when the Fourteenth Amendment was adopted," the Court concluded that the right to abortion was not "deeply rooted in this Nation's history and tradition").

220 Id. at 231-32, 260.

221 Id. at 231.

As explained above, I agree with critics who have characterized the substantive due process underpinnings of Roe as "textual gibberish."²²² At the same time, I recognize the strong criticism engendered by the historical survey upon which the Court embarked in order to justify its rejection of a historical right to abortion.²²³ Generally speaking, relying upon particular points in history during which women expressly were precluded from political participation effectively enshrines and perpetuates the legal subjugation of women. Under this approach, there is no opportunity for the status of women to advance, and no chance to repudiate the nation's discriminatory history. The nation is locked into the gendered hierarchies of our past.²²⁴

222 See, e.g., Amar, supra note 84.

223 See, e.g., Aaron Tang, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban, 75 Stan. L. Rev. 1091, 1099 (2023) (challenging the Dobbs Majority's historical analysis); Carole J. Petersen, Women's Right to Equality and Reproductive Autonomy: The Impact of Dobbs v. Jackson Women's Health Organization, 45 U. Haw. L. Rev. 305, 323 (2023) (collecting various critiques of Dobbs' historical analysis); Nancy C. Marcus, Yes, Alito, There is a Right to Privacy: Why the Leaked Dobbs Opinion is Doctrinally Unsound, 13 ConLawNOW 101 (2022) (asserting that Dobbs is based upon the "deeply flawed" premise that the right to abortion historically had not been recognized prior to Roe); see also Siegel, supra note 179, at 280-319 (1992) (exploring the reproductive freedom women enjoyed and the medical profession's successful anti-abortion campaign of the nineteenth century).

224 See Melissa Murray, Children of Men: The Roberts Court's Jurisprudence of Masculinity, 60 Hous. L. Rev. 799, 800 (2023) ("By its own terms, originalism focuses constitutional interpretation and meaning on certain key historical moments. But tellingly, those constitutional moments on which the Roberts Court frequently relies are moments in which women and people of color were expressly excluded from political participation and deliberation.").

Rather than examining the history of the Fourteenth Amendment as a Reconstruction Amendment aimed at transforming the formerly enslaved into citizens,²²⁵ the Dobbs majority relied upon the patriarchal notions of eminent authorities of old English common law, including Lord Matthew Hale.²²⁶ Hale, a seventeenth-century English jurist, thought very little of women's rights within marriage or over their own bodies.²²⁷ Elevating his own opinions over those of the women he sought to constrain, Hale's beliefs were driven by his goal of keeping women from encroaching upon the rights of men. According to Hale-who presided over the hanging of two women accused of being witches²²⁸- affording women legally enforceable rights over their own bodies was a threat to the freedom of men. As an example of this world view, Hale's opinions about rape led to centuries of common law jurisprudence that required rape victims to produce corroborating witnesses or outside evidence to support their claims, and to the belief that marital rape was never a crime because marriage amounted to the wife's (but not the husband's) irrevocable consent to sex.²²⁹ Hale's view of women was consistent with the law of coverture endorsed by Sir William Blackstone in his Commentaries on the Laws of England.²³⁰ Under the concept of coverture, a married woman had no individual rights of her own because her rights were thought to be encompassed within her husband's.²³¹

225 See U.S. Const. amend. XIII, § 1 (abolishing slavery and involuntary servitude); id. amend. XIV, § 1 (conferring citizenship and protections for individual rights); id. amend. XV, § 1 (enfranchising black men).

226 Dobbs, 597 U.S. at 242-45, 251, 272.

227 See, e.g., Sir Matthew Hale, The History of the Pleas of the Crown 635 (P.R. Glazebrook ed. 1971) (1736) (cautioning that rape "is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent"); id. at 629 (explaining Hale's belief that a spousal rape could not, by definition, be criminal because it was inconsistent with the husband's right to his wife's body).

228 See Murray, supra 224, at 857 ("Instead of focusing on what the Framers of the Fourteenth Amendment thought and understood when they were drafting the text at issue in Dobbs, the Dobbs majority's originalism is stubbornly limited to the views of common law theorists like Sir Matthew Hale, who popularized the marital rape exemption and presided over the hanging of two women as witches, and William Blackstone, whose Commentaries on the Laws of England enshrined the principle of coverture that required married women's identities and legal rights to be subsumed under the broader scope of their husbands' identities.") (citing William Renwick Riddell, Sir Matthew Hale and Witchcraft, 17 J. Crim. L. & Criminology 5, 7 (1926)).

229 See Hale, supra note 227 at 629 ("[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto the husband, which she cannot retract").

230 See Maj. Op. at 87 (quoting 1 William Blackstone, Commentaries on the Laws of England, 442 (1765) (describing the rationale of coverture)).

231 Id. at 87 (explaining the concept of coverture as demanding that, once a woman married, her legal existence disappeared).

Misogyny permeated English common law and became enshrined not only within Britain's legal system but also that of her colonies. Indeed, at the same time that the Dobbs Majority was citing Hale to justify the revocation of a constitutional right, the Delhi High Court relied upon Hale to refuse to criminalize spousal rape.²³²

232 See, e.g., Amanda Taub, The 17th-Century Judge at the Heart of Today's Women's Rights Rulings, N.Y. Times (May 19, 2022), https://www.nytimes.com/2022/05/19/world/asia/abortion-lord-matthew-hale.html (last viewed May 19, 2022) (describing a split decision in the Delhi High Court and its reliance upon the marital rape exception that Hale codified in a legal treatise written in the 1600s).

The history represented by Hale and Blackstone is not, as the Dobbs Majority seemed to believe, a neutral survey of history. It was the continuation of centuries of misogyny and oppression that our society has since rejected.²³³ The historical limitations upon reproductive freedom that the Dobbs Majority found reveal the perpetuation of the subjugation of women throughout time, just as today's abortion restrictions reveal the present unequal treatment of women. Our common law history, of which Hale and Blackstone were building blocks, is a history of "male control of, access to, and use of women."²³⁴

233 See Maj. Op. at 85-90.

234 MacKinnon, supra note 208, at 1301.

At the same time that it purported to anchor its holding in early American common law, the Dobbs majority engaged in historical fiction, disregarding evidence that undermined its view and ignoring the reproductive autonomy that American women originally exercised-autonomy that included matters of pregnancy, childbirth, and abortion.²³⁵ For example, historians have observed that, under the common law, and despite the views of Hale and his cohorts, abortion was condoned prior to quickening, the moment when the woman can feel the fetus move inside of her.²³⁶

235 See, e.g., Tang, supra note 223, at 1109, Petersen, supra note 223, at 323 (collecting critiques of Dobbs' historical analysis).

236 See, e.g., Tang, supra note 223, at 1097; Reva Siegel, Memory Games: Dobbs's Originalism as Anti-Democratic Living Constitutionalism-And Some Pathways for Resistance, 101 Tex. L. Rev. 1127, 1184 (2023) ("At the Founding and during the early republic, the common law criminalized abortion only after quickening-as late as weeks 16 to 25 in pregnancy."); Brief for American Historical Association et al. as Amici Curiae Supporting Respondents, Dobbs v. Jackson Women's Health Org., 97 U.S. 215 (2022) at 28-30; Petersen, supra note 223, at 323 (collecting critiques of Dobbs' historical analysis).

Abortion was a widespread medical procedure in colonial America.²³⁷ There were no laws prohibiting it, nor did the law prohibit herbal or other concoctions as abortifacients.²³⁸ Indeed, Benjamin Franklin included an abortion recipe in a popular textbook that he republished in Philadelphia in 1748, and the nation did not erupt into protest.²³⁹ In a 1792 episode, an unwed teenager was impregnated by her brother-in- law.²⁴⁰ Martha Jefferson, the daughter of Thomas Jefferson, sent the pregnant woman "an herb known to treat 'menstrual obstruction,' an euphemism for pregnancy," warning that the herb could "produce an abortion."²⁴¹ Thomas Jefferson later learned of the episode and expressed sympathy to his daughter for the pregnant woman, declaring "I see guilt in but one person, and not in her."²⁴² Neither the pregnant woman nor her accomplices were arrested or charged,²⁴³ consistent with the view that, "[i]n early America as in early modern England, abortion before 'quickening' was legal under common law and widely accepted in practice."²⁴⁴

237 Tang, supra note 223, at 1097.

238 Amanda Trau, The Superficial Application of Originalism in Dobbs: Could a More Comprehensive Approach Protect Abortion Rights? 50 Fordham Urb. L.J. 867, 895 (2023) (describing the widely accessible advertisements of early America for abortion and contraception, "both for the procedure and pills or potions that would cause a miscarriage").

239 Emily Feng, Manuela López Restrepo, Benjamin Franklin Gave Instructions on At-Home Abortions in a Book in the 1700s, NPR (May 18, 2022) https://www.npr.org/2022/05/18/1099542962/abortion-ben-franklin-roe-wade-supreme(continued…) court-leak (last viewed July 21, 2023); Paul Solman, Early America's Complicated History with Abortion Access, PBS (transcript) (July 31, 2022) https://www.pbs.org/newshour/show/early-americas-complicated-history-with-abortionaccess (last viewed July 21, 2023).

240 Sarah Hougen Poggi & Cynthia A. Kierner, A 1792 Case Reveals that Key Founders Saw Abortion as a Private Matter, Wash. Post (July 19, 2022) https://www.washingtonpost.com/made-by-history/2022/07/19/1792-case-reveals-thatkey-founders-saw-abortion-private-matter/ (last viewed July 20, 2023).

241 Id.

242 Id.

243 Id. (explaining that no one involved in the brother-in-law's prosecution believed that abortion was anything other than a private matter rather than a criminal act worthy of investigation or prosecution, and that "the saga demonstrates that the concept of abortion as a private matter was 'deeply rooted' in the minds of our nation's Founders").

244 Petersen, supra note 223 at 323 (observing that quickening was a subjective standard determined by the pregnant woman).

Before the mid-1800's, pregnancy-related health care was managed by women, as midwives and medical practitioners within the community, and the government did not interfere in matters of contraception, pregnancy, childbirth, or early abortion.²⁴⁵ Abortion was only legally proscribed if undertaken after quickening, usually around the fourth or fifth month.²⁴⁶ Early American history is clear on this point, as even the Dobbs majority recognized that, "[i]n this country, the historical record" indicated that only the abortion of a "quick child" was criminally proscribed in the colonies.²⁴⁷ The deeply rooted history and tradition of every state at the Founding afforded women the liberty to obtain an abortion prior to quickening.²⁴⁸

245 Siegel, supra note 179, at 281-82.

246 Murray, supra note 92, at 2035 (observing that, during the time preceding the enactment of the Fourteenth Amendment, abortion was not legally proscribed if undertaken before quickening, and recounting an academic paper read before the Rutherford County Medical Society in 1860 that discussed various techniques used to effect an abortion); Siegel, supra note 179 at 265 ("At the opening of the nineteenth century, abortion was governed by common law, and was not a criminal offense if performed before quickening-the point at which a pregnant woman perceived fetal movement, typically late in the fourth month or early in the fifth month of gestation."); see also Maj. Op. at 131 n.94.

247 Dobbs, 597 U.S. at 245 (recognizing that "[m]anuals for justices of the peace printed in the Colonies in the 18^th century typically restated the common law rule on abortion," under which "a pre-quickening abortion was not itself considered homicide" or otherwise proscribed).

248 Tang, supra note 223, at 1097 ("The [Dobbs] majority thus did not dispute that, as of the Founding, every single state in the union respected the distinction between pre-and post-quickening abortions, under which a pregnant person was at liberty to obtain the procedure prior to quickening.") (emphasis in original) (cleaned up).

