Skip to main content


Allegheny Reprod. Health Ctr. v. Pa. Dep’t of Hum. Servs., 2024 Pa. LEXIS 118 (Jan. 29, 2024) (Donohue, J.).

Supreme Court, in a lengthy opinion, overrules Commonwealth Court’s grant of preliminary objections. The court overruled the Fisher case, holding relative to Article I, Section 26. With the benefit of an Edmunds analysis, it becomes clear that § 26 of Pennsylvania’s charter affords broader protection than the federal equal protection clause. Thus, when a court is presented with a legislative classification that touches on the exercise of a civil right and it is being challenged on the basis that it is discriminatory, the court shall determine whether the classification operates neutrally with regard to the exercise of that right. If it does not, the court shall then conduct a commensurate means-end review. In essence, equal protection generally provides that like persons in like circumstances will be treated similarly. People are not entitled to identical protection under the law. The Commonwealth is not absolutely prohibited from classifying individuals for purposes of receiving different treatment, so long as those classifications are appropriately justified. The Abortion Control Act creates a classification. The coverage exclusion differentiates between pregnant women on medical assistance who would seek to obtain abortions, and pregnant women on medical assistance who would seek to carry their pregnancies to term. The former receive no government funding for the reproductive care they seek, whereas the latter receives full coverage for the reproductive care they seek. The control or factor influencing the statutory funding scheme is how a pregnant woman on medical assistance decides to exercise her reproductive choices. The right to reproductive autonomy, like any privacy right, is fundamental. Accordingly, the court remanded to the Commonwealth Court with the obligation to apply strict scrutiny. The government does not bear a constitutional obligation to provide medical care to the indigent. The government is not required to financially support the exercise of a fundamental right, including a woman’s exercise of her right to reproductive autonomy. However, once the government chooses to provide medical care for the indigent, the government is obligated to maintain neutrality so as not to intrude upon the constitutional right to full reproductive autonomy, which includes the right to terminate a pregnancy. The General Assembly decision to encourage childbirth over abortion demonstrates that the government has not maintained a position of neutrality. This was a majority opinion with concurring and dissent by Dougherty, Mundy and Todd. Wecht concurred. I think the most you could say is that this was not a majority opinion, but rather plurality. Wecht joined the opinion and concurred, Todd concurred and dissented, Dougherty concurred and dissented, Mundy concurred and dissented, and Brobson did not participate.