Pennsylvania’s fight over abortion rights is heading back to the state Supreme Court after Attorney General Dave Sunday appealed a lower court ruling Tuesday that struck down the state’s ban on Medicaid coverage of abortions. The move keeps alive a dispute that has already wound through the courts for years and now returns to the justices after a 4-3 Commonwealth Court decision last month.
Sunday’s office said he had a statutory duty to defend the ban as Commonwealth law. In his filing, he said, “My responsibility as Attorney General is to defend the rule of law and defend statutes without interference of personal opinion or political posturing.”
The case began in 2019, when Pittsburgh’s Allegheny Reproductive Health Center and a half-dozen other abortion care providers challenged the Medicaid abortion ban, arguing that it discriminates against poor women seeking to end a pregnancy. The Commonwealth Court dismissed the case in 2021, but the state Supreme Court revived it in 2024 and said the ban was presumptively unconstitutional.
Last month’s Commonwealth Court ruling went further, saying the government cannot single out abortion for exclusion while funding comparable medical care. The court also said the coverage exclusion does not advance any state interest strong enough to justify it and violates the equal protection provisions of the state constitution beyond any genuine dispute of fact.
The legal fight has exposed an unusual gap in the state’s defense of its own policy. Democratic Gov. Josh Shapiro has declined to defend the coverage ban, and a hearing last year saw the Department of Human Services and abortion providers on the same side of the courtroom without an attorney to argue for the restriction. The defendant in the case is the Department of Human Services, which oversees Medicaid.
Whether Medicaid reimbursement for abortions had already begun flowing before Sunday’s appeal this week is unclear. The appeal also drew criticism Wednesday from the Women’s Law Project, which said the state was prolonging a fight the Supreme Court has already described as constitutionally suspect.
Tara Murtha said, “The Supreme Court of Pennsylvania has already called the Medicaid ban ‘presumptively unconstitutional,’” and added that the appeal was “an expensive delay tactic that adds insult to injury.” She said, “Pennsylvanians have suffered under this discriminatory law for decades and are now being forced to finance the delay of their own justice.” Susan Frietsche said, “The Attorney General has chosen to waste taxpayer dollars on trying to take reproductive rights away from Pennsylvanians,” and said, “We look forward to once again arguing that reproductive choice belongs to the people, not the government.”
The next stop is now the state’s highest court, where three Pennsylvania Supreme Court justices will again weigh a case that has already been reviewed there more than once. For now, the appeal ensures the ban remains in legal limbo while the justices decide whether Pennsylvania’s Medicaid program may keep excluding abortion coverage at all.
