Resetting Pennsylvania’s Equality Doctrine: ERA Strict Scrutiny and §26 Neutrality; Providers Have Standing; Legislative Intervention Curtailed

Introduction

In Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services (309 A.3d 808, Pa. 2024), the Pennsylvania Supreme Court dramatically reframed state equality law while reviving core principles of state constitutionalism. Multiple abortion providers challenged Pennsylvania’s Medicaid (Medical Assistance) “Coverage Exclusion” (18 Pa.C.S. §3215(c), (j)), which bars Commonwealth and federally-appropriated funds for abortions except to avert the mother’s death or in cases of rape or incest. They argued the exclusion violates:

Article I, §28 (Equal Rights Amendment, “ERA”); and
Equal protection guarantees under Article I, §§1 and 26, and Article III, §32.

The Commonwealth Court had dismissed the case based on Fischer v. Department of Public Welfare (Pa. 1985), which upheld the same exclusion, and also ruled that providers lacked standing. While the case was pending, the U.S. Supreme Court decided Dobbs v. Jackson Women’s Health Organization (2022), overruling Roe.

The Supreme Court of Pennsylvania reversed. It held that providers have standing; legislators could not intervene as parties; and, most consequentially, it overruled Fischer in two core respects:

Under the ERA, sex classifications are now presumptively unconstitutional and trigger strict scrutiny—rejecting any carve-out for pregnancy or other “unique physical characteristics.”
Under Article I, §26 (the Commonwealth’s non-discrimination clause), the Court replaced Fischer’s “penalty” test with a neutrality requirement: if a law/classification touches the exercise of a civil right, the Commonwealth must act neutrally or withstand means-ends review commensurate with the right affected.

The Court did not finally decide whether the Coverage Exclusion is unconstitutional. It remanded to the Commonwealth Court for merits adjudication under the new standards. Importantly, a separate opinion by two Justices (Donohue, joined by Wecht) recognized a fundamental right to reproductive autonomy under Article I, §§1 and 8; that view did not command a majority and therefore is not binding precedent.

Summary of the Opinion

Standing: Providers have standing to sue on their own behalf and in support of their patients. Pennsylvania’s prudential standing test (substantial, direct, and immediate interest) is met; there is no additional federal-style “third-party standing” bar. “Zone of interests” is a guideline, not a prerequisite.
Legislative Intervention: The Court reversed the order permitting individual legislators to intervene. Under Markham v. Wolf, legislators may intervene only where their voting power or official legislative authority is directly impaired. A generalized interest in appropriations or defending statutes is insufficient. Legislators were reclassified as amici.
Overruling Fischer—Equal Rights Amendment (Art. I, §28):
- Sex-based distinctions—including those tied to pregnancy or “unique physical characteristics”—are presumptively unconstitutional.
- The government bears a strict scrutiny burden: a compelling interest and no less intrusive means.
- Fischer’s carve-out for pregnancy-based distinctions is rejected as textually unsupported and historically misconceived.
Overruling Fischer—Article I, §26:
- The Court adopted a neutrality rule: when a classification “touches on the exercise of a civil right,” the Commonwealth must act neutrally. If it does not, courts conduct means-ends review tailored to the right at issue.
- This replaces the “penalty” analysis imported from federal law.
Right to Reproductive Autonomy: Two Justices concluded that Article I, §§1 and 8 secure a fundamental right to reproductive autonomy. That non-majority view will be persuasive on remand but is not controlling.
Disposition: Intervention order reversed; standing objection overruled; demurrer reversed; Fischer overruled as to ERA and §26; case remanded for merits adjudication under the new standards.

Analysis

1) Precedents and Authorities

State standing and prudential limits:

William Penn Parking Garage v. City of Pittsburgh (Pa. 1975) — defined “aggrieved” as having a substantial, direct, immediate interest; providers’ business impacts and regulatory burdens satisfy this test.
Robinson Township v. Commonwealth (Pa. 2013) — physicians can sue where statutes force untenable professional choices in advance of enforcement.
Dauphin County Public Defender’s Office (Pa. 2004) — institutional plaintiffs may sue to vindicate their statutory and professional interests; no need to force clients to sue.
Johnson v. American Standard (Pa. 2010) — “zone of interests” is a helpful guideline, not an element of standing; the Court echoes and reapplies this.

