Americans United for Life filed a friend-of-the-court brief in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services. Along with Pennsylvania local counsel, Jim Clymer of Clymer, Musser & Sarno, P.C., we urged the Pennsylvania Supreme Court not to manufacture a state constitutional right to abortion.
In the case, an abortion clinic and doctor challenged a Pennsylvania “Hyde Amendment,” which restricts public funds from supporting abortions, except to avert the death of the mother or in cases of rape or incest. The case confronts Fischer v. Department of Public Welfare, a 1985 Pennsylvania Supreme Court decision which upheld the same abortion funding restriction statute at issue in this case. The abortion clinic argues the Pennsylvania Supreme Court improperly considered abortion “rights” in Fischer. Accordingly, the abortion clinic contends the court now should create a state constitutional abortion right and publicly fund abortions in Pennsylvania’s Medical Assistance program.
Our brief details how the equal protection provisions of the Pennsylvania Constitution do not support a state constitutional right to abortion. In fact, the Pennsylvania legislature has directed the state judiciary to “extend to the unborn the equal protection of the laws and to further the public policy of this Commonwealth encouraging childbirth over abortion.”
Although the abortion clinic contends abortion is critical for women’s success, our brief refutes this assertion with socioeconomic data.
The argument that women need abortion to succeed is both demeaning and unfounded, based on the socioeconomic data. Since 1990, United States and Pennsylvania abortion numbers, rates, and ratios have consistently decreased. Even as abortion declined, women have achieved greater success and participation in the labor force, education, professional fields, and government. In this regard, there is virtually no correlation between abortion and women’s success.
Finally, if the Pennsylvania Supreme Court creates a state constitutional abortion right, then the state judiciary will become mired in abortion challenges as it futilely tries to formulate a workable litigation standard.