Allegheny Reprod. Health v. PA DHS

[J-65-2022]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

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

ALLEGHENY REPRODUCTIVE HEALTH : No. 26 MAP 2021

CENTER, ALLENTOWN WOMEN'S :

CENTER, DELAWARE COUNTY : Appeal from the Orders of the

WOMEN'S CENTER, PHILADELPHIA : Commonwealth Court at No. 26 MD

WOMEN'S CENTER, PLANNED : 2019 dated January 28, 2020, and

PARENTHOOD KEYSTONE, PLANNED : March 26, 2021

PARENTHOOD SOUTHEASTERN :

PENNSYLVANIA, AND PLANNED : ARGUED: October 26, 2022

PARENTHOOD OF WESTERN :

PENNSYLVANIA, :

:

Appellants :

:

:

v. :

:

:

PENNSYLVANIA DEPARTMENT OF :

HUMAN SERVICES, VALERIE A. :

ARKOOSH, IN HER OFFICIAL CAPACITY :

AS SECRETARY OF THE PENNSYLVANIA :

DEPARTMENT OF HUMAN SERVICES, :

ANDREW BARNES, IN HIS OFFICIAL :

CAPACITY AS EXECUTIVE DEPUTY :

SECRETARY FOR THE PENNSYLVANIA :

DEPARTMENT OF HUMAN SERVICES’ :

OFFICE OF MEDICAL ASSISTANCE :

PROGRAMS, AND SALLY KOZAK, IN HER :

OFFICIAL CAPACITY AS DEPUTY :

SECRETARY FOR THE PENNSYLVANIA :

DEPARTMENT OF HUMAN SERVICES’ :

OFFICE OF MEDICAL ASSISTANCE :

PROGRAMS, :

:

Appellees :

Justice Donohue delivers the Opinion of the Court except for

the second paragraph of footnote 11, Part III.E. and

Part III.F.3.b.

OPINION

JUSTICE DONOHUE DECIDED: January 29, 2024

I. Introduction

This appeal arises out of an order of the Commonwealth Court sustaining

preliminary objections and dismissing a petition for review seeking declaratory and

injunctive relief from Sections 3215(c) & (j) of the Pennsylvania Abortion Control Act. 1

Multiple abortion providers 2 sued the Department of Human Services and several

individuals in their official capacities (collectively, “DHS”) claiming that Sections 3215(c)

& (j) violate the Equal Rights Amendment and equal protection provisions of the

Pennsylvania Constitution. PA. CONST. art. I, § 28 (Equal Rights Amendment); PA. CONST.

art. I, §§ 1, 26 & art. III, § 32 (equal protection provisions). Sections 3215(c) & (j) prohibit

the expenditure of Commonwealth and Federal funds appropriated by the Commonwealth

for the performance of an abortion except to avert the death of the mother or where the

pregnancy was caused by rape or incest. 18 Pa.C.S. § 3215(c), (j) (“Coverage

1 18 Pa.C.S. §§ 3201-3220.

2 The various abortion providers include: the Allegheny Reproductive Health Center,

Allentown Women’s Center, Delaware County Women’s Center, Philadelphia Women’s

Center, Planned Parenthood Keystone, Planned Parenthood Southeastern

Pennsylvania, and Planned Parenthood of Western Pennsylvania (collectively,

“Providers”).

The individuals sued in their official capacities included: Valeria A. Arkoosh, Acting

Secretary of DHS; Andrew Barnes, Executive Deputy Secretary for DHS’s Office of

Medical Assistance Programs; and Sally Kozak, Deputy Secretary for the DHS Office of

Medical Assistance Programs.

[J-65-2022] - 2

Exclusion”). 3 Providers brought suit on their own behalf and on behalf of patients who

seek abortions and are enrolled in or eligible for aid under Pennsylvania’s Medical

Assistance program, but whose abortions are not covered because of the Coverage

Exclusion. Various public officials moved to intervene, and the Commonwealth Court

granted their motions in a separate order. DHS and Intervenors filed preliminary

objections in the nature of a demurrer, asserting that the case is controlled by Fischer v.

Department of Public Welfare, 502 A.2d 114 (Pa. 1985), wherein this Court upheld the

Coverage Exclusion against constitutional challenges. DHS submitted a separate

preliminary objection asserting that Providers lacked standing. The Commonwealth Court

sustained both preliminary objections.

For the reasons that follow, the order of the Commonwealth Court granting

Intervenors’ application for leave to intervene is reversed. The purported intervenors are

accepted as amici aligned with DHS. Further, the order of the Commonwealth Court

sustaining preliminary objections and dismissing the petition for review is reversed, as we

conclude that Providers have standing to pursue the petition for review and that their

petition for review is legally sufficient to survive demurrer.

3 This Court’s precedent, which Chief Justice Todd would continue to endorse, misstated

the breadth of the Coverage Exclusion as extending only to non-therapeutic abortions.

See, e.g., Concurring & Dissenting Op. at 5, 9 (Todd, C.J.) (citing Fischer v. Dep’t of Pub.

Welfare, 502 A.2d 114, 118 (Pa. 1985)). In fact, it excludes coverage regardless of

whether the abortion is therapeutic, except in three limited circumstances. As the

Concurring Opinion observes, there are instances in which therapeutic abortions are

denied coverage. See, e.g., Concurring Op. at 17-18 (Wecht, J.) (observing that the

Coverage Exclusion applies to abortions sought because the fetus is not viable or suffers

from a fatal impairment and that the Coverage Exclusion “contains no exception for

abortions that are medically necessary for the woman’s health”).

[J-65-2022] - 3

Relevant to this appeal, Pennsylvania’s Medical Assistance program 4 is a public

insurance system providing eligible Pennsylvanians with medical insurance through

either a fee-for-service or managed care health plan. See 55 Pa. Code § 1101.31

(providing the scope of benefits available to recipients). Medical Assistance provides

comprehensive medical care including inpatient hospital services, outpatient hospital

services, physicians’ services, clinic services at independent medical clinics and

ambulatory surgical centers, and family planning services. 55 Pa. Code §§ 1101.31

(b)(1), (3), (8), (11), (16). It includes all pregnancy-related care, including prenatal care,

obstetric, childbirth, neonatal and post-partum care. Petition for Review, 1/16/2019, ¶ 48.

However, Medical Assistance does not cover all abortions.

The Abortion Control Act sets forth the following exclusion which is at the center

of the present controversy:

§ 3215. Publicly owned facilities; public officials and

public funds

* * *

(c) Public funds.-- No Commonwealth funds and no Federal

funds which are appropriated by the Commonwealth shall be

expended by any State or local government agency for the

performance of abortion, except:

(1) When abortion is necessary to avert the

death of the mother on certification by a

physician. When such physician will perform the

abortion or has a pecuniary or proprietary

interest in the abortion there shall be a separate

certification from a physician who has no such

interest.

4 Medicaid is a joint federal-state program that provides medical assistance to the poor.

42 U.S.C. §§ 1396–1396w-6. Pennsylvania’s Medical Assistance is the Commonwealth’s

Medicaid program. See 62 P.S. §§ 401–493; 55 Pa. Code §§ 1101–1251.81.

[J-65-2022] - 4

(2) When abortion is performed in the case of

pregnancy caused by rape which, prior to the

performance of the abortion, has been reported,

together with the identity of the offender, if

known, to a law enforcement agency having the

requisite jurisdiction and has been personally

reported by the victim.

(3) When abortion is performed in the case of

pregnancy caused by incest which, prior to the

performance of the abortion, has been

personally reported by the victim to a law

enforcement agency having the requisite

jurisdiction, or, in the case of a minor, to the

county child protective service agency and the

other party to the incestuous act has been

named in such report.

* * *

(j) Required statements.--No Commonwealth agency shall

make any payment from Federal or State funds appropriated

by the Commonwealth for the performance of any abortion

pursuant to subsection (c)(2) or (3) unless the Commonwealth

agency first:

(1) receives from the physician or facility

seeking payment a statement signed by the

physician performing the abortion stating that,

prior to performing the abortion, he obtained a

non-notarized, signed statement from the

pregnant woman stating that she was a victim of

rape or incest, as the case may be, and that she

reported the crime, including the identity of the

offender, if known, to a law enforcement agency

having the requisite jurisdiction or, in the case of

incest where a pregnant minor is the victim, to

the county child protective service agency and

stating the name of the law enforcement agency

or child protective service agency to which the

report was made and the date such report was

made;

(2) receives from the physician or facility

seeking payment, the signed statement of the

pregnant woman which is described in

[J-65-2022] - 5

paragraph (1). The statement shall bear the

notice that any false statements made therein

are punishable by law and shall state that the

pregnant woman is aware that false reports to

law enforcement authorities are punishable by

law; and

(3) verifies with the law enforcement agency or

child protective service agency named in the

statement of the pregnant woman whether a

report of rape or incest was filed with the agency

in accordance with the statement.

The Commonwealth agency shall report any evidence of false

statements, of false reports to law enforcement authorities or

of fraud in the procurement or attempted procurement of any

payment from Federal or State funds appropriated by the

Commonwealth pursuant to this section to the district attorney

of appropriate jurisdiction and, where appropriate, to the

Attorney General.

18 Pa.C.S. § 3215(c), (j). The Coverage Exclusion is implemented through regulations

which likewise prohibit abortion coverage except in the same three circumstances

described in Section 3215. See 55 Pa. Code §§ 1141.57, 1163.62, 1221.57 (providing

exclusion for coverage of physicians’ services, hospital services, and clinic and

emergency room services for abortions). Further, health care providers are prohibited

from billing for services inconsistent with Medical Assistance regulations, and they are

subject to sanctions if they violate these regulations. 55 Pa. Code §§ 1141.81, 1163.491,

1221.81 (providing for sanctions for improper billing of physicians’ services, hospital

services, and clinic and emergency room services for abortion); 55 Pa. Code § 1101.74

(providing for referral to federal prosecution where providers who are convicted of willfully

defrauding Medicaid program are subject to $25,000 fine and up to five years of

imprisonment).

On January 16, 2019, Providers filed a petition for review in the Commonwealth

Court seeking declaratory and injunctive relief, complaining that the Coverage Exclusion

[J-65-2022] - 6

in Sections 3215(c) & (j) violates the Equal Rights Amendment and equal protection

provisions of the Pennsylvania Constitution. In addition to summarizing the relevant

regulatory framework for Medical Assistance and the Coverage Exclusion set forth in

Sections 3215(c) & (j), Providers averred the following:

• Regardless of federal law (which bars use of federal

Medicaid funds for abortion except in cases of rape, incest,

or threat to the woman’s life), “federal law does not prevent

states from using state funds to provide coverage for a

broader range of services[,]” and sixteen states allow state

Medicaid funds to cover abortion beyond these narrow

exceptions. Petition for Review, 1/16/2019, ¶ 53.

• There is no parallel exclusion of coverage for men. In fact,

there is no medical condition specific to men for which

Medical Assistance denies coverage. Id. ¶ 54.

• “When a male [Medical Assistance] recipient requires a

covered service, including all services related to

reproductive health, Medical Assistance covers it. In

contrast, when a woman requires an abortion, Medical

Assistance covers it only if she would otherwise die or if

the pregnancy results from rape or incest.” Id. ¶ 54.

• Medical Assistance covers all medical care for pregnancy

and childbirth for women who choose to continue their

pregnancy to term. Id. ¶ 55.

• “The medical costs to the Medical Assistance program

associated with covering pregnancy and childbirth

services far exceed the cost of an abortion, particularly for

women with medically complicated pregnancies.” Id. ¶ 55.

Providers then detailed the effects of the Coverage Exclusion. They alleged that

both women on Medical Assistance who seek abortions and Providers themselves suffer

significant harm from the Coverage Exclusion. As to the women, Providers maintained

that it forces them to choose “between continuing their pregnancy to term against their

will and using money that they would have otherwise used for daily necessities, such as

shelter, food, clothing, or childcare, to pay for the procedure[,]” which is the exact choice

[J-65-2022] - 7

between health care and basic essentials that Medicaid was created to avoid. Id. ¶ 59

(citing Declaration of Colleen M. Heflin, Ph.D., 1/10/2019 (Exhibit A) and Declaration of

Elicia Gonzales LSW, M.Ed., 1/11/2019 (Exhibit B)). They alleged that access to a

provider of abortion care is a significant problem for poor women and women living in

rural areas, many of whom must travel significant distances and incur substantial costs

associated with travelling to obtain abortions. Id. ¶ 60. In many cases, these women are

forced to delay care to raise funds for the abortion, id. ¶ 61, and in other cases, the

obstacles are insurmountable. Id. ¶ 63 (“National studies show that roughly 25% of

women on Medicaid who seek an abortion in a state with a coverage ban are forced to

continue their pregnancies to term against their will because they are unable to acquire

funds to pay for the procedure.”) (Declaration of Terri-Ann Thompson, Ph.D., 1/11/2019

(Exhibit C)).

Providers further submitted that, as a result of the Coverage Exclusion, there are

women who carry their pregnancies to term against their wills in Pennsylvania. Id. ¶ 64.

Providers alleged specific harms suffered by women (1) who are forced to carry their

pregnancies to term as a result of the Coverage Exclusion, id. ¶¶ 65-75; and (2) who are

able to obtain an abortion despite the Coverage Exclusion and suffer because of it. Id.

¶¶ 76-83. For instance, “the maternal mortality risks associated with childbirth are

approximately fourteen times greater than the risk associated with abortion care[,]” and

the maternal mortality rate for African-American women is three times that of white

women. Id. ¶ 67.

In addition, Providers averred that the “risks associated with pregnancy and

childbirth are particularly acute for women with pre-existing conditions[.]” Id. ¶ 70. More

specifically, continuing a pregnancy can exacerbate these conditions and pose serious

threats to a woman’s long-term health. The “health damage, though serious and

[J-65-2022] - 8

potentially life-threatening, is usually not imminent enough to qualify the patient for

abortion coverage under the statutory exception to the coverage ban, which requires that

the abortion be necessary to ‘avert the death’ of the woman, rather than to avoid serious

long-term health consequences.” Id.

For example, Providers explained that pregnancy can force women suffering from

cancer to alter treatments and medication plans to their detriments for the safety of the

fetuses. It can force women “to choose between halting or compromising critical medical

care or placing the fetus at risk[,]” resulting in devastating health outcomes. Id. ¶ 71.

They explained the severe mental health tolls of unwanted pregnancies, drawing attention

to the fact that “[w]omen may suffer severe psychological distress as a result of being

forced to continue an unwanted pregnancy… [.] Other women who learn the fetus they

are carrying has a severe anomaly or has a condition incompatible with life may also

suffer severe distress from being unable to terminate the pregnancy.” Id. ¶¶ 73-74.

Providers also alleged that the Coverage Exclusion specifically harms them. Id.

¶¶ 84-87. It forces them to dedicate money and staff to help women on Medical

Assistance who do not have enough money to pay for an abortion. Id. Providers lose

money because they regularly subsidize abortions for women on Medical Assistance who

are unable to pay the fee. Id. ¶ 85. Further, they expend valuable resources – including

employing dedicated staff – to assist women on Medical Assistance to obtain private

charitable funding. Id. ¶ 86.

Providers additionally averred that the Coverage Exclusion interferes with

counseling their patients because it forces them to spend time delving into personal

matters that patients may wish to keep private to determine eligibility for Medical

Assistance. This counseling is at times “painful, intrusive and without any medical or

[J-65-2022] - 9

therapeutic purpose[.]” Id. ¶ 87. They stated that it may strain the patient-counselor

relationship for patients who do not wish to talk about these private matters. Id.

In Count One of the petition for review, Providers claimed that the Coverage

Exclusion violates Pennsylvania’s Equal Rights Amendment. The Amendment provides:

Art. I § 28 Prohibition against denial or abridgment of

equality of rights because of sex

Equality of rights under the law shall not be denied or abridged

in the Commonwealth of Pennsylvania because of the sex of

the individual.

PA. CONST. art. I, § 28. Providers explained that this amendment, which is unique to our

Commonwealth, “prohibits all sex-based discrimination by government officials in

Pennsylvania.” Petition for Review, 1/16/2019, ¶ 89. They stated that the Coverage

Exclusion, by singling out and excluding abortion, “a procedure sought singularly by

women as a function of their sex[,]” denies women of the Commonwealth coverage for

essential healthcare services “solely on the basis of their sex.” 5 Id. ¶ 90. Further, they

alleged that it “flows from and reinforces gender stereotypes about the primacy of

women’s reproductive function and maternal role, and thus offends the Pennsylvania

Equal Rights Amendment’s prohibition against sex discrimination[,]” and “women’s

constitutional right to equality of rights under the law[.]” Id. ¶¶ 91-92.

