Opinion: What would a post-Roe Pennsylvania look like?
On Monday, a draft opinion from the U.S. Supreme Court acknowledged what many people thought may be true: In Dobbs v. Jackson Women’s Health Organization, the Supreme Court is likely to overturn Roe v. Wade and Planned Parenthood v. Casey, two decisions that largely established the right to abortion in the United States. If the decision becomes final, the federal government will be allowed, for the first time in modern history, to pass laws that outright prohibit abortions. Then again, with the current state of Congress, which is controlled in both chambers by Democrats, with a sitting Democrat president, the federal government is unlikely to do so. States will be free to outlaw abortion, but there will likely be no federal abortion prohibition.
This is not a political piece. I write with no perspective on abortion. I write, instead, as a practitioner of Pennsylvania law, who wonders what a post-Roe Pennsylvania looks like. Curiously, that future seems unlikely to change, even if Pennsylvania elects a Republican in the next gubernatorial race.
Let us start with the existing law. Since 1982, Pennsylvania abortions have been governed by the Pennsylvania Abortion Control Act, which allows abortions to occur but only after completing certain procedural hurdles. For instance, the Act requires the patient to receive informed consent that includes explaining the “(t)he probable gestational age of the unborn child at the time the abortion is to be performed.” If those procedural hurdles seem significant, they are not, at least not relative to other state laws. In Alabama, for example, the patient must receive state-mandated counseling that encourages the patient to avoid abortion.
The Pennsylvania General Assembly has the votes to change the Abortion Control Act, if we assume that members will vote along party lines, but not to override a governor’s veto. Of course, that is likely to change if Pennsylvania elects a Republican in the next gubernatorial election.
However, even if an amendment to the Abortion Control Act is passed, and survives a potential veto, such an amendment is bound to face numerous legal challenges in court. Those challenges will assuredly focus on state constitutional restrictions that are separate from the U.S. Supreme Court’s considerations. Those restrictions start with Article I, section 1, of our Constitution, which states, “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.”
Crucially, our state courts interpret that language, along with other state constitutional provisions, more broadly than federal constitutional provisions. This year alone, the Pennsylvania Supreme Court has claimed that double jeopardy rights under our state constitution are broader than the U.S. Constitution, and the Pennsylvania Commonwealth Court has stated that free speech rights are similarly broader. And in 2020, the Pennsylvania Supreme Court, in a case involving searches and seizures, restated that the Pennsylvania constitution “provides a broader protection of the right to privacy than does its federal counterpart.”
The Pennsylvania Supreme Court is controlled, 5 to 2, by Democrats, even after last year’s election, in which a Republican won a seat on the high court. Just like the U.S. Supreme Court, the Pennsylvania Supreme Court is ruled by the majority. Given the wealth of case law on the state level suggesting that our state constitutional rights are broader than federal rights, it is entirely possible, if not likely, that the Pennsylvania Supreme Court could issue a decision enshrining abortion protections in Pennsylvania, despite what the Dobbs decision might hold. For these reasons, even if Pennsylvania proceeds through the legislative hurdles at issue, and passes a new set of abortion laws, the post-Roe world in Pennsylvania is likely to look very much like the pre-Roe world — for better or worse.