Pennsylvania Capitol Building on Tuesday, May 24, 2022. (Photo by Amanda Berg for the Capital-Star).
The Pennsylvania Supreme Court on Monday denied Gov. Tom Wolf’s request to hear his challenge of Republican-backed legislation that includes a proposal to amend the state constitution to say there is no right to abortion services in the commonwealth.
The high court’s order left open the possibility for Wolf to bring its case to Pennsylvania Commonwealth Court, which is ordinarily the first court to hear challenges to state legislation.
Wolf filed the challenge, which asked the Supreme Court to use its King’s Bench Power to hear the case directly, after the House and Senate passed Senate Bill 106 during a late-night session in July before summer recess.
In addition to an amendment stating that the state constitution does not grant a right to “taxpayer-funded abortion or any other right to abortion,” the legislation proposed other changes to the constitution regarding elections, the office of lieutenant governor, voter identification and election audits.
Wolf’s spokesperson Elizabeth Rementer said his office is reviewing the decision.
Lawmakers opposed to the bill said it would open the door for new laws restricting abortion access that would not be subject to challenge on constitutional grounds.
State Senate Minority Leader Jay Costa, D-Allegheny, said Monday he was disappointed by the court’s decision, and said the Democratic Caucus would fight against measures that restrict access to reproductive health care.
“Deciding when, whether, and how to have a family is an extremely intimate decision, and not one that legislators ought to be making for people,” Costa said in a statement. “The GOP’s abuse of the constitutional amendment process will cause unnecessary pain and hardship for thousands of Pennsylvania’s women and families.”
Jason Gottesman, a spokesperson for House Majority Leader Kerry Benninghoff, R-Centre, said House Republicans remain confident that Senate Bill 106 meets constitutional requirements.
The General Assembly must pass the legislation again in next year’s session in order for the proposed amendments to go to voters in a referendum that could be on the ballot as soon as the 2023 primary election.
Wolf argued in the challenge that the Legislature’s attempt to sidestep constitutional procedures and rescind fundamental rights warrants the use of the Supreme Court’s King’s Bench Power. King’s Bench Power is an authority derived from English law that allows the high court to take any case regardless of whether there is a dispute in a lower court.
Ensuring compliance with the amendment procedures outlined in the constitution is the Supreme Court’s duty, Wolf argued.
The challenge asserts Senate Bill 106 violates the amendment process because it includes several proposed amendments in a single piece of legislation, depriving voters of the right to know which amendments their representatives support.
Wolf contends that the proposal concerning abortion – abrogating the right to taxpayer-funded abortions and any other right to abortion – violates a requirement for separate votes on distinct questions to prevent logrolling, or the pairing of unpopular amendments with popular amendments to ensure voters’ support.
The challenge asserts that the abortion proposal would violate the state constitution’s guarantee of the right to pursue happiness, which encompasses the right to privacy and to make personal decisions about one’s body and one’s relationships.
Wolf argued that the abortion provision is so vague it would be invalid because it implicates a number of other constitutional protections, including the right to a trial by jury and the right to be free from discrimination.
Finally, Wolf’s challenge argues that the package of proposed amendments denies voters the right to vote separately on each change.
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