Allegheny Reproductive Health Center v. PA DHS

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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, :

Petitioners :

:

v. : No. 26 M.D. 2019

:

Pennsylvania Department of Human :

Services, Teresa Miller, in her official :

capacity as Secretary of the :

Pennsylvania Department of Human :

Services, Leesa Allen, in her official :

capacity as Executive Deputy Secretary :

for the Pennsylvania Department of :

Human Service’s Office of Medical :

Assistance Programs, and Sally Kozak, :

in her official capacity as Deputy :

Secretary for the Pennsylvania :

Department of Human Service’s :

Office of Medical Assistance Programs, :

Respondents : Argued: November 5, 2025

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION BY

JUDGE WOLF FILED: April 20, 2026

This original jurisdiction matter returns to us on remand from the

Pennsylvania Supreme Court. In Allegheny Reproductive Health Center v.

Pennsylvania Department of Human Services, 309 A.3d 808 (Pa. 2024) (Allegheny

Reproductive II), the Supreme Court determined that Petitioners, who are abortion

care providers (Providers), have presented a constitutional challenge to Section

3215(c) and (j) of Pennsylvania’s Abortion Control Act, 18 Pa.C.S. § 3215(c) &

(j) (Coverage Exclusion), that is sufficient to survive preliminary objections. In so

doing, the Supreme Court revisited its precedent regarding the Equal Rights

Amendment1 and equal protection provisions2 of the Pennsylvania Constitution,

reversed this Court’s decision sustaining preliminary objections, and remanded for

further scrutiny of the Coverage Exclusion. Now before the Court is Providers’

application for summary relief. We conclude that the Coverage Exclusion violates

the Equal Rights Amendment and the equal protection provisions of the

Pennsylvania Constitution, beyond any genuine dispute of fact, and thus we grant

Providers’ application for summary relief.

I. BACKGROUND

A. Statute at Issue

The Coverage Exclusion, which Providers challenge, restricts abortion

care that would otherwise be provided under Pennsylvania’s Medical Assistance

program, also known as Medicaid. “Medicaid is a joint federal-state program that

provides medical assistance to the poor.” Allegheny Reproductive II, 309 A.3d at

1

PA. CONST. art. I, § 28.

2

PA. CONST. art. I, §§ 1, 26 & art. III, § 32.

2

820 n.4. Our Supreme Court explained that the Medical Assistance program is

a public insurance system providing eligible

Pennsylvanians with medical insurance through either a

fee-for-service or managed care health plan. 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. It includes all

pregnancy-related care, including prenatal care, obstetric,

childbirth, neonatal and post-partum care. However,

Medical Assistance does not cover all abortions.

Id. at 820-21 (footnote and citations omitted).

The Coverage Exclusion—Section 3215(c) and (j) of the Abortion

Control Act—broadly prohibits Medicaid payments for abortion in Pennsylvania,

allowing them only in very limited circumstances. Its full text is as follows:

§ 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

3

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

4

(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 Pennsylvania Department of Human Services

(DHS) has implemented the Coverage Exclusion with regulations. See 55 Pa. Code

§§ 1141.57, 1163.62, 1221.57. Care providers are subject to federal criminal

prosecution, fines, and imprisonment for seeking Medical Assistance reimbursement

for abortion procedures. Id. § 1101.74.

B. Petition for Review

Providers filed the original jurisdiction petition for review (Petition)

naming DHS and other Commonwealth Respondents on January 16, 2019. The

Petition alleges the following facts. Providers are a group of health centers, for-

profit corporations, and nonprofit corporations that offer reproductive healthcare—

including abortion—to women. Pet. ¶¶ 2-32. Medical Assistance generally covers

the costs of all care they provide to women who choose to carry their pregnancies to

term. Id. ¶ 48, 55. But the Coverage Exclusion forbids coverage for abortion unless

the mother would otherwise die or the pregnancy results from rape or incest. Id. ¶

54. There is no comparable exclusion of any health coverage—reproductive or

otherwise—for men. Id. The medical costs of covering a pregnancy and childbirth

far exceed the cost of an abortion. Id. ¶ 55.

5

Providers allege the Coverage Exclusion has caused women to carry

pregnancies to term against their will. Id. ¶ 64. This harms both Providers and their

patients. Women must choose whether to carry a pregnancy to term or to pay out of

pocket for an abortion, diverting money they otherwise need for shelter, food,

clothing, or childcare. Id. ¶ 59. These and other costs cause women to delay

abortion care or forego it altogether. Id. ¶¶ 60-63. The maternal mortality risk of

childbirth is 14 times greater than the mortality risk for abortion; women who cannot

pay out of pocket are compelled to undergo the higher risks of childbirth. Id. ¶¶ 65,

67, 70. These risks are higher still for women with other health conditions. Id. ¶ 71.

The Coverage Exclusion has no exception for fetal abnormalities, no

matter how severe. As a result, some women have suffered severe psychological

harm knowing that the fetus they are carrying has a condition that will necessarily

result in the child’s death, but being unable to terminate the pregnancy because of

the Coverage Exclusion. Id. ¶¶ 73-74.

Providers allege the Coverage Exclusion harms them as medical

caregivers. They must dedicate money and staff time for ongoing maternal care for

women who would choose to have an abortion but for the Coverage Exclusion. Id.

¶¶84. Providers regularly subsidize non-covered abortions—out of their own

pockets, and with their own time by seeking charitable funding—to try to minimize

the harms to women described above. Id. ¶¶ 85-86. The Coverage Exclusion

interferes with Providers’ counseling of their patients, requiring them to discuss

sensitive and personal matters—such as whether the sex that led to the pregnancy

was rape or incest—that have no medical purpose. Id. ¶ 87.

The Petition seeks relief in two Counts. Count I challenges the

Coverage Exclusion as unconstitutional under Article I, Section 28 of the

6

Pennsylvania Constitution, known as Pennsylvania’s Equal Rights Amendment.3

Providers claim the Coverage Exclusion applies only to women, limiting healthcare

only for women and not for men, and thus denies women essential healthcare

services “solely on the basis of their sex.” Pet. ¶ 90.

Count II challenges the Coverage Exclusion as unconstitutional under

the equal protection provisions of the Pennsylvania Constitution.4 Pet. ¶ 94.

3

The Equal Rights Amendment states:

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.

4

The equal protection provisions, sometimes also known as the “equality provisions,” of

the Pennsylvania Constitution, Allegheny Reproductive II, 309 A.3d at 917, state as follows:

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.

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.

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:

(Footnote continued on next page…)

7

Providers claim the Coverage Exclusion discriminates against women by limiting

their freedom to choose to terminate a pregnancy. Relatedly, Providers characterize

the right to reproductive autonomy—including the right to choose to terminate a

pregnancy—as a fundamental right and seek a declaration to that effect. Id. ¶¶ 95-

96 & Wherefore Clause. They claim the Coverage Exclusion unlawfully

discriminates against women for attempting to exercise a fundamental constitutional

right. Id. ¶ 96.

On both theories of relief, Providers seek a declaration that the

Coverage Exclusion violates the relevant provisions of the Pennsylvania

Constitution, and a permanent injunction against enforcement of the Coverage

Exclusion and its enabling regulations.

C. Procedural History and Allegheny Reproductive II

DHS initially opposed the relief sought in the Petition and filed

preliminary objections based on lack of standing and demurrer. While those

preliminary objections were pending in this Court, certain members of the

Pennsylvania General Assembly sought to intervene to defend the Coverage

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.

8

Exclusion as constitutional. A panel of this Court granted the legislators

intervention. See Allegheny Reprod. Health Ctr. v. Pa. Dep’t of Hum. Servs., 225

A.3d 902, 914 (Pa. Cmwlth. 2020), rev’d, 309 A.3d 808 (Pa. 2024).

Thereafter, this Court sustained the preliminary objections on both

standing and demurrer grounds. See Allegheny Reprod. Health Ctr. v. Pa. Dep’t of

Hum. Servs., 249 A.3d 598, 611 (Pa. Cmwlth. 2021) (en banc) (Allegheny

Reproductive I), rev’d, 309 A.3d 808 (Pa. 2024). As to standing, we concluded that

Providers met neither the third-party standing test nor the traditional test for standing

based on financial harm to Providers under a “zone of interests” analysis. Id. at 607.

We sustained the demurrer raised by DHS and the legislators based on Fischer v.

Department of Public Welfare, 502 A.2d 114 (Pa. 1985), overruled by Allegheny

Reproductive II, 309 A.3d 808 (Pa. 2024). We concluded that all of the claims in

the instant Petition had already been raised and rejected in Fischer, so Providers

failed to state a claim by making those same claims here. Allegheny Reproductive I,

249 A.3d at 611.

In Allegheny Reproductive II, our Supreme Court overruled its own

decision in Fischer, vacated our decision in Allegheny Reproductive I, reversed our

earlier decision granting legislators intervention, and remanded with instructions.5

5

Justice Donohue authored the opinion of the Court. Justice Wecht joined that opinion in

full and authored a concurring opinion. Justice Dougherty authored a concurring and dissenting

opinion noting he substantially joined the principal opinion and its mandate, but dissented from

Sections III.E and III.F.3.b—regarding the right to reproductive autonomy and reliance on that

right in the equal protection analysis. Allegheny Reproductive II, 309 A.3d at 997-98 (Dougherty,

J., concurring and dissenting). Justice Dougherty would have allowed this Court to address those

claims in the first instance on remand rather than resolve them. Id. Because the matter was heard

by six Justices, the parts of the opinion joined by three Justices constitute the majority opinion that

is binding on this Court. Chief Justice Todd authored a concurring and dissenting opinion, joining

in the procedural aspects of the majority opinion—standing and intervention—but dissenting from

the mandate and the court’s overruling of Fischer. Id. at 988-89 (Todd, C.J., concurring and

(Footnote continued on next page…)

9

As to the procedural issues, the Supreme Court first concluded that Providers have

standing to pursue their claims and reversed our determination to the contrary. In so

holding, it clarified that no “zone of interests” analysis was necessary because

Providers are immediately harmed by the fact that the Coverage Exclusion prohibits

them from billing for procedures they provide to Medical Assistance-covered

patients. 309 A.3d at 839. Second, the court concluded that the legislator

intervenors’ interest in the Coverage Exclusion is too attenuated to justify

intervention, and it reversed our decision granting intervention. Id. at 846-49.

On the merits, the Allegheny Reproductive II Court overruled Fischer

on both the Equal Rights Amendment and equal protection issues. The Supreme

Court initially recognized Fischer’s status as binding precedent, which the doctrine

of stare decisis ordinarily protects. Id. at 850. But the Court noted the doctrine is

not absolute and allows overruling earlier constitutional interpretations if under “any

rules of constitutional construction recognized at the time of those decisions or now,

the interpretation is patently flawed.” Id. at 883 (quoting McLinko v. Dep’t of State,

279 A.3d 539, 572 (Pa. 2022)).

Fischer involved a group of providers and patients challenging the

Coverage Exclusion based on the same Pennsylvania constitutional provisions as in

this case. The Fischer Court had rejected both challenges and upheld the statute.

For equal protection, it applied rational basis review or, alternatively, intermediate

scrutiny, finding an “important governmental interest” in the preservation of

potential life. Allegheny Reproductive II, 309 A.3d at 856 (discussing Fischer). The

Fischer Court also applied a “penalty analysis” common under the United States

dissenting). Justice Mundy authored a concurring and dissenting opinion explaining she would

not have overruled Fischer. Id. at 998-99 (Mundy, J., concurring and dissenting). Justice Brobson

recused.

10

Constitution, concluding that the Coverage Exclusion does not violate equal

protection because it does not punish any person for the exercise of a protected right.

Id. at 858-59. And it recognized an “exception” to the Equal Rights Amendment

when sex-based discrimination is founded on “physical characteristics unique to

only one sex.” Id. at 860. Our Supreme Court reexamined both issues in Allegheny

Reproductive II.

The Court first addressed the Equal Rights Amendment. It noted that

the Fischer court had “concluded that the [Coverage Exclusion] did not implicate

the Equal Rights Amendment, [so] it declined to conduct any Equal Rights

Amendment analysis.” Allegheny Reproductive II, 309 A.3d at 867. The Court

began with an Edmunds6 analysis of the Equal Rights Amendment. It found the text

of the Amendment unambiguous. Id. at 868-69. It reviewed the history of legal sex

discrimination that led to the adoption of the Amendment and noted several

Pennsylvania decisions that had struck down sex-based statutory distinctions after

the Amendment was adopted. These included statutes that allowed payment of

alimony pendente lite to wives but not to husbands; imposed minimum prison

sentences on men but not on women; required a mother’s consent to adoption of her

child but not the father’s consent; and presumed that fathers, not mothers, would be

financially responsible for child support in a divorce. Id. at 874-75 (collecting

cases). The Court noted Cerra v. East Stroudsburg Area School District, 299 A.2d

277 (Pa. 1973), where it had interpreted a statutory prohibition on sex discrimination

6

In Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), the Supreme Court established

a test for deciding whether a Pennsylvania constitutional provision provides more, less, or the same

protection as a similar federal constitutional provision. The factors are: “(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.”