It was not until the mid-nineteenth century that the anti-abortion movement sprung to life with the professionalization of medicine by all-male physicians. The mid-century abortion restrictions upon which Dobbs relied originated with the American Medical Association, founded in 1847, which sought to eradicate female health care providers and to monopolize health care as the province of male physicians.²⁴⁹ Anti-abortion campaigns targeted midwives and claimed pregnancy as medical (and male) terrain.

249 Murray, supra note 92 at 2035 (observing that the criminalization of abortion was "spearheaded largely by physicians, who associated contraception and abortion with the lay 'folk medicine' of homeopaths and midwives, many of whom were Black and Indigenous women").

The profession of medicine justified its anti-abortion campaign not as a matter of self-interest, but as a matter of public safety and the protection of women from abortion.²⁵⁰These nineteenth century physicians were transparent in this intent, arguing that regulating women's reproductive conduct was necessary to protect potential life, to keep women performing their marital and maternal obligations, and to preserve the ethnic character of the nation.²⁵¹ In framing abortion as "a vehicle of social disorder,"²⁵² the physicians argued that abortion posed broader demographic concerns because the birth rate of white, Protestant, native-born women had fallen relative to that of immigrant and nonwhite populations.²⁵³ To advance nativist interests and to protect the nation's character from being altered by these demographic changes, early anti-abortion laws sought to prevent the white, native-born birth rate from being overwhelmed by other births.²⁵⁴ This history indicates that the abortion restrictions that arose in the mid-1800s in various forms were in service of those enforcing women's perceived roles in society.²⁵⁵Concerns about the place of women in the family and in society converged with the self-serving interests of the physicians at the forefront of advocacy seeking to outlaw abortion. Although the Dobbs Court was made aware of this history, the Majority declined to attribute the motives of the anti-abortion campaigners to the legislators that restricted abortion.²⁵⁶

250 Murray, supra note 92, at 2035 (discussing physicians' argument that "abortion diverted women from their 'natural' inclination toward wifehood and motherhood, posing physiological harm to women while also imperiling marriage and the family" and that "physicians opposed both contraception and abortion because they violated the natural purpose of sexuality and women's natural role as mothers").

251 Siegel, supra note 179, at 265 ("The doctors who advocated criminalizing abortion quite openly argued that regulating women's reproductive conduct was necessary, not merely to protect potential life, but also to ensure women's performance of marital and maternal obligations and to preserve the ethnic character of the nation.").

252 Murray, supra note 92, at 2035.

253 Id. at 2036; Siegel, supra note 179, at 297-300; Petersen, supra note 223, at 323 (noting the AMA's efforts to establish a link between abortion and the declining birthrate of Protestant women, arguing that these women were shirking their natural duties and that immigrant families would soon outnumber the native-born white population).

254 Murray, supra note 92, at 2036 ("the interest in regulating, and indeed criminalizing abortion was hand in glove with the effort to ensure that America remained a white nation.").

255 Siegel, supra note 179, at 265-66 (observing that physicians led the campaign to criminalize abortion, depicting the practice as inimical to women's roles as wives and mothers and to preserve the ethnic character of the nation).

256 Dobbs, 597 U.S. at 254 (considering it to be "quite a leap" to attribute to lawmakers the motives of "supporters of the new 19th-century abortion laws").

In disregarding this history, the Dobbs Majority dismissed the reality that women lived in the mid-1800s. When the Supreme Court selectively examined the history and traditions of this nation, what it observed was the deeply rooted subjugation of women. The same time period that saw the codification of anti-abortion statutes also saw an increase in laws designed to keep women at home and out of public spaces. For example, legislative classifications excluding women from activities ranging from lawyering to voting reinforced the patriarchal notion that a woman's place was in the home.²⁵⁷ Having no right to vote, American women of that time were powerless to resist the physicians' anti-abortion crusade. Indeed, in that era, "no woman had a voice in the design of the legal institutions that rule the social order under which women, as well as men, live."²⁵⁸

257 Tracy E. Higgins, Reviving the Public/Private Distinction in Feminist Theorizing, 75 Chi.-Kent L. Rev. 847, 849 (1999) ("Historically, the line between the home as private and the rest of civil and political society as public was defined by social norms as well as law, and that line was clearly gendered. Legislative classifications that excluded women from public activities ranging from lawyering to bartending to voting reinforced the notion that women's proper place was the private sphere of home and family."); MacKinnon, supra note 208, at 1285 (describing "laws developed when women were not allowed to learn to read and write, far less vote, enunciated by a state built on the silence of women, predicated on a society in which women were chattel, literally or virtually").

258 MacKinnon, supra note 208, at 1281.

Based upon its failure to consider how the nineteenth century saw a decrease in the reproductive autonomy of women, the Dobbs majority concluded that, "[i]n this country during the 19^th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy"²⁵⁹ In particular, the Dobbs majority counted twenty-eight states that banned abortion.²⁶⁰ As Professor Aaron Tang has persuasively established, however, even this conclusion was factually incorrect.²⁶¹ At the time the Fourteenth Amendment was adopted, only sixteen states prohibited abortion prior to quickening.²⁶² This discrepancy comes from the Dobbs Majority's failure to examine whether the criminal statutes that it relied upon distinguished between pre-quickening and post-quickening procedures in every instance. Many of the twenty-eight states "continued the centuries-old common law tradition of permitting pre-quickening abortions."²⁶³

259 Dobbs, 597 U.S. at 248.

260 Id. ("By 1868, the year when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening.").

261 See, e.g., Tang, supra note 223, at 1099; Aaron Tang, Op-Ed: The Supreme Court Flunks Abortion History, La. Times (May 5, 2022), https://www.latimes.com/opinion/story/2022-05-05/abortion-draft-opinion-14thamendment-american-history-quickening (last viewed July 18, 2023).

262 Tang, supra note 223, at 1099.

263 Id. at 1128.

There are credible assertions that the Dobbs Majority's review of history was factually inaccurate and dismissive of the lives of women. These assertions engender skepticism about the selective use of history by non-historians to defeat assertions of constitutional rights. The Dobbs opinion demonstrates a failure to look beyond the shallow factual record to examine the "whys" that drive historical analysis. Why was abortion prior to quickening universally condoned prior to the mid-1800s? Why was abortion widely criminalized in the mid-1800s? Who was behind the anti-abortion movement and who benefited? What was the reaction of women at the time, and what power did they have to resist these changes? Simply referring to criminal laws that subjugated the rights of women in the past as a basis to subjugate the rights of women today, without looking critically at the misogyny that prevailed at the time, seems designed to perpetuate the wrongs of our past.

What the Dobbs Majority got right was counting Pennsylvania among those states that criminalized abortion in the mid-1800s. In 1860, it was unlawful to administer or procure an abortion "to any woman, pregnant or quick with child, or supposed and believed to be pregnant or quick with child."²⁶⁴ This was a codification of the common law applied in Mills v. Commonwealth, which criminalized abortion and rejected the quickening doctrine.²⁶⁵ Situating Mills within the social framework of the time, this decision came at the height of the separate spheres doctrine that confined women to strict, socially constructed roles as wives and mothers, and reserved the public sphere of work and politics for men. Women could not vote, were restricted in available employment, and were restricted in the ways that they could own their own property. Although Mills rejected the quickening doctrine,²⁶⁶ it did so in a case where the defendant was charged with intending to procure an abortion of a woman whose pregnancy had advanced beyond quickening, as she was "pregnant and big with child."²⁶⁷ The Mills Court did not explain itself by way of precedent or otherwise. Just four years before Mills, the Court had held that quickening was a necessary averment to support a prosecution based upon abortion.²⁶⁸ Reading Mills against its facts as we must,²⁶⁹ it would appear to have gone much further than the facts warranted. And in the context of its time, Mills aligns with the medical profession's attempts to consolidate its medical authority (to the exclusion of other professions) over women's role in reproduction in order to preserve the social order that benefited that profession.²⁷⁰

264 Dobbs, 597 U.S. at 313 (citing 1861 Pa. Laws pp. 404-405).

265 13 Pa. 631 (Pa. 1850).

266 Id. at 633 (holding that it is unnecessary under the common law to allege, in an indictment for attempt to procure an abortion, that "the woman had become quick").

267 Id. at 633-34.

268 Commonwealth v. Domain, 6 Penn. Law Jour. 29 (Pa. 1846); Maj. Op. at 152-53.

269 Maloney v. Valley Med. Facilities, Inc., 984 A.2d 478, 485-86 (Pa. 2009) (observing that "the axiom that decisions are to be read against their facts prevents the wooden application of abstract principles to circumstances in which different considerations may pertain").

270 Jonathan Gibbons Mills, who was charged with attempting to procure an abortion, was not a physician, but a dentist. Mills, 13 Pa. at 632.

In this and other legal questions, "historical consensus is elusive."²⁷¹ As Judge Carlton W. Reeves has observed in his recent and scholarly application of history and tradition in the context of the Second Amendment:

271 United States v. Bullock, 2022 WL 16649175, at *1 (S.D.Miss. 2022) (making this observation in the context of the Second Amendment).

This Court is not a trained historian. The Justices of the Supreme Court, distinguished as they may be, are not trained historians. We lack both the methodological and substantive knowledge that historians possess. The sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform. See [New York State Rifle & Pistil Association v. Bruen, 142 S.Ct. 2111, 2177 (2002)] (Breyer, J., dissenting) ("Courts are, after all, staffed by lawyers, not historians."). And we are not experts in what white, wealthy, and male property owners

thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication.²⁷²

272 Id.

In this historical endeavor, there appears to be a disconnect between what the United States Supreme Court has concluded as a matter of legal history and what historians consider to be history, untainted by the Supreme Court's tinkering. Indeed, "[m]uch has been written about the use of history by lawyers and judges. A common theme emerging from that literature is historians' frequent complaint that lawyers just can't seem to get it right."²⁷³

273 See, e.g., Jonathan D. Martin, Historians at the Gate: Accommodating Expert Historical Testimony in Federal Courts, 78 N.Y.U. L. Rev. 1518, 1525 (2003); see also Martin S. Flaherty, History "Lite" in Modern American Constitutionalism, 95 Colum. L. Rev. 523, 526 (1995) (criticizing the poor historical methods of most constitutional theorists).

Whatever one thinks about the role of history and tradition in affording rights to women under the United States Constitution, the Pennsylvania Constitution's ERA did away with the antiquated and misogynistic notion that a woman has no say over what happens to her own body.²⁷⁴ The right to reproductive autonomy originating in Article I, Section 1 and in the non-discrimination guarantee of Article I, Section 26 likewise are not constrained by federal law. These constitutional provisions protect Pennsylvanians from the powers of the state, and the state bears the burden of satisfying the means-ends analyses that the Majority articulates. The state will have this opportunity on remand.

274 See Simeone v. Simeone, 581 A.2d 162 (Pa. 1990) ("paternalistic presumptions and protections that arose to shelter women from the inferiorities and incapacities which they were perceived as having in earlier times have, appropriately, been discarded."); Hopkins, 320 A.2d 139 (recognizing the legal equality of spouses within a marriage).

CONCURRING AND DISSENTING OPINION

TODD CHIEF JUSTICE

I join sections I and II(A) of the majority opinion, which concludes that Appellants - providers of abortion services in the Commonwealth - have standing to pursue the instant litigation on their own behalf, and on behalf of patients who are eligible for medical assistance, but are denied coverage for sought-after abortion services pursuant to Section 3215(c) ¹ and (j) (collectively, "Coverage Exclusion") of the Abortion Control Act, 18 Pa.C.S. § 3201-3220. I also join section II(B) of the majority opinion, which concludes that the Commonwealth Court erred in permitting various state legislators ("Intervenors") to intervene in this matter pursuant to Pennsylvania Rule of Civil Procedure 2327, based on Intervenors' assertion that a decision invalidating the Coverage Exclusion would affect their authority to appropriate government funds. However, despite the thoughtful and comprehensive exposition by my learned colleague, I dissent from the remainder of the majority opinion and its ultimate mandate, as I conclude that we are bound to follow our decision in Fischer v. Department of Public Welfare, 502 A.2d 114 (Pa. 1985), under the doctrine of stare decisis.