5 Pregnancy is a sex-based medical condition. See Jillian Todd Weiss, Transgender

Identity, Textualism, and the Supreme Court: What is the Plain Meaning of “Sex” in Title

VII of the Civil Rights Act of 1964?, 18 TEMP. POL. & CIV. RTS. L. REV. 573, 603 (1984)

(quoting Sex, THE RANDOM HOUSE COLLEGE DICTIONARY, Revised Edition 1206 (Jess Stein

ed., 1982) (1968) (defining “Sex,” first, as “either the male or female division of a species,

esp. as differentiated with reference to the reproductive functions” and second, as “the

sum of the structural and functional differences by which the male and female are

distinguished, or the phenomena or behavior dependent on these differences”); Providers

recognize that “transgender men and people whose gender identity is non-binary may

have female reproductive organs and be capable of pregnancy and childbirth.” Providers’

Brief at 4 n.3.

[J-65-2022] - 10

In Count Two of the petition for review, Providers stated that the Pennsylvania

Constitution protects against denial of equal protection under the law through the

following three provisions:

Art. I § 1 Inherent rights of mankind

All men are born equally free and independent, and have

certain inherent and indefeasible rights, among which are

those of enjoying and defending life and liberty, of acquiring,

possessing and protecting property and reputation, and of

pursuing their own happiness.

PA. CONST. art. I, § 1.

Art. I § 26 No discrimination by Commonwealth and its

political subdivisions

Neither the Commonwealth nor any political subdivision

thereof shall deny to any person the enjoyment of any civil

right, nor discriminate against any person in the exercise of

any civil right.

PA. CONST. art. I, § 26.

Art. III § 32 Certain local and special laws

The General Assembly shall pass no local or special law in

any case which has been or can be provided for by general

law and specifically the General Assembly shall not pass any

local or special law:

1. Regulating the affairs of counties, cities,

townships, wards, boroughs or school districts:

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

3. Locating or changing county seats, erecting new

counties or changing county lines:

4. Erecting new townships or boroughs, changing

township lines, borough limits or school districts:

5. Remitting fines, penalties and forfeitures, or

refunding moneys legally paid into the treasury:

[J-65-2022] - 11

6. Exempting property from taxation:

7. Regulating labor, trade, mining or

manufacturing:

8. Creating corporations, or amending, renewing

or extending the charters thereof:

Nor shall the General Assembly indirectly enact any special

or local law by the partial repeal of a general law; but laws

repealing local or special acts may be passed.

PA. CONST. art. III, § 32. Providers contended that these provisions “together guarantee

equal protection of the law and prohibit discrimination based on the exercise of a

fundamental right.” Petition for Review, 1/16/2019, ¶ 94.

Next, Providers stated that the Coverage Exclusion “singles out and excludes”

women on Medical Assistance “from exercising the fundamental right to choose to

terminate a pregnancy, while covering procedures and health care related to pregnancy

and childbirth.” Id. ¶ 95. They alleged that the exclusion discriminates against women

throughout this Commonwealth for exercising their fundamental right to choose to

terminate a pregnancy. Id. In sum, because the exclusion “operates to discriminate

singularly against those women who seek abortion-related health care services by

denying them coverage under Pennsylvania’s Medical Assistance programs, the

Pennsylvania [Coverage Exclusion], as enforced and administered by DHS, …

discriminate[s] based on the exercise of a fundamental right under the equal protection

principles of Article I, Sections 1 and 26, and Article III, Section 32 of the Pennsylvania

Constitution.” Id. ¶ 96. Based on these claims and allegations, Providers requested that

the Commonwealth Court: (1) declare Sections 3215(c) & (j) as well as the implementing

regulations, 55 Pa. Code §§ 1147.57, 1163.62, 1221.57, unconstitutional; and (2) enjoin

their enforcement and declare that abortion is a fundamental right under the Pennsylvania

Constitution. Petition for Review, 1/16/2019, at 30. Providers did not rely on a federal

constitutional right to abortion as the basis for their equal protection arguments.

[J-65-2022] - 12

On April 16, 2019, DHS filed preliminary objections in the nature of a demurrer and

on the basis that Providers lack standing. 6 Therein, DHS recalled that in Fischer v.

Department of Public Welfare, 502 A.2d 114 (Pa. 1985), this Court held that the Coverage

Exclusion does not violate the constitutional provisions on which Providers base their

claims. DHS’s Preliminary Objections, 4/16/2019, ¶ 4. Next, DHS cited to an opinion it

received from the OAG, stating that Fischer is a “‘controlling decision from a court of

competent jurisdiction,’ that the abortion funding ban coverage is therefore constitutional,

and that Fischer is binding upon [DHS].” Id. ¶ 5 (citing Letter from Jonathan Scott

Goldman, Executive Deputy Attorney General, to Teresa D. Miller, Secretary of DHS,

6 On February 15, 2019, DHS and the individually named respondents, through the Office

of General Counsel, filed an unopposed application for enlargement of time to file their

response. In justifying their request for extra time, they explained that, pursuant to the

Commonwealth Attorneys Act, 71 P.S. §§ 732-101–732-506, the petition for review was

submitted to the Office of the Attorney General (“OAG”) for a determination regarding

representation. Motion for Enlargement of Time, 2/15/2019, ¶ 4.

According to DHS, the OAG ultimately authorized the Office of General Counsel to defend

this matter pursuant to Section 204(c) of the Commonwealth Attorneys Act, which

provides, in pertinent part, that “[t]he Attorney General shall represent the Commonwealth

and all Commonwealth Agencies … in any action brought by or against the

Commonwealth or its agencies… .” 71 P.S. § 732-204(c). The Commonwealth Attorneys

Act further states that “[t]he Attorney may, upon determining that it is more efficient or

otherwise in the best interest of the Commonwealth, authorize the General Counsel or

the counsel for an independent agency to initiate, conduct or defend any particular

litigation or category of litigation in his stead.” Id.

The Office of General Counsel continues to represent DHS in this Court. Presumably at

the behest of former Governor Tom Wolf, who was in office when briefing occurred in this

matter, DHS clarifies in its briefing to this Court that “[t]he legal position taken herein

regarding the abortion funding coverage ban, however, does not represent the policy

position of the Governor’s Administration.” DHS’s Supplemental Brief at 2 n.1. DHS

further asserts that “the Department Appellees are defending the statute and regulations

at issue pursuant to their responsibilities under the Commonwealth Attorneys Act. 71

P.S. § 732-301.” Id.

[J-65-2022] - 13

(2/19/2019)). 7 “Because Fischer is controlling precedent that [the Commonwealth Court]

lacks the authority to overrule, [Providers] have failed to state a claim upon which relief

may be granted.” Id. ¶ 6.

Next, DHS asserted that Providers lack standing. In this regard, DHS claimed that

Providers failed to establish a direct and immediate interest in the outcome of the litigation

because they failed to demonstrate that the alleged harm to their interests was within the

“zone of interests” protected by the statutory or constitutional guarantee in question. Id.

¶¶ 9-10, 14. Further, DHS argued, Providers lack standing to vindicate constitutional

rights of their patients who are not parties to this action. Id. ¶ 14.

On April 17, 2019, certain members of the General Assembly’s House of

Representatives and separately, certain members of the Senate, filed applications for

leave to intervene pursuant to the Pennsylvania Rules of Civil Procedure, Rule 2327(3)

& (4). 8

7 DHS explained that this opinion was provided pursuant to Section 204(a) of the

Commonwealth Attorneys Act. 71 P.S. § 732-204(a)(1) (stating that, upon the request of

the head of any Commonwealth agency, “the Attorney General shall furnish legal advice

concerning any matter or issue in connection with the exercise of official powers or the

performance of official duties …”); see id. §732-204(a)(3) (“It shall be the duty of the

Attorney General to uphold and defend the constitutionality of all statutes so as to prevent

their suspension or abrogation in the absence of a controlling decision by a court of

competent jurisdiction.”). The letter indicates that the Secretary of DHS requested a legal

opinion concerning the constitutionality of Section 3215(c), and that, after careful review,

the OAG concluded that “at the present time, Section 3215(c) is constitutional.” Letter

from Jonathan Scott Goldman, Executive Deputy Attorney General, to Teresa D. Miller,

Secretary of DHS, (2/19/2019) at 1. The letter advised that Fischer is “directly on point

here and is still good law[.]” Id. at 2. However, it acknowledged that this Court could

ultimately modify or overturn Fischer. “Unless and until that time,” the letter stated,

“Fischer remains the controlling authority on this issue and is binding upon DHS.” Id.

8 Eight Representatives sought to intervene: Mike Turzai, Bryan D. Cutler, Stan. E.

Saylor, Kerry A. Benninghoff, Marcy Toepel, Michael Reese, Kurt A. Masser, Donna

Oberlander.

(continued…)

[J-65-2022] - 14

Rule 2327. Who May Intervene

At any time during the pendency of an action, a person not a

party thereto shall be permitted to intervene therein, subject

to these rules if

* * *

(3) such person could have joined as an original party in the

action or could have been joined therein; or

(4) the determination of such action my affect any legally

enforceable interest of such person whether or not such

person may be bound by a judgment in the action.

Pa.R.C.P. 2327(3)-(4). Intervenors argued that they are permitted to intervene under

Rule 2327 because they could have been joined as original parties and because the

outcome of this case may affect their legally enforceable interests.

Providers objected to the intervention. Answer to Application for Leave to

Intervene of Senators, 5/8/2019, at 2-4; Answer to Application for Leave to Intervene of

Representatives, 5/8/2019, at 2-4. DHS took no position. Letter from Matthew J. McLees,

Office of General Counsel, to Michael F. Krimmel, Chief Clerk, Commonwealth Court

(5/1/2019). Following a hearing, a single judge sitting in the Commonwealth Court, Judge

Robert Simpson, denied the applications to intervene.

As an initial matter, Judge Simpson required Intervenors to satisfy standing

requirements to establish their right to intervene. See Judge Simpson’s Opinion,

6/21/2019, at 13. Judge Simpson recalled that this Court applied these principles to

Nineteen Senators sought to intervene: Joseph B. Scarnati, III, Jacob Corman, Ryan

Aument, Michele Brooks, John DiSanto, Michael Folmer, John Gordner, Scott

Hutchinson, Wayne Langerholc, Daniel Laughlin, Scott Martin, Robert Mensch, Michael

Regan, Mario Scavello, Patrick Stefano, Judy Ward, Kim Ward, Eugene Yaw, and David

Arnold, who was added by stipulation on January 28, 2020.

We refer to the Representatives and Senators who applied to intervene collectively as

“Intervenors” and separately, where necessary to distinguish between them, as “House

Intervenors” and “Senate Intervenors.”

[J-65-2022] - 15

address legislative standing in Markham v. Wolf, 136 A.3d 134, 138 (Pa. 2016). Applying

the reasoning from Markham, he concluded that Intervenors’ interests in the Coverage

Exclusion and its implementing regulations are too indirect and insubstantial to establish

standing. Judge Simpson’s Opinion, 6/21/2019, at 15. He pointed out that Providers’

request for relief sought a declaration that the Coverage Exclusion and its implementing

regulations are unconstitutional, an order enjoining their enforcement, as well as a

declaration that abortion is a fundamental right in the Commonwealth. Id. at 16. In so

doing, he characterized Intervenors’ personal stake as no different than any other citizen

with an interest in the law being challenged. Id.

The Commonwealth Court granted reconsideration, following which a three-judge

panel granted Intervenors’ applications to intervene. Allegheny Reprod. Health Ctr. v.

Pa. Dep’t of Hum. Servs., 225 A.3d 902 (Pa. Commw. 2020). The panel concluded that

Intervenors had established grounds to intervene pursuant to Rule 2327(4), agreeing with

Intervenors’ characterization of the object of the litigation. In the court’s view, the litigation

seeks to “change the substance and manner by which the General Assembly can

appropriate funds for the Medical Assistance program.” Id. at 911. Further, the panel

reasoned that if Providers are successful, the constitutional principles established by the

case “could bar the General Assembly from ‘tieing legislative strings’ to its appropriation

of funds for the Medical Assistance program.” Id. at 912 (quoting Lewis v. State, 90

N.W.2d 856, 860 (Mich. 1958)). According to the panel, the litigation could impact

Intervenors’ constitutional authority to control the Commonwealth’s finances. Id. at 913.

After establishing that Intervenors had grounds to intervene, the Commonwealth

Court considered whether, pursuant to Rule 2329, intervention is prohibited because the

interests of Intervenors are otherwise adequately represented, or if intervention will cause

undue delay or prejudice. The panel found that Intervenors’ interests are not represented

[J-65-2022] - 16

by DHS “given the vastly different responsibilities and powers of the executive and

legislative branches of government as they relate to the coverage ban.” Id. (quoting

Judge Simpson’s Opinion, 6/21/2019, at 17). As for Providers’ arguments that

intervention would cause prejudice or delay, the panel found such claims to be unfounded

and speculative. Id.

After holding oral argument, an en banc panel of the Commonwealth Court

dismissed the petition for review. Allegheny Reprod. Health Ctr. v. Pa. Dep’t of Hum.

Servs., 249 A.3d 598 (Pa. Commw. 2021). Regarding Providers’ standing, the court

considered and rejected two alternative bases for finding that they have standing in this

matter. First, the court concluded that Providers failed to meet the requirements of the

test for third-party standing articulated by the United States Supreme Court in Singleton

v. Wulff, 428 U.S. 106 (1976) (plurality) and adopted by the Commonwealth Court in

Harrisburg School District v. Harrisburg Education Association, 379 A.2d 893 (Pa.

Commw. 1977). 9 The court acknowledged that it applied the Singleton exception in

9 In Singleton, a plurality of the High Court, drawing upon precedent, articulated a general

rule: “Ordinarily, one may not claim standing in [the United States Supreme] Court to

vindicate the constitutional rights of some third party.” Singleton, 428 U.S. at 113-14

(citing, inter alia, Barrows v. Jackson, 346 U.S. 249, 255-56 (1953)). The plurality opinion

stated the two reasons underlying the general rule. First, courts should not adjudicate

constitutional rights unnecessarily because it may be that the third parties, i.e., the holders

of these rights, “do not wish to assert them, or will be able to enjoy them regardless of

whether the in-court litigant is successful or not.” Id. Second, third parties themselves

are usually the best proponents of their own rights. Id.

Significantly, the plurality opinion stated that the general rule should not be applied where

those justifications are absent. More specifically, a court should examine the relationship

between the litigant and the person whose rights are being asserted. Id. “If the enjoyment

of the right is inextricably bound up with the activity the litigant wishes to pursue, the court

at least can be sure that its construction of the right is not unnecessary in the sense that

the right’s enjoyment will be unaffected by the outcome of the suit.” Id. at 114-15. Courts

should consider whether the litigant is “fully, or very nearly, as effective a proponent of

the right as the latter.” Id. at 115. Next, courts should weigh whether the third party has

the ability to assert their right, and the plurality opinion provided the following guidance:

(continued…)

[J-65-2022] - 17

Pennsylvania Dental Association v. Commonwealth, Department of Health, 461 A.2d 329

(Pa. Commw. 1983), to find that a dental association had standing to challenge a

contractual amendment that permitted the government to access patient files when

auditing the dentist. Allegheny Reproductive, 249 A.3d at 606. By contrast here, the

intermediate court stated that it was forced “to rule on constitutional questions when the

[c]ourt has no way of knowing that the patients on whose behalf [they] purport to speak

even want this assistance.” Id. Further, unlike in Pennsylvania Dental, the court found

that the petition did not establish that the patients’ rights were “inextricably bound up” with

the interests of Providers. Finally, whereas the patients in Pennsylvania Dental had no

way of knowing that their privacy interests were at stake, Providers’ patients “will be

informed, in advance, that abortion services are not covered by Medical Assistance.” Id.

The court concluded that Providers lacked standing to vindicate the constitutional rights

of women on Medical Assistance, “who may or may not agree with this litigation brought

on their behalf.” Id. at 608-09.

Second, the Commonwealth Court rejected Providers’ argument that they have

standing based on the pecuniary harms they suffer as a result of the Coverage Exclusion.

