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Lawsuit Seeks to "New York-ize" Pa.'s Abortion Laws

by Michael J. McMonagle February 2019

On January 22, 2019, New York Gov. Andrew Cuomo signed the most pro-abortion law in America. This law allows

- abortions until birth;

- abortions to be committed by non-physicians; and

- medical personal to neglect caring for babies who survive abortion.

On January 16, 2019, the Women's Law Project, on behalf of the abortion facilities that admit to committing 95% of the abortions in Pa., filed a lawsuit that seeks a declaration from the Pa. Supreme Court (PSC) that a "right to abortion" now exists in Pa.'s Constitution. Their immediate goal is to require Pa. to fund all Medicaid abortions, which numbered approximately 13,000 per year prior to Pa.'s Medicaid funding restrictions taking effect in 1985. These restrictions have resulted in a sustained decrease of approximately 5,000 abortions per year in Pa.

In addition, a declaration that the Pa. Constitution contains a "right to abortion" would also very likely invalidate Pa.'s other protective laws that have annually saved thousands of mothers and children from abortion. Such laws include

- post 24-week gestation abortion restrictions;

- sex-selection abortion ban;

- informed consent;

- parental consent;

- abortion facility regulations; and

- restricting state subsidies to health insurance plans that pay for abortions.

In 1985, in the case of Fisher v. Pa. DPW, the PSC, by a 6-1 vote, rejected a claim that the Pa. Constitution contained a "right to abortion" because of our State's Equal Rights Amendment. The PSC cited, as a major reason for their decision, the U.S. Supreme Court's 1979 Harris v. McKae decision that affirmed that States have a right to enact policies that prefer childbirth over abortion.

The Pa. abortion industry now claims that the Pa. Constitution has "evolved" to contain this "right to abortion." While the Pa. Constitution has not changed, the composition of the PSC has significantly changed. In December 2018, the now 6-1 Democrat majority ruled 5-2 that

expectant mothers may not be prosecuted for drug use because an unborn child has no legal rights. That decision and the realistically possible reversal of Roe v. Wade motivate this lawsuit.

Given the PSC's current composition and record, this lawsuit is likely to be successful. Thus, the Pa. pro-life movement faces an existential threat that an upcoming PSC decision could eliminate our 45 years of pro-life laws that have saved hundreds of thousands of mothers and children from abortion, as abortions in Pa. have declined by approximately 55% from 65,777 in 1980 to 30,011 in 2017.

The good news is that the pro-life majority in the Pa. House and Senate can pass a Constitutional Amendment, as other States have done, that establishes that the Pa. Constitution contains no "right to abortion," which cannot be vetoed by Pa.'s pro-abortion Gov. Tom Wolf. However, this Amendment process needs to begin soon, since it requires passage by two consecutive Sessions of the Pa. General Assembly and then approval by votes in a statewide referendum.

The abortion industry would pour massive resources into defeating this Referendum. However, this lawsuit makes this Referendum necessary - and winnable. Pa. voters are not likely to approve court-ordered abortion until birth paid with State tax money.

Michael J. McMonagle lives in Lansdale and is the

President of the Pro-Life Coalition of Pennsylvania

and is available at

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