1 Section 3215(c) provides:

(c) Public funds.No Commonwealth funds and no Federal funds which are appropriated by the Commonwealth shall be expended by any State or local government agency for the performance of abortion, except:

(1) When abortion is necessary to avert the death of the mother on certification by a physician. When such physician will perform the abortion or has a pecuniary or proprietary interest in the abortion there shall be a separate certification from a physician who has no such interest.

(2) When abortion is performed in the case of pregnancy caused by rape which, prior to the performance of the abortion, has been reported, together with the identity of the offender, if known, to a law enforcement agency having the requisite jurisdiction and has been personally reported by the victim.

(3) When abortion is performed in the case of pregnancy caused by incest which, prior to the performance of the abortion, has been personally reported by the victim to a law enforcement agency having the requisite jurisdiction, or, in the case of a minor, to the county child protective service agency and the other party to the incestuous act has been named in such report.

18 Pa.C.S. § 3215(c).

Preliminarily, I note that this case does not concern the right to an abortion. Rather, the issue before this Court is whether the Commonwealth, because it provides funds to indigent women who choose to give birth, is also required to provide funds to indigent women for the performance of an abortion when the abortion is not necessary to preserve the life of the mother, or where the pregnancy did not result from rape or incest.

Appellants contend that the Coverage Exclusion violates the Equal Rights Amendment of Art. I, § 28 of the Pennsylvania Constitution² because, inter alia, it treats women differently "on the basis of a physical condition peculiar to their sex." Appellants' Brief at 35. Appellants further maintain that the Coverage Exclusion violates the equal protection guarantees contained in Art. I, § 1; Art. I, § 26; and Art. III, § 32, of the Pennsylvania Constitution,³ because it favors one fundamental right (the right to carry a pregnancy to term) over another (the right to terminate a pregnancy). Appellants' Brief at 69.

2 Article I, Section 28 provides: "Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual." Pa. Const. art. I, § 28.

3 Article I, Section 1 provides: "All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness." Pa. Const. art. I, § 1. Article I, Section 26 provides: "Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of an any civil right, nor discriminate against any person in the exercise of any civil right." Pa. Const. art. I, § 26. Article III, Section 32 provides, in part: "The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law," and sets forth specific examples. Pa. Const. art. III, § 32. As noted by the Majority, although Appellants identify three provisions that "collectively guarantee equal protection of the law and prohibit discrimination," see Majority Opinion at 167, their argument relative to Art. I, § 1 concerns the recognition of an inherent right to reproductive autonomy and not equal protection, and they fail to demonstrate that Art. III, § 32 applies herein. See id. at 177. Thus, Appellants' equal protection argument rises and falls on Art. I, § 26.

Central to this appeal, however, this Court addressed these identical issues more than forty years ago in our unanimous decision in Fischer. In Fischer, the appellants -who included, inter alia, several recipients of medical assistance who were pregnant and desired abortions, abortion providers, and an organization which counseled rape victims - challenged the coverage exclusion contained in the Abortion Control Act of 1982 (the "Act") on the basis that it violated Art. I, § 28, and the equal protection guarantees contained in Art. I, § 1, Art. I, § 26, and Art. III, § 32, of the Pennsylvania Constitution. As the majority observes, for present purposes, there is no "meaningful difference" between the language of Section 3215(c) as it appeared in 1982, and the current language of Section 3215(c). Majority Opinion at 56 n.32.⁴

4 For this reason, I refer to "Coverage Exclusion" when discussing the Abortion Control Act of 1982 and the current version of the Abortion Control Act.

We first considered their assertion that, because the Commonwealth provided funds to indigent women for childbirth, it was "equally obliged to fund an abortion," Fischer, 502 A.2d at 116, and we began by examining the relevant federal jurisprudence. We observed that the United States Supreme Court had acknowledged that states have a significant interest in protecting potential life, and may take certain steps to further that interest by encouraging childbirth. Id. at 118 (citing Roe v. Wade, 410 U.S. 113, 162 (1973)⁵; Beal v. Doe, 432 U.S. 438, 446 (1976)). We further noted that, in Maher v. Roe, 432 U.S. 464 (1970), the high Court held that there is "no constitutional requirement for a state to 'accord equal treatment to both abortion and childbirth,'" Fischer, 502 A.2d at 118 (quoting Maher, 432 U.S. at 470), and that "it was not unconstitutional for a state to pay for the expenses of childbirth while at the same time refusing to pay for nontherapeutic abortions." Fischer, 502 A.2d at 118. Finally, we recognized that, in Harris v. McRae, 448 U.S. 297 (1980), the United States Supreme Court held that a state may enact a statute limiting funding to medically necessary abortions without offending the United States Constitution. Fischer, 502 A.2d at 118. We highlighted the high Court's reasoning in Harris that a woman's freedom of choice does not carry with it "a constitutional entitlement to the financial resources to avail herself to the full range of protected choices" because, as explained in Maher, "although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category." Fischer, 502 A.2d at 119 (quoting Harris, 448 U.S. at 316) (emphasis original).

5 As discussed by the majority, and below, in Dobbs v. Jackson Women's Health Organization, 142 S.Ct. 2228 (2022), the United States Supreme Court overruled Roe, and held that the federal constitution does not confer a right to abortion.

Notably, this Court acknowledged in Fischer the appellants' argument that our state constitution should be interpreted more expansively than the United States Supreme Court has interpreted the federal constitution. Id. at 120.⁶ Moreover, we explained that we are "free to interpret our Constitution in a more generous manner than the federal courts," and we observed that we have "not been shy" in doing so. Id. at 121. Nevertheless, we noted that, while the high Court's interpretation of the federal constitution is not binding, we may use as guidelines in interpreting our state constitution the same principles used by the high Court. Id.

6 In this regard, although the Fischer Court did not specifically refer to Art. I, § 26 in setting forth the appellants' argument, the appellants' argument necessarily was limited to § 26, as Art. I, § 28 has no concomitant provision in the federal constitution.

Ultimately, we determined in Fischer that the provisions of our state constitution did not afford the appellants relief. Specifically, with respect to the appellants' claim that the Coverage Exclusion violated equal protection principles under Art. I, § 1, and Art. III, § 32, we explained that, for purposes of analyzing state equal protection claims, there are three types of classifications, each of which requires a specific standard of judicial review, or scrutiny. Id. at 121 (citing James v. Southeastern Pennsylvania Transportation Authority, 477 A.2d 1302, 1306 (Pa. 1984)). Classifications which implicate neither suspect classes, nor fundamental rights, will be sustained if they meet the rational basis test, which requires that the classification be directed at the accomplishment of a legitimate governmental interest, and does so in a manner that is not arbitrary or unreasonable. Id. at 122. Classifications that involve a suspect class, or burden a fundamental right, will be sustained only if they survive strict scrutiny. Id. at 121 (citation omitted). Finally, if a classification involves an important, but not a fundamental right, or if it consists of a sensitive classification, a heightened, or intermediate, level of scrutiny is warranted. Id. at 121 (citation omitted).

We observed in Fischer that the right at issue was the "purported right to have the state subsidize the individual exercise of a constitutionally protected right, when it chooses to subsidize alternative constitutional rights." Id. We further noted that this right is not found in our state constitution, and, thus, cannot be considered a fundamental right. Id. Finally, we determined that the Coverage Exclusion did not affect a suspect class, as neither the United States Supreme Court, nor this Court, has held that "financial need alone identifies a suspect class for purposes of equal protection analysis." Id. at 121-22 (citation omitted). Accordingly, we concluded that the state's "disparate treatment" of indigent and non-indigent women, id., need only satisfy the rational basis test. Id. at 123. Finding that the Coverage Exclusion was directed at the accomplishment of a legitimate governmental interest, namely, the preservation of life, and that it did so in a manner that was not arbitrary or unreasonable - i.e., by preserving the life of the unborn child unless an abortion was necessary to save the life of the mother, thereby preserving the maximum number of lives - we held that the Coverage Exclusion satisfied the rational basis test, and, therefore, did not violate our state constitution.⁷

7 We noted that, even assuming that the classification warranted heightened (intermediate) scrutiny, it would still pass constitutional muster. Id. at 123.

We next considered in Fischer the appellant's claim that the Coverage Exclusion violated Art. I, § 26, which provides, as pertinent here, that the government shall not "discriminate against any person in the exercise of any civil right." Pa. Const. art. I, § 26. We explained that, although Art I, § 26 "does not in itself define a new substantive civil right," it does make "more explicit the citizenry's constitutional safeguards not to be harassed or punished for the exercise of their constitutional rights." Fischer, 502 A.2d at 123 (citation omitted). We cautioned, however, that Art. I, § 26 cannot "be construed as an entitlement provision; nor can it be construed in a manner which would preclude the Commonwealth, when acting in a manner consistent with state and federal equal protection guarantees, from conferring benefits upon certain members of a class unless similar benefits were accorded to all." Id.

Recognizing that we had not previously adopted a method for analyzing claims under Art. I, § 26, we determined in Fischer that it was appropriate to utilize the "penalty" analysis used by the United States Supreme Court, the focus of which is on whether a person has been penalized for exercising a constitutional freedom. Id. at 123-24 (citing, inter alia, Shapiro v. Thompson, 394 U.S. 618 (1969)). We noted that, under this analysis, relief is not warranted in situations "where a state merely seeks to encourage behavior by offering incentives, as distinct from where a state refuses to subsidize a person's exercise of a constitutional right." Id. (citing Maher, supra). Observing that the government, through the Coverage Exclusion, was not penalizing individuals for exercising a right to terminate their pregnancies, but, rather, "merely decid[ing] not to fund that choice in favor of an alternative social policy," we held that the state's actions did not offend Art. I, § 26. Id.

Finally, we considered the appellants' claim that the Coverage Exclusion violated the Equal Rights Amendment in Art. I, § 28 of the Pennsylvania Constitution. The appellants in Fischer argued that the Act's disparate treatment of pregnant women who chose to give birth and those who chose to have an abortion violated the Equal Rights Amendment because "all medically necessary services for men are reimbursable, while a medically necessary abortion, which by its nature can only affect women, is not reimbursable," and, therefore, the state "adopted a standard entirely different from that which governs eligibility for men." Fischer, 502 A.2d at 124 (record citation omitted).

In addressing the appellants' argument, we first reiterated the purpose and intent of § 28, quoting from our 1974 decision in Henderson v. Henderson, 327 A.2d 60 (Pa. 1974):

The thrust of the Equal Rights Amendment is to insure equality of rights under the law and to eliminate sex as a basis for distinction. The sex of citizens of this Commonwealth is no longer a permissible factor in the determination of their legal rights and legal responsibilities. The law will not impose different benefits or different burdens upon the members of a society based on the fact that they may be man or woman.

Fischer, 502 A.2d at 124 (quoting Henderson, 327 A.2d at 62).

We then observed that we have applied and relied on Art. 1, § 28 "numerous times" to strike or modify various rules which we found "offensive to its terms." Id. at 124-25 (collecting cases). We explained that,

[i]n each of [these] cases, we have vigilantly protected the rights of women and men to be treated without reliance upon their sexual identity. In doing so we have recognized that distinctions which "rely on and perpetuate stereotypes" as to

the responsibilities and capabilities of men and women are anathema to the principles of the [Equal Rights Amendment].

Id. at 125.