Id. at 895.

11

to prohibit the school district’s termination of a teacher’s employment because of

her pregnancy. Allegheny Reproductive II, 309 A.3d at 876 (citing Cerra). It

reasoned that the Fischer Court had improperly distinguished Cerra as being based

on the concept that pregnancy is a “disability,” rather than prohibited sex

discrimination, and it clarified that “Cerra conclusively established that such

differentiation is ‘sex discrimination pure and simple.’” Id. (quoting Cerra, 299

A.2d at 280). The Court next reviewed the decisions of other state courts, which

“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. Id. at 878.

Finally, the Allegheny Reproductive II Court addressed the quality of Fischer’s

reasoning and concluded:

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 . . . .

....

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

12

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.

....

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.

Allegheny Reproductive II, 309 A.3d at 885-91 (footnote and some citations

omitted). Under this standard, “a sex-based distinction is presumptively

unconstitutional,” and “[i]t 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.” Id. at 891. “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

13

acknowledge that few, if any, sex-based conferrals of benefits or burdens will be

sustainable.” Id.

The Court addressed Providers’ other constitutional claim in two parts.

First, in a part of the Court’s opinion joined by only a plurality of the Justices,7 the

Court determined that the Pennsylvania Constitution guarantees a fundamental right

to reproductive autonomy. Id. at 917. In an Edmunds analysis, the Court explained

that the Pennsylvania Constitution’s unique Declaration of Rights (i.e., Article I of

the Pennsylvania Constitution) protects fundamental, inherent rights—not rights

created or granted by the government as a matter of grace. Id. at 897. It noted the

long-recognized right to privacy found in Article I, Sections 1 and 8 of the

Pennsylvania Constitution,8 which relies on and includes the inherent “right to be let

alone.” Id. at 896-901. The Court opined that the real issue in this case is not the

abortion procedure itself, but the “monumental impact on a woman making the

decision to carry a pregnancy to birth or not,” and concluded that “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.” Id. at 909. The Court noted that

in other states whose constitutions provide for inherent rights, courts have

recognized a right to reproductive choice. Id. at 912-16. The Court characterized

this right, like other privacy rights protected by the Declaration of Rights, as

7

See supra n.5; see also Allegheny Reproductive II, 309 A.3d at 892 n.84 (noting this

portion of the opinion is a plurality only).

8

The latter provides:

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.

14

fundamental. Id. at 903, 917.

Lastly, the Court turned to equal protection. It first noted that the

Fischer Court had treated the Pennsylvania Constitution as containing essentially

the same level of equal protection guarantee as the federal Constitution, which has

been a common approach in Pennsylvania jurisprudence, including the federal

“penalty analysis.” Id. at 918. The Court ultimately concluded Fischer had erred in

doing this. Id. at 918, 934. In another Edmunds analysis, the Court noted that the

text of Pennsylvania’s equal protection provisions “is notably different from the

standalone federal Equal Protection Clause.[9]” The Court reviewed its equal

protection decisions, stating that although it will continue to apply federal equal

protection principles when analyzing the Pennsylvania Constitution, such as means-

ends analysis, this does not mean that the level of protection or interpretations of the

two constitutions are in lockstep, as the Fischer Court had presumed. Id. at 933-34.

The Court observed that several other states have interpreted their own constitutions

to provide greater equal protection guarantees than the federal Constitution, leading

some to conclude their constitutions protect abortion. Id. at 934-38. The Court then

noted that Fischer had not treated Section 26 as appropriately distinctive, had

skipped over the critical equal protection step of defining the level of scrutiny that

applies, and had incompletely applied federal equal protection law to what should

be a distinct state-law right, distinctly analyzed. Id. at 942-43. Finally, the Court

noted: “[T]he foundation on which Fischer’s equal protection analyses were built

has been overruled. That is, with Roe[ v. Wade, 410 U.S. 113 (1973),] overruled [by

Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022)], the case law

in [Roe’s] wake, including the primary cases Fischer cited in order to justify its

9

U.S. CONST. amend. XIV.

15

penalty analysis, is also disrupted . . . . 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.” Allegheny

Reproductive II, 309 A.3d at 943. Having overruled Fischer on this issue, the Court

concluded:

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 . . . . 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.

....

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 . . . . 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.

Id. at 945. The Court then commented on the commensurate means-ends review.10

Starting from its earlier conclusion—that the Coverage Exclusion burdens the

fundamental right to reproductive autonomy—the plurality determined that strict

scrutiny should apply to the Coverage Exclusion, such that it would survive only if

the government can show that it is “necessary to the achievement of a compelling

10

Only a plurality of the Justices joined in the means-ends analysis in Section III.F.3.b of

the opinion. See supra n.5 & Allegheny Reproductive II, 309 A.3d at 945 n.176.

16

state interest.” Id. at 946 (quoting Commonwealth v. Bell, 516 A.2d 1172, 1178 (Pa.

1986)).

The Court concluded with its mandate11 to this Court, which reads in its

entirety:

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].

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] by the

grant of a preliminary objection demurring to the

claims raised in the [P]etition based upon this Court’s

prior decision in [Fischer], 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

11

A majority of the Justices joined the Court’s mandate.

17

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]. We remand to the Commonwealth Court for

further proceedings consistent with the mandate contained

in Part IV of this opinion.

Allegheny Reproductive II, 309 A.3d at 947.

After the Supreme Court’s decision and remand in Allegheny

Reproductive II, DHS notified this Court that it would no longer defend the

constitutionality of the Coverage Exclusion. This left no party adverse to Providers’

position. Providers filed their application for summary relief, and they and

Respondents filed briefs supporting the application. The parties stipulated to

essentially all of the facts alleged in the Petition, including specifically the following

fact: “There is no comparable [Medical Assistance] coverage ban for men’s

reproductive health care. There is no medical condition that only men experience for

which [Medical Assistance] denies coverage.” Joint Statement of Undisputed Facts

(Joint Statement) ¶ 27; accord id. ¶ 67. Following oral argument before this Court

in February 2025, the Pennsylvania Attorney General sought leave to intervene in

this matter to defend the constitutionality of the Coverage Exclusion under Section

204(a)(3) & (c) of the Commonwealth Attorneys Act.12 This Court granted

12

Act of October 15, 1980, P.L. 950, 71 P.S. § 732-204(a)(3) & (c) (authorizing Attorney

General to intervene).

18

intervention, the Attorney General13 filed a brief opposing Providers’ application for

summary relief, and the Court heard supplemental oral argument.

II. ISSUES AND STANDARD FOR SUMMARY RELIEF

We grant summary relief only if the applicant’s right to relief is clear

and there are no genuine issues of material fact. Phantom Fireworks Showrooms,

LLC v. Wolf, 198 A.3d 1205, 1220 (Pa. Cmwlth. 2018) (en banc). A genuine dispute

of fact precludes summary relief. Id. “We review the record in the light most

favorable to the opposing party and resolve all doubts concerning the existence of a

genuine issue of material fact in favor of that party.” Id. “A material fact is one that

directly affects the outcome of the case.” Dep’t of Env’t Prot. v. Delta Chems., Inc.,

721 A.2d 411, 416 (Pa. Cmwlth. 1998) (en banc).

Providers’ application for summary relief seeks judgment in their favor

as a matter of law on both counts of the Petition, relying on the analytical

frameworks established in Allegheny Reproductive II. Accordingly, the application

and the parties’ arguments address two broad issues. First, Providers ask us to

declare the Coverage Exclusion unconstitutional under the Equal Rights

Amendment. Second, they ask us to declare the Coverage Exclusion

unconstitutional under the equal protection provisions. Entailed within that second

issue, Providers ask us to declare that reproductive autonomy is a fundamental right

under the Pennsylvania Constitution, and thus to apply strict scrutiny. But they

argue alternatively that even if only rational basis review applies, they are entitled

to summary relief because the Coverage Exclusion fails that means-ends test also.

Consistent with its notice to this Court, DHS concurs in the relief sought.

13

For clarity, we refer to these arguments as the Attorney General’s, though they are really

made on behalf of the entire Commonwealth. See Section 204(c) of the Commonwealth Attorneys

Act, 71 P.S. § 732-204(c).

19

The Attorney General opposes all of the summary relief sought and asks

us to allow the case to go to trial, maintaining there are genuine issues of fact.

III. DISCUSSION

A. The Equal Rights Amendment

1. Parties’ Arguments

Providers argue the Coverage Exclusion cannot meet the stringent

Allegheny Reproductive II test under any factual circumstances. They highlight that

the Medical Assistance program covers all medical care for pregnant patients who

continue a pregnancy—including prenatal care and childbirth—but withholds

coverage when a patient seeks an abortion. This disparity, they argue, both reflects

and reinforces unequal gender stereotypes of women as a class and obstructs their

ability to participate fully in social, educational, civic, and economic life. They stress

the disproportionate impact the exclusion has on women of color, who are more

likely to rely on Medical Assistance. They dispute that any interest, let alone a

compelling one with narrow tailoring, is present to justify this. They note that most

other jurisdictions considering this issue have held that excluding abortion coverage

from Medicaid violates their respective equal rights amendments. See Providers’

Br. at 29-30 (collecting cases).

The Attorney General accepts the Supreme Court’s holding that the

Coverage Exclusion is a sex-based classification. He proffers three state interests

that, he argues, are compelling, and for which the Coverage Exclusion is the least

intrusive means of pursuit.

First, the Attorney General asserts a state interest in protecting fetal life.

He cites the sovereign’s inherent right and duty to protect life, liberty, and property.

He notes the legislature’s statement of its purpose “to protect the life and health of

20

the child subject to abortion,” 18 Pa.C.S. § 3202(a), and argues this statute

recognizes a compelling state interest. Further, the Attorney General maintains this

allegedly compelling interest applies for the entire duration of a pregnancy, and not

only after some demarcated point of “viability.” See Attorney General’s Br. at 17-

18. The Attorney General then argues the Coverage Exclusion is one mechanism

through which the legislature is pursuing the state interest in preserving fetal life and

asks us to defer to that legislative choice. He disputes other means, like

contraception, as a route to that interest, claiming the interest at stake is narrowly in

“protecting life already in being,” and that this is distinct from preventing unwanted

pregnancy, which is not, he claims, in the Commonwealth’s interest. Id. at 23. With

the interest so narrowed—i.e., an interest that cares only about ensuring pregnancies

are carried to term—he argues the Coverage Exclusion is the least restrictive means

for pursuing that interest. He frames the interest as “not funding the termination of

a fetus,” id. at 15, and argues that the Coverage Exclusion is aimed directly at that

interest because if the government subsidizes abortion, there will be more abortion,

id. at 24.

Second, the Attorney General asserts a state interest in protecting the

health of women. In his view, this includes a duty to protect women—who may

voluntarily give their informed consent to abortion—from alleged psychological

harm caused by their own medical choices. He requests the opportunity to prove at

trial that abortion has harmed at least some women, and that some women later regret

their choice of abortion. Id. at 19-20. He again frames any disagreement with this

view as a policy dispute for which we should defer to the legislature. As to means,

the Attorney General does not directly explain why the Coverage Exclusion

narrowly promotes this alleged interest, except by saying that less funding for

21

abortions will mean fewer abortions. He claims that the interest in protecting women

from abortion does not amount to coerced childbirth because it is only a matter of

funding, and women are still free to subsidize their own abortions if that is what they

choose.

Third, the Attorney General asserts a state interest in “not violating the

conscience of those who object to abortion.” Id. at 20. He grounds this on the

general right of conscience, and on the legislature’s stated policy in the statute to

“respect and protect the right of conscience of all persons who refuse to . . . subsidize

. . . abortions.” Id. at 21 (quoting 18 Pa.C.S. § 3202(d)). He once again asks us to

defer to the legislature’s weighing of any countervailing conscience rights. The

Attorney General does not directly address how the Coverage Exclusion is tailored

to this conscience right for purposes of the Equal Rights Amendment.

Providers reply that the policy-driven rationales the Attorney General

gives are geared toward satisfying rational basis review, which is not the standard

under the Equal Rights Amendment. They dispute that any of those interests are

sufficiently compelling to rebut the presumed unconstitutionality. Providers point

out that the Attorney General’s proposal of deference to legislative policy judgments

has already been rejected by the Supreme Court in Allegheny Reproductive II. They

also note that for each of the three asserted interests, the question is not whether that

interest is compelling in the abstract; it is whether that interest justifies a funding

disparity under the Coverage Exclusion. And the interest asserted must be so

compelling as to justify the coercion of at least some women’s carrying a pregnancy

to term. Providers argue the Attorney General has simply not done enough to show

that the abstract interests he advances are sufficiently compelling to support a sex-

based classification.

