Allegheny Reprod. Health Ctr. v. Pa. Dep't of Hum. Serv.

• Docket Number: 26 MAP 2021,No. 26 MAP 2021
• Decision Date: 29 January 2024
• Citation: 309 A.3d 808
• Parties: ALLEGHENY REPRODUCTIVE HEALTH CENTER, Allentown Women’s Center, Delaware County Women’s Center, Philadelphia Women’s Center, Planned Parenthood Keystone, Planned Parenthood Southeastern Pennsylvania, and Planned Parenthood of Western Pennsylvania, Appellants v. PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES, Valerie A. Arkoosh, in Her Official Capacity as Secretary of the Pennsylvania Department of Human Services, Andrew Barnes, in His Official Capacity as Executive Deputy Secretary for the Pennsylvania Department of Human Services’ Office of Medical Assistance Programs, and Sally Kozak, in Her Official Capacity as Deputy Secretary for the Pennsylvania Department of Human Services’ Office of Medical Assistance Programs, Appellees
• Court: Pennsylvania Supreme Court

309 A.3d 808

ALLEGHENY REPRODUCTIVE HEALTH CENTER, Allentown Women’s Center, Delaware County Women’s Center, Philadelphia Women’s Center, Planned Parenthood Keystone, Planned Parenthood Southeastern Pennsylvania, and Planned Parenthood of Western Pennsylvania, Appellants

v.PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES, Valerie A. Arkoosh, in Her Official Capacity as Secretary of the Pennsylvania Department of Human Services, Andrew Barnes, in His Official Capacity as ExecutiveDeputySecretary for the Pennsylvania Department of Human Services’ Office of Medical Assistance Programs, and Sally Kozak, in Her Official Capacity as DeputySecretary for the Pennsylvania Department of Human Services’ Office of Medical Assistance Programs, Appellees

No. 26 MAP 2021

Supreme Court of Pennsylvania.

Argued: October 26, 2022

Decided: January 29, 2024

Appeal from the Orders of the Commonwealth Court at No. 26 MD 2019 dated January 28, 2020, and March 26, 2021.

Sara L. Ainsworth, Esq., for Amicus Curiae New Voices for Reproductive Justice, et al.

Cheryl L. Allen, Esq., Janice L. Martino-Gottshall, Esq., Jeremy L. S. Samek, Esq., Randall Luke Wenger, Esq., Independence Law Center, for Amicus Curiae Nationally Recognized Organizations and Leaders in the Black Community

Michelle Banker, Esq., National Women’s Law Center, James Patrick Davy, Esq., Heather Shumaker, Esq., Alison Tanner, Esq., for Amicus Curiae The National Women’s Law Center

Charlene Ann Bashore, Esq., Majority Chief Counsel’s Office, Rodney A. Corey, Esq., James Guthrie Mann, Esq., Pennsylvania House of Representatives Republican Caucus, for Amicus Curiae Members of the Republican Caucus of the Pennsylvanian House of Representatives

Thomas C. Berg, Esq., Anthony R. Gordon, Esq., Lloyd T. Hoppe Jr., Esq., for Amicus Curiae Democrats for Life of America

Ting Ting Cheng, Esq., Katherine Franke, Esq., for Amicus Curiae ERA Project - Columbia Law School

Andrew Chapman Christy, Esq., for Amicus Curiae ACLU of Pennsylvania

James N. Clymer, Esq., for Amicus Curiae Americans United For Life

Teresa Stanton Collett, Esq., for Amicus Curiae New Wave Feminists and Feminists Choosing Life of New York

Krysten Leigh Connon, Esq., Lichten & Liss-Riordan PC, for Amicus Curiae New Voices for Reproductive Justice, et al.

Emily K. Cook, Esq., for Amicus Curiae Texas Right to Life: Stephen J. Hilgers

Meredith Di Liberto, Esq., for Amicus CuriaeJudicial Watch, Inc.

Vernon L. Francis, Esq., Dechert LLP, for Amicus Curiae National Council of Jewish Women, et al.

Claude Joseph Hafner II, Esq., Pennsylvania State Senate, Tara Lynn Hazelwood, Esq., Lee Ann H. Murray, Esq., Shannon Amanda Sollenberger, Esq., Lam Dang Truong, Esq., Pennsylvania House of Representatives, for Amicus Curiae Democratic Caucus Members of the Pennsylvania Senate and House of Representatives, Senate of Pennsylvania

Denise M. Harle, Esq., Alison Melissa Kilmartin, Esq., for Amicus Curiae American Association of Pro-life Obstetricians and Gynecologists, et al.

Francis J. Manion, Esq., American Center for Law & Justice, for Amicus Curiae American Center for Law and Justice

Aaron Diego Martin, Esq., Sarah Elizabeth Straub, Esq., Mette Evans & Woodside, for Amicus Curiae Jewish Pro-Life Foundation, et al.

Catherine McKee, Esq., Sarah Somers, Esq., Megan E. Watson, Esq., Berner Klaw & Watson LLP, for Amicus Curiae National Health Law Program

Leah Ariel Mintz, Esq., for Amicus Curiae Obstetrical Society of Philadelphia, et al.