We rejected, however, the Fischer appellants' contention that, because only a woman can have an abortion, the Act necessarily utilizes "sex as a basis for distinction," emphasizing that "the basis for the distinction here is not sex but abortion, and the statute does not accord varying benefits to men and women because of their sex, but accords varying benefits to one class of women, as distinct from another, based on a voluntary choice made by the women." Id. We further stated:

The mere fact that only women are affected by this statute does not necessarily mean that women are being discriminated against on the basis of sex. In this world there are certain immutable facts of life which no amount of legislation may change. As a consequence there are certain laws which necessarily will only affect one sex. Although we have not previously addressed this situation, other ERA jurisdictions have; and the prevailing view amongst our sister state jurisdictions is that the [ERA] "does not prohibit differential treatment among the sexes when, as here that treatment is reasonably and genuinely based on physical characteristics unique to one sex."

Id. (citations omitted). For all of the foregoing reasons, we concluded in Fischer that the Coverage Exclusion was not unconstitutional because it provided funds to indigent women for childbirth, but not for "nontherapeutic abortions." Id. at 118.

As noted, although the parties are different, Appellants in the case sub judice raise precisely the same arguments we addressed in Fischer - i.e., that the Coverage Exclusion violates Art. I, § 28 because it uses sex as a basis of distinction, and violates Art. I, § 26 because it favors the right to childbirth over the right to terminate a pregnancy. Indeed, the majority acknowledges as much. See Majority Opinion at 55 ("In Fischer, . . . the Court addressed arguments like those presented here"); id. at 206 ("we are faced with the same question answered by this Court in Fischer"). Despite this, the majority concludes that we are not bound to follow our unanimous decision in Fischer, and, indeed, overrules it. I cannot agree.

As we repeatedly have explained, the doctrine of stare decisis "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Stilp v. Commonwealth, 905 A.2d 918, 954 n.31 (Pa. 2006) (citation omitted). It aims to foster the conviction that our decisions reflect the reasoned thought of a collective, of the court as a whole, and not the individual views of the judges who happen to be seated on the court at that time. Thus, pursuant to the doctrine of stare decisis, "for purposes of certainty and stability in the law, 'a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different.'" Id. at 966-67 (citation omitted).

Of course, stare decisis "is not a vehicle for perpetuating error, but rather a legal concept which responds to the demands of justice and, thus, permits the orderly growth processes of the law to flourish." Id. at 967 (citation omitted). Further, the demand of stare decisis "is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions." Commonwealth v. Alexander, 243 A.3d 177, 197 (Pa. 2020) (citing Agostini v. Felton, 521 U.S. 203, 235 (1997)). At the same time, we have acknowledged that legislators "rely on this Court's interpretation of the law and precedent when crafting legislation, and that such reliance should not be undercut except for good reasons." Stilp, 905 A.2d at 967.

In determining whether it is appropriate to overrule precedent, we must consider a number of factors, including the quality of reasoning of the decision, its consistency with other decisions, the age of the decision, reliance interests, and the workability of the existing standard. Knick v. Twp. of Scott, Pennsylvania, 139 S.Ct. 2162, 2177-78 (2019). Critically, "[o]verruling a case always requires 'special justification'-over and above the belief 'that the precedent was wrongly decided.'" Kimble v. Marvel Entm't, LLC, 576 U.S. 446, 447 (2015) (citation omitted).

Beginning with Art. I, § 28, I cannot conclude Fischer's reasoning was "patently flawed." Majority Opinion at 109. Indeed, Fischer appropriately recognized the underlying purpose and intent of the provision, which, as we described in Henderson, supra, is "to eliminate sex as a basis of distinction," and eliminate the imposition of "different benefits or different burdens" on the basis of sex. Fischer, 502 A.2d at 124 (quoting Henderson, 327 A.2d at 62).

We observed in Fischer that the Coverage Exclusion does not impose different benefits or burdens on any individual based on the fact that they are a man or woman. Rather, the Coverage Exclusion distinguishes between two different groups of women - those who choose to have a child and those who choose to terminate a pregnancy. For this reason, we determined that it was not sex-based.

The majority suggests that Fischer's reasoning was flawed because it ignored that "[l]aws that create subclasses within one sex have been found violative of the Equal Rights Amendment," Majority Opinion at 111, and it cites several cases in support of its position, including Hartford Accident and Indemnity v. Insurance Comm'n, 482 A.2d 542 (Pa. 1984) (holding that an insurance company's calculation of motor vehicle insurance rates that factored in gender ran afoul of the Art. I, § 28), and Henderson, supra (holding that provisions of the divorce code that allowed alimony pendente lite to women but not men violated Art. I, § 28). However, as we explained in Fischer, in those cases, the disparate treatment was based on "distinctions which 'rely on and perpetuate stereotypes' as to the responsibilities and capabilities of men and women,'" whereas the Coverage Exclusion, which affects only women, "accords varying benefits to one class of women, as distinct from another, based on a voluntary choice made by the women." Fischer, 502 A.2d at 125. In my view, this was not an unreasonable conclusion by the Fischer Court.

I also disagree with the majority's suggestion that Fischer's Art. I, § 28 analysis was inconsistent with this Court's prior holding in Cerra v. East Stroudsberg Area School District, 299 A.2d 277 (Pa. 1973). See Majority Opinion at 98. In Cerra, a school district regulation required women who were more than five months pregnant to resign. We concluded that the regulation constituted sex discrimination because it was based on an unsupported and erroneous presumption that pregnancy was a disability that warranted dismissal, and there was no equivalent presumption applicable to any disability attributable to men. In Fischer, we specifically distinguished Cerra, observing that "the decision whether or not to carry a fetus to term is so unique as to have no concomitance in the male of the species," and, therefore, that the Coverage Exclusion was "in no way analogous to those situations where the distinctions were 'based exclusively on the circumstance of sex, social stereotypes connected with gender, [or] culturally induced dissimilarities.'" Fischer, 502 A.2d at 126 (citations omitted).

Finally, while the majority asserts that its own Edmunds ⁸ analysis "leads to the unremarkable conclusion that to treat woman differently based on a characteristic unique to her sex is to treat her differently because of her sex," Majority Opinion at 83, I note that an Edmunds analysis is most salient when the state constitutional provision at issue has a federal counterpart. There is no federal counterpart to our Equal Rights Amendment and, thus, little force to an Edmunds analysis in this regard. See League of Women Voters v. Commonwealth, 178 A.3d 737, 802-03 (Pa. 2018) ("Free and Equal Elections Clause has no federal counterpart, and, thus, our seminal comparative review standard described in Commonwealth v. Edmunds [] is not directly applicable."). Moreover, every Pennsylvania case cited by the majority in its Edmunds analysis was discussed and/or acknowledged by this Court in Fischer.

8 Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991).

I also am unable to conclude that Fischer's treatment of the appellants' Art. I, § 26 claim "suffers from incomplete reasoning and a disregard of our unique constitutional provisions in favor of blind (and incomplete) adherence to federal principles of Equal Protection." Majority Opinion at 212. As discussed above, for purposes of analyzing claims under Art. I, § 26, we embraced the "penalty" analysis utilized by the high Court, which focuses on whether a person has been penalized for exercising a constitutional freedom. Fischer, 502 A.2d at 123-24. The majority suggests that Fischer "offered no insight as to what constitutes a 'penalty' for purposes of our constitutional analysis," and it further submits that, "[p]ursuant to its most natural meaning, the term 'discriminate,' does not mean punishment, but rather partiality," Majority Opinion at 210-11. However, in Probst v. Com., Dep't of Transp., Bureau of Driver Licensing, 849 A.2d 1135 (Pa. 2004) (holding that the denial of driving privileges for an additional year to recidivist DUI offenders who could not pay to install a required ignition interlock on their vehicles did not violate Art. I, § 26), we reiterated that a claim under Art. I, § 26 "is associated with an equal protection claim that focuses on the assertion that a person has been penalized for the exercise of a constitutional freedom." Id. at 1142 n.14 (citing Fischer, 502 A.2d at 123-24) (emphasis added).

Assuming, arguendo, that our state constitution guarantees a right to reproductive autonomy, as the majority concludes, I find Fischer's application of the penalty test to be reasonable, as it is consistent with our recognition that Art. I, § 26 underscores "the citizenry's constitutional safeguards not to be harassed or punished for the exercise of their constitutional rights," but at the same time cannot be "construed in a manner which would preclude the Commonwealth, when acting in a manner consistent with state and federal equal protection guarantees, from conferring benefits upon certain members of a class unless similar benefits were accorded to all." Fischer, 502 A.2d at 123.

Finally, in my view, the Coverage Exclusion does not penalize an indigent woman for exercising her right to obtain an abortion simply because, unless the abortion is necessary to preserve the life of the mother, or the pregnancy resulted from rape or incest, the legislature has chosen not to fund it. In this regard, I am unpersuaded by the majority's suggestion that Fischer improperly "flipped the table" by viewing the case as one involving "the right to a government-funded abortion," not about the right to abortion. See Majority Opinion at 204. Indeed, in my view, Fischer precisely and accurately characterized the issue. Through the Coverage Exclusion, the legislature has decided not to fund a woman's choice to obtain an abortion, except in three limited circumstances, "in favor of an alternative social policy." Fischer, 502 A.2d at 124. This is a quintessential legislative function.

Contrary to the majority, I also find reliance interests favor adherence to Fischer. Since Fischer was decided nearly four decades ago, we have cited it with approval on numerous occasions, and in various contexts. See, e.g., Klein v. State Employees' Ret. Sys., 555 A.2d 1216, 1224 (Pa. 1989) (finding classifications created by the two-tiered retirement compensation scheme creating unequal classes of judges based solely upon their date of entry into the system were arbitrary, unreasonable and unconstitutional under the equal protection provisions of the Pennsylvania Constitution); Love v. Borough of Stroudsburg, 597 A.2d 1137, 1139-40 (Pa. 1991) (holding ordinance restricting parking by nonresidents within primarily residential district was a valid exercise of borough's police power and had a rational basis in promoting governmental interests in safety of residents and reducing traffic and did not violate equal protection provisions of the Pennsylvania Constitution); Driscoll v. Corbett, 69 A.3d 197, 213 (Pa. 2013) (concluding mandatory retirement provision for judges at age 70 did not violate Art. I, § 26).

The majority discounts the reliance interests with respect to Fischer's analysis of Art. I, § 28 by observing that, "[o]utside of repeated reenactment of the Coverage Exclusion, we have no indication of the Legislature's reliance on the Fischer Court's interpretation of the Equal Rights Amendment." Majority Opinion at 118. However, as this Court has recognized, legislators "rely on this Court's interpretation of the law and precedent when crafting legislation, and . . . such reliance should not be undercut except for good reason." See Stilp, 905 A.2d at 967.

While acknowledging that "this Court has cited Fischer multiple times for its equal protection analysis framework," the majority suggests it has been "seldom cited and never applied" for its "unique holding" that we embrace a "penalty" analysis. Majority Opinion at 213. The majority reasons:

While the General Assembly has continued to fund the current Medical Assistance scheme with the Coverage Exclusion in place, no legislation has been brought to our attention and our review has uncovered no evidence that the General Assembly has otherwise crafted any statutes since Fischer that have relied upon the Fischer Court's interpretation of Section 26 and its adoption of a penalty analysis.

Id. at 214. Once again, however, we have recognized that legislators rely on this Court's interpretation of the law when crafting legislation. The Coverage Exclusion is, for all intents and purposes, identical to the one challenged almost 40 years ago in Fischer, suggesting, at least implicitly, that the General Assembly relied on our decision.

Further, neither the majority, nor any party, has suggested that Fischer is "unworkable." See Knick, 139 S.Ct. at 2178 (explaining that the workability of the rule is a relevant factor in determining whether a past decision should be overruled). Indeed, Fischer sets forth clear parameters within which legislators, who are elected by taxpayers, can make funding decisions based on social policy, while at the same time protecting citizens from discrimination on the basis of their sex, or on the basis of their exercise of their civil rights.