Legislative intervention:

Markham v. Wolf (Pa. 2016); Fumo v. City of Philadelphia (Pa. 2009) — individual legislators may not intervene based on generalized separation-of-powers concerns; must demonstrate a concrete impairment of legislative prerogatives (e.g., ability to vote), which was absent here.

Fischer and the federal line:

Fischer v. DPW (Pa. 1985) — had upheld the Coverage Exclusion, borrowing from federal cases (Maher, Harris, Beal) and applying a “penalty” lens under §26 and a pregnancy exception under the ERA.
MAHER v. ROE (1977); HARRIS v. McRAE (1980); BEAL v. DOE (1977) — federal cases that permitted states to favor childbirth over abortion in funding; deemed not controlling for state constitutional purposes.

ERA jurisprudence & state constitutional method:

HENDERSON v. HENDERSON (Pa. 1974); COMMONWEALTH v. BUTLER (Pa. 1974); Hopkins v. Blanco (Pa. 1974); DiFlorido (Pa. 1975); Hartford v. Insurance Commissioner (Pa. 1984) — long line abolishing sex-based legal distinctions and stereotypes.
Cerra v. East Stroudsburg Area School District (Pa. 1973) — pregnancy discrimination is sex discrimination; the Court explains Fischer misread Cerra.
Commonwealth v. Edmunds (Pa. 1991) — four-factor framework (text, history, sister-state law, policy) for interpreting Pennsylvania’s Constitution independently of federal law; the Court uses Edmunds to cast off Fischer.
League of Women Voters v. Commonwealth (Pa. 2018) — state equality provisions are not in lockstep with federal Equal Protection; reinforced here to decouple §26 from federal doctrine.

Sister-state experience on Medicaid abortion funding:

New Mexico Right to Choose/NARAL v. Johnson (N.M. 1998) — equal rights amendment applied; coverage exclusion struck; strict scrutiny required.
DOE v. MAHER (Conn. Super. 1986) — state ERA treated pregnancy discrimination as sex discrimination; exclusion struck.
Department of Health v. Planned Parenthood of Alaska (Alaska 2001) — equal protection requires neutrality in allocation of health benefits when constitutional rights are implicated; exclusion struck.
Moe v. Secretary of Admin. & Finance (Mass. 1981) — state constitution’s privacy/equality principles require neutrality; exclusion struck.
BELL v. LOW INCOME WOMEN OF TEXAS (Tex. 2002) — upheld where Texas funding statute simply tracked federal matching limits; Pennsylvania’s statute is materially different.

2) Legal Reasoning

A. Standing

The Court applies Pennsylvania’s three-part test: the providers demonstrated a substantial interest (as regulated professionals subject to sanctions, with real business and counseling burdens); a direct interest (invalidating the exclusion would remove those burdens); and an immediate interest (they are currently subject to prohibitions and penalties).

Rejecting a federal overlay, the Court declines to import third-party standing limits (SINGLETON v. WULFF, WARTH v. SELDIN) into state practice. In Pennsylvania, a plaintiff need not show “no better party” exists; it is sufficient that the plaintiff is aggrieved. The Court reiterates that “zone of interests” is a helpful lens for immediacy, not a rigid element.

B. Legislator Intervention

Under Markham, individual legislators may intervene only where their voting power or official authority is impaired. The alleged effect of a constitutional ruling on future appropriations is too attenuated and generalized. The Court therefore denies intervention and reclassifies would-be intervenors as amici, noting that judicial review of constitutionality does not offend separation of powers.

