This is a case about reproductive rights in Pennsylvania. This lawsuit was filed on July 28, 2022, in the Supreme Court of Pennsylvania. The governor of Pennsylvania and the state’s acting secretary of the commonwealth, as both officials and private citizens, sued the state’s legislative body, the General Assembly. The plaintiffs, who were represented by the state’s Office of General Counsel and a private law firm, requested that the Court use its King’s Bench power, which would let the case begin in the Supreme Court rather than a lower court. The plaintiffs sought a declaratory judgment that the General Assembly’s proposed amendments to the Pennsylvania Constitution, which would foreclose a constitutional right to abortion among other things, were invalid because they broke various rules of the amendment process and would eliminate rights that the state Constitution does not allow to be eliminated by amendment. The plaintiffs also asked the Court for an injunction to stop the amendment process from continuing.

The lawsuit was a response to SB 106, a bill passed in July 2022 by the Pennsylvania General Assembly that proposed five amendments to the state Constitution. Under Pennsylvania law, an amendment becomes part of the Constitution if it is passed by the legislature in two consecutive sessions and then approved by a popular referendum. 

The Assembly’s first proposed amendment stated that people are not guaranteed any abortion-related rights under the state Constitution, and in particular that there is no right to an abortion paid for by the state government. The second proposed amendment would let the legislature reject regulations created by the governor, without letting the governor veto the legislature’s rejection. The third proposed amendment would change the gubernatorial election process so that lieutenant governor nominees are chosen by gubernatorial candidates rather than nominated separately. The fourth proposed amendment would require government-issued ID for voting and allow people to get a free ID from the government. The fifth proposed amendment would give the state legislature the ability to designate the state’s Auditor General, or an independent auditor, as the auditor of state elections.

The plaintiffs requested that the Court use its King’s Bench power, which lets the state Supreme Court hear cases that are important and urgent. The plaintiffs asked that the Court act quickly because the amendment process would require the state government to begin informing voters about the proposed amendments in August 2022.

The plaintiffs made several arguments against the proposed amendments. Firstly, they contended that passing all five amendments in one bill violated the state Constitution, which requires amendments to be passed separately. They also argued that four of the amendments would violate a constitutional rule preventing a single amendment from making several unrelated changes to the Constitution. For instance, they claimed that provisions about abortion rights generally, and state funding for abortions specifically, should be separated into two amendments. Furthermore, they suggested that the proposed amendment denying abortion rights actually would enact multiple constitutional changes because it would override existing provisions banning gender discrimination, guaranteeing equal protection, and ensuring a person’s right to life. They made similar arguments about other amendments: the amendment about gubernatorial regulations would destroy the separation of powers, the amendment about voter identification would violate people’s voting rights, and the amendment about election audits would take election review powers away from the courts system. The plaintiffs argued that since the proposals did not fully explain the various elements of the Constitution they would change, they should not be put up for popular vote. They also noted that the referendum process only allows votes on simple amendments, whereas the proper process for amendments as complicated as these would be a constitutional convention.

Finally, the plaintiffs argued that the amendment denying abortion rights was invalid for two additional reasons. First, they contended that the state Constitution protects certain rights in a way that cannot be changed even by the amendment process. These protections include the right to liberty and the pursuit of happiness, which courts have interpreted as giving people a right to privacy and bodily integrity. The plaintiffs argued that reproductive rights fall under these protections, and therefore cannot be limited by amendment. Second, the plaintiffs argued that the vague nature of the amendment's foreclosure of any abortion-related rights made it unconstitutional. Since many rights are potentially related in some way to abortion, there would be no way to predict exactly how far the amendment could go in restricting rights.

In early August 2022, the Republican caucuses in the state legislature sought to intervene as defendants in the case, and the Democratic caucuses sought to intervene as plaintiffs. On August 18 of the same year, the Court denied their motions to intervene, but allowed them to file amici curiae briefs. 

On September 18 of the same year, the Court declined to use their King’s Bench power to hear the case. Less than a week later, on September 23, the plaintiffs re-filed the case in the Commonwealth Court of Pennsylvania. Read about that case here.