Finally, I see little merit to Appellants' argument that the high Court's ruling in Dobbs, see supra note 6, provides "special justification" for overruling Fischer. Appellants' Supplemental Brief at 3. Although the majority offers that, in light of the decision in Dobbs, "it is logical and necessary for this Court to reconsider the premise of Fischer and address the unique state constitutional questions that are otherwise unanswered," Majority Opinion at 212, in a non-majority expression, Justice Donohue offers that, "[r]egardless of whether Fischer is overruled, under current Pennsylvania law, a woman may obtain an abortion, subject to statutory regulations, until the gestational age of the fetus is twenty-four weeks." Opinion (Donohue, J., joined by Wecht, J.) at 130 n.93 (citing 18 Pa.C.S. § 3211). As I noted at the outset, the issue in Fischer, and in the case sub judice, is not a woman's right to abortion, but, rather, an indigent woman's right to have the government pay for an abortion in all circumstances.

Accordingly, I would reject Appellants' challenge to the Coverage Exclusion based on Fischer, as I find it to be binding precedent and, under the doctrine of stare decisis, controlling. For this reason, I dissent to sections III and IV of the majority opinion.

CONCURRING AND DISSENTING OPINION

DOUGHERTY JUSTICE

I join most of Section I (introduction),¹ and I join Sections II (standing and intervention), III.A-D (overruling interpretation of the Equal Rights Amendment, Pa. Const. art. I, §28, rendered in Fischer v. Department of Public Welfare, 502 A.2d 114 (Pa. 1985)), and IV (mandate) of the majority opinion in full. I also join Section III.F to the extent it overrules Fischer's interpretation of Pa. Const. art. I, §26. With respect to stare decisis, I believe the majority's excellent analysis meets the high bar for proving "a special justification, over and above the belief that the precedent was wrongly decided[,]" such that overruling Fischer is proper. Commonwealth v. Alexander, 243 A.3d 177, 196 (Pa. 2020) (internal quotations and citation omitted); see id. at 211-12 (Dougherty, J., dissenting) ("stare decisis teaches that we should exercise [the power to undo our prior precedents] sparingly") (internal quotations and citation omitted).

1 For the sake of consistency, I refer to Justice Donohue's opinion as the "majority opinion." I recognize, however, the second paragraph of footnote 11 (which I do not join) and Sections III.E and III.F.3.b have not garnered a majority.

However, I must respectfully dissent from Sections III.E and III.F.3.b. In this regard, I agree with the partial dissents' assessment "that this case does not concern the right to an abortion." Concurring and Dissenting Opinion at 3 (Todd, C.J.); Concurring and Dissenting Opinion at 2 (Mundy, J.) ("This case is not about anyone's right to obtain an abortion."). At least, not yet.

Below, the Commonwealth Court dismissed Providers' petition for review for two reasons: because (1) Providers "lack standing to vindicate the constitutional rights of third parties[,]" Allegheny Reprod. Health Ctr. v. Dep't of Human Servs., 249 A.3d 598, 608 (Pa. Cmwlth. 2021) (en banc); and (2) the court was "bound by Fischer[,]" id. at 611. Today we reverse on both points, allowing Providers' lawsuit to proceed, including as to their claim that abortion (or, more broadly, reproductive autonomy) "is a fundamental right under the Pennsylvania Constitution." Petition for Review at 30. As recently explained, "this Court's preferred course in this type of situation is ordinarily a remand . . ., not to seize the opportunity to decide the [unresolved] question ourselves." Commonwealth v. Koger, 295 A.3d 699, 711 n.12 (Pa. 2023) (internal quotations and citations omitted). Respectfully, I am not convinced we should act any differently here.² In my view, now that Fischer no longer stands in the way, it falls to the Commonwealth Court to address Providers' claims in the first instance. Of course, there is little doubt the issue eventually will make its way back to this Court, and the majority's incredibly insightful position may ultimately prevail in the end. But I believe we should take such an important issue directly, only after the lower court has entertained it, with full notice to the bench, bar, and public. Accordingly, I am compelled to respectfully dissent in part from the majority's opinion.

2 The majority credits the Providers' position "that we must decide the question" because "if we were to reject the existence of a constitutional right to abortion in Pennsylvania, there would be no constitutional right upon which to base consideration of the continued vitality of this aspect of Fischer." Majority Opinion at 127 & n.88. However, irrespective of whether there is a constitutional right to abortion in Pennsylvania, Fischer's penalty analysis under Article I, Section 26 does not survive. If there is no constitutional right, then perforce Fischer's penalty analysis is a dead letter. See id. at 20 n.11 ("Fischer's penalty analysis can have vitality only if there exists a fundamental right to reproductive autonomy."). Alternatively, if there is a constitutional right, we hold today the penalty analysis employed by Fischer is not the right test for determining whether there is a violation of Article 1, Section 26. See id. at 211 ("[E]ven if penalty is a clear and workable standard for federal equal protections, our review has demonstrated that Section 26 does not accommodate a penalty analysis."). Moreover, I observe that Article I, Section 26 is predicated on "civil right[s]," which is facially broader than "constitutional rights." Pa. Const. art. I, §26; see Majority Opinion at 181 ("we continue to assume that certain statutory rights are encompassed by the notion of 'civil rights'"). I thus find it proper to address Fischer's continued vitality without weighing in on the constitutional issue at this time. See, e.g., In re "B," 394 A.2d 419, 422 (Pa. 1978) (explaining courts should "avoid" "constitutional question[s] if possible").

CONCURRING AND DISSENTING OPINION

MUNDY JUSTICE

I. Stare Decisis

This case is not about anyone's right to obtain an abortion. It is about an alleged right to obtain taxpayer money to pay for it. We decided this issue in Fischer v. Department of Public Welfare, 502 A.2d 114 (Pa. 1985), and ruled unanimously that there is no state constitutional right to public funding for abortions. Notwithstanding our ordinary adherence to precedent, abortion providers (Plaintiffs) now ask this Court to overrule that unanimous decision, presumably because the composition of the Court has changed. I join Chief Justice Todd's thoughtful concurring and dissenting opinion to the extent it concludes the limited exception to stare decisis is not implicated in this case.¹

1 The two threshold issues are standing by Plaintiffs and intervention by the legislative defendants. I agree with my colleagues that Plaintiffs have standing. In relation to the Commonwealth Court's ruling allowing the legislative parties to intervene as additional defendants, I would hold that that tribunal acted within its discretion. In these unusual circumstances, participation by the legislative parties is especially needed for the sake of a fair process, or at least the appearance of a fair process, because the only other party supporting the government's interest in this matter - the Department of Human Services - is on record stating the executive branch disagrees with the underlying legislative policy. See Brief for Appellee Department of Human Services at 22. This is notable because the government's entire task on remand is to defend the very policy it disagrees with as that policy undergoes the strictest form of judicial scrutiny.

Plaintiffs disagree with Fischer but their contention that Fischer is so deeply flawed as to warrant overruling is exaggerated at best. Plaintiffs mainly seem to want to re-argue the same points put forward, and rejected, in Fischer - e.g., that the decision in Cerra v. East Stroudsburg Area School District, 299 A.2d 277 (Pa. 1973), supports their position. See Brief at 35-36. Fischer used straightforward logic to assess the way medicine necessarily treats men and women differently in the arena of childbearing due to their biological differences. This reasoning is not unsound, nor has it been rendered obsolete by legal developments since Fischer. "As the United States Supreme Court recently stated, 'To reverse a decision, we demand a special justification, over and above the belief that the precedent was wrongly decided.'" Commonwealth v. Alexander, 243 A.3d 177, 196 (Pa. 2020) (quoting Allen v. Cooper, 140 S.Ct. 994, 1003 (2020)).

No "special justification" exists here for overruling the unanimous holding of this Court on the same claims simply because 38 years have passed since Fischer was decided and Plaintiffs disagree with Fischer. Yet, the majority overrules unanimous precedent on this politically sensitive topic which is best resolved by the political branches.² In so doing, it relies on the proposition that stare decisis is weakest in the constitutional arena. See Majority Op. at 54, 116, 213. But as the majority recognizes, that principle is based on the Legislature's inability to correct judicial errors in relation to such matters. See id. at 212 (quoting Alexander, 243 A.3d at 197); accord Veith v. Jubelirer, 541 U.S. 267, 305 (2004) ("[T]he claims of stare decisis are at their weakest in that field, where our mistakes cannot be corrected by Congress.") (citing Payne v. Tennessee, 501 U.S. 808, 828 (1991)). The stare-decisis-is-weakest precept is itself weakest where, as here, the prior interpretation gave the legislative branch more latitude to craft legislation pursuant to its own policy determinations, not less. Nothing in Fischer prevents the General Assembly from passing legislation favorable to Plaintiffs, and thus, any supposed error in our prior interpretation is of little relevance to the stare decisis precept relied on by the majority.

2 It may be observed that in this matter three Justices are overruling seven Justices.

Additionally, I ultimately do not find Plaintiffs' merits arguments persuasive. In their petition for review, Plaintiffs raised two counts. In Count I, they claimed the coverage exclusion violates the Equal Rights Amendment (ERA). See Pa. Const. art. I, § 28 (1971) (prohibiting government discrimination based on sex). In Count II, they claimed it violates equal protection. See Pa. Const. art. I, §§ 1, 26 (respectively acknowledging the inherent rights of life, liberty, property, and reputation, and prohibiting discrimination in the exercise of civil rights), and Pa. Const. art. III, § 32 (prohibiting local or special laws). These two causes of action are addressed below, as is the effect on this case of Dobbs v. Jackson Women's Health Organization, 142 S.Ct. 2228 (2022), the Supreme Court's recent decision overruling Roe v. Wade, 410 U.S. 113 (1973). Finally, I elaborate on why this case is only about funding, and not about the infringement of a fundamental right.

II. Merits

A. Count I - The Equal Rights Amendment (ERA)

Pennsylvania's Equal Rights Amendment prohibits sex-based discrimination by the Commonwealth. See Pa. Const. art. I, § 28 (1971). But it a stretch to argue the coverage exclusion constitutes discrimination based on sex. The exclusion does not distinguish between men and women, but between two groups of women: those who choose childbirth and those who choose abortion. Although it is true that only women can become pregnant and have to make that choice about their own health care, that is not a result of the coverage exclusion, it the result of biology, and it is one of the factors that makes men and women non-interchangeable:

The mere fact that only women are affected by this statute does not necessarily mean that women are being discriminated against on the basis of sex. In this world there are certain immutable facts of life which no amount of legislation may change. As a consequence there are certain laws which necessarily will only affect one sex.

Fischer, 502 A.2d at 125.

Ultimately there is simply no reference point pertaining to men from which to argue the coverage exclusion, relating exclusively to pregnancy, treats men as a class more favorably than women so as to bring it within the scope of the ERA. Plaintiffs attempt to suggest one, proposing that Medical Assistance (MA) would discriminate against men if it covered treatments for uterine cancer but not prostate cancer. See Brief at 35-36. But both of those treatments involve cancer, which either sex can get. The challenged exclusion here is qualitatively different as it deals only with pregnancy and funds one pregnancy outcome but not another - based on a legitimate governmental interest. Plaintiffs' two-types-of-cancer hypothetical is thus inapt. It would be more appropriate to identify a medical condition unique to men which has two treatment options, one that enhances fertility and the other that reduces it. If the Commonwealth made public funds available only for the first option, it would be difficult to conclude men were thereby being treated worse than women. That would be a non-sequitur.³

3 In a footnote the majority recasts Plaintiffs' ERA claim by suggesting that the actual sex-based discrimination reflected in the coverage exclusion follows from the circumstance that all male reproductive health procedures are allegedly covered, whereas not all female ones are. See Majority Op. at 84 n.49 (citing Petition for Review at ¶ 54). If that were truly the substance of the complaint, the General Assembly could resolve it simply by terminating coverage for one randomly-selected male procedure, and then supposedly Plaintiffs' entire ERA claim would evaporate. Clearly, that is not what Plaintiffs are arguing. The gravamen of their complaint is that MA covers childbirth but not abortion. This is reflected by, inter alia, their argumentative allegation contained in the ERA count itself proposing that the coverage exclusion violates the ERA because it "reinforces gender stereotypes about the primacy of women's reproductive function and the maternal role." Petition for Review at ¶ 91. As noted, subsidizing one pregnancy outcome but not another is plainly not a sex-based distinction.