C. Equal Rights Amendment (Art. I, §28)

The Court conducts a full Edmunds analysis of the ERA and concludes:

The text bars denial or abridgment of equality of rights “because of the sex of the individual.” Dictionaries and contemporaneous usage anchor “sex” in reproductive differences as well as structural differences.
Section 28 contains no exception for pregnancy or “unique physical characteristics.” That feature of Fischer is incompatible with the ERA’s plain text and with Pennsylvania’s early ERA jurisprudence, which dismantled sex-based rules and stereotypes.
Pregnancy discrimination is sex discrimination (see Cerra), and legislation that withholds reproductive health benefits from women alone creates a sex-based classification. The Coverage Exclusion is sex-based because only women seek abortions; reframing the distinction as one between “women who choose childbirth” and “women who choose abortion” cannot circumvent the ERA’s guarantee to individuals.
Stare decisis yields: Fischer’s reasoning was textually unsound, doctrinally inconsistent with precedent (Cerra, Hartford, others), and grounded in misconceived sister-state sources. Constitutional stare decisis is “at its weakest” and cannot perpetuate clear constitutional error.

Rule announced: Sex-based distinctions are presumptively unconstitutional. The Commonwealth must satisfy strict scrutiny (compelling interest; no less intrusive means).

D. Article I, §26 (Commonwealth non-discrimination clause)

Section 26 is not a clone of the federal Equal Protection Clause. Its unique language—barring denial of “any civil right” and discrimination “in the exercise of any civil right”—requires an independent framework. The Court overrules Fischer’s “penalty” test (borrowed from federal law) and adopts a neutrality requirement:

When a legislative classification “touches on the exercise of a civil right,” the Commonwealth must act neutrally regarding how that right is exercised.
If neutrality is absent, courts apply a means-ends test commensurate with the right (e.g., strict scrutiny for fundamental rights).

The majority emphasizes that Section 26’s neutrality requirement flows from its text and history (1967 adoption as a broader anti-discrimination measure), and from prior recognition that state equality protections should not be forced into federal molds (League of Women Voters).

E. Right to Reproductive Autonomy (Non-Majority)

Two Justices (Donohue, joined by Wecht) would recognize a fundamental right to reproductive autonomy—grounded in Article I, §1’s inherent rights (liberty, pursuit of happiness) and the Commonwealth’s robust privacy jurisprudence (Article I, §8; Edmunds, Alexander, Stenger, etc.). Their opinion canvasses Pennsylvania’s unique constitutional history, the Declaration of Rights, and the interplay of decisional autonomy and bodily integrity. This view did not garner a majority and is not controlling, but it may frame the remand and future cases.

3) Impact and Forward-Looking Considerations

Immediate procedural impact

The Coverage Exclusion is not yet invalidated. The Commonwealth Court must now adjudicate the merits under two new state-law standards:
ERA strict scrutiny: Because the exclusion is sex-based (it uniquely burdens women’s healthcare), the Commonwealth must prove a compelling interest and that no less intrusive means exist to achieve it. Traditional assertions (e.g., protecting potential life, promoting maternal health) must be substantiated and tailored—e.g., the absence of a general “health” exception may be difficult to defend as the least intrusive means.
§26 neutrality: If the classification “touches” the exercise of a civil right, the Commonwealth must demonstrate neutrality or satisfy a matched means-ends test. Whether the “civil right” at stake is “reproductive autonomy” remains to be resolved (the right was recognized by only two Justices), but ERA provides an independent and potent path.

State equality jurisprudence—broader reach

Pregnancy-linked exclusions are sex classifications. Any law that confers benefits/burdens based on pregnancy (or other sexed traits) will face strict scrutiny. The Court specifically rejected Fischer’s “unique physical characteristic” exception.
Public funding regimes must be neutral when touching civil rights. Under §26, when benefits programs intersect with the exercise of civil rights, the state must not tilt the playing field or must justify the tilt under robust means-ends review.
State constitutional independence. Pennsylvania courts should no longer reflexively apply federal equal protection doctrine to state equality claims; the text and history of §§26 and 28 matter in their own right.