The intermediate court acknowledged that standing in Pennsylvania requires a

substantial, direct and immediate interest in the matter sought to be litigated pursuant to

the well-established test articulated in William Penn Parking Garage v. City of Pittsburgh,

346 A.2d 269 (Pa. 1975) (plurality) (“William Penn Parking”). The court explained that

Even where the relationship is close, the reasons for requiring

persons to assert their own rights will generally still apply. If

there is some genuine obstacle to such assertion, however,

the third party’s absence from court loses its tendency to

suggest that his right is not truly at stake, or truly important to

him, and the party who is in court becomes by default the

right’s best available proponent.

Id. at 116.

[J-65-2022] - 18

the “immediacy” component requires a causal connection between the actions

complained of and the injury alleged. It elaborated: “[s]tated otherwise, to have standing,

the litigant must show that its interest falls ‘arguably within the zone of interests sought to

be protected or regulated by the statute or constitutional guarantee in question.’”

Allegheny Reproductive, 249 A.3d at 608 (citing Application of Biester, 409 A.2d 848, 851

n.6 (Pa. 1979)). The panel identified the zone of interests with reference to the interests

protected or regulated by the Coverage Exclusion and the constitutional rights asserted.

The court stated that the interests are “the life and health of the women subject to abortion

and to protect the life and the health of the child subject to abortion[,]” and “the guarantee

[of] equal protection of the laws and the prohibition against discrimination on the basis of

sex.” Id. The court held that the “asserted administrative and pecuniary interests do not

fall within the ‘zone of interests’ addressed in either the Abortion Control Act or the

Pennsylvania Constitution.” Id. at 608. 10

Next, with respect to DHS’s assertion that Providers failed to state a claim upon

which relief can be granted, the Commonwealth Court agreed with DHS that Fischer was

dispositive and therefore concluded that it was bound to follow the decision. Because, in

its view, all of Providers’ legal claims were addressed and rejected in Fischer, 11 the court

10 Judge Ceisler wrote a concurring and dissenting opinion to state her view that

Providers have standing to pursue this litigation. Allegheny Reproductive, 249 A.3d at

612 (Ceisler, J., concurring and dissenting).

11 As noted, Providers based their equal protection claim on an asserted fundamental

right to abortion in the Pennsylvania Constitution, not the then-existing federal

constitutional right to an abortion recognized in Roe v. Wade, 410 U.S. 113 (1973),

overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) and its

progeny. The Commonwealth Court did not expressly recognize the predicate for

Providers’ claim. The court’s reliance on Fischer (which we later discuss at length) implies

either that it views the Constitution of this Commonwealth as securing a right to an

abortion coterminous with the right secured at that time by the federal Constitution or that

there is no right to an abortion under our Charter but the federal right was a baseline

(continued…)

[J-65-2022] - 19

concluded that Providers failed to state a claim on which relief could be granted and

dismissed the petition for review. Id. at 611.

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

issues:

1. Do [Providers] have standing to bring these constitutional

claims on behalf of their Medicaid patients who seek an

abortion?

2. Did the Commonwealth Court err in permitting individual

members of the Senate and House to intervene as

Respondents in this case?

3. Does the Pennsylvania [Coverage Exclusion] violate the

Pennsylvania Constitution’s explicit guarantee of equality

on the basis of sex contained in PA. CONST. art. I, § 28 and

its separate equal protection guarantee contained in PA.

CONST. art. I, §§ 1, 26 & art. III, § 32?[12]

Providers’ Brief at 2 (issues reordered).

protection that could not be undercut by a state Charter. Fischer, 502 A.2d at 116

(recognizing as starting point for analysis, that Roe established the right to an abortion).

Part III.E. of this opinion, which represents the views of only two Justices of this Court,

concludes that we may reach the question and decide that the Pennsylvania Constitution

secures the right to reproductive autonomy. Accordingly, Justice Donohue and Justice

Wecht proceed to analyze Providers’ equal protection challenge in Part III.F., addressing

the issues in this order because if we found that our Charter did not protect the right, the

outcome would moot the Article 1, Section 26 issue. See infra note 88. Chief Justice

Todd dissents from our recognition that our Charter protects the right to reproductive

autonomy. Concurring & Dissenting Op. at 2-3 (Todd, C.J.). As to Providers’ equal

protection challenge, Chief Justice Todd maintains that it is bound by Fischer’s Article I,

Section 26 ruling because the “application of the penalty test [is] reasonable[.]” Id. at 14.

This position is impossible because Fischer’s penalty analysis can have vitality only if

there exists a fundamental right to reproductive autonomy.

12 Imbedded in Providers’ third issue is the request that this Court 1) recognize the right

to an abortion guaranteed by the Pennsylvania Constitution; and 2) overrule Fischer.

[J-65-2022] - 20

While the appeal was pending in this Court, the United States Supreme Court

overruled Roe v. Wade, 13 and held that the federal Constitution does not confer a right to

abortion. Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2279 (2022).

Fischer, which the Commonwealth Court relied on in this case, addressed the

constitutionality of the Coverage Exclusion based on the holdings of Roe v. Wade and its

progeny that the Fourteenth Amendment protected “a woman’s decision whether or not

to terminate her pregnancy[.]” Roe, 410 U.S. at 153; see also Planned Parenthood v.

Casey, 505 U.S. 833, 860 (1992) (plurality) (recognizing that “it is the constitutional liberty

of the woman to have some freedom to terminate her pregnancy”); City of Akron v. Akron

Ctr. for Reprod. Health, Inc., 462 U.S. 416 (1983) (referring to abortion as a woman’s

“fundamental right”). On application of Providers, this Court issued an order granting

Providers the opportunity to file supplemental briefing to address the impact of Dobbs on

this case and directing the Prothonotary to accept all supplemental briefs for filing. Order,

8/18/2022.

As addressed below, Providers’ supplemental brief argues, inter alia, that Dobbs’

reasoning is irrelevant to their Pennsylvania Constitution claims, and Dobbs’ rejection of

a federal constitutional right to abortion provides a special justification for this Court to

revisit Fischer. Providers’ Supplemental Brief at 1-4. According to Providers, in the wake

of Dobbs, “this Court’s role in protecting the right to abortion under our state constitution

takes on new importance[.]” Id.

In response, DHS observes that the Pennsylvania Constitution has long

guaranteed “reproductive health care rights independent of, and more expansive than,

any protection provided by the United States Constitution,” and that it protects the

13Roe v. Wade, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health

Org., 142 S. Ct. 2228 (2022).

[J-65-2022] - 21

“fundamental right to abortion.” DHS’s Supplemental Brief at 2. Nonetheless, DHS

maintains that Dobbs does not affect the analysis: Fischer remains the “controlling

authority on the narrow question of whether the Pennsylvania Constitution provides a

right to subsidized abortions[,]” and Fischer held that the Coverage Exclusion is

constitutional. Id. at 3.

House Intervenors read Dobbs broadly, claiming that it refutes nearly every one of

Providers’ arguments. House Intervenors’ Supplemental Brief at 2 (asserting that Dobbs

refutes claims that the Pennsylvania Constitution provides greater protection than the

federal Constitution); id. at 4 (arguing that Dobbs established that “courts should not be

determining whether there is a right to abortion”); id. at 5-8 (claiming that Dobbs undercuts

Providers’ standing); id. at 8 (asserting that Dobbs supports intervention). They assert

that Dobbs, at its core, held that the authority to regulate abortion falls with the people’s

elected representatives, and they claim that the Legislature in Pennsylvania “has

determined that abortion is neither a Pennsylvania Constitutional right nor an appropriate

use of public funds.” Id. at 4.

Senate Intervenors filed a supplemental response asserting that this case does

not concern the right to an abortion but instead is only about legislative funding, “an issue

that no one disputes has always been within the exclusive purview of the General

Assembly and not the judiciary.” Senate Intervenors’ Brief at 2-3. They assert that Dobbs

does not change this fact. Id. at 3. Senate Intervenors call on Dobbs as supporting two

points: first, they insist that our equal protection analysis is conducted using the same

standards as the federal Equal Protection Clause test, and therefore, “there is plainly no

support for [a right to terminate a pregnancy] under the Pennsylvania equal protection

provisions.” Id. at 5. Second, they argue that Dobbs made explicitly clear that laws

related to abortion are not sex-based classifications. Id. at 4.

[J-65-2022] - 22

II. Preliminary Issues

A. Providers’ Standing

1. Scope and Standard of Review

The Commonwealth Court sustained DHS’s preliminary objection, finding that

Providers lack standing to pursue this litigation. When evaluating an order sustaining a

preliminary objection to standing, we deem true all material facts averred in the controlling

pleading and all reasonable inferences that can be drawn therefrom. Robinson Twp. v.

Commonwealth, 83 A.3d 901, 917 (Pa. 2013). “We will affirm an order sustaining

preliminary objections only if it is clear that the party filing the petition for review is not

entitled to relief as a matter of law.” Id. (citing Stilp v. Commonwealth, 940 A.2d 1227,

1232 n.9 (Pa. 2007)). We further observe that, generally speaking, issues of standing

present questions of law; thus, our standard of review is de novo, and our scope of review

is plenary. Firearm Owners Against Crime v. Papenfuse, 261 A.3d 467, 476 (Pa. 2021).

2. Relevant Principles of Pennsylvania’s Law on Standing

This Court has characterized standing together with ripeness and political

questions as issues “giv[ing] body to the general notions of case or controversy and

justiciability.” Robinson Township, 83 A.3d at 916-17 (quoting Rendell v. Pa. State Ethics

Comm’n, 983 A.2d 708, 717 (Pa. 2009)). Though not constitutionally compelled, “our

standing doctrine … has a long venerable history as a useful tool in regulating litigation.”

In re Hickson, 821 A.2d 1238, 1243 n.5 (Pa. 2003). Pennsylvania’s standing doctrine is

judicially created in contrast to federal standing requirements, which derive from Article

III of the United States Constitution. Johnson v. Am. Standard, 8 A.3d 318, 330 (Pa.

2010); Fumo v. City of Phila., 972 A.2d 487, 500 n.5 (Pa. 2009).

As observed by this Court in Robinson Township, “[i]n contrast to the federal

approach, notions of case or controversy and justiciability in Pennsylvania have no

constitutional predicate, do not involve a court’s jurisdiction, and are regarded as

[J-65-2022] - 23

prudential concerns implicating courts’ self-imposed limitations.” Id. (citing Fumo, 972

A.2d at 500 n.5; Rendell, 983 A.2d at 717 & n.9). Generally speaking, in our

Commonwealth, standing is granted more liberally than in federal courts. Most critically,

the federal standing analysis “does not control our resolution of the standing issue”

because we are not bound by the dictates of Article III of the United States Constitution.

Erfer v. Commonwealth, 794 A.2d 325, 329 (Pa. 2002) disavowed on other grounds by

League of Women Voters v. Commonwealth, 178 A.3d 737, 813 (Pa. 2018).

Our inquiry is whether the putative plaintiff has demonstrated that she is

“aggrieved,” by establishing a substantial, direct and immediate interest in the outcome

of the litigation. Robinson Township, 83 A.3d at 917 (citing Fumo 972 A.2d at 496). For

instance, in William Penn Parking, this Court addressed whether parking garage

operators had standing to challenge the imposition of the tax on their patrons established

by City of Pittsburgh Ordinance No. 30 of 1973. 14 The City objected to the parking garage

operators’ standing, arguing that only the patrons paying the tax had standing to

challenge its validity. William Penn Parking, 314 A.2d at 288. The parking garage

operators alleged that the tax would cause pecuniary harm to them because they would

either have to pass the tax on to their patrons and suffer a reduced patronage or, if they

14 The parking garage operators and fifty-five residents/taxpayers brought the challenge

pursuant to Section 6 of the Local Tax Enabling Act, Act of December 31, 1965, P.L.

1257, as amended, 53 P.S. § 6906 (1972), which provided, in relevant part, that for

“taxpayers of the political subdivision not less than twenty-five in number aggrieved by

the ordinance or resolution shall have the right to appeal” from the establishment of the

tax. According to that provision, the court would review and uphold a tax unless it finds,

inter alia, that the tax imposed “is excessive or unreasonable.” Id. The parking garage

operators and fifty-five residents/taxpayers challenged the tax on the grounds that it

prevented them “from making a profit, that it discriminates against the operator-petitioners

in favor of the Public Parking Authority of Pittsburgh and that it is excessive, unreasonable

and unconscionable.” William Penn Parking, 314 A.2d at 324 (internal footnote omitted).

[J-65-2022] - 24

decided not to pass the tax on, they would incur the tax and suffer a substantial loss to

their net income. Id. at 287-88.

We concluded that the parking garage operators had standing, observing that the

statutory scheme allowed a taxpayer to appeal if aggrieved by the ordinance, regardless

of whether he is liable for the tax imposed. Id. at 289. We saw “no reason to restrict” the

meaning of aggrieved “to refer only to those liable for the tax imposed by the ordinance.”

Id. The Court further determined that the parking garage operators’ interest was direct

because “a declaration that the ordinance is invalid would obviate either injury alleged.”

Id. In addition, we held that their interest was substantial because they claimed a

pecuniary loss. Id. The only real question was whether the parking garage operators’

interest was closely connected to the ordinance, such that their interest was “immediate

rather than remote.” Id. We concluded that it was, explaining that although the tax fell

initially upon the patrons of the parking garages, it was levied upon the very transaction

between the parking garage operators and the patrons. Thus, we resolved the question

of immediacy on the grounds that “the effect of the tax upon their business [wa]s removed

from the cause by only a single short step.” Id.

We have utilized this three-prong approach to standing, even when faced with

scenarios where it was argued that the interests of the plaintiffs–whose professional

conduct was concretely impacted by the challenged laws–paled in comparison to the

alleged harms incurred by the third parties whose rights were at the core of the disputes.

Dauphin County Public Defender’s Office, 849 A.2d 1145, 1148-49 (Pa. 2004); Robinson

Township, 83 A.3d at 923-25. In those circumstances, we did not see fit to modify the

test for third-party standing, and we did not premise our standing analysis on the Article

III factors utilized by the United States Supreme Court in Singleton or applied by the

Commonwealth Court here.

[J-65-2022] - 25

In Dauphin County Public Defender’s Office, we addressed the standing of the

Dauphin County Public Defender’s Office (“Public Defender”) to challenge new eligibility

requirements imposed by the President Judge of the Dauphin County Court of Common

Pleas (“Dauphin County CCP”). 15 The President Judge issued an Administrative Order

that dictated new eligibility requirements for criminal defendants seeking representation

from the Public Defender, including an income threshold that was inconsistent with the

Public Defender’s multi-factor analysis of eligibility. Dauphin County Public Defender’s

Office, 849 A.2d at 1148. The Public Defender sought a stay of the Administrative Order

and a writ prohibiting the Dauphin County CCP from interfering with the Public Defender’s

qualification process. The Dauphin County CCP challenged the Public Defender’s

standing, because “[a]ny injury” in that case “would be to the criminal defendant who will

go unrepresented unless he retains counsel, not to the public defender.” Dauphin County

CCP’s Brief, 11/4/2003, at 9-10.

This Court disagreed with the notion that only the indigent defendants could be

“aggrieved” so as to confer standing based on our application of the three-part standing

test from William Penn Parking. We determined that the Public Defender’s interest in the

litigation was substantial as it exceeded that of the common citizen in procuring obedience

to the law because the Public Defender, unlike the general public, has a statutory

15 The grounds for the Public Defender’s challenge were various, though primarily

focused on how the Administrative Order violated the Public Defender Act, 16 P.S.

§§ 9960.1-9960.13 and the separation of powers doctrine. See Public Defender’s Brief,

10/10/2003, at 7-14 (arguing that the Administrative Order violated, inter alia, Article V,

Section 1 of the Pennsylvania Constitution and the right to counsel for indigent defendants

as established in the Sixth and Fourteenth Amendments to the United States

Constitution). We resolved the claim based on our interpretation of the Public Defender

Act, which required the Public Defender to provide legal representation “to any individual

that it concludes does not have the financial wherewithal to hire private legal counsel,”

and which did not authorize the Dauphin County CCP to override the Public Defender’s

decisions. Dauphin County Public Defender’s Office, 849 A.2d at 1150.

[J-65-2022] - 26

obligation to provide legal representation to financially eligible criminal defendants.

Dauphin County Public Defender’s Office, 849 A.2d at 1148. Further, the Public

Defender’s interest was direct because the Administrative Order at issue stripped the

Public Defender of its traditional discretion in making decisions regarding an applicant’s

eligibility for services when the applicant’s income exceeds the poverty line. Finally, we

stated that there was a clear and immediate causal connection between the

Administrative Order and the Public Defender’s diminished ability to make eligibility

determinations and to provide representation to the defendants of its choice. Therefore,

we concluded that the Public Defender was an aggrieved party with standing. Id. at 1149.

