ACLJ Files Amicus Brief Against Abortion Providers Obtaining Medicaid Funding for Abortions


Olivia Summers


December 21, 2021

4 min read

Pro Life

We recently filed an amicus brief with the Supreme Court of Pennsylvania, Middle District, in opposition to abortion providers that are challenging Pennsylvania laws that prohibit taxpayer funding as part of Pennsylvania’s Medical Assistance program from being used to pay for abortions.

In Pennsylvania, several state statutes prohibit the use of state and federal taxpayer funds from being used to cover abortion, except in cases of rape, incest, or when the woman’s life is in danger. Back in January 2019, the abortion providers filed a lawsuit challenging those laws by claiming that they violate the Pennsylvania Constitution’s equal rights and equal protection provisions. These exact provisions were challenged in the same way back in 1985, and the Supreme Court of Pennsylvania held that they were constitutional. As the lower court noted, “Reproductive Health Centers raise the precise constitutional claims that were raised in Fischer IV, 502 A.2d 114, and unequivocally rejected by the Supreme Court.”But the abortion advocates filed this lawsuit anyway, claiming that the case was wrongly decided.

The Commonwealth Court of Pennsylvania correctly dismissed the abortion providers’ claims in March 2021, holding that “Reproductive Health Centers do not have standing to vindicate the constitutional rights of all women on Medical Assistance, some of whom may not be their patients, and who may or may not agree with the claims asserted on their behalf . . . .” Naturally unhappy with the Commonwealth Court’s decision, the abortion providers appealed.

Now the case is before the Supreme Court of Pennsylvania, and the ACLJ filed its amicus brief on behalf of more than 300,000 of our members, including over 10,000 people from Pennsylvania. In our brief, we addressed exactly why the Commonwealth Court was correct in finding that the abortion providers lack standing. As we stated in our brief:

As is well established in state and federal case law, neither the Constitution of the United States nor of the Commonwealth forces states to promote or even allow abortion for any and every reason, let alone subsidize them. Certainly, neither constitution contains a right for abortion providers to profit from abortion. Yet, Appellants have asserted that women enrolled in Medical Assistance programs not only have a right to seek abortions, but a right to obtain free abortions. Appellants further argue that as a direct result of that so-called “right,” health care providers, such as the Appellants, are entitled to reimbursement for providing abortions to women enrolled in Medical Assistance programs at little or no cost. This assertion implies that either the state or federal constitution – which supposedly contain this right to abortion at the expense of the government – incentivize or create a market for ending the lives of children before birth. Such an implication directly conflicts with the express and clear language of both constitutions, which recognize and protect the inherent value of human life.

Indeed, both state and federal governments are free to discourage abortion, including through the manner in which they allocate taxpayer dollars.

A decisive question is therefore whether the Appellants have standing to assert this enhanced alleged constitutional right on behalf of women enrolled in Medical Assistance programs, namely, to force the Commonwealth to subsidize the abortions that Appellants choose to provide to women at low or no cost. This issue is in no way substantially, directly, or immediately related to Appellants’ claims that the Abortion Control Act and Department of Human Services provisions represents sex-based discrimination in violation of the rights of women under the Equal Rights Amendment and the equal protection clause of the Pennsylvania Constitution. In other words, there is a disconnection between Appellants’ legal arguments and the precise right of the third parties that they would assert. Hence, the Appellants cannot establish standing.

We also pointed out to the Court:

This Court’s decision in Fischer [IV] is clearly in line with U.S. Supreme Court precedent which has continually upheld the ability of both federal and state governments to direct the allocation of taxpayer dollars, and to discourage abortion and promote life. Thus, Fischer [IV] was not wrongly decided, should be followed by this Court, and the challenges that Appellant has brought, which are the same as those raised in Fischer [IV],should be dismissed.

We are hopeful that the Pennsylvania Supreme Court will uphold the decision of the Commonwealth Court in keeping with precedent. Cases like this one show just how important it is that we engaged in the pro-life battle, not just at the federal level, but at the state level as well. And we are dedicated and deeply engaged in doing just that. Abortion advocates are relentless and will try everything in their power (or even outside of it), to not only keep abortion legal, but to profit from it as well at your taxpayer expense.

Join with us in our fight to protect life, and to keep your tax dollars from funding radical abortionists like the ones in this case.