22

Providers separately argue that, even if one or more of the asserted

interests is sufficiently compelling, the Coverage Exclusion is not the least intrusive

means of pursuing it. First, they argue the interest in fetal life can be pursued through

a host of other, less intrusive means—funding for family planning and contraception,

which are relevant to pregnancies that may occur, and funding for pregnancy

counseling, maternal healthcare, and post-delivery care for the child and mother,

which will encourage women to carry pregnancies to term. Second, regarding the

interest in women’s health, they dispute that the Coverage Exclusion has any single

effect on that interest. Rather, they argue, failing to fund abortion for women who

rely on Medical Assistance will result in some of those women choosing to carry a

pregnancy to term when they otherwise would not, which will profoundly harm the

health—physical and psychological—of some of those women. Third, regarding the

interest in the conscience rights of those who oppose abortion, Providers point out

that satisfying all the conscience-based policy preferences of citizens may well be

impossible, and that regardless, the state could use less intrusive means to protect

this interest, such as a tax credit or tax choice program. In sum, Providers maintain

that “the Commonwealth—whether through Respondents or [the Attorney

General]—has not met its burden to show that the Coverage Exclusion accomplishes

any compelling state interest in this context, much less that it is the least restrictive

means to do so.” Providers’ Second Reply Br. (filed May 28, 2025) at 17.

2. Analysis

On this particular challenge to the Coverage Exclusion, we do not

begin—as we usually would—with a presumption of constitutionality. Rather, “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

23

creating the classification and that no less intrusive methods are available to support

the expressed policy.” Allegheny Reproductive II, 309 A.3d at 947. “[T]he

Coverage Exclusion is inherently sex-based.” Id. at 886; accord id. at 891. “[F]ew,

if any, sex-based conferrals of benefits or burdens will be sustainable.” Id. at 891.

This is a constitutional case. We evaluate whether the asserted interest

is compelling within the specific context of the Equal Rights Amendment and the

Coverage Exclusion. Id. at 887. We do not simply defer to current legislative policy

judgments, as we must in a case involving only statutory interpretation. See id. That

would be circular reasoning and an abdication of our judicial responsibility to

examine whether the legislature has strayed outside the confines of the Pennsylvania

Constitution, which binds the legislature as well. See id. “[T]he traditional function

of judicial review” in a constitutional case is independent constitutional

interpretation by the judicial branch. Id. at 847.

Initially, we are not persuaded that the state interests the Attorney

General has identified are compelling within the Equal Rights Amendment analysis.

First, regarding fetal life, the Attorney General has narrowly defined this as an

interest in preserving already-existing fetuses. He has disclaimed any interest in

promoting human reproduction in general, or in preventing unplanned pregnancy.

In this way, the Attorney General appears to have embraced the necessary

implication of this view: the interest “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 . . . .”

Allegheny Reproductive II, 309 A.3d at 955 (Wecht, J., concurring). The Attorney

General simply has not explained why that interest is compelling for the state. He

24

has not shown or argued why, as a matter of law, the state must ensure that every

pregnancy is carried to term. The Attorney General has not met this burden on

remand, and Respondents have stated they cannot meet it.

Second, regarding women’s psychological well-being, the Attorney

General has not identified any other context in which we have found a compelling

state interest in protecting a competent adult from feeling regret for her free choices.

There may be such laws where a general state interest favors paternalism—think of

seat belt legislation—but in this case, the interest must be compelling. To borrow a

turn of phrase from a different context: although the state may have a compelling

interest in “safeguarding the physical and psychological well-being of a minor” who

is victimized and cannot truly give consent, we are not persuaded there is any

compelling “paternalistic interest in regulating [an adult’s] mind,” such as that of a

woman who chooses with informed consent to procure an abortion as medical care.

Contra Osborne v. Ohio, 495 U.S. 103, 109 (1990) (emphasis added) (quoting, in

part, New York v. Ferber, 458 U.S. 747, 757 (1982)).

Third, regarding citizens’ conscience interests in state funding for

abortion, we are not persuaded by the Attorney General’s argument. Just because

the legislature has in fact expressed a policy preference for favoring one group’s

conscience rights over another’s, that does not mean it has a compelling interest in

doing so. This argument, like with the other interests the Attorney General asserts,

relies principally on deference to extant legislative determinations, and fails to

explain why this or the other interests rise to a compelling level in this context. We

conclude that, though these three interests may be permissible state interests in the

abstract, at least to some degree, the Attorney General has not shown that they are

compelling.

25

Finally, even if we were to find one or more of those interests

compelling, we agree with Providers that the Attorney General cannot demonstrate

the Coverage Exclusion is the least intrusive means of pursuing them. Any state

interest in promoting carrying a pregnancy to term is furthered at least as well by

state investment in maternal and infant healthcare, and in childcare and other

resources for new mothers, as it is by the Coverage Exclusion. Providers

persuasively identify some such programs that exist now—federal block grant

programs, state health policy, and the Women, Infants, and Children (WIC)

program—and one can imagine others that may yet be created, such as subsidized

childcare that defrays the enormous expenses of delivering and raising a child.

Those means are less intrusive than coercing women who cannot afford to pay for

their own abortion into carrying a pregnancy to term. The same is true for the alleged

interest in women’s health. If the state believes certain medical procedures may

psychologically harm women, the state can license, regulate, and educate around

such care. That is less intrusive than taking an entire medical procedure off the table

categorically for some women, some of whom may benefit from that procedure—a

fact the Attorney General does not dispute. Finally, to the extent the legislature has

any legitimate interest in favoring one policy or conscience view over another

regarding abortion, the legislature has less intrusive means to favor that interest, such

as a tax choice or tax credit program. In sum, the Attorney General has not shown

there is any genuine dispute about whether the Coverage Exclusion is the least

intrusive means of pursuing these interests. We do not need to hear evidence about

whether abortion has had negative consequences for some women to know that the

Coverage Exclusion is not the proper means for the state to address that issue.14

14

The lead Dissent says “the Commonwealth has the right to rebut the presumption of

(Footnote continued on next page…)

26

unconstitutionality with evidence at a hearing.” Allegheny Reprod. Health Ctr. v. Pa. Dep’t of

Hum. Servs., ___ A.3d ___ (Pa. Cmwlth., No. 26 M.D. 2019, filed Apr. 20, 2026) (Allegheny

Reproductive III) (McCullough, J., dissenting), slip op. at 13; see also id. (Wallace, J., dissenting),

slip op. at 4-7 (arguing material facts remain in dispute). We customarily refer to taking evidence

on the merits in our original jurisdiction as a “trial,” which would include discovery. That robust

proceeding, which is sometimes years long—not a mere hearing—is what the Attorney General

asks for. Attorney General’s Br. at 19, 51, 65. Of course, the Supreme Court was aware of our

trial practice when it stated that the Commonwealth bears the burden to rebut the presumption of

unconstitutionality “with evidence of a compelling state interest.” Allegheny Reproductive II, 309

A.3d at 947. On remand, the government refused that burden, the Attorney General finally arrived

to defend the Coverage Exclusion, and we twice heard oral argument.

In a constitutional challenge, the government’s demand for trial does not preclude summary

relief by ipse dixit. The asserted factual issues must be both disputed and material to the outcome.

See Haveman v. Bureau of Pro. & Occupational Affs., 238 A.3d 567, 579-80 (Pa. Cmwlth. 2020)

(en banc). If, assuming the proffered facts to be in the respondent’s favor and considering the

parties’ legal theories and the law, the asserted facts are not in dispute or not material, we will

grant summary relief for the petitioner. See id.; see also, e.g., A.S. v. Pa. State Police, 87 A.3d

914, 923 (Pa. Cmwlth. 2014) (en banc) (granting summary relief for petitioner over agency’s claim

of disputed material fact), aff'd, 143 A.3d 896 (Pa. 2016). But see A.S., 87 A.3d at 933 (Brobson,

J., dissenting) (agreeing with agency’s claim of disputed material fact). We acknowledge that the

Allegheny Reproductive II Court contemplated the potential for an evidentiary proceeding, but we

do not read that mandate as overriding this general law of summary relief.

When asked at oral argument which material facts he would seek to prove, the Attorney

General identified three: (1) that some women are psychologically harmed by, or regret, abortion;

(2) that fetal life exists, to be shown by expert testimony regarding fetal heartbeat; and (3) that the

asserted conscience rights behind the Coverage Exclusion may impact the state budgetary process

in the future. Even taking those putative facts as true, they do not require trial. Providers do not

dispute that psychological harm around women’s healthcare is a matter of “relative risk.”

Providers’ Reply Br. at 9 (quoting the Attorney General’s proffered evidence). They obviously do

not dispute that a fetus is a form of potential life. Providers’ Second Reply Br. at 10-11. The

practical effects of our decision on the budgetary process are not material to our analysis. As we

have explained here, the Commonwealth’s burden is to come forward with evidence to show a

compelling interest, and that the Coverage Exclusion is the least restrictive means of pursuing that

interest. The Attorney General’s offered proof is not material in that, even if shown at trial, it

would not allow him to prevail under that exacting legal standard.

Finally, we do not base this conclusion wholly on the Joint Statement (or Stipulations) and

we certainly do not accept any stipulations of law. Contra Allegheny Reproductive III,

(McCullough, J., dissenting), slip op. at 16. We ask broadly whether, assuming all facts in favor

(Footnote continued on next page…)

27

Based on the foregoing, we conclude that the Commonwealth has failed

to rebut the presumed unconstitutionality of the Coverage Exclusion—which is a

sex-based classification—by showing it is the least intrusive means of pursuing

compelling state interests. Accordingly, we hold that the Coverage Exclusion

violates the Equal Rights Amendment and is unconstitutional.

B. Equal Protection

We next address the challenge based on equal protection under Article

I, Section 26 of the Pennsylvania Constitution.15

of the nonmovant, the movant is entitled to relief as a matter of law. Phantom Fireworks

Showrooms, 198 A.3d at 1220. It is not dispositive for the Attorney General, at oral argument, to

disclaim agreement with the Joint Statement in general—stipulations on which, we note, he also

relies. See Attorney General’s Br. at 24. The Attorney General has not specifically rebutted

Providers’ argument that the facts he seeks to prove are either not disputed or not material.

15

We reach this issue despite that the first issue, based on the Equal Rights Amendment,

is dispositive. Normally, principles of judicial restraint counsel that courts should not resolve

multiple issues when a single issue is sufficient to resolve the case. See Commonwealth v. Dunkins,

263 A.3d 247, 253 n.5 (Pa. 2021). However, we believe the unique procedural posture of this case

favors reaching this issue as well.

In its mandate, our Supreme Court expressly overruled Fischer as to both the Equal Rights

Amendment issue and the equal protection issue. Allegheny Reproductive II, 309 A.3d at 947. It

addressed each constitutional argument separately, and regarding the second issue, it held: “[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.” Id. (emphasis added). The Supreme

Court ordered this Court to act consistent with that mandate. Id.

This matter has now gone on for seven years, during which no court has finally addressed

the merits of Providers’ arguments. The Supreme Court noted this delay, even at that earlier stage.

See Allegheny Reproductive II, 309 A.3d at 912. It is in the interest of judicial economy not to

delay resolution of the merits any longer with piecemeal litigation, as may occur if this Court were

to address only one issue, creating the need for further remand after an appeal. We read the

Supreme Court’s mandate as at least authorizing us—and perhaps directing us—to address both

merits issues on remand.

28

1. Parties’ Arguments

Providers contend that the Coverage Exclusion violates the equal

protection provisions because it burdens the exercise of a fundamental right:

reproductive autonomy. They note as persuasive the plurality conclusion in

Allegheny Reproductive II that reproductive autonomy is fundamental, rooted in

Article I, Section 1’s guarantee of privacy. They ask us to adopt that reasoning in

full, basing the fundamentality of the right to reproductive autonomy on the

guarantee of privacy, and also on the Equal Rights Amendment, which is further

textual support for an inherent right to reproductive autonomy. Based on their view

that a fundamental right is involved, they argue the Coverage Exclusion treats

pregnant patients differently depending on whether they choose to carry a pregnancy

to term or terminate it. This differential treatment, they assert, is a textbook burden

on the right. As before, they dispute that any compelling interest lets this burden

survive strict scrutiny. In the alternative, they argue the Coverage Exclusion would

fail even rational basis review, because it is not rationally related to the asserted

interest in protecting fetal life. Providers emphasize that the equality provisions of

the Pennsylvania Constitution are more protective than their federal counterparts.

