From the Editors: The Commonwealth Court wants to compel complicity in abortion

For a certain kind of left-wing judge, it is always 1973. The legal world is alive with possibilities. Text? Law? Tradition? That all belongs to the past. They don’t need a legislature or an election, just the wise men in black robes to “interpret” the living constitution in line with modern times — as defined by them.

But Pennsylvania’s constitution is not alive. It is merely a clump of words, written — like all writing — to make permanent the people’s will, to memorialize it for all time. 

That is the nature of a republic: our elected representatives write down the laws they pass in our names. The way to change that law is for those same representatives (or their successors down the years) to repeat the process, giving the new law the same validity as the old because it is derived from a body elected by the people to do just that.

But some judges pose as philosopher-kings who think they know better than the people and the law.

This is the spirit of the Commonwealth Court’s ruling in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, in which a majority of that court held that Pennsylvania’s Constitution required the state to pay for abortions with taxpayer funds. The section of Pennsylvania’s law that kept state funding from being used for that purpose, the judges say, violates the Equal Rights Amendment (ERA) of the state constitution because it only applies to women.

On the one hand, it is brave in these times for a Democrat to say that only women can have babies. But it is also startling for a court to finally admit they know the difference between a man and a woman, only to use that distinction as a backdoor to subsidizing abortion. The state Department of Human Services, charged with defending this law in court, declined to do so at Governor Josh Shapiro’s direction. As in the gay marriage cases when he was county commissioner, Shapiro believes in the rule of law only until it becomes unpopular with Democratic voters and donors. At that point “get shit done” becomes “not my problem.”

The fact is no one at the time the state ERA passed believed it would mandate this, and no one who voted in the legislature for the Abortion Control Act saw it as in conflict with the state ERA. Indeed, opponents of state and federal ERAs claimed that it would lead to this and were told that they were jumping at shadows. But as soon as 1986, Connecticut’s courts held the same as Pennsylvania’s just did. Once the law was on the books, judges used it to do whatever they wanted. 

“Those choices are the People’s, not the government’s,” the government said, as it compelled the people to pay for that choice. It is an Orwellian piece of illogic, overthrowing the 40-year-old legislative compromise by which the individual woman can choose but the taxpayer need not pay for that choice.

Pennsylvania’s legislature has always had the power to use your tax dollars to pay for abortions. They have never done so. They have, in fact, done the opposite. If Governor Shapiro wants to go into the 2026 election with that as a campaign promise, he has that right. But he never campaigned on this, nor did anyone else. He just put his thumb on the scale by not letting the state defend itself when the law was challenged. (Meanwhile, Shapiro was perfectly happy to defend the state in court when it came to suing for federal dollars to be used for sex-change surgeries for minors.)

The Commonwealth Court majority pooh-poohed the “deference to extant legislative determinations” and swept them aside with a paragraph of specious reasoning. They cite no law there because there is none that would support it. 

And so every Pennsylvania taxpayer becomes complicit in killing the unborn. For the judges who see this as a simple medical procedure, that makes sense. But the legislature has long recognized that not every Pennsylvanian sees it that way. They deferred to differences in conscience and, while they allowed that procedure to be legal in the state, they also left room for honest disagreement on what it meant. The Court sweeps that compromise aside and compels us all to subsidize abortion.

The Commonwealth Court majority imagines that they have solved this issue, just as the majority in Roe v. Wade fancied in 1973. But fifty-three years later, we know better: legislative compromises reflect the people’s will. Judge’s decrees thwart it.

The case will be appealed to the state Supreme Court, and — we hope — respect for conscience rights and commonsense legal interpretation will prevail.