To reiterate, our standing analysis focused on how the Administrative Order

impacted the Public Defender, whose responsibility it was to represent financially eligible

criminal defendants. Based on this professional relationship representing indigent

defendants and on the Public Defender’s discretion to make decisions regarding eligibility

for representation, the Public Defender’s interests were substantial, immediate and direct.

Thus, we held that the Public Defender’s interests were sufficient to establish standing.

Importantly, we were not troubled that the representation concerns and the constitutional

right at the core of the lawsuit – the right to counsel – were more connected to the indigent

defendants than to the Public Defender.

In Robinson Township, 83 A.3d at 923-25, this Court addressed the standing of a

physician to challenge an oil and gas drilling statute. The statute at issue, Act 13, inter

alia, placed restrictions on a physician’s ability to obtain and share information with other

physicians regarding the chemicals used in drilling operations. Dr. Khan was a physician

who treated patients in the area where the drilling operations were taking place, and he

alleged that Act 13’s restrictions impeded his ability to diagnose and treat patients.

[J-65-2022] - 27

Of note, Dr. Khan contended that Act 13 was an unconstitutional “special law” in

violation of Article III, Section 32 of the Pennsylvania Constitution 16 and that it violated

the single-subject rule of Article III, Section 3 of the Pennsylvania Constitution because it

dealt with both patient health care and regulation of oil and gas operations. Further, he

maintained that the challenged provision prevented physicians from sharing diagnostic

test results and a patient’s history of exposure, both of which are essential tools of treating

patients and competently practicing medicine. Id. at 923-24. Dr. Khan alleged that Act

13’s restrictions placed medical professionals in a position to choose between abiding by

its mandate and adhering to a physician’s ethical and legal duties to report findings in

medical records and to make those records available to patients and other medical

professionals.

The Commonwealth Court in Robinson Township found that Dr. Khan lacked

standing because his alleged harm was prospective and speculative insomuch as he was

not yet in the situation of being refused necessary patient information pursuant to Act 13

or being unable to provide proper medical care. See Robinson Twp. v. Commonwealth,

52 A.3d 463, 477-78 (Pa. Commw. 2012). This Court reversed. Robinson Township, 83

A.3d at 923-25.

16 The Commonwealth Court summarized the claim as follows:

Act 13 is an unconstitutional “special law” in violation of Article

3, § 32 of the Pennsylvania Constitution because it restricts

health professionals’ ability to disclose critical diagnostic

information when dealing solely with information deemed

proprietary by the natural gas industry while other industries

under the federal Occupational and Safety Act have to list the

toxicity of each chemical constituent that makes up the

product and their adverse health effects[.]

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

[J-65-2022] - 28

In finding that Dr. Khan had standing, this Court highlighted that Act 13 placed Dr.

Khan in the untenable position of choosing between violating the law, violating his ethical

obligations to treat a patient by acceptable standards and refusing a patient medical care.

We did not credit the Commonwealth’s argument “that Dr. Khan’s harm [wa]s speculative

because it [wa]s based on the rights of his patients and on serial mights which are

unfounded.” Id. at 924 (internal quotation marks omitted). Acknowledging that Dr. Khan

was not yet in such a position, we stated that our jurisprudence allows pre-enforcement

review of statutory provisions in cases in which the parties at issue must choose between

equally unappealing options and where the third option is equally undesirable. Id. “In

light of Dr. Khan’s unpalatable professional choices in the wake of Act 13,” we held that

the interest he asserted was substantial and direct. Id. Further, we rejected the notion

that his interest was remote, explaining that a decision regarding the constitutionality of

Act 13 “may well affect” whether he and other similarly situated medical professions would

accept patients, and it may affect subsequent medical treatment decisions. We therefore

concluded that the physician had standing. Id.

As in William Penn Parking and Dauphin County Public Defender’s Office, our

analysis in Robinson Township highlighted the professional harms faced by the plaintiff,

then found that the plaintiff’s interests were adequately substantial, immediate and direct

to confer standing. Consistent with the other cases, we were not swayed by arguments

that the core legal rights being vindicated by the lawsuit belonged to other persons

(whether patrons of parking garages, indigent defendants, or medical patients).

3. Parties’ Arguments

Providers’ Arguments

Providers urge this Court to apply the William Penn Parking three-prong standing

test. They emphasize that William Penn Parking applied these rules in a case in which

[J-65-2022] - 29

the litigants – parking garage operators – invoked the rights of third parties – patrons – to

challenge a city tax being imposed upon the third parties. They argue that this case is on

all fours with William Penn Parking. Providers’ Brief at 12-13.

Providers contend that they were injured by the legal harm inflicted on their

patients because Providers have increased expenditures in covering patients’ costs, lost

staff time in working to help patients obtain funding, and a compromised provider-patient

relationship. Id. at 14-15. They argue that their interest is direct because striking the

exclusion would obviate the injury alleged, and that their interest is immediate because

there is “only a single short step” between the patients’ lack of coverage and the

Providers’ harm. Id. at 15. Providers highlight that this Court has repeatedly assessed

third-party standing under the basic three-factor test. Id. at 16-19 (citing Robinson

Township, 83 A.3d at 923-25; Dauphin County Public Defender’s Office, 849 A.2d 1148-

49; In re Hickson, 821 A.2d at 1245-46). Providers assert that the Commonwealth Court

erroneously inserted a “zone of interests” requirement into the three-prong test and note

that this Court has stated that such consideration “is merely a guideline that may be used

to find immediacy,” but it is not an absolute requirement. Id. at 19-20 (citing Johnson, 8

A.3d at 333). In their view, this Court’s inquiry into immediacy having been satisfied, there

is no need to consider zones of interests. See also Providers’ Reply Brief at 28 (criticizing

DHS for misreading precedent to “graft a hard and fast ‘zone of interests’ rule into this

Court’s standing jurisprudence”).

In the alternative, Providers argue that even if this Court adopts the third-party

standing test as articulated in Singleton, they have established standing. Providers’ Brief

at 21. They emphasize that in Singleton, the United States Supreme Court allowed

abortion providers to assert the constitutional rights of their patients in challenging a

state’s ban on Medicaid coverage of procedures and services related to abortion. Id. at

[J-65-2022] - 30

22 (citing Singleton, 428 U.S. at 118 (“[I]t generally is appropriate to allow a physician to

assert the rights of women patients as against governmental interference with the

abortion decision.”)). Because the facts here are nearly identical to those in Singleton,

they urge this Court to reach the same result in this case. 17

DHS’s Arguments

DHS insists that Providers are unable to establish an immediate interest. In DHS’s

view, the harm alleged by Providers is purely pecuniary and administrative and is not

within the zone of interests sought to be protected by the constitutional provisions on

which Providers rely. DHS’s Brief at 12. DHS acknowledges that the “zone of interests”

concept applies when the party’s immediate interest is not apparent “to assist a court in

determining whether a party has been sufficiently aggrieved, and therefore has standing.”

Id. (citing Johnson, 8 A.3d at 333). DHS argues that there is no immediate interest

because Providers only “assert pecuniary and administrative-related harms” in

connection with the purported violations of third parties’ rights, and therefore, DHS urges

this Court to undertake a zone-of-interests analysis. Id. at 13.

In advancing that argument, DHS states the following:

Within the requirement that the interest of the plaintiff be

“immediate” in order to confer standing is the concept that the

“protection of the type of interest asserted is among the

policies underlying the legal rule relied upon by the person

claiming to be ‘aggrieved.’” [William] Penn Parking, 346 A.2d

at 284. The United States Supreme Court has phrased this

guideline as whether ‘the interest the plaintiff seeks to protect

17 The National Women’s Law Center writes in support of Providers’ position, and

presents a more ample view of the genuine obstacles faced by a woman who would

otherwise seek to raise these claims on their own behalf. National Women’s Law Center

Brief at 2-30. The Obstetrical Society of Philadelphia also supports Providers’ position.

It critiques the Commonwealth Court’s misconceptions of the doctor-patient relationship,

arguing that healthcare professionals must have standing to advance the rights and

interests of their patients because their interests are, as an ethical rule, aligned.

Obstetrical Society of Philadelphia Brief at 14-16.

[J-65-2022] - 31

is arguably within the zone of interests sought to be protected

by the statute or constitutional guarantee in question.” Upper

Bucks [Cnty. Vocational-Tech. Sch. Educ. Ass’n v. Upper

Bucks Cnty. Vocational-Tech. Sch. Joint Comm., 474 A.2d

[1120,] 1122-23 [(Pa. 1984)] (quoting Ass’n of Data

Processing Serv. Org., Inc. v. Camp, 397 U.S. 150 (1970)).

Should a party’s immediate interest not be apparent, a zone

of interests analysis may and should be employed to assist a

court in determining whether a party has been sufficiently

aggrieved, and therefore has standing. Johnson[,] 8 A.2d [at]

333[.]

Id. at 12-13.

DHS then asserts that the purposes of the Equal Rights Amendment and equal

protection provisions “do not encompass protecting reproductive healthcare providers

against pecuniary or administrative-related burden incurred when providing services to

low-income individuals.” Id. at 13. According to DHS, Providers have not alleged that

they have suffered harm to a constitutionally-protected interest or discrimination, and “the

only individuals who could potentially assert that they suffer the type of harm that is

protected by the cited constitutional provisions are individuals who were enrolled in or

eligible for [Medical Assistance] and sought abortion services that were not covered due

to the [Coverage Exclusion].” Id. at 13-14.

DHS asks this Court to follow Upper Bucks, wherein this Court conducted a zone-

of-interests analysis to determine that teachers lacked standing to seek a declaration that

their school district must be open for 180 days in accordance with state law and

regulations, despite sixteen days of closures they experienced during a teacher strike.

This Court determined that “the sole purpose” of the statutory and regulatory 180-day

requirement was to benefit students of the Commonwealth and that any benefit to the

teachers of that requirement was “purely incidental[.]” Upper Bucks, 474 A.2d at 1123.

DHS asserts that the present circumstances are analogous: Providers’ harm does not fall

within the zone of interests protected by the Equal Rights Amendment or the equal

[J-65-2022] - 32

protection guarantees of the Pennsylvania Constitution, and any harm that Providers

suffer is incidental. DHS’s Brief at 15.

DHS then argues that William Penn Parking, Dauphin County Public Defender’s

Office and Robinson Township are all factually distinguishable from the instant matter

because the plaintiffs in those cases were asserting their rights and not relying on the

rights of clients or patients. Id. at 16-17 (citing William Penn Parking, 346 A.2d at 289;

Dauphin County Public Defender’s Office, 849 A.2d at 1149; Robinson Township, 83 A.3d

at 924-25). Relying on case law from the United States Supreme Court and the

Commonwealth Court, DHS states that “one ordinarily has no standing to vindicate the

constitutional rights of third persons.” Id. at 16 (citing Warth v. Seldin, 422 U.S. 490

(1975); Pequea Valley Sch. Dist. v. Dep’t of Educ., 387 A.2d 1022 (Pa. Commw. 1978)).

In the alternative, if this Court adopts the test articulated in Singleton, DHS argues

that Providers do not meet that test either. In this regard, DHS relies almost entirely on

a recitation of the Commonwealth Court’s application of the Singleton test, as detailed

above. DHS also critiques Providers’ reliance on Singleton by reminding this Court that

only a plurality of the High Court endorsed the notion that women seeking abortions face

a hindrance in asserting their rights. Instead, DHS argues, in the years since Singleton,

“women have challenged abortion-related restrictions on their own behalf in case after

case across this country.” Id. at 20. In sum, DHS asks for this Court to affirm the

Commonwealth Court’s determination that Providers lack standing. Id. 18

18 The Senate Intervenors do not address standing. The House Intervenors contend that

Providers lack standing because they are not aggrieved. House Intervenors’ Brief at 14-

15. The House Intervenors also argue that the harms to Providers’ interests result not

from constitutional violations but from Providers’ business practices. Id. at 16. They also

assert that Providers are unlike many of the plaintiffs in the cases relied upon by Providers

because Providers are corporations trying to minimize profit losses, not doctors prohibited

from practicing their profession. Id. at 19. They urge this Court to require any party

seeking to establish “a new right not previously acknowledged…, the right to demand tax-

(continued…)

[J-65-2022] - 33

4. Analysis

Accepting all well-pled material facts in the petition for review as true, we conclude

that Providers have plainly established that they are aggrieved by the Coverage

Exclusion. Unlike members of the general public, Providers have a substantial interest in

the outcome of this litigation as medical institutions that provide treatment and services

to women receiving Medical Assistance, including abortion services. See Dauphin

County Public Defender’s Office, 849 A.2d at 1149 (finding Public Defender’s interests to

be substantial based on its obligation to provide legal representation to financially eligible

criminal defendants).

In addition, Providers’ interests are direct because, as they allege, when patients

who are beneficiaries of Medical Assistance seek abortions, Providers must modify their

treatment plans to counsel patients to determine whether the abortions are covered by

Medical Assistance, and when they are not, they incur additional expenses to further

counsel patients, secure funding, and provide medical care. Petition for Review,

1/16/2019, ¶¶ 84-87. Further, the regulations implementing the coverage exclusion apply

directly to Providers, prohibiting them from billing for abortions and subjecting them to

sanctions and criminal penalties if they do so. 55 Pa. Code §§ 1141.81, 1163.491,

1221.81; 55 Pa. Code § 1101.74. If the Coverage Exclusion were struck as

unconstitutional, then Providers would no longer need to modify their counseling of

patients for these unique circumstances, and they would not have to incur additional

expenses to assist Medical Assistance patients seeking abortions. That is, a declaration

that the Coverage Exclusion is invalid would obviate Providers’ injury. See William Penn

payer funding for elective abortion, to demonstrate that the third party actually wants the

right asserted on their behalf.” Id. at 20-21.

The American Center for Law & Justice and New Wave Feminists write in support of DHS,

and they advance similar arguments as DHS in challenging Providers’ standing.

American Center for Law & Justice Brief at 11-20; New Wave Feminists’ Brief at 3-17.

[J-65-2022] - 34

Parking, 346 A.2d at 287-88 (finding directness requirement met because “a declaration

that the ordinance is invalid would obviate either injury alleged”).

As in William Penn Parking, the only real question here is whether Providers’

interests are adequately immediate, and as in that case, we answer this question in the

affirmative. Providers’ interest is immediate because they are currently subject to

regulations prohibiting them from billing for these medical services, and they face the

possibility of sanctions and criminal penalties if they violate the regulations. See Firearm

Owners Against Crime, 261 A.3d at 488 (stating that firearm owners interest in

challenging firearm ordinances “is immediate because they are currently subject to the

challenged ordinances, which the City is actively enforcing, and must presently decide

whether to violate the ordinances, forfeit their rights to comply with the ordinances, or

avoid the City altogether[]”).

Moreover, the Coverage Exclusion clearly affects Providers’ counseling of patients

and results in additional costs to Providers. These effects of the Coverage Exclusion on

Providers’ businesses are thus removed from the cause “by only a single short step.”

William Penn Parking, 346 A.2d at 289. This analysis also is consistent with Dauphin

County Public Defender’s Office, where we rejected arguments that only indigent

defendants (and not the Public Defender) had standing to challenge new eligibility

requirements for public representation, and with Robinson Township, where we were

unconvinced by arguments that Dr. Khan’s harm was based on his patients’ rights.

Similarly, here, we reject DHS’s arguments that women on Medical Assistance seeking

abortions are the only possible plaintiffs for the same reason that we did not credit

Dauphin County CCP’s arguments that criminal defendants were the proper plaintiffs and

the Commonwealth’s arguments that patients (not Dr. Khan) were the proper plaintiffs.

[J-65-2022] - 35

We focus our inquiry on whether Providers were aggrieved, and because they are, they

have established a cognizable injury for standing purposes.

Immediacy having been clearly established, there is no reason to delve into a

“zones of interests” analysis. Johnson, 8 A.3d at 333. We acknowledge that, in resolving

questions of immediacy in other cases, we have considered whether the plaintiffs’ alleged

harms fall within the interests protected by the provisions at issue. As this Court stated

in Johnson, should “a party’s immediate interest not be apparent, a zone of interests

analysis may (and should) be employed to assist a court in determining whether a party

has been sufficiently aggrieved, and therefore has standing.” Johnson, 8 A.3d at 333

(emphasis added). Here, Providers’ immediate interest is apparent, obviating any

potential need to employ a zone-of-interests analysis. To the extent Upper Bucks could

be misread as requiring a “zone of interests” analysis, we reiterate the clarification made

in Johnson that there is no “requirement that one be in the zone of interests for the

immediacy prong of a standing analysis to be satisfied.” Id. at 331. Therefore, to the

extent the Commonwealth Court required a showing that Providers were in the zone of

interests protected by the applicable statute and constitutional provisions, it erred.

