Pennsylvania Attorney General Dave Sunday appealed on Tuesday a lower court ruling that struck down the state’s ban on Medicaid coverage of abortions, sending the long-running fight back to the Pennsylvania Supreme Court.
The move keeps alive a case that began in 2019, when Pittsburgh’s Allegheny Reproductive Health Center and six other abortion care providers challenged the ban as discrimination against poor women seeking to end a pregnancy. Sunday said his office has a duty to defend Commonwealth law, and that his role is to defend statutes without personal opinion or political posturing.
“Per the Commonwealth Attorneys Act, the Office of Attorney General has a statutory obligation to defend the Commonwealth’s laws, and our notice of appeal fulfills that duty with regards to this statute,” Sunday said. The attorney general’s office said he is bound to defend the ban as state law.
The appeal lands after a month in which the Commonwealth Court, in a 4-3 decision, ruled that the coverage exclusion in the Pennsylvania Abortion Control Act is unconstitutional. The court said the government cannot single out abortion for exclusion while funding comparable medical care, and found the ban does not advance any state interest strong enough to justify it. It also held that the exclusion violates equal protection provisions of the state constitution beyond any genuine dispute of fact.
That ruling followed a prior turn in the litigation. The Commonwealth Court dismissed the case in 2021, but the Pennsylvania Supreme Court revived it in 2024 and said the ban was presumptively unconstitutional. Last year, a hearing was held with both the Department of Human Services and the abortion providers on the same side of the courtroom because no attorney had stepped forward to defend the coverage ban after Gov. Josh Shapiro declined to do so.
The legal question at the center of the case is simple, even if the path has not been: should taxpayer dollars be used to pay for abortions for low-income women on Medicaid? The providers, represented by the Philadelphia-based public interest law firm Women’s Law Project, argue the answer is yes because the state cannot cover comparable medical care while excluding abortion.
Abortion-rights advocates wasted little time in casting the appeal as a stall. Tara Murtha called it an expensive delay tactic, saying, “The Supreme Court of Pennsylvania has already called the Medicaid ban ‘presumptively unconstitutional,’” and, “This appeal is an expensive delay tactic that adds insult to injury.” Susan Frietsche was blunter still, saying, “The Attorney General has chosen to waste taxpayer dollars on trying to take reproductive rights away from Pennsylvanians,” and adding, “We look forward to once again arguing that reproductive choice belongs to the people, not the government.”
For now, the appeal ensures the dispute returns to the state’s highest court, where the question of whether Medicaid can exclude abortions while covering other medically comparable care is back at the center of Pennsylvania law.