But this appears to be what Plaintiffs are arguing: that funding pregnancy care leading to birth while not funding abortions treats women worse than men. And with the coverage exclusion here at issue, the state is on solider ground than in the above example because it serves the state's recognized interest in protecting the already-extant biological life of the fetus - sometimes referred to a bit awkwardly as "potential life." Cf. Commonwealth v. Bullock, 913 A.2d 207, 213 (Pa. 2006) ("[T]o accept that a fetus is not biologically alive until it can survive outside of the womb would be illogical."). Even during an era when there was a federally-guaranteed right to abortion under Roe v. Wade, 410 U.S. 113 (1973), the United States Supreme Court recognized that a state's interest in protecting fetal life was significant and that it subsisted throughout pregnancy. Thus, even in that timeframe states were permitted to take steps to further their legitimate interest in encouraging childbirth. See Beal v. Doe, 432 U.S. 438, 446 (1976). Recognizing they have no federal claim, then, Plaintiffs presently advance a non-sequitur under the state charter which the majority endorses on the false premise that the coverage exclusion comprises a sex-based distinction. The premise is false because the coverage exclusion does not "differentiate on the basis of gender" - a necessary feature of a sex-based distinction. Sessions v. Morales-Santana, 582 U.S. 47, 57 (2017); accord Dobbs, 142 S.Ct. at 2245 (observing that "a State's regulation of abortion is not a sex-based classification").

Plaintiffs also go to some length to characterize the coverage exclusion as violating the ERA on the basis it perpetuates outdated stereotypes about women and childbearing. They contend pregnancy has historically been invoked to support unfavorable treatment of women in other contexts such as property ownership or property division in a divorce. It is true that this Court has invalidated several statutes and common law doctrines based on gender-based stereotypes.⁴ But unlike this case, those matters involved situations where the two sexes were otherwise able to perform the same task, which is not true with pregnancy and childbirth.

4 For example: the Adoption Act's failure to require parental consent of unwed fathers as well as unwed mothers; the presumption where a husband obtains his wife's property without adequate consideration, that a trust is created in his wife's favor; the doctrine of "coverture" requiring a presumption that a wife who commits a crime in her husband's presence was coerced by her husband; the presumption that a husband is the owner of household goods used and possessed by both spouses; a statutory scheme under which women were eligible for parole immediately upon incarceration while men had to serve a minimum sentence; a statute providing for alimony pendente lite, counsel fees, and expenses in a divorce action for the wife but not for the husband; the presumption that a father must bear the principal burden to support minor children; the presumption that the husband could recover for loss of consortium but the wife could not; the tender years doctrine which created a presumption requiring the father to overcome its effects; and unequal automobile insurance rates based on gender. See Hartford Acc. & Indem Co. v. Ins. Comm'r, 482 A.2d 542, 548 (Pa. 1984).

Plaintiffs rely largely on ideological expressions contained in law review articles. See Brief at 35-40. The actual legal authority they present is sparse and their analysis fails to account for Fischer's observation that the legislative distinction being drawn here is not between the sexes, but between the different outcomes of an existing pregnancy - again, in service of the state's important interest in promoting maternal health and protecting fetal life from destruction. See Senate Intervenors' Brief at 30 (noting the coverage exclusion "does not focus on the condition of pregnancy, but on the act of abortion"); accord Bell v. Low Income Women of Tex., 95 S.W.3d 253, 258 (Tex. 2002) ("The classification here is not so much directed at women as a class as it is abortion as a medical treatment, which, because it involves a potential life, has no parallel as a treatment method."). As the Supreme Court has recognized, "[a]bortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life." Harris v. McRae, 448 U.S. 297, 325 (1980).

Plaintiffs additionally interpret the coverage exclusion as expressing official disapproval of women who reject the maternal role, which would run counter to the ERA's promise of equal treatment of the sexes. See Brief at 40. It is more accurate to say that, via financial incentives, the state encourages pregnant women to choose childbirth over abortion. While that type of incentive structure may be construed by some to carry an implicit disapproval of the non-subsidized option, any such disapproval would stem from the state's interest in protecting life, not from an intent to scorn women who elect against the maternal role. It therefore does not support the concept that the state is promoting an outdated gender-based stereotype.

Ultimately, Plaintiffs' position in this litigation is substantially weakened because, as explained above, abortion rights are not at stake, solely the ability to receive public money to pay for abortions.⁵ And in their brief to this Court, the harm Plaintiffs describe as a basis for their standing to bring this action is not that their patients are in danger of losing that legal right, but that they (Plaintiffs) must expend time and effort securing private funding for the abortions at issue, time and effort they would prefer to spend on other endeavors, and that they must also spend some time discussing financial matters with their patients instead of being able to limit those discussions to medical issues. See Brief at 14-15.

5 It is undisputed that Plaintiffs' low-income patients can and often do receive private funding. Plaintiffs themselves allege that this is true in their petition for review.

Yet, despite all this, the plurality today would create an entirely new constitutional doctrine out of whole cloth, christening it "reproductive autonomy," which does not appear anywhere in the Pennsylvania Constitution's text or history.⁶ The majority then overrules a unanimous decision of this Court that is directly on point, and markedly erodes the authority of a co-equal branch of government to balance competing public policy concerns and make judgments by its own lights.⁷

6 While "autonomy" - literally meaning a law unto oneself or having one's own laws - may be attractive to some as a policy matter, this case calls for an exercise in constitutional interpretation, not social policy creation. The words "reproductive" and "autonomy" do not appear in the text of the Pennsylvania Constitution, either expressly or by necessary implication. And the history of abortion regulations in this jurisdiction belies the concept that the people of this Commonwealth have displaced the Legislature by constitutionalizing the life and health issues that inevitably arise in connection with a decision to abort a living human fetus. See infra note 11. The plurality mischaracterizes the above as "hyperbole" and then slays a straw man by suggesting I might question the right of privacy given that the word "privacy" does not appear in the text of our Charter. Majority Op. at 136 n.100 (plurality in relevant part). This ignores the "necessary implication" facet of the above. As I have emphasized, moreover, the present controversy is not about the right to choose abortion, it is about whether taxpayers should be forced to subsidize that choice against their will as expressed by their elected representatives. The difference between governmental intrusions upon privacy rights and the funding dispute raised by the instant case is made clear by the fact that, even when Roe was in force - and long after privacy was enshrined beyond question in the constitution at both the state and federal levels - the coverage exclusion survived constitutional scrutiny as did its federal counterpart, the Hyde Amendment. The plurality's further claim that it is acting consistently with centuries of this Court's jurisprudence is belied by our unanimous decision in Fischer.

7 I agree with the majority that the ERA applies to individuals. See Majority Op. at 85 n.51. But in making that observation the majority emphasizes what is not in dispute. The ERA provides in full: "Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual." Pa. Const. art. I, § 28. The operative terms are "equality," "denied or abridged," and "because of the [person's] sex." My point is that, to the extent the coverage exclusion treats some women differently than others, it is not "because of their sex" but because of their actions. And this is putting aside that the exclusion does not "deny or abridge" anyone's rights, as it does not interfere in any way with a woman's right to obtain an abortion. The majority also fails to give a satisfactory account of the word "equality," a term that necessarily involves a comparison - which in turn raises the question, equal to what? In light of the clarifying phrase "because of the [person's] sex," the obvious answer is the other sex. All of our ERA cases have recognized this. See, e.g., Commonwealth v. Butler, 328 A.2d 851, 855 (Pa. 1974); see also Majority Op. at 94-98 (summarizing cases). Even in Cerra v. East Stroudsburg Area School District, 299 A.2d 277 (Pa. 1973), the case on which the majority places heaviest reliance, we reasoned that under the challenged rule "[m]ale teachers, who might well be temporarily disabled from a multitude of illnesses, have not and will not be so harshly treated. . . . This is sex discrimination pure and simple." Id. at 280, quoted in Majority Op. at 97. Accounting for the meaning of "equality" is necessary to a correct application of the ERA because, by its terms, the ERA prohibits the abridgement, not of rights as such, but of the equality of rights. The majority confuses the connotation of the term "equality" by suggesting it means the government may not "withhold the enjoyment" of a person's rights. Majority Op. at 84. State action withholding the enjoyment of certain rights may indeed be unconstitutional, but it does not violate the ERA unless it withholds that enjoyment "because of the [person's] sex" - which the coverage exclusion does not do: first, because it does not "withhold the enjoyment" of any rights from anyone, and second, because it does not make any sex-based distinction.

B. Count II - Equal Protection

With regard to equal protection, Plaintiffs' core position is that, if the state funds health care relating to pregnancy, it must do so evenhandedly by funding abortions too. Relying on Article I, Sections 1 and 26, and Article III, Section 32, they argue strict scrutiny applies to the legislative distinction between abortion and childbirth because abortion, being based on privacy, is a fundamental right which is burdened by that distinction. They use language suggesting the state is acting in a coercive manner by invading women's "bodily integrity" and in blocking low-income women from obtaining the care they need. They criticize Fischer for casting the right at issue as the right to state-funded abortions, whereas in reality, they argue, it is the right to equal treatment of constitutionally-protected choices.⁸

8 Plaintiffs again use an analogy to illustrate their point. They note the state need not subsidize voter transportation to the polls, but if it elects to do so it cannot solely subsidize transportation for registered Democrats but not registered Republicans. See Brief at 57 n.30. This hypothetical is discussed below.

Initially, Article III, Section 32 is irrelevant. That provision prohibits special or local laws in any case that can be provided for by general law, and it precludes special laws on certain enumerated topics such as the regulation of school districts. However, the Abortion Control Act is not a special law. It is a general law because it creates classifications that are "not 'closed,' but open for new members to come in." Harrisburg Sch. Dist. v. Zogby, 828 A.2d 1079, 1091 (Pa. 2003). Its classifications are women enrolled in MA who choose childbirth, and women enrolled in MA who choose abortion. These are not closed classes. Although in some contexts Section 32 has been viewed as one pillar of the equal protection guarantee under the state Charter, this is not one of them because, again, this is not a challenge to a special law.

That leaves Article I, Sections 1 and 26. Equal protection under those provisions has generally been deemed coterminous with the Equal Protection Clause of the Fourteenth Amendment. The analysis uses the same framework by discerning the level of judicial scrutiny and then assessing whether the legislative classification survives such scrutiny. See Love v. Borough of Stroudsburg, 597 A.2d 1137, 1139 (Pa. 1991). To discern what level of scrutiny to apply, courts ask what legislative classification has been made, and what interests if any are infringed by it. Just as being able to frame the terms of a debate gives one an advantage, both sides here seek to frame the classifications and the interests at issue in terms that favor their position. The legislative intervenors focus on the funding aspect of the dispute and note indigency is not a suspect classification, whereas Plaintiffs argue abortion and bodily autonomy are fundamental rights and suggest the state is acting coercively. They frame the issue as "the right to equal treatment of constitutionally-protected choices." Brief at 72.