In this vein, DHS acknowledges that a zone-of-interests analysis is not always

required. DHS’s Brief at 12. However, in analyzing Providers’ standing, DHS applies

such a requirement to this case. Id. at 10 (asserting that Providers “do not have an

immediate interest in the outcome of this case … because the alleged harm suffered by

[Providers] is not within the zone of interests sought to be protected by the constitutional

provisions on which [they] rely”). By conducting this analysis, DHS attempts to inject

federal third-party standing considerations into Pennsylvania’s prudential “immediacy”

requirement. To justify this approach, DHS cites to Commonwealth Court decisions

applying the federal third-party standing principle that “one ordinarily has no standing to

[J-65-2022] - 36

vindicate the constitutional rights of third persons.” See id. at 10 (citing Warth, 422 U.S.

at 490; Phila. Facilities Mgmt. Corp. v. Biester, 431 A.2d 1123, 1131 (Pa. Commw. 1981);

Pequea Valley Sch., 387 A.2d at 1022). The lower court’s application of the federal third-

party standing doctrine cannot be reconciled with our three-prong approach that solely

asks whether the plaintiff is aggrieved.

The federal doctrine creates a requirement in addition to a showing that plaintiffs

are aggrieved. 19 “[E]ven when the plaintiff has alleged injury sufficient to meet the ‘case

or controversy’ requirement,” the High Court holds that “the plaintiff generally must assert

his own legal rights and interests, and cannot rest his claim to relief on the legal rights or

interests of third parties.” Warth, 422 U.S. at 499; see also Kowalski v. Tesmer, 543 U.S.

125, 129 (2004) (providing that one of the main reasons for the doctrine is concern that

19 Though the Commonwealth Court referred to it as the “Singleton analytical framework,”

the United States Supreme Court developed the third-party standing doctrine outside of

the abortion context. It has applied the test to prohibit and allow third-party standing in

varying circumstances. See, e.g., Pierce v. Soc’y of the Sisters of the Holy Names of

Jesus and Mary, 268 U.S. 510, 536 (1925) (allowing corporations that established and

operated private schools to challenge a statute requiring children to attend public schools

by asserting the parents’ Fourteenth Amendment rights, noting that this was consistent

with “many other cases where injunctions have issued to protect business enterprises

against interference with the freedom of patrons or customers”); Barrows, 346 U.S. at

255-256 (deciding that the rule against third-party standing did not apply to respondent in

action for failing to honor restrictive race-based covenant, though respondent was relying

on the equal protection rights of others); Warth v. Seldin, 422 U.S. 490 (1975) (holding

that housing organizations and residents of Rochester lacked standing to challenge

town’s zoning ordinance for effectively excluding persons of low and moderate income

from living in the town); Craig v. Boren, 429 U.S. 190 (1976) (explaining that vendor had

“jus tertii” standing to challenge Oklahoma statutory scheme prohibiting sale of 3.2% beer

to males under the age of 21 and to females under the age of 18 on the basis that it

constituted gender-based discrimination that denied males ages 18 to 20 equal protection

of the laws); Powers v. Ohio, 499 U.S. 400, 410 (1991) (determining that a criminal

defendant has standing to raise the equal protection rights of a juror excluded from

service); Kowalski v. Tesmer, 543 U.S. 125 (2004) (holding that a lawyer cannot invoke

a future client’s Sixth Amendment right to a fair and speedy trial).

[J-65-2022] - 37

“the party with the right has the appropriate incentive to challenge (or not challenge)

governmental acting and to do so with the necessary zeal and appropriate presentation”).

We are mindful of DHS’s observation that this Court’s opinions in Robinson

Township, Dauphin County Public Defender’s Office, and William Penn Parking did not

expressly indicate that the putative plaintiffs were asserting rights that belonged to third

parties. However, DHS overlooks that in each of those cases, the putative plaintiffs

actually relied on the rights of their clients. Most obviously, the parking garage operators

in William Penn Parking were challenging a tax imposed on their patrons. They

complained of harm to their businesses–that the tax prevented them from making a profit–

but the main grounds for their challenge was statutory language prohibiting the tax

imposed on their patrons from being excessive and unreasonable. In Robinson

Township, Dr. Khan, like Providers, was a medical provider bringing a constitutional claim

under Pennsylvania’s equal protection provision in Article III, Section 32. He was

complaining that Act 13 was a special law that interfered with his treatment of patients,

just as the Providers here complain that Sections 3215(c) & (j) and the implementing

regulations are special laws that interfere with their treatment of patients. Further, the

defendants in each of those cases made the same arguments that DHS makes now, but

this Court rejected them, instead applying the established three-factor standing test to

determine whether the plaintiff was aggrieved.

As demonstrated above, the standing question is more than adequately resolved

with reference to the well-established principles and test announced in William Penn

Parking and applied in its progeny. We heed the lesson of Johnson that a zone-of-

interests analysis is not a necessary component of immediacy. Further, we decline to

adopt a fourth factor to require proof that the plaintiff is not bringing a challenge to

vindicate the rights of others. In reaching this conclusion, we reiterate that “[u]nder

[J-65-2022] - 38

Pennsylvania law, the doctrine of standing is a prudential, judicially-created tool, affording

discretion to courts. In the federal system, by contrast, standing is both constitutional,

implicating Article III’s case or controversy requirement, and prudential, involving judicial

limits on federal jurisdiction.” Firearm Owners Against Crime, 261 A.3d at 481-82. Neither

DHS nor the Commonwealth Court has offered an adequate rationale for seeking out and

adopting another test.

We observe that the Commonwealth Court’s rationale for adopting the federal

standing principles articulated in Singleton was that courts should not adjudicate

constitutional rights unnecessarily because it may be that the third parties, i.e., the holders

of these rights, do not wish to assert them, and that those third parties are usually the

best proponents of their rights. Allegheny Reproductive, 249 A.3d at 605. 20 In other

words, the court justified applying third-party standing out of concern that: (1) the

Providers might be unnecessarily vindicating constitutional rights; and (2) the Providers

might not be the best advocates. The Commonwealth Court’s foray into this line of inquiry

20 The Commonwealth Court relied on Harrisburg School District, 379 A.2d at 895-97

and Pennsylvania Dental Association, 461 A.2d at 331, to establish the applicability of the

Singleton framework. In both cases, the Commonwealth Court applied the framework

without any deliberation about the propriety of importing the federal constitutional doctrine

into our prudential state-specific approach to standing. The court simply cited the federal

standard, then applied it, without considering whether the concerns animating the federal

standing doctrine have equal force in the courts of our Commonwealth. These cases are

unresponsive to the question of whether this Court should adopt the third-party standing

doctrine in the Commonwealth.

In Harrisburg School District, the Commonwealth Court was addressing the District’s

assertion that striking teachers’ conduct, in picketing at school board members’ homes,

violated the school board members’ constitutional rights to privacy. The Commonwealth

Court observed that Singleton was decided a year prior, then employed Singleton’s

framework. Subsequently, citing to Harrisburg School District, the court in Pennsylvania

Dental Association summarily applied the Singleton doctrine to determine that the dental

association had standing to challenge a contractual amendment that permitted the

government to access patient files when auditing the dentist on the grounds that it violated

patients’ privacy rights.

[J-65-2022] - 39

ignores our resolution of the analogous issues in the above-discussed cases. 21 For the

sake of completeness, we note that the Commonwealth Court’s predicates are faulty.

First, with regard to the notion that “the [c]ourt has no way of knowing that the

patients on whose behalf [Providers] purport to speak even want this assistance[,]” id. at

607, we observe that Providers bring these claims in support of women seeking abortions

who live close to or below the poverty line and who qualify for Medical Assistance. The

petition alleges that Providers work with women who have sought abortions in their clinics

but were denied coverage because of the Coverage Exclusion. See, e.g., Petition for

Review, 1/16/2019, ¶¶ 56-64. The holders of these rights have thus sought to assert their

rights by appearing before Providers and seeking abortion services.

Further, there can be no genuine dispute that pregnant women seeking abortions

are not in the best position to act as proponents of their rights. Pregnant women face a

genuine obstacle to asserting their rights as a function of the short nature of pregnancy

and the statutory temporal limit on a woman’s right to seek an abortion, 22 as compared to

the prolonged nature of litigation. Litigation will often outlast the window of opportunity to

21 The Commonwealth Court also ignores that among the reasons for the federal third-

party standing doctrine is the High Court’s effort to exercise restraint when interpreting

state law, a concern irrelevant to our prudential standing analysis. Elk Grove Unified Sch.

Dist. v. Newdow, 542 U.S. 1, 12 & 13 n.5 (2004) (stating that its prudential standing

analysis and decision to reject standing in that case are informed by the fact that family

law rights—rights which “belong[] to the laws of the States and not to the laws of the

United States”—“are entwined inextricably with the threshold standing inquiry”); Barrows,

346 U.S. at 256 (stating that one reason for this rule “is that the state court, when actually

faced with the question, might narrowly construe the statute to obliterate the objectionable

feature, or it might declare the unconstitutional provisions separable[]”); New York ex rel.

Hatch v. Reardon, 204 U.S. 152, 160-61 (1907) (expressing concern that “it may be more

or less of a speculation to inquire what exceptions the state court may read into general

words, or how far it may sustain an act that partially fails”).

22 The Abortion Control Act contains the following general prohibition: “no person shall

perform or induce an abortion upon another person where the gestational age of the

unborn child is 24 or more weeks.” 18 Pa.C.S. § 3211(a).

[J-65-2022] - 40

seek an abortion even if one presupposes a woman’s timely awareness of a pregnancy

and the knowledge of and availability of legal services to seek expedited relief from the

court. A poor pregnant woman’s individual ability to assert her own constitutional rights

in this context is illusory at best. We also note that a woman’s interest in privacy is

implicated by any requirement that she be the plaintiff bringing this lawsuit to vindicate

her constitutional rights. New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841,

847 (N.M. 1998) (“[P]rivacy concerns and time constraints impose a significant hindrance

on the ability of Medicaid-eligible women to protect their own interest in obtaining

medically necessary abortions.”).

Thus, the Commonwealth Court erred in reverting to consideration of the unique

third-party standing test from federal jurisprudence as articulated in Singleton. Because

Providers have established that they are aggrieved by the Medical Assistance Coverage

Exclusion, the Commonwealth Court erred in denying them standing. 23

23 Our conclusion that Providers have standing is consistent with many other courts’

conclusions that abortion providers have standing to challenge state abortion laws, albeit

those conclusions are often reached through application of Singleton. See

Comprehensive Health of Planned Parenthood of Kan. and Mid-Mo v. Kline, 197 P.3d

370, 374, 394 (Kan. 2008) (applying Singleton to determine that an abortion provider had

standing); Feminist Women’s Health Ctr. v. Burgess, 651 S.E.2d 36, 37-39 (Ga. 2007)

(applying Singleton to determine that a physician and several health care facilities had

standing); Planned Parenthood of Kan. and Mid-Mo v. Nixon, 220 S.W.3d 732, 736-738

(Mo. 2007) (applying Singleton to determine Planned Parenthood had standing both

independently and on behalf of minor patients); State v. Planned Parenthood of Alaska,

35 P.3d 30, 34 (Alaska 2001); Armstrong v. State, 989 P.2d 364, 369-370 (Mont. 1999)

(applying Singleton to determine health care providers had standing); Pro-Choice Miss.

v. Fordice, 716 So.2d 645, 662-65 (Miss. 1998) (applying Singleton to determine doctors

and health care providers had standing); New Mexico Right to Choose/NARAL v.

Johnson, 975 P.2d 841, 846-47 (N.M. 1998) (applying, inter alia, the rationale of Singleton

to determine that health care providers and organization representing Medicaid-eligible

women had standing); Planned Parenthood League v. Bell, 677 N.E.2d 204, 207-09

(Mass. 1997) (applying Singleton to determine that Planned Parenthood League of

Massachusetts had standing); Davis v. Fieker, 952 P.2d 505, 508 (Okla. 1997) (applying

“direct, immediate and substantial” test to determine that physician who practices

medicine in state of Oklahoma has standing to challenge abortion regulations); Cheaney

(continued…)

[J-65-2022] - 41

B. Intervention

1. Scope and Standard of Review

Resolution of this issue requires an examination of whether the Commonwealth

Court erred by concluding that the various state legislators who requested to intervene in

this matter were permitted to do so pursuant to Pennsylvania Rule of Civil Procedure

2327. Generally speaking, such an issue presents a question of law; thus, our scope of

review is plenary, and our standard of review is de novo. Markham v. Wolf, 136 A.3d

134, 138 (Pa. 2016). 24

v. State, 285 N.E.2d 265, 266 (Ind. 1972) (pursuant to United States Supreme Court rule

that an accessory has standing to assert that the offense of which she is charged with

assisting cannot constitutionally be a crime, determining that abortion provider (not a

doctor) had standing); Ballard v. Anderson, 484 P.2d 1345, 1348 (Cal. 1971) (determining

that physician had standing arising from his right to practice medicine consistent with law

and his potential liability if he performs an abortion).

24 Senate Intervenors challenge any reliance on the standard and scope as set forth in

Markham to address the instant question because “the legal question Markham held was

subject to this standard and scope was whether ‘legislative standing’ exists.” Senate

Intervenors’ Brief at 57 n.21 (citing Markham, 136 A.3d 138). Here, the Senate

Intervenors highlight that they are intervening as Respondents, not as Petitioners, and

therefore need not establish legal standing, despite recognizing that “the standing

analysis is useful for assessing whether a legally enforceable interest exists” for them to

intervene. Id. While we acknowledge that both Senate and House Intervenors are

attempting to intervene as Respondents, rather than Petitioners, this does not impact our

standard and scope of review.

The Senate Intervenors contend that this Court should apply an abuse of discretion

standard to the instant question. See Senate Intervenors’ Brief at 1 (citing Pa. Ass’n of

Rural & Small Sch. v. Casey, 613 A.2d 1198, 1200 n.1 (Pa. 1992)). However, as the

Commonwealth Court observed below, “the court is given the discretion to allow or to

refuse intervention only where the petitioner falls within one of the classes enumerated in

Rule 2327 and only where one of the grounds under Rule 2329 is present which

authorizes the refusal of intervention.” Allegheny Reproductive, 225 A.3d at 908 (quoting

Larock v. Sugarloaf Twp. Zoning Hearing Bd., 740 A.2d 308, 313 (Pa. Commw. 1999)).

As the question of whether a party falls into one of the categories set forth in Rule 2327

raises a question of law, we review such matters de novo. Pa. Bankers Ass’n v. Pa. Dep’t

of Banking, 956 A.2d 956, 963 (Pa. 2008).

[J-65-2022] - 42

2. Relevant Principles of Pennsylvania’s Law on Intervention

Pennsylvania Rule of Civil Procedure 2327 governs who may intervene in a civil

action, and it provides, in relevant part:

At any time during the pendency of an action, a person not a

party thereto shall be permitted to intervene therein, subject

to these rules if ... (3) such person could have joined as an

original party in the action or could have been joined therein;

or (4) the determination of such action may affect any legally

enforceable interest of such person whether or not such

person may be bound by a judgment in the action.

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

To intervene, the prospective intervenor must first establish that she has

standing. 25 Markham, 136 A.3d at 140. The concerns animating the concept of standing

are inextricably linked to questions of intervention pursuant to Rule 2327. Id. at 139; see

also Application of Biester, 409 A.2d 848, 850 n.2 (Pa. 1979) (concluding that because

the proposed intervenor “lack[ed] standing to advance the petition for review, he ha[d] no

legally enforceable interest to assert as an intervenor”). Given that the foundational

principles of standing were discussed in detail in the immediately preceding section of

this opinion, we only will reiterate that for a party to a legal action to have standing, they

must be aggrieved or “negatively impacted in some real and direct fashion.” Pittsburgh

Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 660 (Pa. 2005). Such intervention

25 Because Intervenors are proposing to intervene as Respondents, rather than

Petitioners, Senate Intervenors assert that standing is irrelevant to our analysis, despite

acknowledging the applicability of standing principles to at least one of their bases for

intervention. Senate Intervenors’ Brief at 69. As Judge Simpson acknowledged below,

neither our Rules of Civil Procedure nor our case law have made any distinction based

upon a proposed intervenor’s status as petitioner or respondent. See Judge Simpson’s

Opinion, 6/21/2019, at 13; see also Pa.R.C.P. 2327. In fact, this Court has applied the

same legislative standing principles to individual legislators who sought to intervene as

Respondents. See Robinson Twp. v. Commonwealth, 84 A.3d 1054 (Pa. 2014) (per

curiam).

