Friday, December 17, 2021
The PA Supreme Court is hearing a challenge to the state's version of the Hyde Amendment (Allegheny Reproductive Services v. PA. Dept. of Human Services, appeal from 249 A.3d 598 (Pa. Commw. Ct. 2021)). Abortion providers are petitioning the court to reverse its 1985 Fischer decision (509 Pa. 293, 502 A.2d 114) that upheld the ban on state funding of abortions (except for rape, incest, or threats to the mother's life), on grounds similar to SCOTUS's upholding of the federal Hyde Amendment in Maher v. Roe and Harris v. McRae.
Democrats for Life of America has filled an amicus brief in support of the PA funding restriction. From the summary of argument:
DFLA files this brief to emphasize three interests that the ban on funding of elective abortion serves. These interests are important, and at the very least, are clearly valid and legitimate under rational-basis scrutiny.
A. First, the funding ban serves the interest in protecting fetal life, which has been held to be “important” by this Court in Fischer IV and, as this Court noted, by the U.S. Supreme Court as well. Since Fischer IV, scientific advances, including ultrasound technology, have made it even clearer that the unborn child is a distinct human life during its development in the mother. These developments reinforce Fischer IV, both as a matter of stare decisis and because it is correct.
B. Second, the funding ban serves the important, and unquestionably valid, interest in respecting the conscience of many taxpayers who believe that abortion takes an innocent human life, and that the government revenue to which they contribute should not support that practice. Although the government is not required to accommodate taxpayers’ objections by declining funding, it has discretion to do so. From the nation’s founding, our governments have accommodated taxpayers’ conscience by denying funding to various practices that violate their deeply held beliefs. Abortion-funding restrictions stand within this tradition of respecting taxpayer conscience on deeply divisive issues; indeed, the tradition is especially strong in protecting people against being forced to facilitate abortions.
C. Finally, because abortion-funding restrictions avoid forcing taxpayers to facilitate abortion when they deeply oppose it, such restrictions make it possible to secure broad support for health and welfare-related funding in general. The government has a strong interest in maintaining the flexibility that helps build such consensus for social-welfare assistance programs. Since 1980, Pennsylvania’s ban on funding elective abortions has bolstered support for the Medical Assistance Program. Similarly, since 1976 the federal Hyde Amendment has bolstered support for federal health and welfare spending. And adoption of abortion-funding restrictions in the Affordable Care Act—restrictions with bipartisan support—were crucial to the passage of that major healthcare-reform legislation.
In section C, the brief details the crucial role that abortion-funding restrictions, and the pro-life Democrats who pushed and hard for them, played in the passage of the Affordable Care Act. (Citing former Rep. Bart Stupak's account of the events, For All Americans.) Since the ACA's passage, of course, pro-life Democrats have been decimated in Congress and state offices across the country by the combined efforts of Republicans, major pro-life groups, and anti-abortion rights groups. It's a feature of, and a contributor to, our accelerated polarization. But the arguments in section C--that a consensus in support of strong social-welfare benefits can much more easily form if taxpayers do not thereby have to fund elective abortions--are still important in a number of purplish states, like Pennsylvania.