While Thomson argued that pregnancy carries risks of medical complications and harm to the mother, the Attorney General’s office argued that abortions harm women emotionally. Scarinci argued that the psychological and emotional harm some women experience after an abortion can lead to substance abuse or suicide, citing research from the anti-abortion think tank Charlotte Lozier Institute.
As the research arm of Susan B. Anthony Pro-Life America, the Lozier Institute has been a major player in a nationwide anti-abortion movement. But several of its abortion studies were retracted last year after a publisher raised concerns about a “lack of scientific rigor” and failure by the authors to disclose their associations with the group.
Judge Patricia McCullough repeatedly redirected attorneys toward the question of whether the abortion exclusion protects the state’s interest of promoting life by the least restrictive means. She dismissed arguments about the right to abortion generally.
“This is about funding of elective abortions,” and whether excluding coverage under Medicaid is overly restrictive, McCullough said.
Lester-Abdalla argued that the abortion exclusion does not protect women who face serious health risks if they are unable to terminate a pregnancy.
“That is not promoting maternal health,” she said.
Scarinci argued that the state also has a compelling interest in promoting fetal life and the constitutional right of conscience for Pennsylvanians who disagree with funding abortions with taxpayer subsidized programs like Medicaid. He also argued that Medicaid coverage for abortion would create a state budget issue as the program would require more funding for the procedure.
Attorneys for abortion care providers argued that excluding abortion from Medicaid coverage separates low-income women into a class separate from those with private insurance.
“The Attorney General has not put forward any state interest for why maternal health or fetal health are more compelling with regard to poor women in this Commonwealth than it is to other women,” Thompson argued.
Scarinci argued that a woman’s income is irrelevant when it comes to the Attorney General’s position that women who obtain an abortion suffer psychological harm.
“For those women who would potentially have these consequences, they don’t have to have the abortion,” countered President Judge Renée Cohn Jubelirer. “But if it otherwise complies with all of the requirements of the Abortion Control Act, should the fact that the women are poor mean that they do not have access to [an abortion]?”
Judge Stacy Wallace said the coverage exclusion in cases where the mother could face medical harm but not death and when a fetus is nonviable are key considerations when determining whether the limits are constitutional. But she raised questions about whether Medicaid covers procedures for men and women differently.
“I just don’t have those facts right now,” Wallace said.
Judge Matthew Wolf wondered whether the court would need to make a declaration that there is a fundamental right to reproductive autonomy in Pennsylvania, something not spelled out in the constitution. He asked Scarinci directly whether a fundamental right to reproductive autonomy exists in the Commonwealth. Scarinci argued there is not.
McCullough stressed both sides presented a different set of facts Wednesday and asserted that the court would require a shared set of facts from which to base its decision.
“We have two parties who have made totally opposite assertions about the facts, the impact, the health [of women], the competing state interest [in the] life of the mother, life of the child and taxpayer conscience,” McCullough said. “There’s nothing for us to decide on a legal basis until we can make some fact finding.”
It’s not yet clear when the Commonwealth Court will issue a ruling on the case.