[J-65-2022] - 43

is as permissible for individual legislators as anyone else “where there [is] a discernible

and palpable infringement on their authority as legislators.” Fumo, 972 A.2d at 501.

3. Parties’ Arguments

Providers’ Arguments

Providers argue that this Court has limited individual legislator intervention to

situations where the legislators’ “ability to participate” in the voting process is negatively

impacted or she is deprived of her authority to act as a legislator. Providers’ Brief at 77

(citing Markham, 136 A.3d at 145; Fumo, 972 A.2d 501). Deeming neither condition

present in the instant matter, Providers contend that Intervenors are merely attempting to

defend the constitutionality of the statute, and thus have not established a right to

intervene. Id.

In directly responding to the Commonwealth Court’s decision, Providers aver that

the lower court fundamentally misunderstood what effect Intervenors’ challenge would

have if Providers were successful. Id. 78-79. Rather than force the Legislature to

appropriate money for abortions, they argue, a decision that the Coverage Exclusion is

unconstitutional would not implicate the legislators’ powers in any way. Id. at 78.

According to Providers, by holding otherwise, the court’s reasoning “unduly expands the

narrow circumstances under which individual legislators can intervene” to nearly every

constitutional challenge to legislation. Id. at 79-80.

Intervenors’ Arguments 26

Intervenors agree with the Commonwealth Court’s analysis regarding legislative

intervention. House Intervenors’ Brief at 23-24; Senate Intervenors’ Brief at 56-58.

26 While the members of both the House and Senate have separately submitted

arguments in their briefs on the issue of their right to intervene in this matter, their briefs

largely share the same views and arguments. Accordingly, we summarize their

arguments together, and we highlight arguments that are unique to a particular group of

legislators.

[J-65-2022] - 44

Relying on various constitutional provisions, 27 Intervenors assert that the power to raise

and appropriate government funds lies exclusively within their branch of government, and

that if the relief sought by Providers is granted, it would impair their ability to exercise that

authority. House Intervenors’ Brief at 25-29; Senate Intervenors’ Brief at 60-63.

Specifically, they argue that it would impair the Intervenors’ ability to determine the

amount of funds appropriated for Medical Assistance and how those funds should be

utilized. House Intervenors’ Brief at 29; Senate Intervenors’ Brief at 63.

Although not addressed by the Commonwealth Court, Intervenors also argue that

they are entitled to intervene as persons who could have been joined as original parties

pursuant to Rule 2327(3). House Intervenors’ Brief at 30-34; Senate Intervenors’ Brief at

69-73.

4. Analysis

We find that our analysis in Markham is dispositive of this issue. This Court has

limited legislator intervention to particular circumstances. Specifically, we have held that

such standing exists when a legislator’s direct and substantial interest in her ability to

participate in the voting process is negatively impacted, or when a legislator has suffered

a concrete impairment or deprivation of an official power or authority to act as a legislator.

Markham, 136 A.3d at 145. In other words, legislators may challenge actions when the

injuries diminish their unique legislative powers as set forth under our Constitution. Id.

Legislators may not challenge actions when the injuries affect conduct outside the

legislative forum unrelated to voting or the approval process, making their challenge “akin

to a general grievance about the correctness of governmental conduct[.]” Id.

27 House Intervenors’ Brief at 25-26 (citing PA. CONST. art. III, §§ 10, 11, 14, 15, 17-19,

22, 24, 26, 29-30); Senate Intervenors’ Brief at 59-60 (PA. CONST. art. II, § 1; PA. CONST.

art. III, § 24).

[J-65-2022] - 45

In Markham, individual state legislators sought to intervene in a challenge to an

executive order that provided direct care health workers with a process by which to seek

representation and collectively bargain. Markham, 136 A.3d at 138-39. The legislators

claimed that they were aggrieved by the executive order insofar as it violated the

separation of powers doctrine by diminishing the effectiveness of prior-enacted

legislation, “infringing upon their exclusive law-making authority and usurping the power

of the General Assembly.” Id. Specifically, the legislators in Markham sought to intervene

pursuant to Rule 2327(3) & (4), arguing that the Governor’s executive order “denie[d]

every member of the General Assembly the opportunity to vote on whether direct care

health providers may organize and collectively bargain[,]” which was not provided for in

the relevant labor laws. Id. at 139.

In analyzing whether the legislators in Markham could intervene, we held that they

were required to satisfy our standing requirements to demonstrate that they are actually

aggrieved. Id. at 140. After reviewing relevant federal and Pennsylvania law, we

concluded that the legislators could only demonstrate a direct and substantial interest

when their ability to participate in the voting process is negatively impacted or when their

authority to act as a legislator is impaired in some way. Id. at 145. With those principles

in mind, we found that the legislators were only raising a claim that the executive order

violated the separation-of-powers doctrine, but that the executive order neither inhibited

the legislators’ ability to vote on or enact legislation, nor prevented them from “advising,

consenting, issuing, or approving matters within their scope of authority as legislators.”

Id. at 145. Accordingly, their interests in the underlying challenge were “too indirect and

insubstantial,” and thus were generalized interests no different than those “common to

the general citizenry.” Id. at 145-46. We further highlighted the following concern:

[T]aking the unprecedented step of allowing legislators

standing to intervene in, or be a party to, any matter in which

[J-65-2022] - 46

it is alleged that government action is inconsistent with

existing legislation would entitle legislators to challenge

virtually every interpretive executive order or action (or

inaction). Similarly, it would seemingly permit legislators to

join in any litigation in which a court might interpret statutory

language in a manner purportedly inconsistent with legislative

intent. Appellants offer no limiting principle which would

permit their intervention in the instant matter, but constrain

their ability to initiate litigation, seek declaratory relief, or to

intervene in any matter which does not, under the principles

we express today, impact them in their role of legislators.

Id. at 145. With that in mind, we observed that the legislators in Markham still had

recourse, as our decision in no way precluded them from enacting future legislation in

that area, and that they were permitted to participate as amici to be heard on the merits

of the controversy. Id. at 145-46.

Here, Intervenors’ interest in the Coverage Exclusion is too attenuated to satisfy

our intervention requirements. With respect to any negative impact on their ability to vote,

we find none. Other than passing budgets in contemplation of the parameters of Medical

Assistance, the last time that the Legislature voted on the Coverage Exclusion at issue in

this case was in 1989, and thus, it cannot be said that this litigation directly affects

Intervenors’ ability to vote with respect to this exclusion. See Wilt v. Beal, 363 A.2d 876,

881 (Pa. 1976) (“Once, however, votes which they are entitled to make have been cast

and duly counted, their interest as legislators ceases.”). In other words, Intervenors’ direct

connection with this specific piece of legislation ceased when it was last voted on and

went into effect. Thus, Intervenors have no interest greater than the ordinary citizen to

have duly-enacted statutes enforced. If anything, Intervenors’ only concern appears to

be with voting on future legislation. See Senator Intervenors’ Brief at 67 (“[T]he entire

purpose of Providers’ action is not only to enjoin the existing statute, but to prevent

members of the General Assembly from ever voting in favor of future legislation

containing similar funding restrictions.”). This is too speculative of a concern and too

[J-65-2022] - 47

attenuated from the exclusion that is under review. We have before us a challenge to the

Coverage Exclusion that is presently in effect and not a hypothetical statutory provision

that has yet to be drafted. There is no defined legislative right to vote on future

appropriation bills that specifically refuse public funding for abortions, particularly when

the constitutionality of such a provision is currently under review by the courts. If it is

ultimately decided that the challenged provisions are unconstitutional, then the legislators

cannot genuinely claim that their future interests in unconstitutional legislation are

violated. See Healthsystem Ass’n of Pa. v. Commonwealth, 77 A.3d 587, 598 (Pa. 2013)

(stating that “regardless of the extent to which the political branches are responsible for

budgetary matters, they are not permitted to enact budget-related legislation that violates

the constitutional rights of Pennsylvania citizens”). This further illustrates that Intervenors’

interest is merely defending the constitutionality of the Coverage Exclusion, making their

interests no greater than that of the general citizenry.

Along these lines, Intervenors advance an argument supported by the

Commonwealth Court, that a determination of the constitutionality of this statute—or any

piece of legislation for that matter—implicates the legislative authority to appropriate

government funding. House Members’ Brief at 25-29; Senator Intervenors’ Brief at 60-

63. There is no question that Article III of the Pennsylvania Constitution endows the

Legislature with authority over the appropriation of government funds. PA. CONST. art. III,

§§ 3, 11, 24. However, the Commonwealth Court’s negative inference that a ruling on

the constitutionality of the exclusion “will directly limit the General Assembly’s exclusive

authority to appropriate moneys from the treasury” fails to appreciate the traditional

function of judicial review. Allegheny Reproductive, 225 A.3d at 911.

Applying this concept broadly, there is no discernible limiting principle to individual

legislator intervention. Nearly all matters of state government implicate the appropriation

[J-65-2022] - 48

of government funding in some form or fashion. While the degree may change,

government funding underlies all government action. Thus, individual legislators’

interests would arise in every instance that there is a question with respect to a law’s

constitutionality. To endorse the Commonwealth Court’s rationale would broaden the

scope of individual legislator intervention to such a degree that any of the 253 state

legislators would be permitted to intervene in virtually any case in which the

constitutionality of a piece of legislation is being challenged.

Not only is this position untenable, but it is contrary to our existing jurisprudence

concerning individual legislator intervention. Markham, 136 A.3d at 145 (“[T]he assertion

that another branch of government … is diluting the substance of a previously-enacted

statutory provision is not an injury which legislators, as legislators, have standing to

pursue.”). Like the legislators in Markham, Intervenors in the instant matter are raising

concerns that a co-equal branch of government is exercising its authority in a way that

will diminish (or in this case, nullify) previously enacted legislation. Despite Intervenors’

attempts to frame this constitutional determination as a deprivation of their appropriation

authority, we respectfully conclude that this attempt misses the mark.

This Court regularly and appropriately measures the constitutionality of legislation,

and by suggesting that each time we do so implicates the Legislature’s appropriation

authority, Intervenors turn the separation-of-powers doctrine on its head. “Indeed,

‘[o]rdinarily, the exercise of the judiciary’s power to review the constitutionality of

legislative action does not offend the principle of separation of powers[.]’” Robinson

Township, 83 A.3d at 927-28 (quoting Hosp. & Healthsystem Ass’n of Pa. v.

Commonwealth, 77 A.3d 587, 596 (Pa. 2013)). It is precisely this Court’s role to

determine what is within the bounds of our Charter. Id. at 926 (“[T]he Pennsylvania

[J-65-2022] - 49

Supreme Court in particular, ha[s] the power to determine the constitutionality of

statutes[.]”).

The Commonwealth Court and Intervenors appear to share a fundamental

misunderstanding of the relief sought by Providers and the impact that any decision

supporting it would have on the Legislature’s appropriation of government funds.

Providers are not asking the judiciary to mandate funding for abortion coverage but,

rather, are seeking a judicial declaration that the Coverage Exclusion and its

implementing regulations are unconstitutional and that its enforcement be enjoined.

Providers’ Brief at 78. If successful, the ultimate decision in this appeal will fulfill the

Court’s constitutional mandate to adjudicate such matters. Following our decision,

Intervenors may vote or legislate however they so choose in conformity with their

constitutional prerogatives and obligations.

Furthermore, we find no merit to Intervenors’ alternative argument that their

intervention in this matter is proper pursuant to Rule of Civil Procedure 2327(3), which

provides that a party shall be permitted to intervene when “such person could have joined

as an original party in the action or could have been joined therein.” Pa.R.C.P. 2327(3).

In support of this position, Intervenors cite to several cases in which individual legislators

and/or the General Assembly itself were named as defendants. House Intervenors’ Brief

at 30-33 (citing Finn v. Rendell, 990 A.2d 100 (Pa. Commw. 2010); Stilp v.

Commonwealth, 974 A.2d 491 (Pa. 2009); Sears v. Wolf, 118 A.3d 1091 (Pa. 2015);

William Penn Sch. Dist. v. Pa. Dep’t of Educ., 170 A.3d 414 (Pa. 2017); League of Women

Voters v. Commonwealth, 178 A.3d 737 (Pa. 2018)); Senate Intervenors’ Brief at 70-72

(citing, inter alia, Pa. State. Ass’n of Jury Comm’rs v. Commonwealth, 78 A.3d 1020 (Pa.

2013); Pa. State Ass’n of Cnty. Comm’rs v. Commonwealth, 52 A.3d 1213 (Pa. 2012);

Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205 (Pa. Commw. 2018); Leach

[J-65-2022] - 50

v. Commonwealth, 141 A.3d 426 (Pa. 2016)). These cases do not support their

intervention in this matter. In this regard, we agree with Judge Simpson’s observation

that “there is no indication” in any of the relied upon cases “that joinder was contested.”

Judge Simpson’s Opinion, 6/21/2019, at 13. Here, intervention has been vigorously

contested throughout the matter.

These cases are inapposite on not only procedural grounds, but substantive

grounds, as well. In most of these cases, the plaintiffs were attempting to directly

challenge uniquely legislative functions. See Stilp, 974 A.2d 491 (challenging legislator

compensation); League of Women Voters, 181 A.3d 1083 (challenging the drawing of

district lines); Leach v. Commonwealth, 141 A.3d 426 (Pa. 2016) (challenging the

enactment process pursuant to the single-subject rule); William Penn Sch. Dist v. Pa.

Dep’t of Educ., 170 A.3d 414 (Pa. 2017) (claiming the General Assembly failed to enact

legislation that would ameliorate education funding disparities). The remaining cases

similarly involved the Legislature’s functions because plaintiffs sought mandates that the

General Assembly appropriate funds in a specific manner. Sears, 118 A.3d 1091

(requesting that government funds be redirected to a health insurance program); Pa.

State Ass’n of Cnty. Comm’rs, 52 A.3d 1213 (seeking to compel General Assembly to

provide funding for court system); Finn, 990 A.2d 100 (asking the judiciary to compel

government entities to reimburse district attorneys’ salaries). In the instant matter,

Providers are not seeking to compel the General Assembly to do anything, nor are they

implicating Intervenors’ unique legislative authority for the reasons previously discussed.

As Providers have identified, they are asking the courts to review the

constitutionality of the Coverage Exclusion, to enjoin DHS—the agency tasked with

administering Medical Assistance—from enforcing the allegedly unconstitutional

exclusion, and to recognize a right to abortion under Pennsylvania’s Constitution. The

[J-65-2022] - 51

petition for review (and relief requested therein) implicates DHS’s administrative functions

and does not directly involve the legislative function such that Intervenors could have

been joined as original parties. Therefore, Intervenors have no basis to defend the

constitutionality of the statute pursuant to Rule 2327(3), and their argument in support of

intervention pursuant to Rule 2327(3) is meritless.

For the above reasons, we reject the Commonwealth Court’s rationale that

Intervenors may intervene based on a theory that striking down the exclusion would affect

their authority to appropriate government funds. Accordingly, we hold that Intervenors

are not permitted to intervene in this action. 28, 29

28 After determining that the legislators could intervene pursuant to Rule 2327(4), the

Commonwealth Court then turned its analysis to the corollary rule on intervention,

Pennsylvania Rule of Civil Procedure 2329. Allegheny Reproductive, 225 A.3d at 913

(citing Pa.R.C.P. 2329). Rule 2329 prohibits intervention, as relevant to the lower court’s

analysis, where the intervenor is already adequately represented, or when intervention

will cause undue delay or prejudice. Id. However, a court need only engage in an

analysis under Rule 2329 when it finds that a proposed intervenor has satisfied one of

the requirements of Rule 2327. Given that Intervenors have failed to demonstrate that

they may intervene pursuant to Rule 2327, there is no need to address the grounds for

disqualifying intervention pursuant to Rule 2329.

