Constitutionality of Abortion Funding Restriction; Standing of Legislative Intervenors; Standing of Providers on Behalf of Patients

Allegheny Reproductive Health Center v. Dep’t of Human Services, 225 A.3d 902 (Pa. Cmwlth. 2020) and 249 A.3d 598 (Pa. Cmwlth. 2021), direct appeal, appeal docket 26 MAP 2021

A collection of reproductive health centers, which all provide abortions (Reproductive Health Centers), sought declaratory judgment and injunctive relief in an action against the Department of Human Services (DHS) and three named department administrators, challenging provisions of Pennsylvania’s Abortion Control Act that prohibit the use of public funds to pay for abortions as unconstitutional because they discriminate against pregnant women enrolled in medical assistance who choose to have an abortion. Several state senators and state representatives (Legislative Intervenors) filed applications to intervene in the action.

This direct appeal to the Supreme Court arises from two separate opinions by Commonwealth Court holding that  (1) the Legislative Intervenors were entitled to intervene in the action (Allegheny Reproductive Health Center v. Dep’t of Human Services, 225 A.3d 902 (Pa. Cmwlth. 2020) (2020 Slip op.)), and (2) the Reproductive Health Centers lack standing to challenge the coverage ban on the basis of the constitutional rights belonging to third parties and failed to state a claim upon which relief could be granted (Allegheny Reproductive Health Center v. Dep’t of Human Services, 249 A.3d 598 (Pa. Cmwlth. 2021) (2021 Slip op.)).


Commonwealth Court summarized the Reproductive Health Centers’ Petition for Review as follows:

Medicaid is a joint federal-state public program that provides medical services to low-income persons; in Pennsylvania, it is known as Medical Assistance and administered by the Department of Human Services. Medical Assistance includes a Fee-for-Service program that “reimburses providers directly for covered medical services provided to enrollees” as well as a managed care program, HealthChoices, that “pays a per enrollee amount to managed care organizations that agree to reimburse health care providers that provide care for enrollees.” “With some exceptions, Medical Assistance enrollees are required to enroll with a managed care organization participating in HealthChoices rather than the Fee-for-[S]ervice program.”

Medical Assistance covers family planning and pregnancy-related care, including prenatal care, obstetrics, childbirth, neonatal, and post-partum care.  Medical Assistance does not cover nontherapeutic abortions. Pennsylvania’s Abortion Control Act prohibits the expenditure of appropriated state and federal funds for abortion services except where (1) necessary to avert the death of the pregnant woman, (2) the pregnancy resulted from rape, or (3) the pregnancy resulted from incest. 18 Pa. C.S. § 3215(c). Likewise, regulations of the Department of Human Services prohibit Medical Assistance coverage for abortions, except in the above-listed exceptional cases. Collectively, the Abortion Control Act and the Department’s regulations are referred to as the “coverage ban.”

On January 16, 2019, Reproductive Health Centers filed a petition for review seeking declaratory and injunctive relief in order to end this coverage ban. Reproductive Health Centers provide approximately 95% of the abortion services performed in the Commonwealth. Their patients include women enrolled in Medical Assistance. . The coverage ban prohibits Reproductive Health Centers from billing or being reimbursed for abortion services provided to women enrolled in Medical Assistance whose pregnancies do not fall into one of the three above-enumerated exceptions.

The petition alleges that the coverage ban harms women enrolled in Medical Assistance because they are forced to choose between continuing their pregnancy to term or using funds needed for essentials of life to pay for an abortion procedure. Because the facilities in Pennsylvania that perform abortions are few in number, some women must travel significant distances to obtain a safe and legal abortion. If abortion were a covered procedure, some of those transportation costs would be reimbursed by Medical Assistance. Id. The coverage ban causes women on Medical Assistance to delay an abortion while they raise funds to pay for the procedure. Although Reproductive Health Centers assist their Medical Assistance patients to obtain this funding, they are not always successful. The coverage ban has forced many women to carry their pregnancies to term against their will.

The petition alleges that the coverage ban has also caused direct harm to Reproductive Health Centers. Specifically, the coverage ban forces them to divert money and staff from “other mission-central work” to help women enrolled in Medical Assistance who lack the funds to pay for their abortions.  Reproductive Health Centers “regularly subsidize (in part or in full) abortions for Pennsylvania women on Medical Assistance who are not able to pay the fee on their own.” Reproductive Health Centers expend “valuable staff resources to assist patients in securing funding from private charitable organizations that fund abortion[s] for women on Medical Assistance.”  Staff must also delve “into personal matters that the patient may not wish to discuss,” i.e., whether the pregnancy was the result of rape or incest.

