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Update, Jan. 29: This story has been updated with details about a new state Supreme Court ruling.
HARRISBURG — Abortion is legal in Pennsylvania. And with a Democratic governor in power who supports access, it will almost certainly remain so for at least the next three years.
But that doesn’t mean it’s as easy to get an abortion in the commonwealth as supporters want it to be.
It also doesn’t mean that attempts to restrict the procedure are dead. Less than two years ago, Republican lawmakers launched a robust attempt to enshrine language in the state constitution that would have said there was no right to abortion. While the legislature has since changed significantly, many members who supported the effort are still in office.
With new federal abortion laws not forthcoming post-Roe v. Wade, decisions about access still firmly in states’ hands, and a big case working its way through Pennsylvania courts, here’s a primer on where abortion policy stands in the commonwealth.
What is Pennsylvania’s abortion law?
Pregnancies can be ended in the commonwealth up to 24 weeks gestation, a deadline tied to the concept of viability that was introduced in 1973’s Roe v. Wade. Abortions can be performed after that cutoff if a pregnant person’s life or health is in danger.
Pennsylvania doesn’t have language on its books protecting the right to an abortion, unlike many other states. For instance, voters in California, Michigan, and Vermont in 2022 enshrined guarantees of abortion rights in their state constitutions, which constrain future abortion-restricting bills unless those amendments are repealed.
Pennsylvania also imposes several other rules on people who wish to end pregnancies.
One of them is a requirement for pre-abortion counseling, followed by a 24-hour wait before the person can undergo the surgical procedure or obtain medication. Before a minor can get an abortion, their parent or guardian must also consent unless a judge signs off on a judicial bypass.
Other restrictions involve insurance coverage. Plans for public employees who are paid using state funds don’t cover abortion except in cases of rape, incest, or a life-endangering health condition. Medicaid coverage in the commonwealth includes the same caveats — as does coverage under plans in the Affordable Care Act exchange, unless the purchaser buys a rider for additional coverage.
These restrictions have long been opposed by organizations like Planned Parenthood. Signe Espinoza, who heads the group’s advocacy arm in Pennsylvania, said the commonwealth is “quite literally punishing poor people for not allowing them to use their own health care for life-saving care.”
There are, however, several organizations in the commonwealth that raise money to pay for abortion costs when insurance won’t. The state keeps a public list of these groups.
Some of Pennsylvania’s abortion restrictions stem from Planned Parenthood v. Casey, a landmark U.S. Supreme Court decision related to a law Pennsylvania passed in 1982.
The law imposed the parental consent requirement for minors to get abortions, the 24-hour waiting period, and a requirement that people seeking abortions get spousal consent. After the law was challenged on the basis that it ran afoul of Roe, the spousal consent provision was overturned.
Has the end of Roe affected Pennsylvania?
Since the U.S. Supreme Court overturned Roe v. Wade in 2022, 21 states have further tightened abortion restrictions. Fourteen have near-total bans and two have bans after six weeks, which is before many people know they’re pregnant. Five states now have 12- to 18-week bans.
Pennsylvania has not passed any additional restrictions. When Roe was overturned, the commonwealth was led by a Democratic governor who supported abortion access. It now has another Democratic governor, Josh Shapiro, who has been a similarly staunch opponent of restrictions, as well as a narrow Democratic state House majority whose leaders have taken the same stance.
Pennsylvania is one of 22 states that use roughly the same, viability-influenced cutoff for abortions under most circumstances. Seven states and Washington, D.C. place no gestational limit on the procedure, but the landscape could shift as state courts rule on the issue and legislatures pass new laws and turn over members.
In 2022, the most recent year for which there is complete data, 34,838 abortions were performed in Pennsylvania, of which 22,104 were performed at eight weeks or less of gestation.
The commonwealth’s Planned Parenthood chapter projects significant demand increases for Pennsylvania as other states continue to ban or restrict the procedure, though for now West Virginia is the only neighboring state with a total ban.
Will Pennsylvania ban abortion or further change access?
One big question mark remaining about abortion access in Pennsylvania has to do with the law that mostly keeps the procedure from being covered under Medicaid.
In 2019, abortion providers sued the state, arguing that the ban — which only excludes cases of rape, incest, and serious health risk — violates the state constitution’s equal protection provisions and Equal Rights Amendment.
The case has been working its way through the courts since. On Jan. 29, the Pennsylvania Supreme Court issued a ruling that didn’t resolve the question but did offer insights into justices’ thinking and possible future decisions on abortion.
In five separate opinions, the justices who participated in the case affirmed that they believe the Pennsylvania Constitution strongly protects against sex-based discrimination. They ordered the lower Commonwealth Court to reconsider the case, which it will have to do with the high court’s discrimination opinions in mind.
The state Supreme Court did not decide whether Medicaid must cover abortions, though justices did hint that they may rule that at a later date. Two justices also said they believe the state Equal Rights Amendment should be interpreted as protecting the right to an abortion.
The other abortion-related action currently happening in the commonwealth is likewise mostly geared toward expanding access.
Until recently, the commonwealth’s legislature was fully controlled by Republicans. Under that status quo, abortion-restricting legislation came up frequently. Perhaps most significantly, the body began moving an amendment in 2022 that would enshrine language in the state constitution that explicitly says abortion is not a protected right.
The move would tie the state Supreme Court’s hands and prevent judges from construing that the constitution, as it stands, protects the right to abortion. It could also prevent them from ruling future abortion-restricting legislation unconstitutional.
Since the amendment passed its first legislative hurdle that year, two things have changed: Republicans’ gubernatorial candidate, state Sen. Doug Mastriano (R., Franklin), made abortion a major issue in his 2022 campaign and lost decisively to Shapiro; and Republicans lost the state House.
In this new political climate, the Republicans who still control the state Senate, and have in the past supported abortion restrictions, have not moved meaningful abortion legislation. While the amendment could still technically pass, it hasn’t been re-introduced this session.
Kate Flessner, a spokesperson for the Senate Republicans, said she was unaware of any plans to bring back the amendment.
Of the upper chamber’s goals on abortion, she told Spotlight PA that, “Protecting the wellbeing of Pennsylvania’s mothers, children and families remains a top priority for Senate Republicans. Making ongoing investments in programs which offer support for healthcare services for women and babies is an area we feel is critically important.”
Democrats, meanwhile, have gotten more active on the issue.
Soon after Shapiro took office, he extended an executive order from his predecessor, Tom Wolf, that pledges to protect people from other states from any abortion-restricting laws those states have on the books.
The governor’s first state budget also ended a long-standing contract that provided public funds to an anti-abortion counseling program.
Last month, a member proposed an amendment that would formally enshrine the right to abortion in the Pennsylvania Constitution. The Pennsylvania Pro-Life Federation, a group that supports abortion restrictions, is organizing opposition to it.
Just this week, a group of state House members advanced a bill proposal seeking to loosen facility requirements for abortion providers, arguing the rules are unnecessarily onerous.
Espinoza of Planned Parenthood said that effort is part of abortion access advocates’ broader goal of making it easier to provide the procedure.
The commonwealth currently has fewer than 20 active providers compared with more than 145 when Roe was first handed down, she said. Part of that is due to facility requirements; another part is due to the fact that only physicians can provide abortion in the commonwealth (in many other states, nurse practitioners also can); and the biggest reason, according to Espinoza, is funding.
“We’re working toward a Pennsylvania where we have a budget line item” for abortion providers, she said. “This isn’t on one administration alone … [but] Pennsylvania falls behind from a policy solutions perspective, and also from a funding perspective.”
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