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JOANNE FISCHER v. DEPARTMENT PUBLIC WELFARE (01/29/82)

decided: January 29, 1982.

JOANNE FISCHER, ET AL., APPELLEES,
v.
DEPARTMENT OF PUBLIC WELFARE, ET AL., APPELLANTS



No. 81-2-272, Appeal from the Order of the Commonwealth Court dated August 10, 1981, at No. 283 C.D. 1981

COUNSEL

Andrew S. Gordon, Allen C. Warshaw, Deputy Attys. Gen., LeRoy S. Zimmerman, Atty. Gen., for appellants.

Seth F. Kreimer, Philadelphia, for appellees.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Kauffman and Wilkinson, JJ., did not participate in the decision of this case.

Author: Nix

[ 497 Pa. Page 268]

OPINION

In this appeal we are being called upon to determine the propriety of a Commonwealth Court order (per MacPhail, J.)

[ 497 Pa. Page 269]

    granting a preliminary injunction pending a resolution of the substantive issues presented to that court. The effect of the preliminary injunction is to preclude the implementation of Act 239*fn1 until the constitutional challenges that have been raised are considered and resolved by the Commonwealth Court. For the reasons that follow we find that the order was properly entered and should not be disturbed at this time.

A petition for review was filed in the Commonwealth Court seeking declaratory and injunctive relief halting the implementation of Act 239. Act 239 provides, inter alia, that no public assistance funds will be expended to pay for abortions unless a full-term pregnancy would endanger the woman's life or the pregnancy was a result of rape or incest which was promptly reported to law enforcement or health authorities. It is contended that the constraints of this legislation deprived medically necessary care to the indigent. Preliminary objections were filed in the nature of a demurrer by the Department of Public Welfare, et al. (appellants herein). Thereafter, petitioners (appellees in this appeal) filed for a preliminary injunction which was granted on August 10, 1981.

In granting the preliminary injunction, Judge MacPhail concluded that a refusal of the injunction would have endangered

[ 497 Pa. Page 270]

    the health of indigent women who required medically necessary abortions, that the harm would be irreparable, and that "prospects of securing a permanent injunction must be carefully weighed against the merit of maintaining the status quo until the fundamental constitutional issues can be resolved by a full complement of . . . [the Commonwealth Court] . . ." [R 120a] Appellants counter by urging that ...


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