Maura Katherine Quinlan, Esq., for Amicus Curiae Pennsylvania Pro-Life Federation and the Thomas More Society

Catherine W. Short, Esq., for Amicus Curiae Life Legal Defense Foundation

Joseph P. Stanton, Esq., for Amicus Curiae Guiding Star Ministries

Seth F. Kreimer, Esq., Pro se

Robert F. Williams, Esq., Pro se

Amal Munas Bass, Esq., Christine K. Castro, Esq., Susan Frietsche, Esq., Women’s Law Project, David Samuel Cohen, Esq., Drexel University - Thomas R. Kline School of Law, Adam Ryan Martin, Esq., Kaitlin Leigh Meola, Esq., Kaitlin Leigh Meola, Esq., Troutman Pepper Hamilton Sanders LLP, Donna Louise Fisher, Esq., Peter Im, Esq., Leah Greenberg Katz, Esq., Jan Paula Levine, Esq., Thomas B. Schmidt III, Esq., for Appellant Allegheny Reproductive Health Center, et al.

Eugene K. Cuccarese, Esq., Camille Alyssa Howlett, Esq., Matthew John McLees, Esq., Department of Human Services, David Russell Dye, Esq., Katherine Marie Fitz Patrick, Esq., Teresa Roos McCormack, Esq., Philip Joseph Murren, Esq., Ball, Murren & Connell, LLC, Matthew Hermann Haverstick, Esq., Kleinbard, LLC, Thomas Paul Howell, Esq., Doris M. Leisch, Esq., for Appellee Pennsylvania Department of Human Services, et al.

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE DONOHUE

I.Introduction

This appeal arises out of an order of the Commonwealth Court sustaining preliminary objections and dismissing a petition for review seeking declaratory and injunctive relief from Sections 3215(c) & (j) of the Pennsylvania Abortion Control Act.¹Multiple abortion providers² sued the De- partment of Human Services and several individuals in their official capacities (collectively, "DHS") claiming that Sections 3215(c) & (j) violate the Equal Rights Amendment and equal protection provisions of the Pennsylvania Constitution.Pa, Const, art. I, § 28(Equal Rights Amendment);Pa. Const, art. I, §§ 1,26 & art, III, § 32(equal protection provisions).Sections 3215(c) & (j) prohibit the expenditure of Commonwealth and Federal funds appropriated by the Commonwealth for the performance of an abortion except to avert the death of the mother or where the pregnancy was caused by rape or incest.18 Pa.C.S. § 3215(c), (j)("Coverage Exclusion").³Providers brought suit on their own behalf and on behalf of patients who seek abortions and are enrolled in or eligible for aid under Pennsylvania’s Medical Assistance program, but whose abortions are not covered because of the Coverage Exclusion.Various public officials moved to intervene, and the Commonwealth Court granted their motions in a separate order.DHS and Intervenors filed preliminary objections in the nature of a demurrer, asserting that the case is controlled by Fischer v. Department of Public Welfare, 509 Pa. 293, 502 A.2d 114(1985), wherein this Court upheld the Coverage Exclusion against constitutional challenges.DHS submitted a separate preliminary objection asserting that Providers lacked standing.The Commonwealth Court sustained both preliminary objections.

For the reasons that follow, the order of the Commonwealth Court granting Intervenors’ application for leave to intervene is reversed.The purported intervenors are accepted as amici aligned with DHS.Further, the order of the Commonwealth Court sustaining preliminary objections and dismissing the petition for review is reversed, as we conclude that Providers have standing to pursue the petition for review and that their petition for review is legally sufficient to survive demurrer.

Relevant to this appeal, Pennsylvania’s Medical Assistance program⁴ is a public insurance system providing eligible Pennsylvanians with medical insurance through either a fee-for-service or managed care health plan.See55 Pa. Code § 1101.31(providing the scope of benefits available to recipients).Medical Assistance provides comprehensive medical care including inpatient hospital services, outpatient hospital services, physicians’ services, clinic services at independent medical clinics and ambulatory surgical centers, and family planning services.55 Pa. Code §§ 1101.31 (b)(1), (3), (8), (11), (16).It includes all pregnancy-related care, including prenatal care, obstetric, childbirth, neonatal and post-partum care.Petition for Review, 1/16/2019, ¶ 48.However, Medical Assistance does not cover all abortions.

The Abortion Control Act sets forth the following exclusion which is at the center of the present controversy:

§ 3215.Publicly owned facilities; public officials and public funds

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(c) Public funds.-- No Commonwealth funds and no Federal funds which are appropriated by the Commonwealth shall be expended by any State or local government agency for the performance of abortion, except:

(1) When abortion is necessary to avert the death of the mother on certification by a physician.When such physician will perform the abortion or has a pecuniary or proprietary interest in the abortion there shall be a separate certification from a physician who has no such interest.

(2) When abortion is performed in the case of pregnancy caused by rape which, prior to the performance of the abortion, has been reported, together with the identity of the offender, if known, to a law enforcement agency having the requisite jurisdiction and has been personally reported by the victim.

(3) When abortion is performed in the case of pregnancy caused by incest which, prior to the performance of the abortion, has been personally reported by the victim to a law enforcement agency having the requisite jurisdiction, or, in the case of a minor, to the county child protective service agency and the other party to the incestuous act has been named in such report.

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(j)Required statements.-- No Commonwealth agency shall make any payment from Federal or State funds appropriated by the Commonwealth for the performance of any abortion pursuant to subsection (c)(2) or (3) unless the Commonwealth agency first:

(1) receives from the physician or facility seeking payment a statement signed by the physician performing the abortion stating that, prior to performing the abortion, he obtained a non-notarized, signed statement from the pregnant woman stating that she was a victim of rape or incest, as the case may be, and that she reported the crime, including the identity of the offender, if known, to a law enforcement agency having the requisite jurisdiction or, in the case of incest where a pregnant minor is the victim, to the county child protective service agency...