Abortion restrictions amount to sex-based discrimination, state Supreme Court says

The Pennsylvania state Supreme Court has issued a scathing rejection of the 2022 Dobbs v. Jackson decision, with justices arguing that abortion restrictions are based in the “antiquated and misogynistic notion that a woman has no say over what happens to her own body.”

Pennsylvania abortion providers filed a lawsuit in 2019 against a 1982 law that prohibits Medicaid from being used to cover the procedure. The groups argued that law violated the Equal Rights Amendment of the Pennsylvania Constitution, with the state Supreme Court agreeing in a ruling issued earlier this week.

“To treat a woman differently based on a characteristic unique to her sex is to treat her differently because of her sex, which triggers enforcement of our Equal Rights Amendment," Justice Christine Donohue wrote in an opinion.

While abortions will not automatically be covered under the state’s Medicaid program, the decision allows the lawsuit to move forward in lower courts, which is likely to prevail under the new legal framework put forth by the justices. Two out of five justices also agreed that abortion is a fundamental right protected by the Pennsylvania Constitution.

“Whether or not to carry a pregnancy, whether or not to give birth, whether or when to expand the size of their families, whether or when to make career, employment or other changes in the course of their lives are all decisions central to self-determination and, ultimately, to equality in society,” they wrote.

Furthermore, the decision directly rebukes the framework of Dobbs v. Jackson, which overturned the national right to have an abortion in the U.S., and the merit of the state's 1982 law. Donohue continued to say that the law was created under a regime that upheld the “unequal treatment of women under the law,” with Justice David Wecht taking the arguments a step further.

Wecht noted in a concurrence that Alito's legal analysis in the Dobbs decision "relied upon the patriarchal notions of eminent authorities of old English common law, including Lord Matthew Hale." Hale's “beliefs were driven by his goal of keeping women from encroaching upon the rights of men," who thought that giving women “legally enforceable rights over their own bodies was a threat to the freedom of men."

Hale also said that marital rape “was never a crime because marriage amounted to the wife’s (but not the husband’s) irrevocable consent to sex," agreeing with another key figure in Alito's Dobbs analysis, William Blackstone, who said that "a married woman had no individual rights of her own.”

“We cannot examine particular laws in their historical context without also examining the society in which those laws developed,” Wecht wrote. "The history represented by Hale and Blackstone is not, as the Dobbs Majority seemed to believe, a neutral survey of history. It was the continuation of centuries of misogyny and oppression that our society has since rejected."

Wecht noted that the Dobbs majority's "originalist" interpretations ignored the fact that abortion was widely legal at the time of the country's founding, and that the push to criminalize abortion arose only in the 19th century. Alongside sexist ideals that women must be homemakers, the movement was also largely driven by racism, in order to “prevent the white, native-born birth rate from being overwhelmed."

The Dobbs Majority "dismissed the reality that women lived in the mid-1800s,” Wecht said, maintaining that the Justices failed to look “critically at the misogyny that prevailed at the time,” and that they seem “designed to perpetuate the wrongs of our past.”

"The historical limitations upon reproductive freedom that the Dobbs Majority found reveal the perpetuation of the subjugation of women throughout time, just as today’s abortion restrictions reveal the present unequal treatment of women," he concluded.

While the ruling does not immediately alter abortion law in the state, it could change the way sex discrimination cases and abortion legislation are handled in Pennsylvania, opening the door for other states to follow suit.