Attorney General Dave Sunday appeals decision overturning Pa.’s ban on Medicaid-funded abortion

Pennsylvania’s Republican attorney general is appealing last month’s Commonwealth Court decision overturning a ban on using Medicaid to pay for abortions.

Attorney General Dave Sunday’s office filed the appeal Tuesday in state Supreme Court, a month after the lower court ruled in favor of a group of reproductive health care providers from across the state. 

Listen to Peter’s audio recap: 

The state Department of Human Services, which oversees Medicaid, is the defendant in the case, but Gov. Josh Shapiro announced in 2024 that his administration would no longer defend the prohibition in the commonwealth’s Abortion Control Act, saying the measure is unconstitutional.

Sunday, who took office in January 2024, was permitted to intervene as a new attorney general. He said in a statement Wednesday that his office has the responsibility to defend the commonwealth’s laws and the notice of appeal fulfills that requirement.

“My responsibility as Attorney General is to defend the rule of law and defend statutes without interference of personal opinion or political posturing,” he added.

Opponents of the ban, which took effect in 1982, said Sunday’s decision to appeal will prolong a denial of full reproductive rights for Pennsylvanians. Medicaid is a crucial lifeline providing health insurance coverage to millions of low-income or disabled people in the commonwealth.

“It’s clear that Dave Sunday wants to play politics with abortion care,” Planned Parenthood PA Advocates Executive Director Signe Espinoza said. “Every day that passes while people are unable to access that critical care with their Medicaid coverage is on him.”

In its April 20 decision, the Commonwealth Court panel ruled 4-3 that the coverage exclusion contained in the Abortion Control Act was unconstitutional sex-based discrimination.

Although the finding was sufficient for the court to be finished with the case, the majority took an additional step in declaring the right to an abortion is fundamental under the state constitution. The commonwealth’s justification for any infringement of the right is held to the highest degree of legal scrutiny, the majority said. 

That means the state can restrict that right only when it has a compelling interest in doing so.

In his opinion for the majority, Judge Matthew S. Wolf said Sunday’s office had failed to show either a compelling state interest or that the exclusion was the least restrictive way to accomplish its interest.

“Defending discrimination in our state constitution is not only cruel; it goes against what the majority of Pennsylvanians want and what our courts have decided,” Espinoza said. “We will remember this.”

Because the case originated in Commonwealth Court, the attorney general’s office has a right to appeal in the Supreme Court. Sunday’s appeal will be the second time the high court has been asked to review a decision in the case. 

In January 2024, the Supreme Court revived the abortion providers’ case after the Commonwealth Court dismissed it in 2021. 

In that 3-2 decision, the Supreme Court overturned its own 42-year-old decision that upheld the constitutionality of the Abortion Control Act’s ban on Medicaid-funded abortions except in cases of rape or incest. The Commonwealth Court cited that decision as the basis for dismissing the lawsuit.