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

This is a case about reproductive rights in Pennsylvania. This lawsuit was filed on September 23, 2022, in the Commonwealth Court of Pennsylvania, which is an intermediate appeals court with original jurisdiction over the case. The Governor of Pennsylvania, Tom Wolf, and the Acting Secretary of the Commonwealth, Leigh M. Chapman, sued Pennsylvania’s legislature, the General Assembly. The plaintiffs, represented by a private law firm, 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 infringe upon rights that the state Constitution does not allow to be eliminated by amendment.

The plaintiffs initially filed this case in the Pennsylvania Supreme Court in July 2022, as Wolf v. General Assembly. However, in September of the same year the Pennsylvania Supreme Court decided not to accept original jurisdiction over the case, and the plaintiffs filed in the Commonwealth Court instead.

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 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 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, 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 enacts multiple constitutional changes because it overrides 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 affect the separation of powers, the amendment about voter identification would infringe on 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.

Additionally, the plaintiffs argued that the amendment denying abortion rights 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 US 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. As of January 2023, the case was ongoing.