Identifying the classification here is aided by Plaintiffs' subsidized-transportation example. See supra note 8. Plaintiffs offer that the state need not subsidize voter transportation to the polls, but if it elects to do so it cannot solely subsidize transportation for registered Democrats but not registered Republicans. See Brief at 57 n.30. Although the analogy is ultimately off point, as the state lacks a valid interest to favor electoral participation by only one political party, whereas it does have a valid interest in protecting fetal life, the example still highlights that the real classification is not indigent versus non-indigent women (since the government does not subsidize abortion for either group), but MA-enrolled pregnant women who choose childbirth versus MA-enrolled pregnant women who choose abortion.⁹ By the same token, the alleged interest at stake is not solely public funding for abortion, but the right to public funding of abortion when public funds are made available for childbirth. Plaintiffs do not provide any legal authority to substantiate that this conditional right - or that their suggested freestanding right to "equal [funding] of constitutionally-protected choices," Brief at 72 - even exists, let alone is a fundamental one. The right and classification reflected in the emphasized text above are two sides of the same coin, and there is no authority to support that either one triggers strict or intermediate scrutiny.¹⁰ That being the case, the rational-basis standard is implicated here, and so the question becomes whether the classification is rationally related to a legitimate state interest.

9 As discussed in Part III below, even this rendering is imprecise because the coverage exclusion does not treat persons differently, it treats their actions differently.

10 Suspect classes are race and national origin, and, for purposes of state (as opposed to federal) laws, alienage. Quasi-suspect classes (sensitive classifications) are gender and legitimacy. See Small v. Horn, 722 A.2d 664, 672 & nn.14-15 (Pa. 1998) (citing cases).

The question answers itself, and it was answered in Fischer. There is little dispute that MA-enrolled women who choose abortion and MA-enrolled women who choose childbirth are not similarly situated. They have different needs, and by their choices they actively promote, or actively impede, the government's interest in protecting fetal life, which is undoubtedly an important one. See Fischer, 502 A.2d at 122 ("[T]o say that the Commonwealth's interest in attempting to preserve a potential life is not important, is to fly in the face of our own existence"). See generally Zogby, 828 A.2d at 1088 (explaining that equal protection does not preclude differential treatment of persons having different needs; the Legislature retains the power to classify, which flows from its general power to enact regulations for the health, safety, and welfare of the community). The General Assembly may choose to fund one but not the other because it retains discretion to allocate the finite social welfare resources of this Commonwealth according to its legitimate aims. In so doing, providing funding to encourage women to choose childbirth and to help effectuate that choice, while also declining to provide funding to facilitate abortions, is rationally related to the state's legitimate interest in protecting life.

C. Effect of Dobbs

Fischer was decided in an era when Roe was still in force. In that era abortion rights were protected by the United States Constitution. By the time Fischer was decided, twelve years after Roe, many of the issues raised here had been addressed and resolved by the United States Supreme Court in terms of the leeway afforded states by the federal Constitution. Thus, in Fischer we observed that, per the Supreme Court, a state's interest in fetal life was significant and continued throughout pregnancy. States could therefore take steps to further their legitimate interest in encouraging childbirth. See Fischer, 502 A.2d at 118 (quoting Beal, 432 U.S. at 446). There was no requirement for states to accord equal treatment to abortion and childbirth, and thus, a state could pay the expenses of childbirth while declining to pay for most abortions. See id. (quoting Maher v. Roe, 432 U.S. 464, 470 (1977)). Further, while the right under Roe protected women from state actions that unduly burdened their freedom to terminate a pregnancy, it implied no limitation on the authority of the government to make a value judgment favoring childbirth over abortion, or to implement that judgment through its allocation of public funds. See id. (quoting Maher, 432 U.S. at 473-74). As a consequence, Congress could lawfully limit the funding of abortions to life-threatening situations and/or to medically-necessary abortions in pursuing a policy to encourage childbirth. See id. (citing Harris v. McRae, 448 U.S. 297 (1980); Williams v. Zbaraz, 448 U.S. 358 (1980)).

We explained further that the Supreme Court's decision in Harris dealt with the Hyde Amendment, which was challenged on due-process and equal-protection grounds. As for due process, Harris held that: although a state forcibly interfering with abortion may violate due process, a state merely encouraging an alternative to abortion in the public interest does not. Freedom to choose abortion thus does not equate to a right to receive public funding for that choice. As well, if a woman is indigent, the government is not obligated to remove obstacles not of its own making. See id. at 119 (relying on Harris, 448 U.S. at 316-17).

Finally, regarding equal protection, we noted that the Supreme Court had ruled that: indigency is not a suspect class, and therefore rational-basis is the test to use; disparate impact on low-income women is not relevant to the analysis; and the Hyde Amendment is rationally related to the legitimate government interest in protecting fetal life. See id. at 119-20 (citing Harris, 448 U.S. at 323-25).

That was the state of the law when Roe was in force. At this juncture, Roe is no longer in force, see Dobbs v. Jackson Women's Health Org., 142 S.Ct. 2228 (2022), and state legislatures now have greater flexibility under the federal Constitution to enact abortion regulations than they did before. That being the case, the principles underlying Fischer as summarized above continue a fortiori. Nonetheless, in view of the sea change accomplished by Dobbs, we permitted the parties to file supplemental briefs addressing what impact, in their view, Dobbs should be seen as having on this case.

Plaintiffs argue Dobbs has nothing to do with this litigation and, if anything, it highlights that the Pennsylvania Constitution's protection of reproductive rights is separate from and more robust than the protection under the federal Constitution. They also point to an executive order by former Governor Wolf, issued post-Dobbs, reflecting his view that the Pennsylvania Constitution protects abortion rights. Plaintiffs offer a policy argument: since the United States Constitution no longer protects abortion rights, it is that much more important for this Court to do so. This then becomes the basis for a legal argument that Dobbs comprises a "special justification" to revisit Fischer. Further, although Dobbs contains language indicating there is no federal Equal Protection Clause-based right to an abortion because abortion restrictions do not constitute a sex-based classification, see Dobbs, 142 S.Ct. at 2245-46, Plaintiffs characterize that language as dicta that does not apply under the Pennsylvania Constitution.

For its part, the Department of Human Services argues Dobbs changes nothing. It stresses that the narrow issue here is abortion subsidization, not abortion rights. The Department highlights that Plaintiffs do not contend there is a fundamental right to a state-funded abortion.

The Senate intervenors express that Dobbs is the most significant abortion-related decision in fifty years, but it has nothing to do with abortion funding, which is within the General Assembly's exclusive purview under Article II, Section 1, which vests legislative power in the General Assembly, and Article III, Section 34, which states no money shall be paid out of the treasury, except on appropriations made by law. They stress that equal protection under the Pennsylvania Constitution has long been viewed as coterminous with the Fourteenth Amendment, and hence, Dobbs does not bolster Plaintiffs' position that Fischer should be overturned - especially insofar as Dobbs expressly rejected an equal-protection-based sex discrimination claim in relation to abortion restrictions. They assert that, since there are now no federal constitutional limits on a state's authority to regulate abortion, Plaintiffs' equal protection claim is less tenable than before Dobbs and so it is less, not more, appropriate to revisit Fischer. This Court should not "take Plaintiffs' bait," they continue, and use this case to address the right to abortion in Pennsylvania. They reason, as to both counts of the petition for review, that the coverage exclusion does not treat women differently than men: it treats two categories of women differently - those who terminate their pregnancy and those who carry it to term. This type of distinction, they maintain, does not trigger heightened scrutiny and it easily survives rational basis review.

The House intervenors agree with the above and add that the Roe-based right formed the backdrop to Pennsylvania abortion law, as no such right was ever original to the Pennsylvania Constitution and abortion has no historical roots in this Commonwealth. Unlike New York and California, they stress that this state never enacted laws protecting abortion; rather, Pennsylvania has enacted laws protecting a mother and her unborn child. See, e.g., Commonwealth v. Bullock, 913 A.2d 207 (Pa. 2006) (upholding the constitutional validity of Pennsylvania's fetal homicide law). Now that the Supreme Court has returned "the authority to regulate abortion" "to the people and their elected [state] representatives," Dobbs, 142 S.Ct. at 2279, the House intervenors submit there can be no right to a taxpayer-funded abortion. They contend that at a minimum this Commonwealth has determined abortion is not an appropriate use of public funds, and that determination should remain in the legislative sphere. They argue once the Supreme Court recognized the lack of a federal abortion right it employed rational-basis review in evaluating the legislation challenged in Dobbs. They contend this Court should use that same level of scrutiny as well in evaluating the coverage exclusion.

Dobbs overturned Roe and held abortion is no longer a right protected under the United States Constitution. In my view, this development can only harm Plaintiffs' current litigation position because it removes one basis to claim that abortion is a fundamental right entitled to mandatory public funding equivalent to childbirth. Plaintiffs may argue that from a social policy standpoint this Court should fill the gap left by Dobbs and redouble its efforts to protect the abortion right, but that is an argument for the legislative arena. From a legal standpoint it is hard to see how Dobbs can strengthen Plaintiffs' position.

Dobbs returned abortion regulation to the states, and hence, the state Charter is now the primary basis for abortion providers and women seeking abortions to claim a constitutional entitlement to public funding equivalent to that for childbirth. This development would be more beneficial to Plaintiffs if the abortion right was historically recognized as fundamental in Pennsylvania. But there is nothing in the history of this Commonwealth to that effect, notwithstanding that the right of privacy has always been enshrined in our state Constitution. See, e.g., Mills v. Commonwealth, 13 Pa. 631, 633 (1850) (declaring abortion throughout pregnancy a crime in Pennsylvania, with no exception for the pre-"quickening" period of gestation).¹¹ Even after Roe, laws seeking to protect fetal life were passed in this Commonwealth when the abortion right itself was largely in the domain of the federal courts. See House Intervenors' Brief at 53 (listing laws, including the Crimes Against the Unborn Child Act, Newborn Protection Act (the safe haven or "baby Moses" law), elimination of the cause of action for wrongful birth or wrongful life, and barring the defense against a claim for injury sustained in utero).

11 It also bears noting that our charter was rewritten in 1874 after Mills was decided, and substantially rewritten again in the late 1960s when abortion liberalization was occurring in other jurisdictions. In both instances, and in the numerous amendments before and after Fischer and Roe, the people have not seen fit to add text protecting reproductive autonomy, or in any way directly relating to that concept or to abortion funding. Additionally, while the plurality highlights the "monumental impact" on the woman making the abortion decision, an impact I do not deny, Majority Op. at 152 (plurality in relevant part), it gives little weight to the monumental impact the abortion decision has for the unborn child, who either lives or dies depending on the mother's choice - or to the legislative preference insofar as it is designed to promote the mother's physical and mental health. See 18 Pa.C.S. § 3202(a) (reflecting an intent to promote maternal life and health); see also Brief of Amici American Association of Pro-Life Obstetricians & Gynecologists, at 4-21 (detailing the adverse health effects of abortion); McCorvey v. Hill, 385 F.3d 846, 850-52 (5th Cir. 2004) (Jones, J., concurring) (summarizing evidence of record describing serious mental health issues in the post-abortive timeframe). Nor does the plurality account for the impact of the decision on the fetus whose life is terminated or for the governmental interest in preserving that life. In dismissing all such concerns on the grounds that people's "views of morality may change," the examples cited by the lead Justices - such as those dealing with adultery and the like - are materially distinguishable as none involves the destruction of another extant human life that has undeniable value. The plurality does not recognize this distinction, claiming instead it is "not constrained . . . to determine whether abortion is 'deeply rooted' in the 'history or traditions' of this Commonwealth." It then adds, inconsistently, that only the "text and history" of Article I, and the intent of the people adopting it, really matter. It gives as the reason that the subject of abortion must be free of policy debates and of the "deeply held views on both sides" of the issue. But those words are insufficient to conceal that in the plurality's reckoning, the "deeply held views" of only one side of the debate count. The plurality gives no persuasive explanation of why that is true, given that there is another life at issue - a circumstance the General Assembly certainly is allowed to take into account. See Planned Parenthood of the Heartland v. Reynolds, 975 N.W.2d 710, 740 (Iowa 2022) (finding the Iowa Constitution does not support abortion as a fundamental right in part because of "important interests - such as life itself - on both sides"). As illustrated by this case, moreover, those other lives are particularly vulnerable to destruction and have no voice of their own in the political process. They must therefore rely on others to be their voice, and there is little in the lead opinion to suggest it believes the General Assembly may attend at all to that surrogate voice. Finally, it is worth noting that in their 219-page opinion, the lead Justices do not once concede those other lives have inherent value or that a choice to abort them necessarily involves their involuntary, violent destruction. See Brief for Amicus Democrats for Life of America, at 13 (discussing technological advances revealing that human fetuses feel pain, as well as scholarship indicating that "mainstream medicine now recognizes the fetus as a patient, capable of being treated and worthy of care"). Instead, they invoke euphemisms drawn from political ideology, such as "reproductive autonomy," "procreative choice," and "control of one's body" - without acknowledging there is another "body" in the equation that the Legislature may validly consider, or that adoption exists as an option for a pregnant woman to avoid expanding her family if she so chooses.

