WHYY – In the final days before their summer recess, Republicans in Pennsylvania’s House and Senate rushed a major constitutional amendment through its first phase of legislative approval. It would clear a path for them to dramatically restrict — or even ban — abortion in the commonwealth.
The amendment wouldn’t restrict abortion outright. If lawmakers pass it again, and voters approve it in a statewide referendum, it will add language to the constitution saying that the document does not “grant the right to taxpayer-funded abortion or any other right relating to abortion.”
The practical effect will be that if, in the future, a Republican legislature and governor pass a law restricting abortion in some way, abortion-rights advocates won’t be able to challenge the law in state courts.
Republicans advanced the proposal through a Senate committee late Thursday night, waiving chamber rules so they could keep holding votes past 11 p.m. The House concurred on the proposal and completed its first round of consideration late Friday evening.
The proposed amendment has particular resonance in Pennsylvania, because with Roe v. Wade overturned and federal abortion-rights protections gone, the issue is now up to the states.
For now, Pennsylvania allows abortion up to 24 weeks’ gestation, or later if there is a medical emergency that necessitates pregnancy termination. Gov. Tom Wolf has vowed to veto all GOP attempts to change that status quo. But Wolf is term-limited, and in the race to replace him this November, GOP candidate Doug Mastriano has said he supports a total ban on abortion, with no exceptions for rape, incest, or a medical emergency that puts the life of a parent at risk.
In general, groups that oppose abortion restrictions, like Planned Parenthood and the ACLU, would respond to such a restriction by challenging it in state court on the basis that provisions of the state constitution — like one that guarantees equality of rights on the basis of sex — make significant abortion restrictions unconstitutional on the state level.
According to ACLU Pa. Legislative Director Liz Randol, this amendment would make that impossible, essentially clearing the way for abortion restrictions with no intervention from the courts. And, she added, it could potentially do more.
“It could go farther in terms of the legislature attempting to regulate things that fall far outside of abortion, including IVF treatment, contraception, IUDs, anything that could affect the status or the continued presence of a fetus or an embryo,” she said.
In a memo to senators, Randol noted that could also extend to treatment of ectopic pregnancy or miscarriage, should the legislature choose to regulate those. The amendment is “an extreme position that would have devastating consequences for all pregnant people,” she wrote.
‘It’s so obvious what you’re doing’
Republicans attempted to cast the amendment as a minor adjustment that puts the power to regulate abortion in the hands of voters and representatives and not, as Rep. Kate Klunk (R-York) said on the House floor, in the hands of “unaccountable judges on our state Supreme Court.”
“It would prevent the court from forcing taxpayers to pay for elective abortions,” Majority Whip Donna Oberlander (R-Clarion) added — referencing something that is already not allowed under state law. “The amendment simply protects the status quo.”
Rep. Matt Bradford (D-Montgomery), minority chair of the House Appropriations Committee, rejected that — “this is not some theoretical law school hypothetical, come on,” he said. “This is the pathway that this majority has been on for a decade, to end the right to safe, legal abortion.”
“God,” he added, “it’s so obvious what you’re doing.”
Pennsylvania’s Supreme Court justices, who are elected statewide, are mostly Democrats, and Republicans have warred with them in recent years over issues like redistricting.
As the amendment package moved through the legislative process Friday, Democrats expressed outrage. Crowds of protesters could be heard in the background of committee hearings throughout the day, and on the floor, members accused their GOP colleagues of misleading voters about their plans.
Donna Bullock (D-Philadelphia), who chairs the Legislative Black Caucus, brought up the late-night votes Republicans held in order to get the amendment through their first round of consideration.
“Year after year I sat in this building as we chipped away and chipped away at the rights of Black and Brown folks and other disenfranchised people throughout this Commonwealth,” she said. “We take away the rights of Pennsylvanians with foolishness. Undercover, in the middle of the night, [or] at 6:00 on a Friday.”
Logrolling and late-night votes
The amendment’s path to passage was unusual.
Republicans rolled it into a package with four other amendments, voting on all of them as a single unit. The others were a measure to require state-issued ID in order to vote, a requirement that the state auditor general audit elections, an expansion of the legislature’s power to reject regulations without a veto from the governor, and a change to election rules for the lieutenant governor.
Randol thinks the method was troubling. Noting that it’s part of a pattern of Republicans feeling increasingly comfortable using amendments to circumvent the governor, she said the bundling also shields lawmakers from some accountability.
“It kind of obscures,” she said. “It gives a lot of political cover to legislators. So it could be valuable for those who might want to vote in favor of it, even if they might be uncomfortable with one or two of [the amendments].”
In order for a proposed constitutional amendment to go before voters in a statewide referendum, the legislature must pass it twice, in consecutive legislative sessions, using identical language.
That means the legislature must repeat this process in the next legislative session, which begins in January. The soonest the five amendments in the package could be on the ballot is the May 2023 primary — an off-year election that generally sees low turnout.
Statewide referenda on amendments rarely fail in Pennsylvania — though groups that both support and oppose abortion restrictions say they plan to spend heavily on advocacy once the referendum gets closer.
National anti-abortion groups also don’t have the some reluctance as some Harrisburg Republicans about enumerating the potential consequences of the abortion amendemnt.
In a recent interview with WHYY, Stephen Billy, who is vice president for state affairs with the national anti-abortion-rights group SBA Pro-Life America, said this is a strategic step in heading off Democrats’ ability to challenge anti-abortion-rights laws in state courts.
“Now that the Supreme Court at the federal level gave the American people their voice back on this issue, Planned Parenthood and their allies are going to run back to court. They’re just going to do it at the state level,” Billy said. “We’re going to fight back against that.”