The Attorney General maintains there is no disparate treatment because

Medicaid recipients who seek abortions and those who continue pregnancies are not

similarly situated for purposes of equal protection analysis. By making different

ultimate choices about the pregnancy, they have situated themselves differently. The

state’s decision to subsidize one and not the other is a policy judgment rather than a

classification. The Attorney General then argues there is no fundamental right to

reproductive autonomy. He correctly notes the right is not found explicitly in the

Constitution. He disputes the possibility for inherent rights to be nested within one

29

another—in this case, an implied right to abortion within an implied right to privacy

under Article I, Section 1. The Attorney General cites history, including

Pennsylvania history of criminalizing some abortions, to conclude there can be no

fundamental right to reproductive autonomy.

The Attorney General argues that even if some right to reproductive

autonomy is fundamental, the Coverage Exclusion does not burden that right,

because that right does not extend to requiring the state to pay for the exercise of

that choice. See Attorney General’s Br. at 33-34. The Attorney General notes that

Pennsylvania courts have long held that the government’s failure to subsidize a

choice does not constitute an unconstitutional burden on the right to make that

choice. For this reason, the Attorney General contends that strict scrutiny is

unwarranted because the law neither impedes access to abortion nor penalizes the

decision to seek one. Alternatively, for the same reasons as discussed supra relative

to the Equal Rights Amendment, the Attorney General argues the Coverage

Exclusion would satisfy strict scrutiny.

In reply, Providers reemphasize the Supreme Court’s conclusion that

the Article I, Section 26 protections are broader than, not in lock-step with, federal

equal protection. Thus they dispute the relevance of cases like Dobbs, which dealt

with federal substantive due process rights of a completely different nature and

scope. Based on that distinction, Providers point out that the Attorney General’s

deep-historical analysis is misplaced—it is answering the “history and tradition”

question the United States Supreme Court applies, not the fundamentality question

under the Pennsylvania Constitution. Thus, that historical analysis is answering the

wrong analytical question, and Providers also argue even if it were relevant, it is

factually flawed. Providers argue in the alternative that even if we find no

30

fundamental right, the Coverage Exclusion fails rational basis review under the

Pennsylvania Constitution, because the law is plainly not aimed at protecting fetal

life, but rather at coercing birth.

2. Analysis

After overruling Fischer’s equal protection analysis, the Supreme

Court explained the proper Article I, Section 26 analysis of the Coverage Exclusion

this way:

In essence, equal protections generally provide that like

persons in like circumstances will be treated similarly.

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. 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 . . . . 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.

31

Allegheny Reproductive II, 309 A.3d at 945 (citations omitted). We

determine “whether the classification operates neutrally with regard to the exercise

of [the] right. If it does not, the court shall then conduct a commensurate means-end

review.” Id. at 947. “Commensurate” here obviously signals the concept that the

scrutiny of our means-ends review changes based on the nature of the right at issue.

This requires us to conduct our analysis in two logical steps: “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.” Id. at 889. Accordingly, we first examine whether the right at issue

is a fundamental right.16

i. Fundamental Right

“Fundamental rights generally are those which have their source in the

Constitution.” Zauflik v. Pennsbury Sch. Dist., 104 A.3d 1096, 1118 (Pa. 2014).

This was the rule under the Pennsylvania Supreme Court’s prior approach of treating

state equal protection law as coextensive with the federal Equal Protection Clause.

See Fischer, 502 A.2d at 121 (citing James v. Se. Pa. Transp. Auth., 477 A.2d 1302,

1305-06 (Pa. 1984)). With Allegheny Reproductive II having overruled Fischer’s

equal protection analysis, it is clear that going forward, assessment of whether a right

is fundamental in Pennsylvania will turn squarely on our Declaration of Rights and

the Pennsylvania Constitution, and will not follow federal fundamental rights

jurisprudence. See Allegheny Reproductive II, 309 A.3d at 945; see also id. at 970-

16

Consistent with our decision to address Providers’ equal protection claim in the interest

of judicial economy, see supra n.15, we must address this issue because identifying the level of

scrutiny that applies “is crucial to any equal protection claim.” Allegheny Reproductive II, 309

A.3d at 942.

32

80 (Wecht, J., concurring) (noting several Declaration of Rights provisions that may

prove to be sources of fundamental rights).

Because we have our own Constitution, we Pennsylvanians have our

own fundamental rights. A plurality of our Supreme Court explained how the right

to privacy has long been viewed as fundamental under Article I, including: the right

to privacy in one’s home, one’s body and medical records, and one’s personal

identifying information. Id. at 899-905. Privacy is not alone. We have recognized

other fundamental rights: the right to vote;17 the right to reputation;18 and the right to

public education.19 These are all fundamental under the Pennsylvania Constitution,

regardless of their status under the United States Constitution. Fundamental rights

are not some alien thing which we should be afraid to encounter, as the Attorney

General seems to suggest. They are front and center in the compact of self-

government the People created. See PA. CONST. art. I.

The claimed right is a right to “reproductive autonomy.” Allegheny

Reproductive II, 309 A.3d at 892; id. at 997 (Dougherty, J., concurring and

dissenting). The Allegheny Reproductive II plurality explained how the text and

history of Article I and its embedded privacy rights—including the history of

abortion regulation in Pennsylvania—demonstrate that reproductive autonomy is a

fundamental right. See id. at 896-912. It showed how this is consistent with

interpretations of other state constitutions. Id. at 912-16. After discussing the policy

implications of finding a fundamental “right to reproductive decision-making,” the

17

Ctr. for Coalfield Just. v. Wash. Cnty. Bd. of Elections, 343 A.3d 1178, 1199 (Pa. 2025).

18

Commonwealth v. Mucci, 327 A.3d 1223, 1231 n.8 (Pa. Super. 2024), appeal denied,

340 A.3d 270 (Pa. 2025).

19

William Penn Sch. Dist. v. Pa. Dep’t of Educ., 294 A.3d 537, 955-57 (Pa. Cmwlth.

2023).

33

plurality concluded:

[T]he 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, 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.

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,” 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.

Id. at 916-17 (footnotes omitted).

We find the plurality’s reasoning and conclusion highly persuasive and

adopt them as our own. We agree with Providers that recognizing this fundamental

right, as the plurality did, is necessary to restrict state government to its proper

sphere, thus protecting our liberty. See Providers’ Br. at 33-35. This will mean that

the state will face judicial scrutiny of its attempts to coerce reproductive choice.

34

Those choices are the People’s, not the government’s.20 As with the other

20

Judge Wallace dissents, opining that our recognition of a fundamental right reflects a

lack of judicial restraint, a violation of the separation of powers, and a judicial “power grab.”

Allegheny Reproductive III (Wallace, J., dissenting), slip op. at 1, 8-10. We respectfully disagree.

“All power is inherent in the people . . . .” PA. CONST. art. I, § 2. The People enacted a

Constitution, which does nothing if it does not limit the power of government to interfere with civil

rights and liberties that are “excepted out of the general powers of government.” PA. CONST. art.

I, § 25. The Pennsylvania Constitution was painstakingly built around the core concept of limited

government. See Allegheny Reproductive III (Wojcik, J., concurring), slip op. at 23-26. It is

Pennsylvania’s supreme law. It binds the legislature, the executive, and the judiciary, and it is the

judiciary’s duty to determine “what is within the bounds of our Charter” when that question is

properly presented. Allegheny Reproductive II, 309 A.3d at 847; see PA. CONST. art. V.

Of course that means that judges should recognize our limited role, too. We do not invent

new rights. But we cannot let healthy judicial restraint curdle into judicial abdication. We should

not shirk our duty to interpret the Constitution correctly when squarely asked, even if the political

branches would rather we not worry about it. We have learned that lesson the hard way. See

Plessy v. Ferguson, 163 U.S. 537, 552 (1896) (denying claimed right to be free from racial

segregation by government); Korematsu v. United States, 323 U.S. 214, 223 (1944) (denying

claimed right against imprisonment in a concentration camp based on ancestry). When a court

recognizes an extant constitutional right—even if the right has been denied before or is hotly

contested—it is seeing something that was always there in the Constitution. See Brown v. Bd. of

Educ., 347 U.S. 483, 495 (1954) (overruling Plessy). Constitutional rights are fixed—they do not

move with the “evolving and ever-changing voice” of the popular will. Contra Allegheny

Reproductive III (Wallace, J., dissenting), slip op. at 10. That is why Korematsu was “gravely

wrong the day it was decided.” Trump v. Hawaii, 585 U.S. 667, 710 (2018) (repudiating

Korematsu). Courts did not need to invent new rights to see Plessy and Korematsu for the legal

errors and poor reasoning that they were. They need only recognize that the Constitution has

knowable content and meaning, and then faithfully understand and apply it when presented with

the question.

In this case, we have clear and detailed instructions on remand to address two constitutional

questions. Allegheny Reproductive II, 309 A.3d at 947. One of those issues requires us, via

binding precedent, to consider as part of the analysis whether a statute burdens a fundamental right.

Id. at 946. That is what we have aimed at here. Not “because [we] want[] to.” Contra Allegheny

Reproductive III (Wallace, J., dissenting), slip op. at 9. Because “we must.” Learning Res., Inc. v.

Trump, 607 U.S. ___, No. 24–1287, slip op. at 20 (Feb. 20, 2026) (opinion of Roberts, C.J.)

(emphasis added). We leave the rest of this conversation to the Pennsylvania Supreme Court—

the ultimate arbiter of our Constitution’s meaning—and to the “court of history.” Trump v. Hawaii,

585 U.S. at 710.

35

fundamental rights, however, the right is not absolute. See Allegheny Reproductive

II, 309 A.3d at 917. For that reason, we are not persuaded that recognizing this

fundamental right will “short-circuit” political engagement with the issue of

abortion. Attorney General’s Br. at 60. Our decades-old recognition of the

fundamental right to vote has, to put it mildly, not short-circuited debate over

election policy in this Commonwealth, and it is far from the last judicial word on

that subject. Recognizing the fundamental right to reproductive autonomy is an

initial analytical step, but it then requires the proper level of scrutiny be applied to

the governmental action. We now turn to that analysis.

ii. Strict Scrutiny

The Coverage Exclusion allocates funding—or withholds funding—for

a woman’s medical care. “The controlling factor influencing the statutory funding

scheme is how a pregnant woman on Medical Assistance decides to exercise her

reproductive choices.” Allegheny Reproductive II, 309 A.3d at 945. Thus, we

conclude that the Coverage Exclusion does not operate neutrally with respect to a

person’s exercise of the fundamental right to reproductive autonomy. Accordingly,

the commensurate means-ends review is strict scrutiny, which the Supreme Court

plurality explained, citing authority, as follows:

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

36

U.S. 330, 342-43, . . . (1972). The statute must be drawn

with precision and tailored to serve its legitimate

objectives. Id. at 343 . . . . “[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).

Allegheny Reproductive II, 309 A.3d at 946.

In his brief, the Attorney General treats both the Equal Rights

Amendment and equal protection issues as being controlled by the same strict

scrutiny standard. See Attorney General’s Br. at 14, 29-30; see also Allegheny

Reproductive II, 309 A.3d at 977 n.193 (Wecht, J., concurring) (“Although the

Majority does not designate its approach [to the Equal Rights Amendment] as strict

scrutiny, I understand the searching judicial inquiry that it articulates to be just

that.”). We agree with Justice Wecht that the strict scrutiny analysis for equal

protection purposes is substantially the same as that for our Equal Rights

Amendment analysis above. The Attorney General does not advance any distinct

compelling interest that relates to the equal protection analysis, beyond the three

interests identified earlier. Because we have already concluded that (1) those

interests are not compelling, and (2) the Coverage Exclusion is not the least

restrictive means of pursuing them, we see no opportunity for a different conclusion

here. Accordingly, we conclude that the Commonwealth has not met its heavy

burden of justification for the Coverage Exclusion on this Count either. See Dunn,

405 U.S. at 342-43. We see no issue of material fact that would allow it to do so at

trial. Accordingly, the Coverage Exclusion facially violates the equal protection

provisions of the Pennsylvania Constitution.

37

iii. Rational Basis Review

Lastly, we agree with Providers that even if we were not to recognize a

fundamental right to reproductive autonomy, and thus were to apply a lesser degree

of scrutiny, we would still grant summary relief to them on other grounds. If the

classification implicates “neither suspect classes nor fundamental rights[, it] will be

sustained if it meets a ‘rational basis’ test.” Allegheny Reproductive II, 309 A.3d at

918 (quoting James, 477 A.2d at 1305-06). Neither choosing to have an abortion,

nor reliance on Medical Assistance, is a suspect class, so if no fundamental right is

at issue, rational basis review applies. Under that test, a legislative classification

must be sustained “unless it is ‘patently arbitrary’ and bears no rational relationship

to a legitimate governmental interest.” Singer v. Sheppard, 346 A.2d 897, 905 (Pa.

1975) (quoting Frontiero v. Richardson, 411 U.S. 677, 683 (1973)).

