This month on SCOPAblog, the court issued 6 precedential opinions and 2 grants of allocatur. 

On the opinion side, Allegheny Reproductive Health Ctr. is less than a week old, but has already created something of a media shockwave.  In that case, on the off chance you have been living under the Monongahela River for the past five years, several abortion providers sued to challenge the Abortion Control Act's provisions withholding public funds from women on medical assistance seeking abortions except in the case of rape, incest, and to save the patient's life, raising a simple theory: the right to decide whether to have an abortion is a fundamental right, and providing public funding for all medical reproductive care for men, and all medical reproductive care for women who choose to carry to term, but not those who choose to abort, is discriminatory and constitutionally unjustifiable.  This theory was advanced primarily by the Pittsburgh-based Women's Law Project's Co-Executive Director Susan Frietsche, who, coincidentally, as an adjunct professor at the University of Pittsburgh School of Law, taught this author 99% of what he knows about reproductive-rights law. 

In a 3-2 opinion written by Justice Donohue and joined by Justice Wecht and Justice Dougherty in part (Justices Brobson and McCaffery did not participate), the Court offers roughly 250 pages of analysis that essentially overrules several holdings of a prior decision that would have stopped the challenge in its tracks.  Although the majority opinion is important enough for its holding in this regard, along the way, it manages to at least appear to weigh in on doctrine after doctrine central to appellate practice.  Before even beginning the analysis in substance, the court weighs in on derivative standing (i.e., the providers' standing to assert their putative patients' constitutional rights).  It also weighs in on, and arguably narrows, legislator standing, perhaps in an effort to turn back what has been something of an onslaught of legislators intervening, rather than participating as amici curiae, in constitutional challenges before the Court.  And it discusses whether and to what degree Edmunds analyses are appropriate in the context of interpreting state constitutional provisions, like the Pennsylvania Equal Rights Amendment, which have no federal analogue.  On the merits, it provides a tour de force of constitutional analysis, including allusions to the possibility that certain constitutional rights cannot be amended away, and, perhaps most importantly, underlines the intersection of the two issues of fundamental privacy and sex discrimination here, as well as the way in which a changing constitutional tradition and changing legal tradition can impact the interpretation of constitutional rights over time.  (This is a point triple-underlined, and perhaps given an exclamation point or two in Justice Wecht's own 70-some page concurring opinion).

Justice Donohue, joined by Justice Wecht, would have gone further and essentially affirmed the challenge's theory altogether, although Justice Dougherty in a concurring and dissenting opinion referred to the analysis as "incredibly insightful," but he stopped short of joining it, meaning that the case will return to the lower court to entertain the theory in the first instance.  Chief Justice Todd, for her part, expressed the view that the Court was bound to reject the theory by precedent, and that the majority had not identified adequate justification for dispensing with hit.  Justice Mundy shared a similar view and agreed with that precedent's fundamental proposition, at least insofar as it established a somewhat reductive principle that there is no constitutional right to a publicly funded abortion.

It will be interesting to see what happens in and out of court as the case progresses.  In 2018's League of Women Voters case, perhaps the most recent political-firestorm case, the Court reinterpreted the Free and Equal Elections Clause of the Pennsylvania Constitution to recognize voters' constitutional protection against vote dilution in the form of extreme partisan gerrymandering, and, after giving political actors an opportunity to create new maps, ultimately appointed a special master and crafted its own.  To say that the Legislature did not take it well would be an understatement.  Although some of its members objections were less than intellectually robust — one legislator calling the majority activists claimed that it was middle-school civics that courts don't make law, which is true, but one hopes that our lawmakers have a more advanced understanding of how legisprudence works — they nevertheless led to efforts, including proposed impeachment articles, a proposal that would ironically have enacted judicial districts for the purpose of creating vote dilution, and budget cuts, ostensibly to either warn the Court to slow down, to stop it from going further, or, perhaps, just to exact revenge.  Cooler heads prevailed, and a constitutional crisis was avoided. 

It's difficult to see how the Legislature will react here.  Although the House of Representatives is under Democratic control at the moment, the margin is razor-thin and seems to be frequently interrupted as members take other offices and force special elections, and there are likely a fair number of Democrats who may balk at that suggestion that the government is constitutionally required to provide abortions, no matter how logical it may be on paper.  Indeed, as the case was percolating, efforts at advancing a ballot question on the point were ongoing.  Additionally, all three of the Justice in the majority were elected in 2015, and must stand for retention next year.

That said, if they do, and if they are successful, it is difficult to see how the plurality expressions in this case do not prevail in the end.  Again, Justice Dougherty in his concurring and dissenting opinion was downright effusive.  And although Chief Justice Todd dissented on the basis of being bound by precedent, the majority won the day, and the Chief has something of a history of recognizing the importance of respecting doctrinal evolutions, even if not joining them in the first instance.  And although Justice Brobson's position is something of an unknown, Justice McCaffery while running for the Court last year emphasized his commitment to protecting abortion rights.  In other words, the writing may not be on the wall, but the path is certainly laid out.

Precedential Opinions

In Re: Senior Health Ins. Co. of PA, 71 MAP 2021 (Majority Opinion by Todd, C.J.) (rejecting claims by other states that the Insurance Commissioner's rehabilitation plan for an insolvent insurance company created a "policy of hostility" to their own insurance regulation statutes and therefore violated the Full Faith and Credit Clause of the United States Constitution)

• See also Dissenting Opinion by Brobson, J.

Allegheny Reprod. Health Ctr. v. PA DHS, 26 MAP 2021 (Majority Opinion by Donohue, J.) (overruling dismissal of challenge to Abortion Control Act's provisions withholding public funds from women on medical assistance seeking abortions)

• See also Concurring Opinion by Wecht, J.
• See also Concurring and Dissenting Opinion by Todd, C.J.
• See also Concurring and Dissenting Opinion by Dougherty, J.
• See also Concurring and Dissenting Opinion by Mundy, J. 

B.C. v. C.P. & D.B., 8 WAP 2023 (Majority Opinion by Todd, C.J.) (holding periods of spousal separation do not per se undermine application of the presumption of paternity)

• See also Concurring Opinion by Wecht, J. 

Commonwealth v. Taylor, 40 MAP 2022 (Majority Opinion by Todd, C.J.) (holding a trial court's consideration of a juvenile's exercise of the privilege against self-incrimination as a basis for trying his as an adult constitutes structural error)

• See also Dissenting Opinion by Mundy, J.
• See also Dissenting Opinion by Brobson, J.

Rush v. Erie Insurance Exchange, 77 MAP 2022 (Majority Opinion by Donohue, J.) (holding that an insurance policy's exclusion of injury for injury while using a regularly-used, non-covered vehicle from underinsured motorist benefits did not violate the Motor Vehicle Financial Responsibility Law)

• See also Concurring Opinion by Wecht, J.

Dept of Comm and Econ Dev v. City of Chester, 12 & 15 MAP 2023 (Majority Opinion by Wecht. J.) (rejecting several challenges to the authority of the Act 47-receiver of the City of Chester)

• See also Concurring Opinion by Brobson, J.
• See also Dissenting Opinion by Dougherty, J.

Allocatur Grants

Steets v. Celebration Fireworks, 302 MAL 2023 (granting review to consider the availability of specific-loss benefits under the Workers' Compensation Act).

Commonwealth v. Rondon, 407 MAL 2023 (granting review to consider the requirement of written consent to continue a surety on reinstated bail).