Pennsylvania Court Order May Undermine Judge Samuel Alito's 'Cherry-Picking' Abortion Approach

In her piece for MSNBC, law professor Jessica Levinson shed light on a Pennsylvania Supreme Court order that may reinstate abortion rights.

A New Direction?

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“The majority opinion not only thoroughly rebutted the U.S. Supreme Court’s error-filled Dobbs decision overturning Roe v. Wade, it signaled a possible new path for reasserting abortion rights,” Levinson noted in her Sunday article.

Equality vs Freedom

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Earlier, Levinson had proposed the idea of defending abortion rights under the equal protection clause, stating, “But though that case was initially accepted by the Supreme Court, the justices never heard arguments, and they ended up eschewing the equality theory in favor of the freedom theory of abortion rights. Until, of course, they didn’t.”

Landmark Abortion Verdict

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Levinson referred to a 1985 Pennsylvania Supreme Court verdict, which upheld the law by a 3-2 vote and established a distinct precedent.

“The legal issue, according to a majority of the court, is whether the law discriminates on the basis of sex and violates the state’s equal rights amendment,” she commented.

A Legal Dance

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Levinson further explained, “The court appeared to dance with the idea that the right of an abortion is protected by the state’s equal protection clause, but paused before making that conclusion.”

Pivotal Moment for Abortion Rights

In her analysis, Jessica Levinson draws attention to the Pennsylvania Supreme Court’s ruling, grounded in the state’s constitution, as a pivotal moment for abortion rights.

Subtle Shifts with Major Implications

Using the state’s equal rights amendment, it subtly introduces an ‘equal protection’ rationale for abortion rights, which could have significant implications for other states and even at the federal level, as Levinson observed.

A Bias Issue?

This ruling scrutinizes whether banning Medicaid funding for abortion constitutes gender discrimination. Acknowledging that transgender men can also become pregnant and seek abortions, the court noted that the majority of abortion seekers “identify as women.”

Abortion Rights and Women’s Biology

In her ruling, Justice Christine Donohue of the Pennsylvania Supreme Court affirmed the significance of the state’s Equal Rights Amendment in the context of abortion rights.

Donohue clarifies that differentiating based on a characteristic solely attributable to women’s biology—like pregnancy and abortion—automatically invokes the Equal Rights Amendment

Pregnancy as a Unique Gender Right

Since only women can become pregnant and seek abortions, any restriction on abortion inherently limits women’s rights, offering them lesser autonomy in healthcare decisions compared to men.

Thus, under the Equal Rights Amendment, such restrictions are deemed unconstitutional unless the state can convincingly demonstrate they are essential for a vital government interest.

Breaking Historical Biases

Donohue emphasized that any other interpretation would undermine the amendment’s goal of breaking away from historical gender biases. She noted that Pennsylvania’s longstanding prohibition of abortion was part of a larger pattern of women’s unequal legal treatment, a pattern reinforced by the same outdated views cited in the Dobbs decision.

Disparity in Abortion Access

The court also identified discrimination in the disparity between those who can’t afford abortion and those who receive financial support for carrying a pregnancy to term.

Marital Rape and Property Rights

Levinson also cited legal commentators Dahlia Lithwick and Mark Joseph Stern, who criticized Justice Samuel Alito for ‘cherry-picking’ historical perspectives in the Dobbs decision.

Alito’s references are from a time when marital rape wasn’t criminalized; women couldn’t own property and were not seen as full citizens, they argue.

Unpacking the Court’s Methodology

Jessica Levinson further referenced Professor Reva Siegel’s insights, particularly from her law review article, shedding light on the Supreme Court’s methodology.

Siegel wrote, “In demonstrating that the Court selectively defers to the past, this Commentary shows how the Court’s history-and-traditions method provides new justifications for enforcing old forms of status inequality. ”

Hopeful Horizons in Reproductive Freedom

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Levinson ultimately sees these developments as “rays of hope” for reproductive freedom advocates. According to her, this kind of legal reasoning might serve as an influential guide not only for the Supreme Court but also for other state legislatures in their pursuit to protect abortion rights.