Conceding that the three interests the Attorney General asserts—

preserving fetal life, protecting women’s heath, and protecting the conscience rights

of those who oppose state-funded abortion—may be legitimate governmental

interests, the coverage exclusion is not rationally related to those interests. On the

first interest, the Coverage Exclusion contains no exception allowing an abortion

even when it is known, to a medical certainty, that the fetus will not survive birth.

If such a complete absence of potential life is not enough to allow an abortion under

the Coverage Exclusion—and it is not—then the exclusion is not rationally related

to an interest in preserving potential life. See Allegheny Reproductive II, 309 A.3d

at 956 (Wecht, J., concurring). It must be pursuing some other interest, or no

coherent interest at all.

On the second interest—women’s health—the Attorney General seeks

to prove by evidence that some women, under some circumstances, have suffered

38

psychological harm from abortion. While neither comparing nor minimizing

anyone’s suffering, we note that the Attorney General does not dispute the parties’

stipulated facts that women have also suffered concrete medical harms in the course

of pregnancy, including pregnancies that they were coerced into carrying to term

because of the Coverage Exclusion. Joint Statement ¶¶ 33, 47-57. We agree with

Providers that “[i]t is simply irrational to refuse to facilitate prompt access to health

care for people carrying a pregnancy with severe or fatal anomalies, or people whose

health is threatened by the pregnancy, based on a government interest in encouraging

those people to stay pregnant against their will.” Providers’ Br. at 46.

On the third interest—protecting taxpayers’ conscience rights—it is not

clear what the Attorney General means by “conscience.” If the interest is in favoring

one group of taxpayers’ religious beliefs by making tax expenditures that favor those

beliefs over other citizens’ contrary beliefs of conscience, that does not seem like a

legitimate state interest. See The Establishment Clause, U.S. CONST. Amend. I;

Allegheny Reproductive II, 309 A.3d at 968-69 (Wecht, J., concurring) (discussing

Establishment Clause); id. at 980 (discussing Pennsylvania Constitution’s Article I,

Section III “rights of conscience”). In contrast, if the interest is content-neutral—a

desire to protect the conscience rights of all similarly situated taxpayers who oppose

government use of their tax payments for objectionable things—then the Coverage

Exclusion is only selectively, not rationally, related to that interest. The conscience

interest the Coverage Exclusion protects is extremely narrow: it is only the interest

of those who oppose state-funded abortion for women who rely on Medical

Assistance, except in cases where the life of the mother is at risk and cases of rape

or incest, but with no exception for the mother’s health or the viability of the fetus.

It is irrational for the Coverage Exclusion to protect only that very narrow conscience

39

interest and no others.

Thus, even if rational basis review applied, we would find the Coverage

Exclusion does not withstand that review because it is not rationally related to any

of the claimed state interests.

IV. CONCLUSION

For the foregoing reasons, we conclude that the Coverage Exclusion

violates the Equal Rights Amendment in Article I, Section 28 of the Pennsylvania

Constitution. Further, we conclude that Article I of the Pennsylvania Constitution

guarantees a fundamental right to reproductive autonomy, that the Coverage

Exclusion does not operate neutrally with respect to that right and is not properly

justified in doing so, and accordingly the Coverage Exclusion violates the equal

protection guarantee in Article I, Section 26 of the Pennsylvania Constitution.

Providers are entitled to summary relief in their favor on both Counts of the Petition.

_____________________________________

MATTHEW S. WOLF, Judge

40

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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, :

Petitioners :

:

v. : No. 26 M.D. 2019

:

Pennsylvania Department of Human :

Services, Teresa Miller, in her official :

capacity as Secretary of the :

Pennsylvania Department of Human :

Services, Leesa Allen, in her official :

capacity as Executive Deputy Secretary :

for the Pennsylvania Department of :

Human Service’s Office of Medical :

Assistance Programs, and Sally Kozak, :

in her official capacity as Deputy :

Secretary for the Pennsylvania :

Department of Human Service’s :

Office of Medical Assistance Programs, :

Respondents :

ORDER

AND NOW, this 20th day of April 2026, Petitioners’ Application for

Summary Relief is GRANTED. It is hereby DECLARED that Section 3215(c) and

(j) of the Pennsylvania Abortion Control Act, 18 Pa.C.S. §§ 3215(c) & (j) (Coverage

Exclusion) is unconstitutional, as it violates the Pennsylvania Constitution’s Equal

Rights Amendment, PA. CONST. art. I, § 28, and the Pennsylvania Constitution’s

equal protection guarantees, PA. CONST. art. I, §§ 1, 26. The Commonwealth is

permanently ENJOINED from enforcing the Coverage Exclusion and its associated

regulations.

_____________________________________

MATTHEW S. WOLF, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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, :

:

Petitioners :

:

v. : No. 26 M.D. 2019

: Argued: November 5, 2025

Pennsylvania Department of Human Services, :

Teresa Miller, in her official capacity as :

Secretary of the Pennsylvania Department of :

Human Services, Leesa Allen, in her official :

capacity as Executive Deputy Secretary for the :

Pennsylvania Department of Human Service’s :

Office of Medical Assistance Programs, and Sally :

Kozak, in her official capacity as Deputy Secretary :

for the Pennsylvania Department of Human :

Service’s Office of Medical Assistance Programs, :

:

Respondents :

BEFORE: HONORABLE RENEE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

HONORABLE MATTHEW S. WOLF, Judge

CONCURRING OPINION

BY JUDGE WOJCIK FILED: April 20, 2026

I fully join the thorough and well-reasoned rationale of the Majority

Opinion granting summary relief to the Petitioners in this matter pursuant to the

Supreme Court’s remand order in Allegheny Reproductive Health Center v.

Pennsylvania Department of Human Services, 309 A.3d 808 (Pa. 2024).1 I write

separately to emphasize the clear and unbroken line of the foundational legal

documents establishing a fundamental right to personal freedom, equality, and

tolerance2 in this great Commonwealth of ours that compel this result as well.

1

With respect to the Supreme Court’s remand instructions, Pa.R.A.P. 2591(a) states, in

pertinent part: “On remand of the record the court . . . below shall proceed in accordance with the

judgment or other order of the appellate court[.]” See also Section 706 of the Judicial Code, 42

Pa. C.S. §706 (“An appellate court may affirm [or] vacate . . . any order brought before it for

review, and may remand the matter and . . . require the entry of such appropriate order . . . as may

be just under the circumstances.”). “[I]t has long been the law in Pennsylvania that following

remand, a lower court is permitted to proceed only in accordance with the remand order.”

Commonwealth v. Sepulveda, 144 A.3d 1270, 1280 n.19 (Pa. 2016).

2

As a historian of colonial Pennsylvania has observed:

The concept of toleration, important for the national experience and

for many of the other colonies, is of less significance for

Pennsylvania. Toleration implies a concession of privileges by a

controlling or dominant faction to a minority group, not the

unhindered exercise of inherent rights. Pennsylvania was not

founded on the principle of toleration, but of tolerance. Tolerance

describes liberal attitudes toward other religious, national, or

cultural groups, an acceptance of the right not to conform and to

hold different beliefs. Although William Penn’s goal was to

establish, in almost absolute terms, religious liberty, with the

expectation that mutual tolerance would prevail, Penn,

Pennsylvanians, and contemporary observers often described

conditions in the colony as “toleration,” for it was the only frame of

reference available in the context of eighteenth-century political

theory.

Scott Douglas Gerber, Law and the Holy Experiment in Colonial Pennsylvania, 12 N.Y.U. J. L. &

Liberty 618, 620 (2019) (quoting Sally Schwartz, “A Mixed Multitude”: The Struggle for

Toleration in Colonial Pennsylvania, 9 (N.Y.U. Press 1987)).

MHW-2

The status of the “Society of Friends,” or “Friends,” or “Quakers[3]” as

one of the preeminent agents of global peace and social change4 during its over 300-

3

As another Pennsylvania historian has noted:

The early friends had been recruited largely from the lower strata of

society, from the artisans, shopkeepers, domestic servants, yeoman

farmers and husbandmen of Commonwealth and Restoration

England. By the practice of the economic virtues of diligence,

prudence, and thrift, they had risen in the course of years to the status

of substantial and respected upper-middle-class citizens. A little

aloof, perhaps, from “the world” and its follies, preserving their

character as a “peculiar people” by certain singularities of dress and

address, they had attained, both in England and in the colonies, to a

secure place in the upper ranks of society. In Philadelphia, whither

they had migrated a half century earlier [in the late 1600’s] as

craftsmen, shopkeepers, and small farmers, they now constituted a

mercantile aristocracy, sharing their social position only with the

more fashionable Anglicans.

Frederick B. Tolles, “Quietism Versus Enthusiasm: The Philadelphia Quakers and the Great

Awakening,” The Pennsylvania Magazine of History and Biography, Vol. 69, No. 1 (Jan. 1945),

at 27-28 (footnote omitted). In addition, regarding the practice of faith, “[t]he Quaker

characteristically emphasized the inward working of the Holy Spirit, the Christ formed in man’s

soul, whereas the Evangelical rested his faith on the objective historic Christ and His vicarious

atonement.” Id. at 30.

Regarding the Quakers’ current beliefs, the Philadelphia Yearly Meeting has explained:

The essential experience of Friends is that of a direct,

unmediated relationship with the Divine. Friends have used many

terms or phrases to refer to the inner certainty of our faith: the Light

Within, the Inner Light, the Christ Within, the Inward Teacher, the

Divine Presence, Spirit, the Great Spirit, the Spirit of Truth, that of

God in every person, and the Seed. In his journal, George Fox

referred to “that Inward Light, Spirit, and Grace by which all might

know their salvation” and to “that Divine Spirit which would lead

them all into truth.” Today Friends continue to use these terms and

have added others out of a sense of ongoing revelation. For some

Friends, “spiritual energy” best describes their personal experience

(Footnote continued on next page…)

MHW-3

of that which enlivens and empowers them in seeking truth for

themselves and in community. In contrast with early Friends, not

all Friends today consider themselves to be Christians or even

theists. Friends come from very diverse religious backgrounds and

experiences and apply their different perspectives as they encounter

the Light Within. Regardless of the journey that brings individuals

to explore the Quaker way, the invitation to enter into an

unmediated, inward relationship with the Divine continues to be at

the heart of Quaker experience.

PHILADELPHIA YEARLY MEETING OF THE RELIGIOUS SOCIETY OF FRIENDS (PHILADELPHIA

YEARLY MEETING), FAITH AND PRACTICE, 4-5 (2018).

4

Indeed, in “award[ing] th[e 1947 Nobel] Peace Prize to the Quakers, represented by their

two great relief organizations, the Friends Service Council in London and the American Friends

Service Committee in Philadelphia,” the Nobel Committee Chairman summarized the Quakers’

commitment to equality, tolerance, and social change, as follows:

The Quakers took part in creating the first peace organization in

1810 and since then have participated in all active peace

movements. I would mention Elizabeth Fry, John Woolman, and

other Quakers active in the fight against slavery and in the struggle

for social justice. I would mention the liberal idealist John Bright,

his forty-year fight against the principles of war and for the

principles of peace, his opposition to the Crimean War, and his

struggle against [British Prime Minister] Palmerston’s policies.

Many other examples could be mentioned to show how their active

participation in community work, in politics if you prefer, increased

during the nineteenth century.

Yet it is not this side of their activities – the active political side –

which places the Quakers in a unique position. It is through silent

assistance from the nameless to the nameless that they have worked

to promote the fraternity between nations cited in the will of Alfred

Nobel. Their work began in the prisons. We heard about them from

our seamen who spent long years in prison during the Napoleonic

Wars. We met them once again during the Irish famine of 1846-

1847. When English naval units bombarded the Finnish coast

during the Crimean War, the Quakers hurried there to heal the

wounds of war, and we found them again in France after the ravages

of the 1870-1871 war.

(Footnote continued on next page…)

MHW-4

When the First World War broke out, the Quakers were once more

to learn what it was to suffer for their faith. They refused to carry

arms, and many of them were thrown into prison, where they were

often treated worse than criminals. But it is not this that we shall

remember longest. We who have closely observed the events of the

First World War and of the inter-war period will probably remember

most vividly the accounts of the work they did to relieve the distress

caused by the war. As early as 1914, the English Quakers started

preparation for relief action. They began their work in the Marne

district in France and, whenever they could, they went to the very

places where the war had raged. They worked in this way all

through the war and when it ended were confronted by still greater

tasks. For then, as now, hunger and sickness followed in the wake

of the war. Who does not recall the years of famine in Russia in

1920-1921 and [Nobel Laureate Fridtjof] Nansen’s appeal to

mankind for help? Who does not recall the misery among the

children in Vienna which lasted for years on end? In the midst of

the work everywhere were the Quakers. It was the Friends Service

Committee which, at [President] Hoover’s request, took on the

mighty task of obtaining food for sick and undernourished children

in Germany. Their relief corps worked in Poland and Serbia,

continued to work in France, and later during the civil war in Spain

rendered aid on both sides of the front.

