Case: Wolf v. General Assembly of the Commonwealth of Pennsylvania

This is a case about a proposed amendment stating people are not guaranteed abortion-related rights under the Pennsylvania Constitution. 

In July 2022, the Pennsylvania General Assembly passed SB 106, which proposed five amendments to the state Constitution. The proposed amendments would make the following changes to the Pennsylvania Constitution:

1. State that people are not guaranteed any abortion-related rights under the state Constitution, and in particular there is no right to an abortion paid for by the state government (the “Abortion Amendment”). 
2. Allow the legislature to reject regulations created by the governor, without letting the governor veto the legislature’s rejection. 
3. Allow gubernatorial candidates to select candidates for lieutenant governor, with their party’s approval, as opposed to being  nominated separately. 
4. Require government-issued ID for voting and allow people to get a free ID from the government. 
5. Allow the legislature to pass a law allowing for “auditing” of elections and election results. 

That same month, the Governor of Pennsylvania and the Acting Secretary of the Commonwealth filed suit in the Pennsylvania Supreme Court, as Wolf v. General Assembly. However, in September, the Pennsylvania Supreme Court ruled it would not accept original jurisdiction over the case. Consequently, the Governor and the Acting Secretary filed this lawsuit in the Commonwealth Court of Pennsylvania – an intermediate appeals court with original jurisdiction over the case – on September 23, 2022. Represented by private counsel, the plaintiffs sought a declaratory judgment that the proposed amendments were invalid.

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; otherwise, it is not clear which legislator voted for which amendments. They also argued that four of the amendments violated a constitutional rule preventing a single amendment from making several unrelated changes to the Constitution. For instance, the Abortion Amendment enacted multiple constitutional changes because it would override existing provisions banning gender discrimination, guaranteeing equal protection, and ensuring a person’s right to life.

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.

Additionally, the plaintiffs argued that the Abortion Amendment was specifically invalid for two 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.

Finally, the plaintiffs argued that the amendment about voter ID was confusing and violated state and federal law, including the Pennsylvania and federal Constitutions, because it incorrectly indicated to voters that approving the amendment would raise the minimum voting age in the state to 21 and increase the amount of time that someone had to live in Pennsylvania in order to vote there.

On September 28, 2022, the Republican caucus in the state Senate sought to intervene as defendants in the case. Less than two weeks later, on October 7, the Republican caucus in the state House also sought to intervene as defendants, and the Democratic caucuses in the state Senate and House sought to intervene as plaintiffs. Later that month, on October 26, the court allowed all of the legislative caucuses to intervene.

Oral argument in the case was held on December 14th, 2022. On April 17, 2023, the court dismissed the case as not ripe for review. 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 court held that, because the legislature had not passed the amendments a second time, and voters had not voted on the amendments, the plaintiffs had not suffered any harm. The case is now closed.