Lawmakers begin work on an abortion rights amendment for Pennsylvania’s Constitution

Legislation in the state House would set a referendum on the ‘fundamental right to personal reproductive liberty’

By: - December 13, 2023 5:01 pm

Democratic lawmakers and abortion rights advocates rally on the Pennsylvania Capitol steps on Tuesday, Sept. 20, 2022. (Capital-Star photo)

With access to abortion cut off or under threat in states across the nation, advocates say Pennsylvania must protect reproductive freedom by enshrining the right to abortion in the state Constitution.

Lawmakers in the state House took the first steps in a Judiciary Committee hearing on Tuesday to follow Vermont, Michigan, California and Ohio in putting the question to voters.

“As a mother to a young girl I feel a responsibility to ensure that we protect and preserve that right,” Rep. Danielle Friel Otten (D-Chester) said. “I do not want my daughter’s or any of our children’s personal health or economic futures to be at the mercy of a governor’s veto.”

Rep. Liz Hanbidge (D-Montgomery) and Otten are co-prime sponsors of House Bill 1888, which would create a “fundamental right to personal reproductive liberty,” in the state Constitution if voters approve. 

The U.S. Supreme Court’s decision in June 2022 overturning Roe vs. Wade shows it is dangerous to take for granted access to reproductive health care, Hanbidge said during the hearing. 

The court’s Dobbs ruling reversed its 50-year-old holding that the U.S. Constitution confers a right to abortion and opened the doors for states to implement or resume enforcing restrictions. Fifteen states now have total or near total bans on abortion.

“This has left women across the country without safe and legal options for ending a pregnancy, created a class system regarding who can and cannot afford productive health care access, and imperiled the lives of countless women,” Hanbidge said.

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The Judiciary Committee heard testimony from women faced with the excruciating choice of whether to continue their pregnancies after their fetuses were diagnosed in utero with fatal or potentially fatal genetic conditions.

Megan Orbich, who is Friel Otten’s sister, spoke about learning that her son, now 10, had genetic abnormalities and waiting for weeks to find out whether he would be born with a chance of living. Meanwhile, she progressed toward the 24-week cutoff for abortion in Pennsylvania.

“I don’t want to live in a state where when I am at my lowest point of desperation, the law causes more suffering, like we are seeing now in Texas and Ohio,” Orbich said. “Even women who, like me, would do everything possible to continue a viable pregnancy believe that every choice must remain a choice.”

The committee also heard from doctors who testified that pregnancy is a complex and deeply personal choice and the decision to end a pregnancy can stem from a multitude of factors such as the viability of the unborn child, the health of the mother, or the ability to care for a child.

Abortion bans disproportionately affect people who are Black, indigenous, people of color or low-income, Dr. Sarah Horvath, secretary of the Pennsylvania section of the American College of Obstetricians and Gynecologists, said. Horvath added that restrictions lead to reduced access to maternal health care as obstetricians and gynecologists leave states that enact legal barriers to practicing medicine, 

“Every person should be able to come to me or one of my colleagues and have an honest, open discussion about the risks and benefits of pregnancy,” Horvath said. “This conversation should be unfettered by political interference, so that patients can build the families they want.

The hearing, required for proposed constitutional amendments under new House rules adopted by the Democratic majority this year, happened on the same day as the U.S. Supreme Court announced it would decide another closely watched case involving reproductive health care. The court agreed to hear arguments on whether access to the abortion drug ​​mifepristone should remain legal. 

US Supreme Court to decide fate of medication abortion access nationwide 

House Bill 1888 is identical to legislation introduced in the House last year to put the Constitutional right to abortion on the ballot. It followed an attempt in 2022 by GOP lawmakers, who controlled the House and Senate at the time, to advance an amendment that would explicitly state the Constitution provides no right to taxpayer-funded abortion or access to abortion.

While the abortion rights amendment is likely to pass the House with a Democratic majority, Hanbidge and Otten said they’re hopeful that it will have bipartisan support in the Senate.

To amend the constitution both chambers of the General Assembly must pass the same joint resolution in consecutive sessions. When the resolution has passed twice in each chamber, it is placed on a statewide ballot in the next election for voters to choose whether the amendment should become part of the Constitution.

The earliest a referendum could take place is spring 2025.

A legal expert said the proposed abortion rights amendment put forth by Hanbidge and Otten would upend existing Pennsylvania law by requiring courts to apply a “strict scrutiny” standard in reviewing current or future laws, Elizabeth Kirk, director of the Center for Law and the Human Person at Columbus School of Law, said.

That means that the state would be required to justify laws that restrict reproductive liberty by showing a compelling state interest and demonstrating that it is achieved through the least restrictive means possible.

“Very few abortion restrictions survive challenge under this rigorous test,” Kirk said. “It is predictable and likely that the consequence of adopting [the strict scrutiny standard] will be the striking down of longstanding Pennsylvania laws that have overwhelming public support.”

Those longstanding laws in jeopardy could include provisions of the Abortion Control Act that require parental consent for a minor to receive an abortion, restrictions on taxpayer-funded abortions and the state’s restriction on abortions after 24 weeks of pregnancy.

Rep. Kate Klunk (R-York) asked Horvath whether she believed the ACA’s informed consent requirements, which mandates counseling and a 24-hour waiting period, and parental consent for a minor to receive an abortion are necessary.

Horvath said informed consent is provided for all medical care, such as miscarriage management, and that the medications and procedures are identical. 

“This would remove the abortion exceptionalism and any additional layers of consent that are medically unnecessary for abortion care,” she said. 

Noting that the restriction on abortion after 24 weeks could also be repealed, Rep. Rob Kauffman (R-Franklin) asked Dr. Sarah Gutman, a Penn Medicine obstetrician gynecologist, whether there is any limit to when abortion should be permitted. 

Gutman, who spoke about treating women whose unborn children were diagnosed with unsurvivable genetic conditions, said answers to questions about hypothetical patients aren’t helpful. 

“What is really important to know is that as legislators, you’re creating barriers between patients and their doctors,” Gutman said. “Giving them the opportunity to make those decisions based on what they know about their own health care and their personal relationships is the most important underlying factor.”

(This article was updated at 9:30 p.m. on Wednesday, Dec. 13, 2023, to correct a typographical error and wrongly attributed quotes.)

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Peter Hall
Peter Hall

Peter Hall has been a journalist in Pennsylvania and New Jersey for more than 20 years, most recently covering criminal justice and legal affairs for The Morning Call in Allentown. His career at local newspapers and legal business publications has taken him from school board meetings to the Pennsylvania Supreme Court and many points of interest between. He earned a degree in journalism from Susquehanna University.

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