Through their work, the Quakers won the confidence of all, for both

governments and people knew that their only purpose was to help.

They did not thrust themselves upon people to win them to their

faith. They drew no distinction between friend and foe. . . .

The Second World War did not strike the Quakers personally in the

same way as did that of 1914. Both in England and in the U.S.A.

the conscription laws allowed the Quakers to undertake relief work

instead of performing military service; so they were neither cast into

prison nor persecuted because of their unwillingness to go to war.

In this war there were, moreover, Quakers who did not refuse to take

an active part in the war, although they were few compared with

those who chose to help the victims of war. When war came, the

first task which confronted them was to help the refugees. But the

difficulties were great because the frontiers of many countries were

soon closed. . . . Nevertheless, they worked where they could, first

undertaking welfare work in England and after that, behind the front

(Footnote continued on next page…)

MHW-5

in many countries of Europe and Asia, and even in America. For

when America joined the war, the whole Japanese[]American

population, numbering 112,000 in all, of whom 80,000 were

American citizens, was evacuated from the West Coast. The

Quakers went to their assistance, as well as opposed the prevailing

anti-Japanese feeling from which these people suffered.

Now, with the war over, the need for help is greater than ever. This

is true not only in Europe, but also and to the same degree in large

areas of Asia. The problems are becoming more and more

overwhelming – the prisoners who were released from concentration

camps in 1945, all those who had to be repatriated from forced labor

or POW camps in enemy countries, all the displaced persons who

have no country to which they can return, all the homeless in their

own countries, all the orphans, the hungry, the starving! The

problem is not merely one of providing food and clothing, it is one

of bringing people back to life and work, of restoring their self-

respect and their faith and confidence in the future. Once again, the

Quakers are active everywhere. As soon as a country has been

reopened they have been on the spot, in Europe and in Asia, among

countrymen and friends as well as among former enemies, in France

and in Germany, in India and in Japan. . . .

Today the Quakers are engaged in work that will continue for many

years to come. But to examine in closer detail the individual relief

schemes would not give us any deeper insight into its significance.

For it is not in the extent of their work or in its practical form that

the Quakers have given most to the people they have met. It is in

the spirit in which this work is performed. “We weren’t sent out to

make converts,” a young Quaker says: “we’ve come out for a

definite purpose, to build up in a spirit of love what has been

destroyed in a spirit of hatred. We’re not missionaries. We can’t

tell if even one person will be converted to Quakerism. Things like

that don’t happen in a hurry. When our work is finished it doesn’t

mean that our influence dies with it. We have not come out to show

the world how wonderful we are. No, the thing that seems most

important is the fact that while the world is waging a war in the name

of Christ, we can bind up the wounds of war in the name of Christ.

Religion means very little until it is translated into positive action.”

***

(Footnote continued on next page…)

MHW-6

year history is beyond question. Relevant here, gender equality has been a guiding

precept in the Quaker faith from its establishment, which continues to this day.5

The Quakers have shown us that it is possible to translate into action

what lies deep in the hearts of many: compassion for others and the

desire to help them – that rich expression of the sympathy between

all men, regardless of nationality or race, which, transformed into

deeds, must form the basis for lasting peace. For this reason alone

the Quakers deserve to receive the Nobel Peace Prize today.

But they have given us something more: they have shown us the

strength to be derived from faith in the victory of the spirit over

force.

Gunnar Jahn, Nobel Awards Presentation Speech (Dec. 10, 1947) (transcript available at

https://www.nobelprize.org/prizes/peace/1947/ceremony-speech/#not_8) (footnotes omitted) (last

visited April 7, 2026).

5

The gender equality in the Quaker faith may emanate from the fact that women

participated in its initial establishment. See, e.g., Bonnelyn Young Kunze, “Religious Authority

and Social Status in Seventeenth Century England: The Friendship of Margaret Fell, George Fox,

and William Penn,” Church History, Vol. 57, No. 2 (Jun., 1988), pp. 170-86. Moreover, in

Pennsylvania, it is clearly evidenced by the ratification of our Equal Rights Amendment (ERA),

Pa. Const. art. I, §28, by the citizens of this Commonwealth on May 18, 1971. This ratification

occurred long before a national ERA was ever considered or passed by the federal Congress,

preceding its ratification by the states, or the Supreme Court’s decision in Roe v. Wade, 410 U.S.

113 (1973), recognizing a national, but limited, right to abortion.

Moreover, our ERA was immediately effective upon its ratification in May of 1971. As

the Supreme Court has explained:

The thrust of the [ERA] 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

responsibilities. 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.

(Footnote continued on next page…)

MHW-7

Following the Crown’s grant of a charter for the colony of

Pennsylvania,6 William Penn composed a number of drafts of the Frame of

We 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 . . . .” Commonwealth ex rel. Spriggs v. Carson, [368

A.2d 635, 639 (Pa.] 1977) (plurality opinion) (“Tender years

doctrine” offends concept of equality of the sexes embraced in

[ERA]); see Adoption of Walker, [360 A.2d 603 (Pa.] 1976)

(Adoption Act’s failure to require parental consent of unwed father

as well as unwed mother violates [ERA].); Butler v. Butler, [347

A.2d 477 (Pa. ]1975) (Presumption that where husband obtains his

wife’s property without adequate consideration a trust is created in

his wife’s favor abolished.); Commonwealth v. Santiago, [340 A.2d

440 (Pa.] 1975) (Doctrine of “coverture” requiring presumption that

wife who commits crime in presence of husband was coerced by

husband discarded.); Di Florido v. Di Florido, [331 A.2d 174 (Pa.]

1975) (Presumption that husband is owner of household goods used

and possessed by both spouses abolished.); Commonwealth v.

Butler, [328 A.2d 851 (Pa.] 1974) (Statutory scheme under which

women are eligible for parole immediately upon incarceration while

men must serve minimum sentence violates [ERA].); Henderson v.

Henderson, [327 A.2d 60 (Pa. 1974)], (Statute providing for

alimony pendente lite, counsel fees and expenses in divorce action

for wife but not husband violates [ERA]); Conway v. Dana, [318

A.2d 324 (Pa.] 1974) (Presumption that father must bear principal

burden of support of minor children abolished.); cf. Hopkins v.

Blanco, [320 A.2d 139 (Pa.] 1974) ([ERA] requires that wife as well

as husband be permitted to recover for loss of consortium.) Gender-

based rates such as [the insurance company’s] rely on and perpetuate

stereotypes similar to those condemned in the above cases.

Hartford Accident and Indemnity Co. v. Insurance Commissioner, 482 A.2d 542, 547-48 (Pa.

1984) (citation omitted). In short, since that time, our citizenry has replaced the word “man” and

“men” with “woman” and “women.” The Pennsylvania Constitution reads much differently when

viewed in this manner.

6

The charter granted to William Penn significantly differed from the other colonial

charters:

(Footnote continued on next page…)

MHW-8

Government that he wished to establish here. Penn’s second completed and

approved Frame of Government “was Pennsylvania’s first operating constitution.”

JEAN R. SODERLUND, ET AL., EDS., WILLIAM PENN AND THE FOUNDING OF

PENNSYLVANIA 1680-1684: A DOCUMENTARY HISTORY 265 (U. Penn. Press 1983).

Remarkably, “Penn’s set of laws was truly innovative in one essential aspect. It was

the first constitution that specified a method for its own amendment.” HANS FANTEL,

WILLIAM PENN: APOSTLE OF DISSENT 156 (Morrow 1974).7

All the English proprietary charters except that of

Pennsylvania gave the proprietors the powers of the Bishop of

Durham -- a grant equivalent to independent sovereignty, limited

only by loyalty to the King. In Penn’s charter, the King somewhat

modified the traditional powers of the proprietor. Penn received no

right to grant titles of nobility and he had to submit provincial laws

to the King for approval, to acknowledge the right of Parliament to

tax the colony, to maintain a provincial agent in London, and to

present all Pennsylvania laws to “the freemen” or to “their

delegates” for their approval.

But except for these restrictions, the charter granted Penn

“absolute power” over his principality. He had the sole authority to

make laws, levy taxes, coin money, regulate commerce, appoint

provincial officials, administer justice, grant pardons, make war,

erect manors, sell land, and perform all other acts pertaining to

sovereignty. The charter gave Penn the broadest latitude in planning

the details of the political structure and administration of his

province.

PHILIP S. KLEIN & ARI HOOGENBOOM, A HISTORY OF PENNSYLVANIA 36-37 (2d ed. 1980).

7

In relevant part, the Frame of Government states:

XXIV. That no act, law, or ordinance whatsoever, shall, at any time

hereafter be made or done by the Proprietary and Governor of this

province hereunto belonging, his heirs or assigns, or by the freemen

in provincial Council or Assembly to alter, change, or diminish the

form or effect of this charter, or any part or clause thereof, contrary

(Footnote continued on next page…)

MHW-9

In particular, Penn initially permitted amendment to the Frame of

Government to address one significant hurdle that he encountered in the crafting of

this Commonwealth’s constitution. To wit:

As a Quaker and a pacifist, Penn was particularly

concerned with the problem of violence in statecraft. He

was realist enough to know that every previously known

form of government ultimately rested on force. He knew

that when reason, sentiment, and especially religion are

invoked by the state, it is often merely to hide the ready

sword. Like other political theorists of the time, notably

Hobbes, Penn regarded the state as a contract between

rulers and ruled. But even if the rule was democratic self-

rule, the power of the government lay ultimately in its

ability to punish, in extreme cases by the selective killing

of disruptive persons. As Hobbes put it, “Covenants

without swords are but words.” How, then, could

governance be reconciled with the Quaker ideal of

nonviolence?

Penn realized that this was a basically insoluble

problem. The best he could do was to draw up a legal code

designed to forestall extreme internal stress. In the narrow

sense, this meant finding a way to accommodate dissent

within the law. In a broader sense, it meant that Penn had

to create a social climate to liberate the moral potential of

man so that the freely given word would become a

sufficient instrument of contract, rendering the sword

needless. Personal enmity, of course, might still occur, but

not class or group hatred. He believed his Frame of

Government was the best available blueprint for such a

society.

to the true intent and meaning thereof, without the consent of the

Proprietary and Governor, his heirs or assigns, and six parts of seven

of the said freemen in provincial Council and Assembly met.

The Frame of Government of the Province of Pennsylvania and, Territories thereunto annexed, in

America (February 2, 1683) (accessed at https://avalon.law.yale.edu/17th_century/pa05.asp) (last

visited April 17, 2026).

MHW-10

The state projected by Penn was a true “civil”

society, in marked contrast to the rigid theocracies

established by the Puritans in New England. The Puritans

formulated their legal codes on ancient biblical concepts.

Their community was conceived as a fixed structure, an

unalterable covenant with God in the old Hebrew sense.

Because the Quakers were free of that ancient Near

Eastern and essentially despotic notion of the divine

covenant, it was possible for Penn to establish the first

legal framework for a fluid democratic society, open to the

development of new social norms. This surely ranks

among Penn’s most profound achievements.

FANTEL at 157-58.8

Subsequently, following changes in sovereign and Penn’s return to

proprietorship,

word came that the English government was planning a

unification of the American colonies for defense and

might bring them all under the Crown. Penn arranged to

leave for England in the fall of 1701 to resist this proposal,

but some government would have to be created for

Pennsylvania to serve in his absence. The Assembly had

8

As has been noted:

The first to recognize the importance of Penn’s political

theories was Voltaire, almost a century after the fact. In his Lettres

philosophiques, he credits Penn with creating “that golden age of

which men talk and which probably has never existed anywhere but

Pennsylvania.” Clearly this is hyperbole. But Voltaire was writing

under stress. Struggling in exile against French absolutism, he saw

in Penn’s liberal constitution indeed the token of a golden age. A

later historian, Brent Barksdale, confirms Voltaire’s judgment and

declares flatly: “The government that William Penn established in

1682 was far more liberal and responsible to the people than any

antecedent or contemporary form on earth. In the wilds of

Pennsylvania he set up the only government in the known world that

did not maintain a military defense against foreign invasion or

internal uprising.”

FANTEL at 158.

MHW-11

discussed a new constitution, but had shown no hurry to

reach a decision. Now the time for action had come. After

a brief debate, the Assembly agreed to a constitution

which essentially placed the governing power in its own

hand, and asked Penn for approval. He hurriedly agreed,

and on October 28, 1701, Pennsylvania’s fourth

constitution, known as the Charter of Privileges, became

law.

KLEIN & HOOGENBOOM at 32. See Charter of Privileges Granted to the Inhabitants

of Pennsylvania and Territories (Charter of Privileges) (October 28, 1701)

(accessed at https://avalon.law.yale.edu/18th_century/pa07.asp#1) (last visited April

17, 2026). “This [Charter of Privileges] was granted by William Penn, with the

approbation of the General Assembly, and remained in force until the [American]

Revolution.” Id. at n.1.