Standing and legislative intervention

Provider standing clarified and broadened. Regulated entities may sue where statutes/regulations impose concrete professional, counseling, or sanction risks—even when “third-party rights” are implicated. Federal third-party standing constraints do not apply in Pennsylvania.
Legislative intervention is narrowly available. Individual legislators generally cannot intervene to defend statutes; they must show a concrete impairment of legislative voting or official authority. Expect more legislators to proceed as amici.

Relationship to Dobbs and federal law

Dobbs is not determinative of state constitutional law. Pennsylvania’s ERA and §26 were applied independently; Maher/Harris do not control Pennsylvania’s constitutional standards.
The Court’s approach signals that federal retrenchment does not limit state constitutional protections; indeed, it invites fuller development of state equality and privacy guarantees.

Practical consequences and litigation posture on remand

High bar for defending the Coverage Exclusion. The Commonwealth must show a compelling interest and least intrusive means under the ERA. The lack of a “health” exception and the exclusion’s categorical reach (including nonviable fetuses and serious health conditions) will face exacting scrutiny.
Possible legislative recalibration. Even without a final judicial invalidation, the General Assembly could revisit the statute to add health exceptions or tailor coverage to medically necessary abortions, thereby aligning more closely with a “least intrusive means” showing under ERA.
Wider ripple effects. The ERA/§26 holdings extend beyond abortion. Expect renewed challenges to:
- Policies that differentiate based on pregnancy or reproductive capacity in health, employment, insurance, and benefits;
- Benefit programs that tilt against the exercise of other civil rights (speech, voting, association) without satisfying a robust means-ends justification.

Complex Concepts Simplified

Strict scrutiny: The toughest test. The government must prove a compelling interest and that the law is the least restrictive means (no less intrusive alternative).
Sex classification: Any law that gives different treatment because of sex—including pregnancy-based differences—is a sex classification.
Neutrality (Art. I, §26): If a law affects how people exercise a civil right, the state must not favor one way of exercising the right over another—unless it survives robust means-ends review.
Stare decisis: Courts follow precedent unless there is a “special justification” to overrule. Here, the Court found Fischer textually and doctrinally flawed on state constitutional grounds.
Standing (Pa. law): A plaintiff must be “aggrieved”: substantial, direct, immediate interest. Regulated providers can sue without forcing patients to litigate.
Legislator intervention: Individual lawmakers can intervene only when their legislative powers (e.g., the right to vote) are directly impaired—not simply to defend a statute or appropriation preferences.

Conclusion

Allegheny Reproductive Health Center is a watershed in Pennsylvania equality jurisprudence. The Court decisively realigns state law with the text and history of Article I: sex classifications now face strict scrutiny under the ERA, and Article I, §26 imposes a neutrality mandate when laws touch the exercise of civil rights. The Court also clarifies provider standing, reasserts the limited role of individual legislators in litigation, and underscores that Pennsylvania’s Constitution is not in lockstep with federal doctrine.

The ruling does not itself fund abortions or strike down the Coverage Exclusion. Instead, it sets the legal framework that will govern the merits on remand. Under the newly announced standards—especially ERA strict scrutiny—the Commonwealth must carry a heavy burden to justify the exclusion’s categorical limits. Regardless of the final outcome on remand, the Court has reset the state’s constitutional compass toward a robust, text-driven equality project, with implications far beyond this single statute and far beyond the abortion context.

Key Takeaways

Providers have standing; “zone of interests” is not a hard requirement; federal third-party standing rules do not apply in Pennsylvania.
Individual legislators cannot intervene absent a direct impairment of legislative authority.
Fischer is overruled: the ERA admits no “pregnancy exception”; sex classifications are presumptively unconstitutional and subject to strict scrutiny.
Article I, §26 now requires neutrality in laws touching civil rights, replacing the “penalty” test; means-ends review applies if neutrality is absent.
No binding recognition (yet) of a fundamental state constitutional right to reproductive autonomy—the opinion recognizing such a right was non-majority.
The Coverage Exclusion’s ultimate validity remains to be decided on remand under the new standards.