Original jurisdiction in case of JoAnne Fischer et al. v. Department of Public Welfare et al.
Kathryn Kolbert, with her, Susan Cary Nicholas, Seth Kreimer and Robert F. Williams, for petitioners.
Andrew S. Gordon, Senior Deputy Attorney General, with him, Daniel R. Schuckers, Deputy Attorney General, Allen C. Warshaw, Senior Deputy Attorney General, Chief, Litigation Section, LeRoy S. Zimmerman, Attorney General, and Stanley Slipakoff, Assistant Counsel, Department of Public Welfare, for respondents.
Nadine Taub, with her, Pamela Pryor Cohen, Swenson and Cohen, for Amici Curiae of the National Women's Health Network et al.
William Bentley Ball, with him, Philip J. Murren and Sandra E. Wise, Ball & Skelly, for Amici Curiae, Dr. Dorothy Czarnecki et al.
President Judge Crumlish, Jr. and Judges Williams, Jr., Craig, MacPhail, Doyle, Barry and Colins. Opinion by President Judge Crumlish, Jr. Concurring and Dissenting Opinion by Judge MacPhail. Judge Craig joins in this concurring and dissenting opinion.
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Before us are petitioners' and respondents' exceptions to the decree nisi*fn1 of Judge John A. MacPhail, dated March 9, 1984, sitting as Chancellor. Petitioners,
[ 85 Pa. Commw. Page 243]
a group of named individuals and a clergyman suing on their own behalf as well as all others similarly situated, a physician, and several non-profit medical service organizations, filed a petition for review seeking declaratory and injunctive relief which would prohibit the Commonwealth Respondents*fn2 (hereinafter Commonwealth) from implementing Section 453 of the Public Welfare Code*fn3 entitled "Expenditure of public funds for abortions limited," and Section 3215(c) of the Abortion Control Act*fn4 (the 1982 Abortion Control Act) also dealing with the public funding of abortion.
In August of 1981, petitioners' motion for preliminary injunction was granted and later affirmed by our state Supreme Court. Fischer v. Department of Public Welfare, 497 Pa. 267, 439 A.2d 1172 (1982).*fn5 In March of 1984, Judge MacPhail, acting as Chancellor, and after trial, made findings of fact and conclusions of law and issued a decree nisi declaring unconstitutional
[ 85 Pa. Commw. Page 244]
*fn6 and prohibiting the enforcement of Section 453 of the Public Welfare Code and Section 3215(c) of the 1982 Abortion Control Act. Petitioners and respondents timely filed exceptions to the decree. For the reasons to follow, we sustain respondents' exceptions which are based on article III, section 32 of the Pennsylvania Constitution, the Commonwealth's equal protection clause, and article I, section 28 of the Pennsylvania Constitution, the Commonwealth's equal rights amendment (ERA), and overrule the remainder of their exceptions.*fn7 We overrule petitioners' exceptions.
A version of the 1982 Abortion Control Act was first enacted in 1974 (the 1974 Abortion Control Act), and its general funding section*fn8 read as follows:
Since it is the public policy of the Commonwealth not to use public funds to pay for unneeded and unnecessary abortions, no abortion shall be subsidized by any State or local governmental agency in the absence of a certificate of a physician, filed with such body, stating that such abortion is necessary in order to preserve the life or health of the mother.
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Nothing contained in this 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 performed.
However, in 1975, this section, and much of the 1974 Abortion Control Act, were held invalid in Planned Parenthood Association v. Fitzpatrick, 401 F. Supp. 554 (E.D. Pa. 1975). There, the District Court for the Eastern District of Pennsylvania considered the constitutionality of the 1974 Act and held, inter alia, that Section 7, the general funding section, conflicted with Title XIX of the Social Security Act*fn9 and concluded that it violated the equal protection clause of the fourteenth amendment. Judge Clifford Scott Green, writing for a panel of three, held that the state's denial of subsidies for unnecessary abortions was inconsistent with the Supreme Court's decision in Roe v. Wade, 410 U.S. 113 (1973), since it denied indigent pregnant women financial aid. Fitzpatrick, 401 F. Supp. at 581.
In an effort to revive the legislation following Fitzpatrick, the Pennsylvania General Assembly, in 1978, amended the 1974 Abortion Control Act. In particular, the broad language of the funding provision of the 1974 Act was replaced with language similar to that found in the so-called "Hyde Amendment."*fn10 The, by now well-known, Hyde Amendment prohibited the use
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of federal funds for reimbursement of the costs of abortions under the federal medicaid program unless such procedure were deemed necessary to save the life or preserve the health of the mother. Significantly, it pronounced as public policy the preference for childbirth over abortion.
However, as was the case of the earlier version in Fitzpatrick, this amended section was enjoined in 1980
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by the Third Circuit Court of Appeal in Roe v. Casey, 623 F.2d 829 (3d Cir. 1980). Judge Garth, writing for the Third Circuit, found that the amendment was, as modified by the Hyde Amendment, at odds with Title XIX of the Social Security Act.*fn11
Undaunted by the result of the previous litigation, the General Assembly, in December of 1980, amended the Public Welfare Code to limit medicaid funding of abortion. Section 453 of the Code, entitled "Expenditure of public funds for abortions limited," provided:
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 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.*fn12
[ 85 Pa. Commw. Page 248]
Subsequent to the enactment of the latter amendment*fn13 to the Public Welfare Code, petitioners filed this action seeking to have Section 453 declared unconstitutional.
In June of 1982, in the midst of the pleading stage of the original petition for review, Governor Thornburgh signed into law the 1982 Abortion Control Act*fn14 In response to the funding provisions of the 1982 Act,*fn15 petitioners filed an amended petition for review
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seeking review of Section 3215(c) of the 1982 Abortion Control Act pertaining to the public funding of abortions, which provides in part:
(c) Public funds. -- 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, except:
(1) When abortion is necessary to avert the death of the mother on certification by a physician. When such physician will perform the abortion or has a pecuniary or proprietary interest in the abortion there shall be a separate certification from a physician who has no such interest.
(2) When abortion is performed in the case of pregnancy caused by rape which has been reported within 72 hours of the rape to a law enforcement agency having the requisite jurisdiction and has been personally reported by the victim or her agent.
(3) When abortion is performed in the case of pregnancy caused by incest which has been reported within 72 hours from the date when the female first learns she is pregnant and she has named the other party to the incestuous act. Such information shall be turned over by the department to a law enforcement agency.
We are, of course, not unmindful of the very deep and devisive ancillary issues which accompany this controversy.*fn16 While ...