A version of the following  was originally posted February 8, 2024, from the blog of Edward Mechmann “Stepping Out of the Boat.” It is reprinted with permission.

In the post-Dobbs legal environment, the battle over the fate of legal protections for unborn children centers on the high courts of the states. We see litigation across the country in that forum. Unfortunately, we also see the same ideology-driven rulings that originally gave us Roe v. Wade and its progeny.

The most recent example is the decision by the Pennsylvania Supreme Court imaginatively interpreting its state constitution to overturn the state’s limitation of public funding for abortion. It is about as pure a situation where a court rolled out what Justice Antonin Scalia once called the “ad hoc nullification machine” that courts have regularly used to strike down abortion restrictions they don’t like.

The case is Allegheny Reproductive Health Center v. Department of Human Services. It has a complicated procedural history, the main opinion is 219 pages, and there are four other concurring and dissenting opinions. But it actually is not hard to understand what happened. First, a little history is necessary.

History

Pennsylvania long ago enacted a statute that limited Medicaid funding for abortion to the same cases permitted by the federal Hyde Amendment (i.e., only cases of rape, incest, and dangers to the life of the mother). A unanimous Pennsylvania Supreme Court upheld that law in 1985 – over 38 years ago! The court held that it did not violate the state constitution to fund health care for women who want to give birth to their children and at the same time deny it to women who want to kill them. The case was Fischer v. Department of Public Welfare, 502 A.2d 114 (Pa. 1985).

In Fischer, the court rejected “the purported right to have the state subsidize the individual exercise of a constitutionally protected right, when it chooses to subsidize alternative constitutional rights.” The court sensibly found that the law did not discriminate on the basis of “sex” since the only people involved were all women. Instead, the law made a reasonable and permissible distinction “based on a voluntary choice made by the women.”

That decision was consistent with several earlier cases from the U.S. Supreme Court involving federal constitutional guarantees of equal protection of the laws. Just a few years before, the Supreme Court held that the federal Hyde Amendment did not violate the Fifth Amendment (Harris v. McRae, 448 U.S. 297 (1980)), nor did a state version violate the Fourteenth Amendments (Maher v. Roe, 432 U.S. 464 (1977) and Williams v. Zbaraz, 448 U.S. 358 (1980)).

Those cases stood for the reasonable idea that states are permitted to use their funds to favor childbirth over abortions. Even Roe v. Wade admitted that states have a legitimate interest in preserving the lives of unborn children. So the Pennsylvania Supreme Court’s unanimous decision in Fischer was certainly well-founded in law and reason.

Second Bite at the Constitutional Apple

The new case, Allegheny Reproductive Health Center, really raises no new facts or legal arguments. The only thing that has changed was the composition of the court, which currently has a supermajority of elected Democrats, a party that little resembles the fairly moderate Pennsylvania Democratic party of the 1980s.

In a nutshell, the abortionists argued that if the state funds health care for women who are going to give birth, but not abortions, the law therefore treats women worse than men. They then argue that this violates their state Equal Rights Amendment that bans discrimination on the basis of sex.

You read that crazy argument correctly. We’re living in an upside-down world. Abortion corrupts everything it touches, including the ability of lawyers to reason clearly.

Of course, there is no such thing as any kind of health care that needs to be provided to men relating to pregnancy, abortion, or childbirth. (Leave aside for a moment the nonsensical situations of pregnant women who consider themselves to be “transgender men.”) Men are completely irrelevant to the question of pregnancy care or abortion.

Yet that was the central reason for jettisoning a 38-year-old unanimous precedent. One of the dissenting opinions succinctly demolished that argument:

The exclusion does not distinguish between men and women, but between two groups of women: those who choose childbirth and those who choose abortion. Although it is true that only women can become pregnant and have to make that choice about their own health care, that is not a result of the coverage exclusion, it the result of biology, and it is one of the factors that makes men and women non-interchangeable…

But this irrationality did not deter the majority of the court. It said that

to treat a woman differently based on a characteristic unique to her sex is to treat her differently because of her sex, which triggers enforcement of our Equal Rights Amendment. Thus, the government must maintain a position of neutrality with regard to citizens’ exercise of their constitutional rights. It may only depart from this neutrality when there is a justification to sustain a legislative classification.

Here is where the true face of evil appears in the court’s decision. The court is requiring “neutrality” between life and death. It is saying that there is no “justification” to favor life over death. At no point did the majority recognize the humanity of the unborn children who would be executed with taxpayer funds thanks to its decision.

As one of the dissenting opinions pointedly stated, “it is worth noting that in their 219-page opinion, the lead Justices do not once concede those other lives have inherent value or that a choice to abort them necessarily involves their involuntary, violent destruction.”

Thus a constitutional right to taxpayer funding to elective abortions is created ex nihilo — by a small handful of our Black-Robed Platonic Guardian Rulers on the Courts, hiding behind mental gymnastics, irrational argumentation, historical fabrication, and indifference to human suffering.

What Comes Next

The Fischer case was clearly the forerunner of an attempt to circumvent the legislature and get the Pennsylvania Supreme Court to invent a constitutional right to abortion.

A plurality of the court has already paved the way. Three of the seven justices would have gone beyond the equal protection argument and created a fundamental right to “reproductive autonomy” that encompassed a right to abortion. This would endanger all of the state’s laws regulating abortion. Ironically, many of those laws were once upheld by the U.S. Supreme Court in Planned Parenthood v. Casey, 505 U.S. 833 (1992). But they’re up for grabs now.

Of course, that alleged right does not appear anywhere in the Pennsylvania Constitution. The plurality did try to shoehorn a right to abortion into the state’s history of regulating abortion. But they gave the game away by relying on the same bogus review of history by a leading abortion advocate that was used in Roe and rightly dismissed as totally discredited by the Supreme Court in Dobbs v. Jackson Women’s Health Organization.

That is not a good faith way to decide important cases; it’s ideology-driven advocacy for a preferred result.