On Monday, the Pennsylvania Supreme Court ordered a lower court to reconsider a challenge to the state’s decades-old ban on using Medicaid funds for abortions, except in cases of rape or incest. While the case goes back down to the trial court for now, the writing is on the wall for what the lower court must do, and the state Supreme Court’s reasoning has far wider implications. The majority opinion not only thoroughly rebutted the U.S. Supreme Court’s error-filled Dobbs decision overturning Roe v. Wade, it signaled a possible new path for reasserting abortion rights.
In 1973, the U.S. Supreme Court concluded that the right to an abortion was protected by the 14th Amendment’s due process clause, which the seven-justice majority read to include the right to privacy, which itself includes personal autonomy and the right to an abortion. But there was a road not taken by the court, perhaps a more obvious route to protecting abortion rights. Instead of finding that the right to an abortion is a “liberty” entitled to constitutional protection, the court could have concluded that abortion restrictions are tantamount to discrimination on the basis of sex. In this way, many restrictions on abortions would still violate the U.S. Constitution, but that violation would be based upon the equal protection clause instead of the due process clause.
Even hinting at an “equal protection” argument for abortion rights has obvious implications for other states and the federal government.
As I previously wrote, one case where the Supreme Court could have chosen this path involved an Air Force servicewoman represented by an attorney named Ruth Bader Ginsburg. The future justice believed that shielding abortion under the equal protection clause was the better path for protecting abortion rights. But though that case was initially accepted by the Supreme Court, the justices never heard arguments, and they ended up eschewing the equality theory in favor of the freedom theory of abortion rights. Until, of course, they didn’t.
Enter the Pennsylvania Supreme Court. In a 3-2 vote, the court overturned a 1985 decision upholding the law and set forth a new standard for analyzing the law. The legal issue, according to a majority of the court, is whether the law discriminates on the basis of sex and violates the state’s equal rights amendment. The court appeared to dance with the idea that the right of an abortion is protected by the state’s equal protection clause, but paused before making that conclusion.
While the court’s ruling is based on the state constitution, and specifically the state’s equal rights amendment, even hinting at an “equal protection” argument for abortion rights has obvious implications for other states and the federal government. The state Supreme Court’s focus was on whether the state law banning the use of Medicaid funds for abortions is tantamount to discrimination on the basis of sex, because abortions are procedures almost always sought by women. (In a footnote, the court acknowledged that transgender men can also become pregnant and seek abortions, but the vast majority of people seeking abortions identify as women.)
The court also noted that the law discriminates between those who seek abortions and do not get government funding for that procedure, and those who carry a pregnancy to term and do obtain government funding for their care. While the law at issue in the case is specific to Pennsylvania, abortion restrictions are certainly not, and those restrictions could be vulnerable to such reasoning in the future. The Pennsylvania Supreme Court did more than properly characterize restrictions on abortions as potential discrimination on the basis of sex. It also took aim at the heart of Justice Samuel Alito’s majority opinion in Dobbs. As Dahlia Lithwick and Mark Joseph Stern wrote, the majority in Dobbs cherry-picked its way through history to justify eliminating the right to an abortion. Alito’s opinion relied upon centuries-old legal reasoning from a time when, for instance, marital rape was not a crime, women could not own property, and more generally, women were not full citizens under the law. The Pennsylvania decision provides multiple rays of hope for those in favor of reproductive choice. As professor Reva Siegel noted in a law review article looking at the court’s analytical approach in cases including Dobbs, “the Court’s history-and-traditions method provides new justifications for enforcing old forms of status inequality.” By contrast, the Pennsylvania court acknowledged that relying on history and tradition to determine whether abortion laws are legal is itself inherently problematic. The Pennsylvania decision provides multiple rays of hope for those in favor of reproductive choice. It shows us, as Ginsburg argued decades ago, that laws limiting abortions may properly be seen as laws that discriminate on the basis of sex. It also shows us the folly of determining whether legal protection exists for abortions by looking at a time when few legal protections existed for women. Let this ruling be a road map not just for other states, but for a future Supreme Court.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