Finally, to the extent bodily integrity, decisional autonomy, the right to be the "master of one's own fate," and similar ideological expressions forwarded by Plaintiffs, see Brief at 63; see also Majority Op. at 129, 137 (plurality in relevant part) (highlighting these concepts), can be seen as protected by the Pennsylvania Constitution, the government here is not infringing those rights. Those rights erect a shield against state intrusion into one's body and one's private choices, but they do not entitle women seeking abortion to the same level of public funding as women pursuing childbirth.

III. What this case is not about

As observed at the outset of this opinion, this case is not about a woman's right to choose abortion. It is about the use of taxpayer dollars to subsidize that choice.¹² Yet, the plurality would use this dispute to fabricate a fundamental right to reproductive autonomy as a stepping-stone to erecting an all-but-insuperable hurdle for the political branches to clear in fulfilling their core function to determine how best to allocate taxpayer funds in the public interest, consistent with their own judgments and determinations about the appropriate way to balance competing social policy objectives. See Majority Op. at 217 (plurality in relevant part) ("The state bears a heavy burden of justification[.]"). As reflected in the Abortion Control Act, the legislative branch, fulfilling that role, has already determined it would best serve the health, safety, and welfare of the citizens of this Commonwealth, including pregnant women, to structure the financial incentives created by public monies to encourage the bringing to term of a living human fetus. See generally 18 Pa.C.S. § 3202(a) (expressing legislative intent to protect the life and health of both the woman and the child subject to abortion). Today, the lead Justices would in essence override that legislative judgment, and, in doing so they would give no weight at all to the state's interest in accommodating the conscience of taxpayers with deeply-held beliefs opposed to abortion who do not want to be compelled to fund it. See generally Brief for Amicus Democrats for Life of America, at 9-14 (discussing the history and social value of such legislative accommodations).¹³

12 It may be noted that Plaintiffs are not women seeking abortion, but abortion providers who stand to receive substantial public funds from a ruling in their favor. See generally Brief for Amici Nationally Recognized Organizations & Leaders in the Black Community, at 29 (describing this litigation as having been commenced by "the largest abortion businesses in Pennsylvania to fund elective abortions").

13 In overriding the Legislature's judgment, the plurality would additionally set the stage for this Commonwealth to become bogged down in virtually limitless abortion litigation, as all aspects of Pennsylvania's abortion regulations are now certain to become subject to lengthy court proceedings in relatively short order. These include such measures as the required informed-consent counseling and 24-hour waiting period, see 18 Pa.C.S. § 3205; parental consent for minors, see id. § 3206; the prohibition on abortions performed after 24 weeks' gestation, see id. § 3211; the need to determine gestational age, see id. § 3210; the prohibition on feticide when an abortion fails, see id. § 3212; reporting requirements, id. § 3214; the prohibition on sex-selection abortions, see id. § 3204(c); limitations on abortions at public health facilities, see id. § 3215(c); limitations on abortions performed on an ambulatory basis, see 28 Pa. Code § 29.34, and clinic health and safety standards, see id. §§ 29.33, 29.43.

Further, establishing the right to reproductive autonomy as both fundamental and of constitutional provenance is unnecessary to this case: even if one assumes it subsists as an inherent right, the Abortion Control Act does not penalize women for exercising it. See McRae, 448 U.S. at 317 n.19 (recognizing that the refusal to fund protected activity does not equate to the imposition of a penalty on that activity). To the contrary, it leaves them alone, opting not to grant them money or charge them money - which is the very basis for the right itself as the plurality conceives it. See, e.g., Majority Op. at 147 (plurality in relevant part) (grounding the abortion decision in the right to be let alone). "There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy." Maher, 432 U.S. at 475.

One may therefore wonder how the right to be let alone in making personal decisions can be transformed into the right to receive taxpayer money to fund one decision if the government funds a different decision. To justify this transformation, the plurality indicates that not receiving money amounts to "discriminating against [a] person in the exercise of a fundamental right[.]" Majority Op. at 217 (plurality in relevant part). But this is wordplay. In reality, it is not discrimination against a person. It treats no person differently than any other. Each person faces the exact same conditions: in recognition of the public interest favoring childbirth - an interest that does not appear to be in dispute - the government subsidizes that person's actions only if she decides to bring her pregnancy to term. This is a far cry from discriminating against a person because of her sex, which, unlike her actions, she has no control over.

This type of financial incentive is hardly unique to pregnancy healthcare decisions. Freedom of speech is a fundamental right, but the government may subsidize some speech while not subsidizing other speech (such as political lobbying). See Regan v. Taxation With Representation of Wash., 4611 U.S. 540, 549 (1983) ("We have held in several contexts that a legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny."). This same principle allows the government to require educational institutions receiving federal monies, and their students, to execute an agreement promising to abide by federal anti-discrimination laws as a condition of receiving those monies. Such a requirement does not violate their First Amendment rights as they remain free to decline the funds and not execute the agreement. See Grove City College v. Bell, 465 U.S. 555, 575-76 (1984). Thus, when the government provides public funds, it may condition those funds on the recipient agreeing not to act contrary to the government's legitimate interests, even if the recipient has a fundamental, constitutionally-protected right to so act:

The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated . . .; it has merely chosen to fund one activity to the exclusion of the other.

Rust v. Sullivan, 500 U.S. 173, 193 (1991).¹⁴

14 To take another example, some states recognize a fundamental right to private choice when selecting foods. See Maine Const. art. I, § 25 ("All individuals have a natural, inherent and unalienable right to food . . . including . . . the right to . . . consume the food of their own choosing[.]"). As with the abortion right, this interest has been cast as one facet of personal autonomy and the right of privacy. See Farm-to-Consumer Legal Defense Fund v. Sebelius, 734 F.Supp.2d 668, 679-80 (N.D. Iowa 2010). See generally Kammi L. Rencher, Food Choice & Fundamental Rights, 12 Nev. L. J. 418 (2012). Under the lead opinion, it is plausible that if such a right were recognized in Pennsylvania, any state-funded nutrition-assistance program designed to assist low-income residents would be constitutionally suspect to the extent it was limited to healthy foods and did not apply to other, less healthy foods preferred by some program participants. There is also a fundamental liberty interest in receiving or declining life-sustaining medical treatment. See Cruzan by Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990). The lead opinion's conclusions would appear to mean that if the state subsidizes lifesaving medical treatment, it must equally subsidize the costs associated with a decision to die. In other words, the state cannot incentivize life over death. Or consider yet another example: parents enjoy a fundamental right to direct the upbringing and education of their children. See Pierce v. Society of Sisters, 268 U.S. 510 (1925). Today's ruling could mean that if the state subsidizes parents' choice to send their children to public or private schools, it must also subsidize their choice to home school their children. See Wisconsin v. Yoder, 406 U.S. 205, 232 (1972). The list of examples is limited only by the imagination.

In brief, what the majority overlooks is that there is a material difference between a person and her actions, and that the funding discrepancy here is not based on who women are, but on what they do. Moreover, the coverage exclusion works no more of an intrusion into a woman's personal decisions than if the General Assembly decided not to fund any pregnancy-related services at all - or if it decided that the best use of public funds was to subsidize pregnancy-related medical expenses above a certain dollar threshold, and that threshold happened to be greater than the cost of most abortions but less than the cost of medical care associated with bringing a pregnancy to term. As the Supreme Court has cogently explained:

An indigent woman who desires an abortion suffers no disadvantage as a consequence of [a State's] decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman's decision, but it has imposed no restriction on access to abortions that was not already there.

Maher, 432 U.S. at 474; accord McRae, 448 U.S. at 316 ("It simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.").

Finally, the majority's ill-considered ruling that Article I, Section 26 means that "the government must maintain a position of [funding] neutrality with regard to citizens' exercise of their constitutional rights," Majority Op. at 215-16, will have far-reaching and unintended consequences as it applies to all manner of governmental funding. Any number of pursuits involve the exercise of fundamental rights in one way or another, see supra note 14, and the Commonwealth's ability to subsidize some while not subsidizing others in the public interest is inherent to the legislative power as vested in the General Assembly by Article II, Section 1. See Zogby, 828 A.2d at 1088. Our previous explanation that Section 26 means citizens cannot "be harassed or punished for the exercise of their constitutional rights," Fischer, 502 A.2d at 123, was well-considered, restrained, and appropriate, as it preserved the delicate balance of power among the coequal branches while also protecting individuals from unjust legislative classifications, but it did not lead to the result the majority wants to reach in this case. The majority's substituted "neutrality" approach as applied to the public funding arena will assuredly prove destructive to that balance by seriously undermining the Legislature's power to advance legitimate state interests.¹⁵ The best evidence of this is that the lead Justices presently use the precept to conclude that the people's elected representatives are not even allowed to "encourage childbirth over abortion," to favor life over death. Majority Op. at 216 (plurality in relevant part). That is an absurd result that cannot possibly have been the intent of the drafters of Article I, Section 26, or of the voters who approved it. As such, today's ruling represents a political decision that intrudes into the legislative sphere and thereby usurps the Legislature's legitimate authority.

15 The lead Justices appear to disparage such legislative choices by referring to our coequal branch as "transient legislatures." Majority Op. at 165 (plurality in relevant part). The General Assembly is not transient, it is a fixed part of our Commonwealth's government. If the adjective and use of the plural ("legislatures") are intended to convey that the Legislature's membership changes over time, that does not distinguish it from the other two branches, including this Court. Indeed, a change in this Court's membership has now led to the overruling of a prior unanimous decision of this Court. Ironically, the majority simultaneously labels as "dangerous" my adverting parenthetically to the fact that the present majority comprises three Justices whereas the Fischer majority consisted of seven (an observation that is allegedly also "pedestrian"). Majority Op. at 54 n.30. I submit that if anything is dangerous, it is this Court's unjustified interference with decisions made by the people's representatives concerning the appropriate use of public funds.

IV. Conclusion

For the reasons given above, I would apply stare decisis, decide this appeal based on our unanimous and well-supported ruling in Fischer, and affirm the Commonwealth Court's order. Insofar as the majority instead overrules Fischer, vacates that order, and remands, I dissent.

sex discrimination. The Fischer Court's effort to recharacterize the issue in terms of disability discrimination had no basis in the language of the PHRA as it existed at the time Cerra brought her claim, or at the time this Court issued its opinion.