The first section of this Charter of Privileges boldly states:

BECAUSE no People can be truly happy, though under

the greatest Enjoyment of Civil Liberties, if abridged of

the Freedom of their Consciences, as to their Religious

Profession and Worship: And Almighty God being the

only Lord of Conscience, Father of Lights and Spirits; and

the Author as well as Object of all divine Knowledge,

Faith and Worship, who only doth enlighten the Minds,

and persuade and convince the Understandings of People,

I do hereby grant and declare, That no Person or Persons,

inhabiting in this Province or Territories, who shall

confess and acknowledge One almighty God, the Creator,

Upholder and Ruler of the World; and profess him or

themselves obliged to live quietly under the Civil

Government, shall be in any Case molested or

prejudiced, in his or their Person or Estate, because of

his or their conscientious Persuasion or Practice, nor be

compelled to frequent or maintain any religious Worship,

Place or Ministry, contrary to his or their Mind, or to do

or suffer any other Act or Thing, contrary to their

religious Persuasion.

Id., §I (emphasis added).

MHW-12

A prolific writer, William Penn had previously explained his meaning,

defining “liberty of conscience,” as follows:

. . . First, by liberty of conscience, we mean not only

a mere liberty of mind, in believing or disbelieving this or

that principle or doctrine. But we also believe such liberty

protects a visible way of worship, a way of worship we

believe to be required of us by God. If we neglect this

wor[]ship for fear or favor of mortal man, we sin and are

in danger of divine wrath.

Second, by restraint or persecution, we do not only

mean the strict requiring of us to believe this to be true or

that to be false, and upon refusal to receive the penalties

given in such cases. But by those terms we mean this

much: any coercion, force or hindrance which prevents our

meeting together to perform those religious exercises

which are accord[]ing to our faith and persuasion.

We wish to put the question in this way. Is it not

true that persecution against persons exercising their

liberty of conscience reduces the honor of God? Does it

not also defile the Christian religion, violate the authority

of Scripture, and go against the principles of common

reason? Finally, does it not destroy the well-being of

government itself?

Concerning the honor of God, we say that restraint

and persecution for matters relating to conscience directly

invade the divine right, and rob the Almighty of that which

belongs to none but Himself . . . .

CONSTITUTIONAL DEBATES ON FREEDOM OF RELIGION: A DOCUMENTARY HISTORY

17 (John J. Patrick & Gerald P. Long, eds. 1999) (quoting WILLIAM PENN, THE

GREAT CASE OF LIBERTY OF CONSCIENCE ONCE MORE BRIEFLY DEFENDED AND

DEBATED 1 (London, 1670)).

MHW-13

Likewise, the first two articles of our first constitution following the

American Revolution provided, “A Declaration of the Rights of the Inhabitants of

the Commonwealth or State of Pennsylvania,” and stated:

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.

II. That all men have a natural and unalienable right to

worship Almighty God according to the dictates of their

own consciences and understanding: And that no man

ought or of right can be compelled to attend any religious

worship, or erect or support any place of worship, or

maintain any ministry, contrary to, or against, his own free

will and consent: Nor can any man, who acknowledges

the being of a God, be justly deprived or abridged of any

civil right as a citizen, on account of his religious

sentiments or peculiar mode of religious worship: And

that no authority can or ought to be vested in, or assumed

by any power whatever, that shall in any case interfere

with, or in any manner controul [sic], the right of

conscience in the free exercise of religious worship.

Pa. Const. art. I and II (September 18, 1776) (emphasis added) (accessed at

https://www.paconstitution.org/wp-content/uploads/2017/11/const-1776-pa-

archives-vol10.pdf) (last visited April 17, 2026).

Moreover, sections I and III of article IX of our Constitution of 1790

provided:

That the general, great, and essential principles of liberty

and free Government may be recognized and unalterably

established, WE DECLARE,

Of the equality and rights of men.

MHW-14

Section I. 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.

***

Of the rights of conscience, &c.

Sect. III. That all men have a natural and indefeasible right

to worship Almighty God according to the dictates of their

own consciences; that no man can, of right, be compelled

to attend, erect, or support any place of worship, or to

maintain any ministry against his consent; that no human

authority can, in any case whatever, controul [sic] or

interfere with the rights of conscience; and that no

preference shall ever be given, by law, to any religious

establishments or modes of worship.

Pa. Const. art. IX, §§1 and 3 (September 2, 1790) (emphasis added) (accessed at

https://www.paconstitution.org/wp-content/uploads/2017/11/const-1970-pa-

archives-vol10.pdf) (last visited April 17, 2026).

Furthermore, sections I and III of article IX of our Constitution of 1838

provided:

That the general, great, and essential principles of Liberty

and Free Government may be recognized and unalterably

established, WE DECLARE–

Rights of life liberty property &c.

Section I. 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.

***

MHW-15

Rights of conscience &c.

Section III. All men have a natural and indefeasible right

to worship Almighty God, according to the dictates of

their own consciences; no man can, of right, 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.

Pa. Const. art. IX, §§1 and 3 (October 22, 1838) (emphasis added) (accessed at

https://www.paconstitution.org/texts-of-the-constitution/1838-2/) (last visited April

17, 2026).

In construing the foregoing provisions, the Pennsylvania Supreme

Court described the contours of this constitutional protection thusly:

The constitution of this state secures freedom of

conscience and equality of religious right. No man,

living under the protection of our institutions, can be

coerced to profess any form of religious belief, or to

practice any peculiar mode of worship, in preference to

another. In this respect, the Christian, the Jew, the

Mohammedan, and the Pagan, are alike entitled to

protection. Nay, the Infidel, who madly rejects all belief

in a Divine Essence, may safely do so, in reference to

civil punishment, so long as he refrains from the wanton

and malicious proclamation of his opinions with intent

to outrage the moral and religious convictions of a

community, the vast majority of whom are Christians.

But beyond this, conscientious doctrines and practices can

claim no immunity from the operation of general laws

made for the government and to promote the welfare of the

whole people. In the language of Chief Justice Gibson,

the right of conscience, as understood under our organic

law, “is simply a right to worship the Supreme Being

according to the dictates of the heart; to adopt any creed

or hold any opinion whatever, or to support any religion;

and to do, or forbear to do, any act for conscience’ sake,

the doing or forbearing of which is not prejudicial to the

MHW-16

public weal” (Commonwealth v. Lesher, 17 S. & R. 160

[(1828)).]

Specht v. Commonwealth, 8 Pa. 312, 322-23 (1848) (emphasis added).

To this end, the amended provisions in sections I and III of article IX

of our ratified Constitution of 1874 provided:

DECLARATION OF RIGHTS

That the general, great and essential principles of liberty

and free government may be recognized and unalterably

established, WE DECLARE THAT –

Equality and rights of men.

Section 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.

***

Natural right of conscience and freedom of worship.[9]

9

See also Allegheny Reproductive Health Center, 309 A.3d at 980 (Wecht, J., concurring):

Where the Establishment and Free Exercise Clauses of the First

Amendment [to the United States Constitution] are tied to religion,

[a]rticle I, [s]ection 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, [s]ection 3 therefore exceeds the limitations of

the First Amendment, in both breadth and emphasis. Construed

broadly, [a]rticle I, [s]ection 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. [(Footnote omitted).]

MHW-17

Section 3.

All men have a natural and indefeasible right to worship

Almighty God according to the dictates of their own

consciences; no man can of right 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.

Pa. Const. art. I, §§1 and 3 (December 16, 1873) (emphasis added) (accessed at

https://www.paconstitution.org/texts-of-the-constitution/1874-2/) (last visited April

17, 2026).

Finally, and quite importantly, sections 1 and 3 of article I of our present

Constitution provide:

§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.

***

§3. Religious freedom

All men have a natural and indefeasible right to worship

Almighty God according to the dictates of their own

consciences; no man can of right 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.

Pa. Const. art. I, §§1 and 3 (emphasis added).

As outlined above, the right of a competent individual to conduct one’s

affairs according to one’s own conscience, in whatever form, is a fundamental right

in Pennsylvania that is separate and apart from the rights of freedom of religion or

MHW-18

personal privacy,10 while containing elements of both. Moreover, “right of

conscience,” “liberty of conscience,” and “freedom of conscience” have been terms

of art that have existed since this Commonwealth’s inception in 1682. Stated simply,

as it relates to the exercise of a woman’s right to choose herein, I am convinced that

this inherent right to act according to one’s own conscience, or sincerely held system

of beliefs, precludes the Commonwealth from constitutionally coercing a competent

woman by statute to prevent her from receiving required medical care to end her

pregnancy. Her constitutional “freedom of conscience,” “liberty of conscience,” and

“right of conscience” has existed in this Commonwealth since Penn’s Charter of

Privileges was adopted in 1701.

Such a construction of William Penn’s intent to provide for personal

freedom, equality, and tolerance is evidenced by the Quakers’ current policies on

sexuality and abortion. Indeed, as explained by the Philadelphia Yearly Meeting:

Friends seek to acknowledge and nurture sexuality

as a divine gift that celebrates human love with joy and

intimacy. In defining healthy sexuality, Friends are

10

See, e.g., In re Fortieth Statewide Investigating Grand Jury, 190 A.3d 560, 572-73 (Pa.

2018), wherein our Supreme Court discussed Pennsylvania’s additional distinct and fundamental

constitutional right to protect one’s reputation via due process, stating:

[I]n Pennsylvania [the right of citizens to security in their

reputations] is a fundamental constitutional entitlement. See

Pa. Const. art. I, §1; R. v. [Department of Public Welfare, 636 A.2d

142, 149 (Pa. 1994)]. The right is established in the opening passage

of the Pennsylvania Constitution’s Declaration of Rights -- under

the title “Inherent rights of mankind” -- and is couched as an

“indefeasible” guarantee. Pa. Const. art. I, §1. This foundational

assurance of reputational security has remained substantively extant

through four iterations of the state charter, dating back to our

Constitution of 1790.

See also n.6, supra.

MHW-19

guided by our testimonies: that sexual relationships are

equal, not exploitative; that sexual behavior be marked by

integrity; and that sex is an act of love, not aggression.

Sexuality is at once an integral and an intricate part of

personality. Understanding our own sexuality is an

essential aspect of our journey toward wholeness.

Learning to incorporate sexuality into our lives

responsibly, joyfully and with integrity is a lifelong

process beginning in childhood.

Friends are wary of a fixed moral code to govern

sexual activity. The sacramental quality of the sexual

relationship depends upon Spirit as well as on the motives

of the persons concerned. With guidance from the Inward

Teacher, we can examine relationships honestly, with the

strength to reconcile often conflicting demands of body,

heart, and mind. Precisely because our sexuality is so

powerful, seeking the Divine becomes essential. The self-

discipline and obedience to Spirit thus called is more

personal, and perhaps more difficult, than adherence to an

external code.

Friends approve the concept of family planning,

including adoption. We are in unity about the value of

human life, but not about abortion. We are urged to seek

the guidance of the Spirit when dealing with an

unexpected pregnancy and to support one another in

avoiding situations that continue a need for abortion.

PHILADELPHIA YEARLY MEETING at 41-42.

Acknowledging the divergent views on this point among Quakers, and

following an extended period of discernment, the Friends Committee on National

Legislation (FCNL)11 ultimately issued the following statement regarding its

position on a woman’s right to choose, stating:

11

Since 1943, the FCNL has been a lobbying arm for the Quakers in Congress. As the

FCNL has stated: “Governed by members of the Religious Society of Friends, FCNL acts in faith

to create a world free from war, a society with equity and justice for all, a community where every

person’s potential may be fulfilled, and an earth restored.” FCNL, THE WORLD WE SEEK:

STATEMENT OF LEGISLATIVE POLICY P.I. (2024).

MHW-20

Quakers recognize that human life is sacred, and that Spirit

can guide us individually and collectively. Based on these

beliefs, members of the Religious Society of Friends have

come to different conclusions regarding abortion. FCNL

supports individual discernment in a spirit of love and

truth in making reproductive healthcare decisions, as we

do in other areas of conscientious moral choice.

Government must ensure that people have the legal right

to make these decisions. We oppose the criminalization

of people seeking, undergoing, or involved in abortion

services. We support equitable access to abortion

services. FCNL also supports policies that reduce

unwanted pregnancies by ensuring equitable access to

contraception, sex education, family planning, fertility and

adoption services, and support for all who decide to have

children.

FCNL, THE WORLD WE SEEK: STATEMENT OF LEGISLATIVE POLICY §III.2.7. (2024).

This Quaker view of tolerance in practice is eloquently described in the

testimony of a member of the Yearly Meeting in Britain, as follows:

However one views it, and for whatever reason it is carried

out, an abortion is a deliberate taking of a potential life.