The petition for review contains two counts. Count I asserts that the coverage ban violates Article I, Section 28 of the Pennsylvania Constitution, commonly referred to as Pennsylvania’s Equal Rights Amendment,6 because it denies coverage of a medical procedure that can be used only by women. Count II asserts that the coverage ban violates several other provisions of the Pennsylvania Constitution, specifically Article I, Sections 17 and 268 and Article III, Section 32,9 that establish the guarantee of equal protection of the laws. Asserting that the coverage ban unconstitutionally restricts indigent women in the exercise of their right to terminate a pregnancy, Reproductive Health Centers request this Court to declare the coverage ban unconstitutional and to enjoin its enforcement.

2021 Slip op. at 3-6 (footnotes and internal record citations omitted).

Intervention (2020 Slip op.)

In a single judge opinion filed on June 21, 2019 (Allegheny I), Judge Robert Simpson denied the Legislative Intervenors’ applications to intervene, reasoning that:

…a putative intervenor must establish that he is “aggrieved,” which requires “a substantial, direct and immediate interest in the outcome of the litigation” in order to be deemed to have standing. Allegheny I, slip op. at 14 (quoting In re Hickson, 573 Pa. 127, 821 A.2d 1238, 1243 (2003)). The Court concluded that Proposed Intervenors were not aggrieved, noting that the “last iteration of the coverage ban was voted on and went into effect in 1989….” Id. at 15. At that point, the interest of Proposed Intervenors ended. The Court dismissed the argument of Proposed Intervenors that the outcome of this litigation will limit their legislative power to appropriate funds as “tenuous.” Id. at 16.

2020 Slip op. at 7. Legislative Intervenors requested reargument, arguing that the court erred by, inter alia, holding they did not establish a legally enforceable interest in preserving the scope of their power to legislate, a basis for intervention under Rule No. 2327(4), which authorizes intervention for persons with a legally enforceable interest at issue. Specifically, Legislative Intervenors contended that they were entitled to intervene on the basis that the Reproductive Health Centers’ action “may affect” their power to appropriate funds. The Reproductive Health Centers countered that their challenge does not seek to expand the restrictions on legislative power set forth in Article III of the Pennsylvania Constitution and that the Legislative Intervenors have no interest in the enforcement of the Abortion Control Act.

Following reargument, Commonwealth Court held that the Legislative Intervenors established grounds for intervention under Rule 2327(4), reasoning that:

The Abortion Control Act is part of the Crimes Code. If Reproductive Health Centers are successful in their litigation, the challenged provisions will be rendered null and void. However, the constitutional principle Reproductive Health Centers seek to establish will extend beyond the statute and the Department’s regulations. It could bar the General Assembly from “tieing legislative strings” to its appropriation of funds for the Medical Assistance program. Reproductive Health Centers freely acknowledge this point. They believe that if they succeed in this litigation, the general appropriation act could not, for example, condition funding of Medical Assistance to coverage of only those reproductive health services that will ensure a full-term pregnancy. Similarly, the general appropriation act could not tie Medical Assistance funding for abortion services to the availability of federal funds.

Reproductive Health Centers seek to restrict the substance and form of appropriation bills. They seek to eliminate the ability of legislators to add conditional or incidental language to a general appropriation act insofar as it relates to providing coverage of reproductive health services for indigent woman enrolled in Medical Assistance. Likewise, they seek to expand the prohibition against special laws in Article III, Section 32 to eliminate the General Assembly’s power to decide the circumstances under which abortion services will be funded by the treasury.

Proposed Intervenors seek to do more than offer “their perspective on the correctness of their conduct.” Robinson Township, 84 A.3d at 1055. Article III is peculiar to the legislative branch of state government, imposing both strictures and responsibilities. Proposed Intervenors seek to preserve their voting power as it currently exists under Article III and their authority to appropriate Commonwealth funds, a key legislative duty. As our Supreme Court has explained, the “General Assembly enacts the legislation establishing those programs which the state provides for its citizens and appropriates the funds necessary for their operation. The executive branch implements the legislation by administering the programs.” Shapp, 391 A.2d at 604. In doing so, the executive branch must abide by “the requirements and restrictions of the relevant legislation, and within the amount appropriated by the legislature.” Id. See also Jubelirer v. Rendell, 598 Pa. 16, 953 A.2d 514, 529 (2008).

