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HARRISBURG — Pennsylvania abortion-rights advocates and their opponents agreed Wednesday that the U.S. Supreme Court’s decision to let a Texas law banning most abortions go into effect could clear the way for a similar prohibition here if Republicans win the 2022 governor’s race.
The Texas law bans most abortions after about six weeks of pregnancy, before most people know they’re pregnant. One of the nation’s most restrictive abortion measures, it allows private citizens to enforce the law by suing providers or others who assist people in accessing abortions.
It took effect Wednesday after the high court declined to block it. Just before midnight, the justices in a 5-4 decision said they wouldn’t stop the law while lower court proceedings play out.
Abortion is still legal in Pennsylvania up to about 24 weeks into a pregnancy, but Republican-backed legislation would ban the procedure after a doctor identifies a fetal heartbeat, usually around six weeks. Another bill that passed the state House in June would prohibit abortions sought solely because of a Down syndrome diagnosis.
Pennsylvania Gov. Tom Wolf, a Democrat, has previously vetoed similar efforts to curtail abortion rights and said Wednesday he would do so again, should either bill reach his desk before he leaves office in January 2023. But next year’s gubernatorial election could put a Republican in office, likely clearing a path for a strict abortion ban to become law. Republicans already control the legislature and are not expected to lose it next year.
State Sen. Doug Mastriano (R., Franklin) is the lead sponsor of legislation that would require a doctor to seek a fetal heartbeat before performing an abortion. Doctors who detect a heartbeat could not legally perform the procedure.
“I am obviously very excited and happy about this,” said Mastriano, who is widely seen as a likely candidate for governor himself. State Rep. Stephanie Borowicz (R., Clinton) introduced identical legislation in the House, but the measure has been tabled.
Mastriano called on Senate President Pro Tempore Jake Corman (R., Centre) and Republican leadership to have the “courage” to move those efforts forward. (Corman recently replaced Mastriano, who has risen to national prominence by denying the legitimacy of President Joe Biden’s win, as the leader of an “audit” of the 2020 election results.)
Corman spokesperson Jason Thompson deferred comment to Senate Majority Leader Kim Ward (R., Westmoreland), who sets the chamber’s agenda. Erica Clayton Wright, a spokesperson for Ward, said legislative priorities for the fall session are still in discussion.
Pennsylvania already places significant restrictions on people seeking abortions, said Sue Frietsche, founder and director of the Women’s Law Project. Laws on the books require a pregnant person to wait 24 hours after receiving mandatory counseling discouraging abortion, require abortion clinics to meet specifications usually reserved for surgical facilities, and prevent minors from receiving abortions without parental consent.
Frietsche’s organization has sued to block such laws, but challenges that worked in decades past did not hold up as courts grew more conservative, she said.
The conservative-majority U.S. Supreme Court could still strike down the Texas law in response to a challenge from a provider or advocacy group, and the court is set to decide a potentially monumental case in Mississippi, where a bill would ban abortion after 15 weeks of pregnancy.
Should a Texas-style abortion ban pass under a different governor, legal organizations could also challenge it in state court under the Pennsylvania Constitution.
The Women’s Law Project is doing just that in a suit against the Pennsylvania Department of Human Services, which argues that a law barring patients receiving Medicaid from paying for abortions with their state-funded insurance violates equal protection provisions of the state constitution. A 1980s suit seeking to overturn the same law failed, Frietsche said, because the state’s highest court ruled abortion was unrelated to women’s rights.
“We knew less then than we know now about how devastating being denied an abortion can be to women’s health and future and lives,” Frietsche said. “Case law has evolved over the decades to show abortion is a right centered in women’s equality — that is the precedent we’re fighting in our case.”
The Pennsylvania Medicaid case will likely begin oral arguments before the state Supreme Court early next year.
Republicans seeking to successfully implement new abortion restrictions will have to wait until at least next session. Wolf will still be in office when the current legislative session ends in November 2022.
Signe Espinoza, interim director of Planned Parenthood Pennsylvania Advocates, said her organization will be mobilizing abortion-rights advocates across the state for the 2022 election.
“We know sexual and reproductive health care and rights, including abortion rights, will be a big issue for voters,” she said. “We plan to go big in 2022.”
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