29 Despite our conclusion that the Commonwealth Court erred by allowing intervention,

we nonetheless will consider the pertinent portions of Intervenors’ briefs as amici briefs

in support of DHS’s position that the Coverage Exclusion is constitutional. In re

Canvassing Observation, 241 A.3d 339, 346 n.6 (Pa. 2020). Pennsylvania Rule of

Appellate Procedure 531 recognizes that an amicus cannot raise an issue that has not

been preserved by the parties, see Pa.R.A.P. 531, Note, but the legislators only provide

arguments directly addressing the issues preserved by the parties. While DHS does not

respond directly to the merits of the Providers’ constitutional arguments, the Intervenors

do. This does not disqualify their amici status. In fact, this Court is of the view that “[a]n

amicus curiae brief that brings to the attention of the Court relevant matter not already

brought to its attention by the parties [(e.g., relevant responsive arguments)] may be of

considerable help to the Court.” Pa.R.A.P. 531, Note (citing U.S. Supreme Ct. R. 37.1).

Because of the volume of amici in this appeal, for the sake of clarity, we refer to

Intervenors as such throughout this opinion, despite their status as amici.

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III. Challenge to Fischer as controlling precedent

A. Scope and Standard of Review

The Commonwealth Court rejected Providers’ constitutional challenges by

sustaining DHS’s preliminary objection in the nature of a demurrer. We review such

decisions in a way that is substantially similar to the manner in which we review an order

sustaining a preliminary objection to a party’s standing. See supra p. 23. In addition to

the principles of review discussed above, we note that “the standard of review for

preliminary objections in the nature of a demurrer is limited; the question presented by

the demurrer is whether, on the facts averred, the law says with certainty that no recovery

is possible. Where a doubt exists as to whether a demurrer should be sustained, this

doubt should be resolved in favor of overruling it.” Bilt-Rite Contractors, Inc. v. The

Architectural Studio, 866 A.2d 270, 274 (Pa. 2005) (citation and internal quotation marks

omitted).

B. Relevant Legal Principles

When interpreting a constitutional provision, the polestar of our analysis must be

the plain language. In re Bruno, 101 A.3d 635, 659 (Pa. 2014). Under such a reading,

“this Court regards the language of our Constitution as the embodiment of the will of the

voters who adopted it[.]” Washington v. Dep’t of Pub. Welfare, 188 A.3d 1135, 1144 (Pa.

2018) (citing Stilp, 905 A.2d at 939). When interpreting constitutional language, we are

mindful that the language of the Constitution controls and that it must be interpreted “in

its popular sense, as understood by the people when they voted on its adoption.” Pa.

Env’t Def. Found. v. Commonwealth, 161 A.3d 911, 929 (Pa. 2017). In ascertaining the

meaning of a word in accordance with its common and approved usage, this Court has

found it helpful to consult dictionaries. Greenwood Gaming & Ent., Inc. v.

Commonwealth, 263 A.3d 611, 620 (Pa. 2021) (citing Bruno v. Erie Ins. Co., 106 A.3d 48,

75 (Pa. 2014)). Further, when reviewing statutory enactments, “we presume that the

[J-65-2022] - 53

General Assembly does not intend to violate the Pennsylvania Constitution[.]” McLinko

v. Dep’t of State, 279 A.3d 539, 563 (Pa. 2022).

Also relevant to the present analysis is the doctrine of stare decisis, pursuant to

which courts are bound by previous decisions of the court in order to “promote[] the

evenhanded, predictable, and consistent development of legal principles, foster[] reliance

on judicial decisions, and contribute[] to the actual and perceived integrity of the judicial

process.” See Commonwealth v. Alexander, 243 A.3d 177, 195-96 (Pa. 2020) (quoting

Payne v. Tennessee, 501 U.S. 808, 827 (1991)). To ensure certainty and finality,

overturning a decision requires a “special justification, over and above the belief that the

precedent was wrongly decided.” Id. at 196 (quoting Allen v. Cooper, 140 S. Ct. 994,

1003 (2020)). The appropriateness of overruling a past decision depends on a number

of factors, including the age and lineage of the decisions, as well as “‘the quality of [its]

reasoning, the workability of the rule it established, its consistency with other related

decisions, … and reliance on the decision.’” Id. at 196-97 (quoting Knick v. Twp. of Scott,

Pa., 139 S. Ct. 2162, 2177-78 (2019)). 30 Additionally, the considerations for stare decisis

are afforded “special force in the area of statutory interpretation[,]” resulting in courts

adhering to a more strict application of the doctrine in this context as opposed to in the

context of constitutional law. Hilton v. S.C. Pub. Rys. Comm’n, 502 U.S. 197, 202 (1991).

Stare decisis is at its weakest in the context of constitutional interpretation. Alexander,

243 A.3d at 197 (citing Agostini v. Felton, 521 U.S. 203, 235 (1997)).

Although undoubtedly powerful, this Court has repeatedly recognized that “[w]hile

the doctrine of stare decisis is important, it does not demand unseeing allegiance to things

30 Justice Mundy’s suggestion that we, as Justices, have overruled other Justices is, at

best, curious. Concurring & Dissenting Op. at 3 n.2 (Mundy, J). Although presumably

offered for its rhetorical effect, it is also dangerous. As a majority of the Justices

adjudicating a case, we speak as the Supreme Court of this Commonwealth. Justice

Mundy’s pedestrian “observation” calls into question countless cases adjudicated by

similarly constituted versions of this Court.

[J-65-2022] - 54

past.” Commonwealth v. Doughty, 126 A.3d 951, 955 (Pa. 2015); see also Alexander,

243 A.3d at 196 (“No one would seriously maintain that stare decisis demands absolute

fidelity to what came before.”); Tincher v. Omega Flex, Inc., 104 A.3d 328, 336 (Pa. 2014)

(quoting In re Carney, 79 A.3d 490, 505 (Pa. 2013) (“[W]e have long recognized that the

doctrine of stare decisis is not a vehicle for perpetuating error, but a ‘legal concept which

responds to the demands of justice, and, thus, permits the orderly growth process of the

law to flourish.’”)).

C. Fischer v. Department of Public Welfare

In Fischer v. Department of Public Welfare, 502 A.2d 114 (Pa. 1985), the Court

addressed arguments like those presented here that the Coverage Exclusion found in

Section 3215(c) of the Abortion Control Act violated equal protection principles embodied

in the Pennsylvania Constitution and the Equal Rights Amendment because it provided

all medically necessary services–including those related to reproductive health–to men

but excluded women from access to medically necessary services. The Court issued a

unanimous opinion rejecting the constitutional challenges. Whereas the Commonwealth

Court viewed Fischer as dispositive, Providers challenge Fischer’s continued vitality. We

begin our analysis with a detailed discussion of Fischer.

The Fischer Court based its analysis on the proposition that the case did not

concern the right to abortion. It recognized that in Roe v. Wade, 410 U.S. 113 (1973), 31

the High Court “bottomed the right to expel an unwanted pregnancy on the choice of the

31 As previously noted, in 2022, while this appeal was pending in this Court, Dobbs v.

Jackson Women’s Health Organization, 142 S. Ct. 2228, 2279 (2022) overruled Roe,

holding that the federal Constitution does not confer a right to abortion, and “the authority

to regulate abortion must be returned to the people and their elected representatives.” Id.

The Fischer Court’s opinion was written with the understanding that there existed a

federal right to abortion. After Dobbs was announced, this Court issued an order granting

Providers the opportunity to file supplemental briefing to address the impact of Dobbs on

this case and directing the Prothonotary to accept all supplemental briefs for filing. Order,

8/18/2022.

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private uses of one’s body.” Fischer, 502 A.2d at 116. The Fischer Court, however,

framed the question as whether, “because this Commonwealth provides funds to indigent

women for a safe delivery, [it is] therefore equally obliged to fund an abortion.” Fischer,

502 A.2d at 116.

In recounting the procedural history, the Fischer Court observed that the genesis

of the dispute was a challenge to the constitutionality of the Coverage Exclusion brought

by the appellants—a taxpayer, several medical assistance recipients who at the time the

lawsuit was filed were pregnant and sought abortions, abortion providers, and a rape

counseling organization (“Appellants”). 32 Appellants filed their challenges in state and

federal court, the latter of which they withdrew. With regard to the state court challenge,

the Commonwealth Court preliminarily enjoined enforcement of the Coverage Exclusion,

and this Court affirmed the preliminary relief. Fischer v. Dep’t of Public Welfare, 439 A.2d

1172 (Pa. 1982). The case was returned to the Commonwealth Court, where ultimately,

an en banc panel upheld the Coverage Exclusion against the constitutional challenges.

On appeal to this Court, Appellants raised three issues based in Pennsylvania

constitutional law: they asserted that the abortion exclusion violated the equal protection

guarantees of Article I, Section 1 and Article III, Section 32 of the Pennsylvania

Constitution; that it violated the non-discrimination provision of Article I, Section 26 of the

32 The lawsuit originally challenged 62 P.S. § 453 of the Public Welfare Code, Act of

December 19, 1980, P.L. 1321 No. 239 § 1 (“Act 239”), prohibiting State and local

government agencies from expending Commonwealth funds for the performance of an

abortion except upon certification that the mother’s life would be endangered, or for

victims of rape or incest. 62 P.S. § 453. Act 239 was repealed and the Coverage

Exclusion was reenacted in 18 Pa.C.S. § 3215(c) of the Abortion Control Act of 1982, Act

of June 11, 1982, P.L. 476, No. 138. For present purposes, there is no meaningful

difference in the language of Act 239, the 1982 version of Section 3215(c), and the

present version of the Section 3215(c), which would call for a different analysis.

[J-65-2022] - 56

Pennsylvania Constitution; 33 and that it violated the Equal Rights Amendment in Article I,

Section 28 of the Pennsylvania Constitution.

Although recognizing that Appellants did not raise any federal claims, the Fischer

Court began with an extensive examination of what it referred to as the “relevant federal

constitutional authorities.” Fischer, 502 A.2d at 118. The Court observed that in our

federal system, individual states may make certain choices “as long as they do not

transgress certain constitutional parameters” as defined by the United States Supreme

Court. Id. (citing Pruneyard Shopping Ctrs. v. Robins, 447 U.S. 74 (1980)).

The Court then summarized the then-relevant federal constitutional parameters of

the right to abortion as established in Roe. It found relevant the Roe Court’s

acknowledgement that states have an interest in “potential life which may be destroyed,”

an interest which can justify certain restrictions on the performance of abortions. Id.

(citing Roe, 410 U.S. at 162). Further, “the states’ interest in potential life is a significant

one ‘existing throughout the course of the woman’s pregnancy’ and ... states may take

certain steps ‘to further this unquestionably strong and legitimate interest in encouraging

normal childbirth.’” Id. at 118 (citing Beal v. Doe, 432 U.S. 438, 446 (1977)). 34

33 The Fischer Court addressed Article I, Section 26 separately from the other equal

protection provisions, reviewing it as a standalone “non-discrimination clause” of our

Constitution. Fischer, 502 A.2d at 123. However, Section 26 has been consistently

applied and adopted by this Court as one of our Charter’s equal protection provisions.

See, e.g., Commonwealth v. Parker White Metal Co., 515 A.2d 1358, 1362-63 (Pa. 1986);

Love v. Borough of Stroudsburg, 597 A.2d 1137, 1139 (Pa. 1991); Driscoll v. Corbett, 69

A.3d 197, 212 (Pa. 2013).

34 In Beal v. Doe, 432 U.S. 438, 440 (1977), a case involving statutory construction, the

High Court held that Title XIX of the Social Security Act (a program “under which

participating States may provide federally funded medical assistance to needy persons”)

did not require the funding of nontherapeutic abortions as a condition of participation in

the joint federal-state medical program.

[J-65-2022] - 57

The Fischer Court also drew attention to the line of federal cases addressing state

Medicaid funding and exclusions of abortion coverage. Namely, in Maher v. Roe, 35 the

High Court held that states were not constitutionally required to “accord equal treatment

to both abortion and childbirth.” Id. (citing Maher v. Roe, 432 U.S. 464, 473-74 (1977)).

Further, it was not unconstitutional for states to pay the expenses of childbirth while at the

same time refusing to pay the expenses of abortions in non-life-threatening situations. Id.

(citing Maher, 432 U.S. at 473-74). The Maher v. Roe Court explained:

Roe did not declare an unqualified “constitutional right to an

abortion” ... Rather, the right protects the woman from unduly

burdensome interference with her freedom to decide whether

to terminate the pregnancy. It implies no limitation on the

authority of the State to make a value judgment favoring

childbirth over abortion, and to implement that judgment by

the allocation of public funds.

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

Three years later, in Harris v. McRae, 448 U.S. 297 (1980), the High Court

addressed the constitutional validity of the Hyde Amendment, which was federal

legislation providing for Medicaid funding and prohibiting the funds from being “used to

perform abortions except where the life of the mother would be endangered if the fetus

were carried to term; or except for such medical procedures necessary for the victims of

rape or incest when such rape or incest has been reported promptly to a law enforcement

agency or public health service.” Id. at 119 (citing Pub.L. 96–123, § 109, 93 Stat. 926).

35 In Maher v. Roe, 432 U.S. 464 (1977), the High Court addressed an Equal Protection

Clause challenge to a Connecticut regulation under which Medicaid recipients received

full coverage of childbirth medical services but no coverage of medical services incidental

to nontherapeutic abortions. Ultimately, the High Court emphasized that the woman’s

indigency is at fault for the woman’s difficulty. It therefore concluded that the Connecticut

regulation “d[id] not impinge upon the fundamental right recognized in Roe.” Id.

36 The Fischer Court also highlighted that in Williams v. Zbaraz, 448 U.S. 358 (1980), the

High Court held that a state may enact a statute limiting medically necessary abortion

funding without offending the federal Constitution. Fischer, 502 A.2d at 118.

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The Fischer Court focused on two constitutional challenges raised and rejected in Harris

as being most relevant, i.e., whether the Hyde Amendment impinged a fundamental right

or violates the Equal Protection Clause.

First, in finding that the Hyde Amendment’s restrictions did not impinge on a liberty

interest protected by the Due Process Clause, the Harris Court cited to Maher’s distinction

“between direct state interference with a protected activity and state encouragement of

an alternative activity consistent with legislative policy.” Fischer, 502 A.2d at 119 (citing

Harris, 448 U.S. at 315 (citing Maher, 432 U.S. at 475-76)). Further, “[c]onstitutional

concerns are greatest when the state attempts to impose its will by force of law; the

State’s power to encourage actions deemed to be in the public interest is necessarily far

broader.” Id. (citing Harris, 448 U.S. at 315 (citing Maher, 432 U.S. at 475-76)). The

High Court in Harris explained that, “regardless of whether the freedom of a woman to

choose to terminate her pregnancy for health reasons lies at the core or the periphery of

the due process liberty recognized in [Roe v.] Wade, it simply does not follow that a

woman’s freedom of choice carries with it a constitutional entitlement to the financial

resources to avail herself to the full range of protected choices.” Id. (citing Harris, 448

U.S. at 316-17). The Harris Court reiterated the reasoning from Maher that “although

government may not place obstacles in the path of a woman’s exercise of her freedom of

choice, [the government] need not remove those not of its own creation. Indigency falls

in the latter category.” Id. (citing Harris, 448 U.S. at 316-17).

The Harris Court explained that indigency itself is to blame for restricting the

indigent woman’s ability to exercise her right to abortion, not governmental restrictions on

access to abortions. According to the High Court, “the fact remains that the Hyde

Amendment leaves an indigent woman with at least the same range of choice in deciding

whether to obtain a medically necessary abortion as she would have had if Congress had

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chosen to subsidize no health care costs at all.” Id. (citing Harris, 448 U.S. at 316-17).

Reasoning that the Hyde Amendment merely encouraged childbirth and did not place

obstacles or interfere with a woman’s freedom of choice, the Harris Court concluded that

the Hyde Amendment did “not impinge on the due process liberty rights” recognized in

Roe. Id. (citing Harris, 448 U.S. at 318).

Next, the Fischer Court recognized that the Harris Court rejected an argument that

the Hyde Amendment violates the Equal Protection Clause of the Fifth Amendment to the

United States Constitution. Given that the High Court had not recognized indigency as a

suspect classification for purposes of a federal equal protection analysis, the Harris Court

stated that the Hyde Amendment did not operate to the detriment of a suspect class. Id.

(citing Harris, 448 U.S. at 323). Therefore, the Harris Court reviewed the Hyde

Amendment under rational basis, i.e., looking at whether it operates in a manner that “is

rationally related to the legitimate governmental objective of protecting potential life.” Id.

at 120 (citing Harris, 448 U.S. at 325). It found that Congress used the Hyde Amendment

to encourage childbirth except in the most urgent circumstances. Further, the incentives

created by subsidizing medical expenses of indigent women who carry their pregnancies

to term while not subsidizing those of indigent women who undergo abortions “bear a

direct relationship to the legitimate congressional interest in protecting potential life.” Id.

