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decided: April 8, 1982.


Original jurisdiction, in the case of Joanne Fischer et al. v. Commonwealth of Pennsylvania, Department of Public Welfare et al.


Kathryn Kolbert, with her Susan Cary Nicholas, Seth Kreimer, and of counsel, Virginia Kerr, for petitioners.

Andrew S. Gordon, Deputy Attorney General, with him Allen C. Warshaw, Deputy Attorney General, Chief, Civil Litigation, and LeRoy S. Zimmerman, Attorney General, for respondents.

Robert F. Williams, of counsel, Thomas B. Harvey, for Amicus Curiae, American Civil Liberties Foundation.

Beth Olanoff, with her Lynn Miller, for Amicus Curiae, Religious Coalition for Abortion Rights.

President Judge Crumlish, Jr. and Judges Rogers, Blatt, Williams, Jr. and Craig. President Judge Crumlish, Jr. and Judges Rogers, Blatt, Craig, MacPhail and Doyle. Opinion in Support of Sustaining Preliminary Objections by Judge Blatt. President Judge Crumlish and Judge Doyle join in this opinion.

Author: Blatt

[ 66 Pa. Commw. Page 72]

Before us now are the preliminary objections of the Department of Public Welfare to a petition for review in the nature of a complaint in equity addressed to our original jurisdiction.

The petition for review seeks to restrain the implementation of the Act of December 19, 1980, P.L. 1321 (Act 239), 62 P.S. ยง 453, which permits the use of medical assistance funds for abortions only where such procedures are necessary to save the life of the mother or where the woman is a victim of rape or incest. Act 239 specifically provides:

Expenditure of public funds for abortions limited

Since it is the public policy of the Commonwealth to favor childbirth over abortion, no Commonwealth funds and no Federal funds which are appropriated by the Commonwealth shall be expended by any State or local government agency for the performance of abortion: Provided, That nothing in this act shall be construed to deny the use of funds where a physician has certified in writing that the life of the mother would be endangered if the fetus were carried to full term or except for such medical procedures necessary for the victims of rape or incest when such rape or incest has been reported promptly to a law enforcement agency or public health service. Nothing contained in this

[ 66 Pa. Commw. Page 73]

    section shall be interpreted to restrict or limit in any way, appropriations, made by the Commonwealth or a local governmental agency to hospitals for their maintenance and operation, or, for reimbursement to hospitals for services rendered which are not for the performance of abortions.

Also here challenged are regulations promulgated by the Department of Public Welfare which define a "rape or incest [which] has been reported promptly", as referred to in Act 239, as follows:

     an abortion will be authorized only under the following conditions:

(2) In the case of rape or incest, provided that such rape or incest was reported to a law enforcement agency or public health service as follows:

(i) In the case of rape, within 72 hours of its occurrence.

(ii) In the case of incest, where the incest was reported within 72 hours from the time the victim was advised that she was pregnant.

11 Pa. B. 657 (1981).

The principal individual petitioners object to Act 239 because, while it provides for abortion funding where necessary to save the mother's life, it does not provide such funding where an abortion is performed to preserve a mother's health. They represent themselves and a class of persons similarly situated, who are pregnant women eligible for medical assistance and who desire to have abortions which their physicians have determined are medically necessary, but who are ineligible for medical assistance because their physicians are unable to certify that their patients' lives would be endangered if they carried the fetuses

[ 66 Pa. Commw. Page 74]

    to full term. They also allege that they and the women whom they represent are without funds to obtain an abortion if refused medical assistance. A number of these petitioners aver that their decisions to seek abortions have been motivated not only by the advice of their physicians but also by their own religious beliefs and by the counsel of their spiritual advisors.*fn1

The remaining petitioners include: physicians who assert that Act 239 will, as to them, work an economic hardship and will prevent their provision of necessary medical services in accordance with their best medical judgment; a medical clinic which provides abortion services; the directors of Planned Parenthood of Southeastern Pennsylvania and of Women Organized Against Rape of Philadelphia, Pennsylvania, both being nonprofit entities engaged in the provision of counseling and other services to individuals directly

[ 66 Pa. Commw. Page 75]

    affected by Act 239 and corresponding regulations; a minister of the Episcopal Church who, in his clerical capacity, counsels pregnant women affected by Act 239; and a taxpayer of the Commonwealth of Pennsylvania, petitioner Fischer, who asserts that Act 239, if implemented, will result in an unlawful expenditure of Commonwealth funds.

The petitioners have challenged Act 239*fn2 as infirm with respect to both the Pennsylvania and Federal Constitutional guarantees of privacy, religious freedom, equal protection and due process of the laws.*fn3 And, in response to this broad-based attack, the Commonwealth defendants have interposed Preliminary Objections in the nature of a demurrer thereby ...

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