2020 Slip op. at 16-17. In sum, the court concluded that:

Proposed Intervenors seek to preserve their authority to propose and vote on funding legislation in the future. The constitutional authority of the members of the General Assembly to control the Commonwealth’s finances constitutes a legally enforceable interest that entitles them to intervene and be heard before the Court rules in this matter.

2020 Slip op. at 17.

Preliminary Objections (2021 Slip op.)


The Commonwealth and Legislative Intervenors argued that the Reproductive Health Centers lack standing to bring the action on behalf of themselves because the alleged pecuniary and administrative harms do not fall within the zone of interests protected by the Equal Rights Amendment and the equal protection clause of the Pennsylvania Constitution, or by the Abortion Control Act, and that the Reproductive Health Centers lack standing to vindicate the individual constitutional rights of all women enrolled in Medical Assistance. The Reproductive Health Centers contended that they have standing to assert the constitutional rights of their patients enrolled in Medical Assistance based on Commonwealth Court precedent specifically allowing medical professionals to assert the constitutional rights of their patients. The Commonwealth countered that the standing of providers on behalf of their patients has only been permitted in narrow circumstances where the constitutional interests of those medical providers and their patients were inextricably entwined, which does not apply to the facts in this case.

Applying the analytical paradigm developed in Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), for determining a litigant’s standing to assert the constitutional rights of others, Commonwealth Court held that the Reproductive Health Centers’ interest was not inextricably bound up with equal protection interests of all women enrolled in medical assistance so as to give centers standing on behalf of their patients. The court explained the Supreme Court’s holding in Singleton as follows:

In Singleton, drawing on precedent, the United States Supreme Court held, first, that courts should not adjudicate constitutional rights unnecessarily because, inter alia, it may be that the holders of these rights do not wish to assert them. Second, the Supreme Court held, as characterized by this Court, that

third parties themselves usually will be the best proponents of their own rights. The courts depend upon effective advocacy, and therefore should prefer to construe legal rights only when the most effective advocates of those rights are before them.

Harrisburg School District, 379 A.2d at 895 (emphasis added).

2021 Slip op. at 10. Applying Singleton, the court reasoned:

Standing in Pennsylvania’s courts requires a substantial, direct, and immediate interest in the matter sought to be litigated. William Penn Parking, 346 A.2d at 280-82. That prime directive informs our application of the Singleton paradigm to determine whether Reproductive Health Centers have standing to assert the claims of some of their patients that the coverage ban violates their rights under the Equal Rights Amendment and the equal protection clause of the Pennsylvania Constitution.

We conclude that the application of the Singleton paradigm leads to a different conclusion in this case. First, to allow Reproductive Health Centers to assert the rights of others will require this Court to rule on constitutional questions when the Court has no way of knowing that the patients on whose behalf Reproductive Health Centers purport to speak even want this assistance. Second, the petition for review does not allege facts to show that the interests of Reproductive Health Centers are “inextricably bound up” with the equal protection rights of their patients. Harrisburg School District, 379 A.2d at 896. By contrast, in Pennsylvania Dental Association, the interest of the dentists and their patients were aligned perfectly on their shared constitutional right of privacy. Third, we can ascertain no reason, and none is alleged, why women enrolled in Medical Assistance cannot assert the constitutional claims raised in the petition for review on their own behalf. Unlike the patients in Pennsylvania Dental Association, who had no way of knowing that their privacy interests were at stake, the patients of Reproductive Health Centers will be informed, in advance, that abortion services are not covered by Medical Assistance. There is no obstacle to these patients initiating litigation on their own behalf, and none is alleged in the petition for review.