(citing Harris, 448 U.S. at 325). Based on Maher and Harris, the Fischer Court observed

that pursuant to the High Court’s interpretation of the United States Constitution, “it is

obvious that funding limitations which favor childbirth over abortion do not offend

constitutional safeguards.” Id.

Turning to the case before it, the Fischer Court recounted that the Commonwealth

argued that the rights and privileges accorded Pennsylvania citizens are no greater than

those afforded under the federal Charter with regard to abortion in this context, while the

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Appellants argued for the Court to interpret the Pennsylvania Constitution in a more

expansive manner than its federal counterpart. Id. Specifically, Appellants argued that

the analysis differs from that undertaken in Harris, urging the Court to “consider either

that abortion, when necessary to preserve one’s health, is a fundamental right, or that the

classification of indigent women is a suspect one; and that the statute would not bear up

under strict scrutiny.” Id. Alternatively, Appellants argued that the statute would fail under

rational basis review.

The Fischer Court began what it referred to as its equal protection analysis deriving

from Article I, Section 1 and Article III, Section 32 by drawing from the previously

discussed federal precedent. It recognized that merely because all have the right, it does

not mean that the Commonwealth is required to fund the right. Nonetheless, when the

Commonwealth offers to fund a right, it “must fund it for all, unless they [sic] have a

constitutionally valid reason to specify only a certain class as their beneficiaries. It is the

nub of equal protection that the Commonwealth cannot give or take from one and not the

other unless their reason is to advance or protect a constitutionally recognizable interest

of the common weal.” Id. at 120-21. The Court further recognized that it was “free to

interpret our Constitution in a more generous manner than the federal courts[]” interpret

the federal Charter, and it observed that it has done so in the past. Id. (citing

Commonwealth v. Sell, 470 A.2d 457 (Pa. 1983); Commonwealth v. Tate, 432 A.2d 1382

(Pa. 1981); Commonwealth v. DeJohn, 403 A.2d 1283 (Pa. 1979)). 37 However, the Court

37 In this trio of cases, this Court recognized that the Pennsylvania Constitution may

provide greater protection than its federal counterpart. Sell, 470 A.2d 457 (holding that

under Article I, Section 8, a defendant charged with a possessory offense has automatic

standing to challenge the admissibility of evidence alleged to be the fruit of an illegal

search or seizure despite that automatic standing had been abolished with regard to the

Fourth Amendment); Tate, 432 A.2d at 1387 (recognizing that a state “may provide

through its constitution a basis for the rights and liberties of its citizens independent from

that provided by the Federal Constitution, and that the rights so guaranteed may be more

(continued…)

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observed that it often turns to federal constitutional analysis “as an interpretational aid.”

Id. at 121.

It identified Kroger v. O’Hara Township, 392 A.2d 266 (Pa. 1978) as establishing

“the preferred manner” to analyze state equal protection claims. 38 According to Kroger,

though the High Court’s interpretation of the federal Constitution is not binding on this

Court’s interpretation of the Pennsylvania Constitution, “we should be guided by the same

principles in interpreting our Constitution.” Fischer, 502 A.2d at 121 (citing Kroger, 392

A.2d at 274; Commonwealth v. Kramer, 378 A.2d 824 (Pa. 1977) (rejecting statutory

challenge raised under Article III, Section 32 and treating it as a federal Equal Protection

Clause challenge); Baltimore and Ohio R.R. v. Commonwealth, Dep’t of Lab. and Indus.,

334 A.2d 636 (Pa. 1975) (same)).

Next, the Fischer Court observed that James v. Southeastern Pennsylvania

Transportation Authority, 477 A.2d 1302 (Pa. 1984), describes the analytical framework

for reviewing government actions which affect disparate classes. 39 Namely,

“classifications implicating neither suspect classes nor fundamental rights” are reviewed

expansive than their federal counterparts[;]” then holding that appellants could not,

consistent with their rights under the Pennsylvania constitution to freedom of speech,

assembly and petition, be convicted for defiant trespass, when they staged a peaceful

protest during the public presentation of then-FBI Director Kelley on the college campus);

DeJohn, 403 A.2d at 1291-92 (holding that under the Pennsylvania Constitution, Article

I, Section 8, defendant had a legitimate expectation of privacy in his bank record, despite

not having such an interest under the Fourth Amendment).

38 In holding that the Sunday Trading Law violated equal protection, the Kroger Court

indicated that it was required to recognize the specific language in our Constitution insofar

as it differed from that of the federal Constitution. Kroger, 392 A.2d at 274. The Court

ultimately stated that it would be guided by the same principles in interpreting Article III,

Section 32, as employed by the United States Supreme Court in interpreting the Equal

Protection Clause. Id. at 274-75.

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

1305-07.

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under a “rational basis” test. Fischer, 502 A.2d at 121 (citing James, 477 A.2d at 1306).

“[W]here a suspect classification has been made or a fundamental right has been

burdened, another standard of review is applied: that of strict scrutiny.” Id. (citing James,

477 A.2d at 1306). Finally, “if ‘important,’ though not fundamental rights are affected by

the classification, or if ‘sensitive’ classifications have been made, the United States

Supreme Court has employed what may be called an intermediate standard of review, or

a heightened standard of review.” Id. The James Court explained that the applicability

of any of these three standards depends upon “the type of right which is affected by the

classification.” Id. (citing James, 477 A.2d at 1306).

The Fischer Court identified the right with which it was confronted. It identified it

as “the purported right to have the state subsidize the individual exercise of a

constitutionally protected right, when it chooses to subsidize alternative constitutional

rights[,]” a right which it stated was “found nowhere in our state Constitution,” and

therefore under the framework described in James, such a right cannot be considered

fundamental. Id. Further, the Court stated that the statute does not affect a suspect

class. It reiterated the High Court’s reasoning that “financial need alone” does not identify

a suspect class for purposes of equal protection analysis, and it stated that no other

jurisdiction had recognized indigency as a suspect class. Id. at 122. Therefore, the

Fischer Court reasoned, “since the statute affects neither a fundamental right nor a

suspect class, the interest of the state need not be a compelling one in order to sustain

the burden of justifying the disparate treatment of the two classes of women.” Id.

Though it ultimately stated that the distinction only need be supported by rational

basis, it alternatively explored and applied intermediate scrutiny. The Court reiterated

that the second or intermediate level of scrutiny involves instances where “an ‘important’

interest has been affected,’ and/or ‘whether sensitive, though not suspect classifications

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have been made.” Id. (citing James, 477 A.2d at 1306). Also, those rights important

enough to warrant this heightened scrutiny “have been described as those affecting

‘liberty’ interests, or a ‘denial of a benefit vital to the individual.’” James, 477 A.2d at 1306

(citing Laurence Tribe, AMERICAN CONSTITUTIONAL LAW, § 16–31 (1978)). The Fischer

Court noted that the High Court in Harris determined that the Hyde Amendment’s funding

restrictions affected neither an important interest nor a sensitive classification. Fischer,

502 A.2d at 122.

Then it stated, “[h]owever, even assuming, as [A]ppellants impliedly argue, that the

funding distinction made in the Abortion Control Act constituted a ‘denial of a benefit vital

to the individual’ claimants,” it would satisfy intermediate scrutiny. Id. Again, relying on

James, it characterized intermediate scrutiny as requiring (1) that the governmental

interest be an important one; (2) that the governmental classification be drawn so as to

be closely related to the objectives of the legislation; and (3) that a person excluded from

the benefit be permitted to challenge the denial on the grounds that his particular denial

would not further the governmental purpose of the legislation. Id. at 121 (citing James,

477 A.2d at 1307).

In identifying the important governmental interest, the Fischer Court explained: “the

importance of the governmental interest of preserving potential life has been consistently

recognized by the United States Supreme Court[]” as “valid and important,” Beal, 432

U.S. at 445; “important and legitimate,” Harris, 448 U.S. at 324 (citing Roe v. Wade, 410

U.S. at 162); “significant” and, “unquestionably strong,” Beal, 432 U.S. at 446. The Fischer

Court next drew attention to the High Court’s recognition of “the unique aspect of abortion

as being the only medical procedure involving ‘the purposeful termination of a potential

life.’” Fischer, 502 A.2d at 122 (citing Harris, 448 U.S. at 325). Therefore, the Fischer

Court announced that “the Commonwealth’s interest in attempting to preserve a potential

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life” is important. Id. (“[T]o say that the Commonwealth’s interest in attempting to preserve

a potential life is not important, is to fly in the face of our own existence.”).

Next, the Court explained that the classification was “specifically related to the

ends sought[.]” Id. That is, the Act encouraged childbirth “in all situations except where

another life would have to be sacrificed[,]” and thus, it preserved “the maximum amount

of lives: i.e., those unaborted new babies and those mothers who will survive though their

fetus be aborted.” Id. at 122-23. Finally, the Court reasoned that Appellants had not

shown how the “Commonwealth’s denial of funds would fail to accomplish the

governmental purpose of preserving the life of the unborn child.” Id. at 123.

The Fischer Court therefore stated that, even if it were to find that the present

classification warranted heightened scrutiny, it would nevertheless find that the distinction

passed constitutional muster. However, it reiterated, as the United States Supreme Court

concluded in Harris, the appropriate standard of review is rational basis. It observed that

this test–i.e., the deferential standard by which legislative enactments are reviewed–is

the standard it had traditionally used to assess the constitutionality of distinctions within

government benefit programs. Id. (citing Martin v. Unemployment Comp. Bd. of Rev., 466

A.2d 107 (Pa. 1983)). 40

40 In Martin, this Court addressed an appeal of a denial of unemployment compensation

benefits. Martin, 466 A.2d at 108. The appellant, a claimant denied unemployment

benefits, asserted that the statutory scheme to determine the levels of monetary earnings

qualifying a worker for unemployment benefits violated the Equal Protection Clause of the

Fourteenth Amendment by creating an invidious eligibility classification. “The statute

applicable to this case required that claimants earning $3,738.00 or more in their highest

quarter also earn the maximum of $6,000.00 in fixed qualifying wages in their base year,

with a minimum 20% of such base year wages earned outside their highest quarter. On

the other hand claimants earning less than $3,738.00 in their highest quarter had to earn

35% to 38% of their wages outside their highest quarter without any higher fixed constant

amount.” Id.

In determining the proper test to evaluate the challenge, the Court recalled that the United

States Supreme Court “has consistently applied only minimal scrutiny to statutory

(continued…)

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Under the rational basis standard, the classification “need only be directed at the

accomplishment of a legitimate governmental interest, and to do so in a manner which is

not arbitrary or unreasonable.” Id. The Court recounted that on the reasons already

stated, “and for those stated by the United States Supreme Court, [it had] no hesitation in

concluding that the present classification had, and continues to have, a rational basis.”

Id.

Next, the Fischer Court addressed Article I, Section 26, what it characterized as

“the Commonwealth’s non-discrimination clause.” Id. Appellants argued that the state

impermissibly discriminated against persons who would have abortions, “by limiting

funding to those mothers who elect to carry the baby to full term, or who are faced with a

life threatening choice.” Id. They argued also that Article I, Section 26 affords different

and greater guarantees than the other equal protection provisions of the Pennsylvania

Constitution. The Court disagreed.

In support, it recalled the Commonwealth Court’s treatment of Article I, Section 26

in McIlvanie v. Pennsylvania State Police, 296 A.2d 630 (Pa. Commw. 1972), an opinion

which this Court subsequently adopted, McIlvaine v. Pennsylvania State Police, 309 A.2d

801 (Pa. 1973), 41 in which the Commonwealth Court stated that

“Article I § 26 does not in itself define a new substantive civil

right.”15 [McIlvanie, 296 A.2d] at 633. What Article I § 26 does

is make more explicit the citizenry’s constitutional safeguards

classifications employed in the regulation of economic activity or in the distribution of

economic benefits so long as those classifications do not discriminate against ‘suspect

classes.’” Id. at 111. The Court observed that insofar as the unemployment

compensation law creates a classification based on wealth, such a classification does not

trigger heightened scrutiny. Id. at 113-14. Neither did the statutory scheme impact a

fundamental right. Therefore, the Court concluded that there was a rational relationship

between the classifications and the legitimate government interest, and thus, found that

it did not violate the federal Equal Protection Clause. Id.

41 See infra p. 186.

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not to be harassed or punished for the exercise of their

constitutional rights. It can not [sic] however be construed as

an entitlement provision; nor can it be construed in a manner

which would preclude the Commonwealth, when acting in a

manner consistent with state and federal equal protection

guarantees, from conferring benefits upon certain members of

a class unless similar benefits were accorded to all.

15 In Harris v. McRae, 448 U.S. 297 (1980), the

Majority’s comments on the breadth of the equal

protection clause are analogous.

The guarantee of equal protection

under the Fifth Amendment is not

a source of substantive rights or

liberties, but rather a right to be

free from invidious discrimination

in statutory classification and

other government activity.

Id. at 322.

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

The Fischer Court then considered the mode of analyzing Article I, Section 26, and

in the following brief passage, opted to adopt the “penalty” analysis discussed in a

footnote from Maher, as cited above. The Fischer Court observed that it had “not

previously embraced a mode of analyzing claims under Article I, Section 26,” and it found

that the most appropriate analysis was that utilized by the United States Supreme Court

in Shapiro v. Thompson, 394 U.S. 618 (1969) 42 and Memorial Hospital v. Maricopa

42 In Shapiro v. Thompson, 394 U.S. 618 (1969), which implicated the fundamental right

of interstate travel, the High Court held that statutory prohibitions in Connecticut,

Washington and the District of Columbia that denied welfare assistance to residents of

the state or district who had not resided within their jurisdictions for at least one year

preceding their applications for welfare assistance created a “classification which

constitute[d] an invidious discrimination denying them equal protection of the laws.” Id.

at 627. The High Court stated that “[t]he interests which appellants assert[ed] are

promoted by the classification[,]” such as “to discourage the influx of poor families in need

of assistance[,]” either may not constitutionally be promoted by government or are not

compelling government interests. Id. at 627, 629. The High Court recalled that “[i]f a law

(continued…)

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County, 415 U.S. 250 (1974), 43 i.e., the “penalty” analysis, “whereby the focus is whether

a person has been somehow penalized for the exercise of a constitutional freedom.”

Fischer, 502 A.2d at 123-24. The Fischer Court then recalled the footnote in Maher,

providing that the penalty “analysis does not warrant relief in a situation such as here

where a state merely seeks to encourage behavior by offering incentives, as distinct from

where a state refuses to subsidize a person’s exercise of a constitutional right.” Id. It

cited the following passage from the High Court:

has ‘no other purpose … than to chill the assertion of constitutional rights by penalizing

those who choose to exercise them, then it (is) patently unconstitutional.’” Id. at 631

(citing United States v. Jackson, 390 U.S. 570, 581 (1968)). The Court recognized that

a state has a valid interest in preserving the fiscal integrity of its government programs,

but explained that the state “may not accomplish such a purpose by invidious distinctions

between classes of its citizens.” Id. at 633. The Court recounted the traditional equal

protection test, pursuant to which equal protections is denied only if the classification is

without any reasonable basis, and it stated that the residency classification “would seem

irrational and unconstitutional.” Id. at 638 & n.20 (internal citations omitted). Then it

explained that, rather than apply the traditional criteria, it would apply “the stricter

standard of whether it promotes a compelling state interest” because the classification of

welfare applicants “touches on the fundamental right of interstate movement[.]” Id. at

638. Under that standard, the “waiting-period requirement clearly violates the Equal

Protection Clause.” Id.

43 In Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974), relying upon Shapiro,

the High Court held that an Arizona statute requiring a year’s residence in a county as a

condition of receiving nonemergency hospitalization or medical care at the county’s

expense was repugnant to the Equal Protection Clause. The High Court first looked to

the “nature of the classification and the individual interests affected” to determine what

burden of justification must be met. Id. at 253. Because the right of interstate travel is a

“basic constitutional freedom” and because Arizona’s “durational residence requirement

for free medical care penalize[d] indigents for exercising their right to migrate to and settle

in that State[,]” the classification would be unconstitutional, “unless shown to be

necessary to promote a compelling government interest.” Id. at 261-62 (citing Shapiro,

394 U.S. at 634). The High Court found that the classification was not justified by a

compelling government interest. Instead, it stated, the durational residency requirement

created invidious discrimination “that impinge[d] on the right of interstate travel by denying

newcomers ‘basic necessities of life.’” Id. at

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