Mapping the path forward: Legislating the next stage of reproductive rights in Pennsylvania

By Kim Lyons

Monday is the 51st anniversary of Roe vs. Wade, the landmark abortion case the U.S. Supreme Court overturned in 2022. This year, abortion rights advocates and lawmakers say they are not looking back at what was lost, but are instead seeking the path forward. 

For state Reps. Liz Hanbidge, a Democrat from Montgomery County, and Danielle Friel Otten, a Democrat from Chester County, that means a constitutional amendment. House Bill 1888 would create a “fundamental right to personal reproductive liberty” in the state constitution if approved by voters. 

“As the mother to an 8-year-old girl who could be potentially affected by the outcome over the next decade, I want to see these rights enshrined in the constitution because I do not want to have her rights at the mercy of a governor’s veto, or a one-seat majority on the Supreme Court or any of the many things we’ve done to defend reproductive rights in Pennsylvania over the last generation,” Otten said in an interview with the Capital-Star. “I think we need to put this to bed once and for all.”

HB 1888 is similar to legislation introduced in the House in 2022 to put the constitutional right to abortion on the ballot. That bill followed an attempt earlier in 2022 by GOP lawmakers – who controlled both chambers of the Legislature at the time – to advance an amendment that would have explicitly stated the constitution provided no right to taxpayer-funded abortion or access to abortion.

“We were so close to having a proposed constitutional amendment historically, that was written in such a way that it would have tricked voters into thinking it was just about taxpayer-funded abortion, but would have prohibited a constitutional right to abortion in Pennsylvania,” Hanbidge said.

An amendment to the Pennsylvania Constitution has to pass both chambers of the legislature in two consecutive sessions before it goes before voters. Even if voters approve, a proposed amendment could still face legal challenges, but as long as it prevails in any court battles it would become part of the state’s constitution.

The bill had its first hearing in December before the House Judiciary Committee. During that hearing, minority chair Rep. Rob Kauffman, a Republican from Franklin County, said in closing remarks he could “not imagine this legislation coming to pass. It would be horrible for Pennsylvania women, children, families, minorities who are desperately impacted by abortion.” He made his comments while holding a plastic doll meant to represent a 22-week-old fetus. 

Hanbidge and Otten are realistic that the proposed amendment would be unlikely to pass the GOP-controlled state Senate. “But just because we can’t get it through both chambers right now doesn’t mean that we don’t try,” Otten said. The earliest HB 1888 could be on the ballot would be 2025.

In the past two elections, reproductive rights supporters in several states have won hard-fought battles to claw back some of the protections lost when Roe v. Wade was overturned by the Dobbs decision. California, Kentucky, Michigan, Montana and Vermont residents voted to support abortion access or boost reproductive rights when the issue was on their ballots in 2022. 

In November, Ohio voters supported an amendment to that state’s constitution, which makes abortion a right and leaves medical decisions up to doctors and patients. And in Pennsylvania, an expensive campaign by reproductive rights groups and their supporters to solidify Democrats’ majority on the state Supreme Court proved successful. 

More than $19 million was spent on ads and messaging in the campaign, much of it portraying Republican Carolyn Carluccio as an anti-abortion candidate trying to hide her previous positions, claims that she disputed. 

Democrat Dan McCaffery beat Carluccio with more than 53% of the vote as abortion rights advocates made clear that preserving Democrats’ majority on the court was key not just for the present, but the future as well: The court is weighing a case that challenges a ban on abortion for people on Pennsylvania’s Medicaid program, which it could rule on at any time. 

Abortion rights advocates agree that now is not the time to breathe a sigh of relief, even in Pennsylvania, where abortion is legal up to 24 weeks and Gov. Josh Shapiro supports abortion rights.

“Sometimes, people refer to Pennsylvania as an access state, because we’re not like the Southern states where there is an absolute or near absolute ban,” said Susan Frietsche, senior staff attorney at the Women’s Law Project, a Pennsylvania nonprofit public interest legal organization. “But the reality is, it is very difficult to get an abortion for many people even in Pennsylvania.”

She ticked off a list of regulations – many of which, she notes, are not evidence-based – “that serve only to make it more difficult to provide care,” like rules about the size of an elevator in a clinic where abortions are provided. 

“We have a mandatory waiting period, as if adult women can’t figure out for themselves what to do with a pregnancy without the government making them stop and think some more,” Frietsche said. “It’s not just insulting, it actually operates as a true barrier to a lot of people.” 

Keeping voters focused on the importance of local elections, as advocates did in the state Supreme Court race in November, is another key strategy for protecting reproductive rights.

Samantha Paisley, national press secretary for the Democratic Legislative Campaign Committee, told the Capital-Star her organization recognized the significance of the state Supreme Court race early on, “and how it would be an important determinant of the landscape for reproductive rights in Pennsylvania.”  

The DLCC made a historic six-figure investment in that race, she noted, “but we know the landscape for abortion rights in Pennsylvania is still very much in jeopardy.”

That’s why the DLCC identified the Pennsylvania House as a top target for support in 2024. The House currently sits at a 101-101 tie between Republicans and Democrats, pending the outcome of a Feb. 13 special election to replace longtime Democratic Rep. John Galloway of Bucks County, who resigned after being elected district judge in November.

“We know that that race does not only determine what the majority of power looks like in the House, but it also will determine the future of abortion rights in Pennsylvania,” Paisley said. 

Pennsylvania Democratic elected officials will be out in full force on Monday to mark the Roe anniversary and keep abortion rights and access top of mind for voters. U.S. Rep. Summer Lee, a Democrat representing the 12th congressional district, will lead a press conference in Pittsburgh with the Pennsylvania Democratic Party.

“Our control over our bodies, our futures – and our children’s control over their bodies and futures – all comes down to stopping Trump’s abortion ban this election,” Lee told the Capital-Star. “Western PA is the frontline of this fight because the reality is that the same PA Republicans working to criminalize abortion have kept care from Black, brown, poor, working class and rural folks long before Trump’s SCOTUS overturned Roe. 2024 has barely begun, but we’re already organizing up and down the ballot to stop Trump’s ban and make access to reproductive health care reality for all.”

State Rep. Tarik Khan, a Philadelphia Democrat, will host a news conference in Harrisburg with Democratic colleagues, including Hanbidge and Otter, to introduce legislation aimed at making safe abortion access easier in Pennsylvania.

U.S. Reps. Madeleine Dean, a Democrat from the 4th Congressional District, and Mary Gay Scanlon, a Democrat from the 5th Congressional District, will join state Rep. Malcolm Kenyatta, another Philadelphia Democrat, in the city for a press event where they will highlight “how Donald Trump and MAGA Republicans worked to overturn Roe, Trump’s plans to ban abortion nationwide,” according to a release.

That level of vocal support by politicians for abortion rights is something that would not have been as widespread just a few years ago. Frietsche said seeing the support from voters for a constitutional amendment in neighboring Ohio is the latest example that disproves the long-held analysis that talking about abortion is a toxic political issue. 

Continuing to beat the drum and remind voters of what is at stake was also part of the November strategy, and Freitsche said it worked remarkably well. 

“I think that people who support abortion rights and reproductive liberty have really stepped up since Dobbs and have done a phenomenal, shockingly wonderful job of overcoming really terrible barriers,” she said, referencing the Supreme Court case that led to Roe being overturned. “Sometimes people say that there are more pro-choice people than anti-abortion people but that the anti-abortion people have all the passion. That is not true. Maybe it used to be, but it is not true anymore.”