2021 Slip op. at 12-13. Commonwealth Court further found that the financial loss and administrative burdens to the Reproductive Health Centers created by the Medicaid restriction was not within the zone of interest sought to be protected by the Act or constitutional guarantees to confer individual standing, reasoning that:

The harms to Reproductive Health Centers identified in their pleading are administrative or pecuniary, which do not bear a causal relationship to the constitutional claims presented in their petition for review. As such, their interest in the litigation they seek to advance is not “substantial, direct[,] and immediate.” Funk v. Wolf, 144 A.3d 228, 243 (Pa. Cmwlth. 2016) (quoting Fumo, 972 A.2d at 496). An “immediate” interest requires a “causal connection between the action complained of and the injury to the party challenging it.” South Whitehall Township Police Service, 555 A.2d at 795. Stated 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.” Application of Biester, 487 Pa. 438, 409 A.2d 848, 851 n.6 (1979) (citation omitted) (quotations omitted).

Here, the interest “protected or regulated” by the coverage ban is “the life and health of the women subject to abortion and to protect the life and the health of the child subject to abortion.” 18 Pa. C.S. § 3202(a). The interests sought to be protected by the Pennsylvania Constitution are the guarantee to equal protection of the laws and the prohibition against discrimination on the basis of sex. Reproductive Health Centers’ asserted administrative and pecuniary interests do not fall within the “zone of interests” addressed in either the Abortion Control Act or the Pennsylvania Constitution.

Applying the principles established in William Penn Parking and Harrisburg School District, we hold that Reproductive Health Centers lack standing to vindicate the constitutional rights of third parties, who may or may not agree with this litigation brought on their behalf. They have not alleged harms to their own interests that are protected by the provisions of the Pennsylvania Constitution that they seek to vindicate.

2021 Slip op. at 14-15. Thus, the Court held that the Reproductive Health Centers lacked standing to bring the action on behalf of themselves and/or their patients.

In a concurring/dissenting opinion, Judge Ceisler agreed with the outcome reached by the majority, but disagreed that the Reproductive Health Centers lack standing to bring the action. Specifically, Judge Ceisler would hold that the Reproductive Health Centers have standing to bring their challenge by virtue of their connection to their patients and their allegations of direct harm to themselves.

Failure to State a Claim

The Commonwealth and Legislative Intervenors demurred on the basis of the Supreme Court’s decision in Fischer v. Department of Public Welfare, 502 A.2d 114 (Pa. 1982) (Fischer IV), which Commonwealth Court summarized as follows:

In Fischer IV, 502 A.2d 114, the Pennsylvania Supreme Court considered each constitutional claim raised in the petition for review sub judice. At the outset, the Supreme Court stated that “[t]his case does not concern the right to an abortion.” Id. at 116. Rather, the Supreme Court defined the question as whether, “because this Commonwealth provides funds to indigent women for a safe delivery,” it is “equally obliged to fund an abortion.” Id. The Supreme Court concluded that the answer was no. It held, expressly, that the coverage ban did not violate any of the provisions of the Pennsylvania Constitution cited in the instant petition for review.

2021 Slip op. at 16. The Reproductive Health Centers argued that Fischer IV  should be reconsidered because it was “poorly reasoned at the time it was decided” and that “legal developments since the decision also undermine its legitimacy.” 2021 Slip op. at 20.

Commonwealth Court, acknowledging that it is bound by the decisions of the Pennsylvania Supreme Court, sustained the preliminary objections in the form of demurrer based on Fischer IV, reasoning that:

Reproductive Health Centers raise the precise constitutional claims that were raised in Fischer IV, 502 A.2d 114, and unequivocally rejected by the Supreme Court. Reproductive Health Centers acknowledge that “Fischer [IV] is precedential” but argue that it was “wrongly decided.” Reproductive Health Centers’ Brief at 2. They contend that our Supreme Court’s holding was “poorly reasoned at the time it was decided” and that “legal developments since the decision also undermine its legitimacy.” Id. at 2-3. Even if they are correct, this Court is bound by Fischer IV and is “powerless to rule that decisions of [our Supreme] Court are wrongly decided and should be overturned.” Griffin v. Southeastern Pennsylvania Transportation Authority, 757 A.2d 448, 451 (Pa. Cmwlth. 2000) (citations omitted). In short, any argument that Fischer IV was wrongly decided must be presented to the Pennsylvania Supreme Court. See Griffin, 757 A.2d at 451.

2021 Slip op. at 20 (footnote omitted).

The Reproductive Health Centers appealed the 2020 and 2021 decisions to the Pennsylvania Supreme Court.


For more information, contact Kevin McKeon or Dennis Whitaker.