The arguments around the right to life versus the right to

choose do little to help those who believe in personal

morality yet whose religion lays down no hard and fast

rules about moral issues such as abortion.

As a nurse who was asked to become involved in the

procedure of therapeutic abortion I was forced to decide.

My final decision, made after much heart-searching, was

to say ‘No.’ As a result I had to move to a less

conveniently placed hospital, but my decision was

accepted and at no time was my livelihood threatened.

The right of medical personnel to choose not to become

involved in the procedure of therapeutic abortion is

enshrined in law.[12] In my case I used my right to choose,

12

See, e.g., Section 3202(d) of our Crimes Code, which states:

(Footnote continued on next page…)

MHW-21

but this left me with a dilemma. Where should I stand on

another’s right to choose to have an abortion? My choice

was respected and my rights maintained. My

responsibility had to be to respect another’s choice and

maintain their right to my compassion and understanding.

To do less would make my decision nothing more than a

pious declaration which ignored the very real pain suffered

by many women who decide to have an abortion.

Pauline Condon, 1994

YEARLY MEETING OF THE RELIGIOUS SOCIETY OF FRIENDS (QUAKERS) IN BRITAIN

(BRITISH YEARLY MEETING), QUAKER FAITH AND PRACTICE §22.57 (5th ed. 1994).

Finally, this Quaker view of tolerance is also described in the

heartbreaking testimony of another member of the Yearly Meeting in Britain:

I once read in a feminist philosopher’s work that only

pacifists could logically be opposed to abortion since only

they took an absolutist approach that it is always wrong to

take life. But what if you are both a pacifist and one who

believes that women should have a right to make choices

(d) Right of conscience.--It is the further public policy of the

Commonwealth of Pennsylvania to respect and protect the right of

conscience of all persons who refuse to obtain, receive, subsidize,

accept or provide abortions including those persons who are

engaged in the delivery of medical services and medical care

whether acting individually, corporately or in association with other

persons; and to prohibit all forms of discrimination, disqualification,

coercion, disability or imposition of liability or financial burden

upon such persons or entities by reason of their refusing to act

contrary to their conscience or conscientious convictions in refusing

to obtain, receive, subsidize, accept or provide abortions.

18 Pa. C.S. §3202(d). In turn, Section 3203 defines “conscience” as “[a] sincerely held set of

moral convictions arising from belief in and relation to a deity or which, though not so derived,

obtains from a place in the life of its possessor parallel to that filled by a deity among adherents

to religious faiths.” Id. at §3203 (emphasis added). As explained above, the General Assembly’s

legislative authority to enact such a provision cannot be questioned. City of Erie v. Erie Traction

Co., 222 Pa. 43 (Pa. 1908); City of Pittsburg v. Pittsburg, C. & W.R. Co., 205 Pa. 13 (Pa. 1903);

Cronise v. Cronise, 54 Pa. 255 (Pa. 1867).

MHW-22

about their own lives? Since we live in a society that both

expects women to take responsibility for children and yet

provides little financial or emotional support, how can we

insist that a young woman take on the burden of an

unwanted child, or even the physical and emotional stress

of bearing a child for adoption?

These could have remained theoretical questions. But life

is not like that. A member of my family became pregnant

and a decision had to be made quickly, within twenty-four

hours. A baby was not intended, neither of the young

people concerned had financial resources, a child would

affect the establishment of at least one, if not two careers.

I was the sole financial support of the family, so that I too

could not care for a child.

It was clear to me then, it was clear to all of us, that an

early abortion was the right answer. That does not mean

that abortion itself is right, but that when human beings get

into situations where every choice is wrong, then

courageous and responsible decisions have to be made,

and the consequences lived with.

I am still sure that in the circumstances the right choice

was made. It was made by the person who had to live with

the consequences, and it was made with family support.

In a sense, an unborn child carried for all of us the costs of

being a broken family in a broken world. But when I see

and hold other peoples’ babies, there is in my heart a grief

which I cannot share, since it is not my secret, for the

grandchild I never had and shall never know.

Anonymous, 1990

BRITISH YEARLY MEETING at §22.55.

As outlined above, when William Penn and the Assembly granted a

“right of conscience” in the Charter of Privileges, they did so in stark contrast to the

other theocentric colonies in America. Where those colonies’ legal codes were

imbued with specific religious dogma, Pennsylvania’s own Charter of Privileges

MHW-23

was based on the more general “liberty of conscience.[13]” As a result, since the

ratification of our Charter of Privileges in 1701, each and every Pennsylvania

Constitution has included an expressly enumerated “right of conscience,” which

13

As a former Justice of the Rhode Island Supreme Court recounted long ago:

Coming into power, th[e Puritans] established their own church, and

compelled an unwilling people to conform to and support it. The

Quakers probed deeper. They rebelled against prelate and presbyter

alike. They claimed not toleration, but liberty of conscience for all

as an inalienable right; they demanded the absolute Separation of

Church and State, denounced the clergy as priests and hirelings, and

. . . refused to acknowledge their authority or to contribute so much

as a farthing to their maintenance. Silent meditation, only

interrupted by a short prayer or exhortation by one or more of them,

who, perchance, were moved by the Spirit, constituted their only

form of worship. They substituted simple affirmation for the oath,

defending the innovation with apt and telling quotes from scripture.

They held meetings for worship, and were generally careful to

abstain from all unnecessary secular employment on the first day of

the week, but they did not regard it especially as the “Lord’s Day.”

They claimed that all days are alike holy in the sight of God. They

regarded the use of plural number in addressing one person as a

species of flattery, and adopted the simple thee and thou of the Bible.

They addressed all men by the Christian names only, regarding all

other modes of address as “flattering titles.” They declared that it is

not lawful for Christians to kneel or prostrate themselves to any

man, or to bow the body, or to uncover the head to men; that it is not

lawful for Christians to use superfluities in apparel, as are of no use

save for ornament or vanity; that it is not lawful to use games, sports,

plays, nor, among other things, comedies, among Christians, under

the notion of recreations, which do not agree with Christian silence,

gravity, and sobriety. They considered war an evil, as opposite and

contrary to the spirit and doctrine of Christ as light to darkness, and

they would not fight.

HORATIO ROGERS, MARY DYER OF RHODE ISLAND: THE QUAKER MARTYR THAT WAS HANGED

ON BOSTON COMMON JUNE 1, 1660, VOL. I, 24-26 (Norwood Press 1896) (emphasis added)

(accessed at https://www.google.com/books/edition/_/ArMDAAAAYAAJ?hl=en&gbpv=1) (last

visited April 17, 2026).

MHW-24

extends beyond that of religious practice and bleeds into the remainder of our civil

legal code.14

In fact, it might be more accurately said that the right of a competent

individual to conduct one’s affairs according to one’s own conscience, in whatever

form, is a fundamental right in Pennsylvania that is separate and apart from the rights

of freedom of religion, equality, or personal privacy, while containing elements of

all. As it relates to the exercise of a woman’s right to choose, then, this inherent

right to act according to one’s own conscience, or sincerely held system of beliefs,

in the pursuit of happiness15 prohibits the Commonwealth from constitutionally

14

See, e.g., Wikoskie v. Wikoskie, 513 A.2d 986, 989 (Pa. Super. 1986), wherein the

Pennsylvania Superior Court held:

The state’s interests in regulating marriage and divorce are clearly

paramount. That regulation is inconsistent with the recognition of a

unilateral right of a party to remove himself from its purview as a

matter of conscience. The state has the power, properly exercised

within constitutional limits guaranteeing freedom of religion, to

grant divorces. Thus, whether granting [the wife] her divorce is

viewed as not infringing upon [the husband’s] freedom of religion,

as in Williams [v. William, 543 P.2d 1401 (Oklahoma 1975)], or as

interfering with the practice of his religion, as in Reynolds [v. United

States, 98 U.S. 145 (1878)], the result reached here would be the

same. To whatever extent the issuance of a divorce decree interferes

with the practice of [the husband’s] religion, it does not violate an

individual’s right to freedom of conscience.

See also Wertz v. Chapman Township, 709 A.2d 428, 433 n.8 (Pa. Cmwlth. 1998) (“This [C]ourt

is not bound by the Superior Court’s precedents although, where persuasive, we are free to adopt

the Superior Court’s reasoning.”) (citations omitted).

15

Although this is an enumerated right that is included in article I, section 1 of our

Constitution and in the Declaration of Independence, like the inherent rights of reputation and

conscience and our ERA, there is no federal counterpart in the United States Constitution. See,

e.g., Reed v. Department of Transportation, 872 A.2d 202, 205 (Pa. Cmwlth. 2005) (“[W]hile the

Preamble to the Declaration of Independence does mention ‘the pursuit of happiness,’ nowhere in

(Footnote continued on next page…)

MHW-25

bending the moral will of a competent woman by statute to prevent her from

receiving required medical care to end her pregnancy.16

It is truly distressing that in Pennsylvania today a Quaker patient is still

subjected to provisions of law discouraging her, or even precluding her, from

obtaining fully informed and necessary medical treatment that conforms to the tenets

of her faith.17 No, rather, I firmly believe that a patient’s unencumbered “freedom

of conscience,” “liberty of conscience,” “right of conscience” or, in this case, “right

to choose,” has been protected under the Constitution of this Commonwealth since

1701, long before the American Revolution.18

the [federal] Constitution does the government guarantee a citizen the right to his own

idiosyncratic vision of happiness which in this case, is having his driver’s license photo taken with

his eyes closed.”).

16

See ROGERS at 67-68 (“Each must judge for himself of the credit due to Mary Dyer for

her sufferings and death. It is a growing belief that when, in coming ages, the roll shall be made

up of those whose lives or deaths contributed to the establishment among men of the immortal

principle of liberty of conscience, inscribed in enduring fame upon it will be found the name of

Mary Dyer.”).

17

See also Allegheny Reproductive Health Center, 309 A.3d at 892 n.86, wherein our

Supreme Court noted:

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.

18

I find the Dissenting Opinion’s “response,” more akin to a gratuitous attack,

unpersuasive. See, e.g., Braun v. Vote.org, 11 N.W.3d 106, 115 n.9 (Wis. Ct. App.), appeal denied,

(Footnote continued on next page…)

MHW-26

As initially stated above, I fully join in the Majority’s rationale in its

disposition of this matter pursuant to our Supreme Court’s remand instructions in

Allegheny Reproductive Health Center and Pa.R.A.P. 2591(a). I merely provide the

foregoing Concurring Opinion in further support of the Majority Opinion granting

Petitioners summary relief.

MICHAEL H. WOJCIK, Judge

President Judge Cohn Jubelirer joins in this Concurring Opinion.

15 N.W.3d 767 (Wis. 2024) (“In refusing to simply apply the well-established law governing

intervention and acknowledge that the [two organizations] share the same interest, the Dissent

evokes the well-known Shakespearean maxim of ‘protesting too much.’ See William Shakespeare,

Hamlet act 3, sc. 2[, ln. 242] (‘The lady doth protest too much, methinks.’). Methinks.”). Instead,

I am reminded of the eloquent and important words of the late Justice Musmanno:

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.

Commonwealth v. Murray, 223 A.2d 102, 110 (Pa. 1966) (Musmanno, J., dissenting).

MHW-27

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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, :

Petitioners :

:

v. : No. 26 M.D. 2019

:

Pennsylvania Department of Human : Argued: November 5, 2025

Services, Teresa Miller, in her official :

capacity as Secretary of the :

Pennsylvania Department of Human :

Services, Leesa Allen, in her official :

capacity as Executive Deputy Secretary :

for the Pennsylvania Department of :

Human Service’s Office of Medical :

Assistance Programs, and Sally Kozak, :

in her official capacity as Deputy :

Secretary for the Pennsylvania :

Department of Human Service’s :

Office of Medical Assistance Programs, :

Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

HONORABLE MATTHEW S. WOLF, Judge

DISSENTING OPINION

BY JUDGE McCULLOUGH FILED: April 20, 2026

Today the four-member Majority declares that the corporate

petitioners, four of which operate for profit (Abortion Providers), have a

constitutionally-mandated ability to bill Pennsylvania taxpayers to pay for abortions-

on-demand sought by Medical Assistance recipients. What is more, however, is that

the Majority got where it wanted without a hearing, without factfinding, without

even an answer to Abortion Providers’ Petition for Review. The Majority’s decision

is based entirely on unvetted “stipulations” submitted jointly by Abortion Providers

and Respondents after Respondents abandoned any defense of the constitutionality

of the abortion funding restrictions challenged in this litigation. Even after the

Attorney General intervened on behalf of the Commonwealth to defend those

restrictions and requested a hearing at which to do so, the Majority dispensed with a

hearing and factfinding, and now grants summary relief by judicial fiat.

To impose this funding burden onto taxpayers, the Majority summarily

re-writes longstanding Pennsylvania public policy favoring the protection of the life

of an unborn child, a policy that remains enshrined in statutes and constitutional

provisions enacted

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