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How a proposed change to the Pa. constitution could reshape the the future of abortion

Without Roe v. Wade, the Pennsylvania constitution is the last check on abortion laws passed by the legislator.

People march around the Pennsylvania Capitol during a Bans Off Our Bodies rally in Harrisburg, Pennsylvania, October 2, 2021 in support of women’s rights to seek abortions.
People march around the Pennsylvania Capitol during a Bans Off Our Bodies rally in Harrisburg, Pennsylvania, October 2, 2021 in support of women’s rights to seek abortions.Read moreThomas Hengge / Staff Photographer

Pennsylvania Republican legislators want to make it harder for state courts to weigh in on abortion policy.

But advocates for abortion rights fear their proposed constitutional amendment could further erode access to options to terminate pregnancies following a U.S. Supreme Court decision on Friday that ended federal protections for abortion.

» READ MORE: Protests and rallies planned in Philly region after Supreme Court strikes down Roe v. Wade, imperiling abortion access

State legislatures will now get to decide when abortion is allowed. Future legal battles will focus on whether states violate their own constitutions when regulating abortion.

In Pennsylvania, Senate Bill 956 would amend the state constitution to say that “nothing in this Constitution grants or secures any right relating to abortion” or to taxpayer funding for an abortion.

The legislation, introduced last year by Sen. Judy Ward (R., Blair County), would also add language to the constitution saying that “the policy of Pennsylvania is to protect the life of every unborn child from conception to birth.”

Ward explained in a memo accompanying the bill that the proposed constitutional amendment was prompted by a lawsuit filed by abortion advocates, who have asked state courts to strike down Pennsylvania’s ban on the use of Medicaid funds for most abortions.

The suit also seeks to affirm a right to an abortion in the Pennsylvania constitution. It is currently pending a hearing in the state’s Supreme Court.

With Roe v. Wade now overturned, there is no federal check on what states do regarding abortion, explained Kimberly Mutcherson, co-dean and professor of law at Rutgers University.

It is up to state courts to decide what abortion laws each state’s constitution allows. “They are the most important thing,” she said.

What would the amendment do?

Proponents say the proposed amendment would not change Pennsylvania’s abortion laws, which currently allow abortion up to 24 weeks of pregnancy.

The amendment would ensure that decisions about abortion are left to the legislature and not the courts, according to Ward’s office.

» READ MORE: Decision to overturn Roe v. Wade won’t have immediate impact on abortion access in Pennsylvania

But some abortion rights advocates are concerned that the constitutional amendment would threaten existing rights.

Susan Frietsche, senior attorney at the Women’s Law Project, a Pennsylvania-based legal organization that advocates for abortion access, says the constitutional amendment would make it extremely difficult to challenge future abortion restrictions in court.

She said the amendment “would open the door to criminalization of any and all abortions” by adding language to the constitution stating that Pennsylvania will “protect the life of every unborn child from conception to birth.”

What would it take to pass a constitutional amendment?

Amending the Pennsylvania constitution requires both the state Senate and House to pass a bill in two consecutive sessions. Then voters get to approve or reject the amendment as a ballot question.

The proposed abortion amendment is poised to pass the Republican-controlled Pennsylvania Senate soon. It will then go to the House, where Republicans often supportive of abortion restrictions also are in the majority. The earliest the amendment could appear on a ballot is 2023.

» READ MORE: What Pennsylvania voters think about abortion, according to polls

Is the amendment likely to pass?

Once a constitutional amendment gets on the ballot, it usually passes. According to a Spotlight PA analysis of proposed amendments since 1968, voters rejected only six of 49 amendments that reached them.

Public opinion polls show that a majority of Pennsylvania voters support some access to abortion. The most recent Franklin & Marshall College poll, which was conducted before a draft of the opinion overturning Roe was leaked, found that 54% of Pennsylvania voters think abortion should be “legal under certain circumstances.”

What is the current state of abortion rights in Pennsylvania?

Abortion is governed in Pennsylvania primarily through the Abortion Control Act, which includes the following restrictions:

  1. Abortions are banned after 24 weeks.

  2. Minors seeking abortion must have parental consent.

  3. An abortion requires a 24-hour waiting period.

  4. Providers are required to mention specific risks and alternatives before performing an abortion.

Additionally, state funds can’t be used for abortion with an exception for cases of rape or incest, or if the pregnant person’s life is in danger.

» READ MORE: Where Pa.’s 2022 candidates for governor and Senate stand on abortion

What influence does the next governor have?

Democratic Gov. Tom Wolf, who is finishing his second term, has vetoed several abortion restrictions. The candidates running to replace him — Attorney General Josh Shapiro, a Democrat, and State Sen. Doug Mastriano, a Republican — have opposing positions on the issue. Shapiro has vowed to veto any restrictions as governor, while Mastriano sponsored a ban on abortion after six weeks of pregnancy.

Even though the next governor would be influential, they will not be able to veto a constitutional amendment, which goes into effect if approved by voters.