The new Secretary also inherited the four-year-old Allegheny Reproductive case, which by now had been judged at the appellate level and escalated to the State Supreme Court, where it was under review by a bench of four Democrats and Sallie Mundy, the lone Republican. The 2024 Supreme Court decision generated a puzzling volley of concurring and dissenting opinions. Foremost among these, the Democratic majority determined that, because of developments in legal interpretation, Fischer was no longer relevant and should be jettisoned; the Court then remanded the case to the appellate court. In her dissenting opinion, Justice Mundy wrote scathingly of the decision she considered a usurpation of the legislative function:
We decided this issue in Fischer v. Department of Public Welfare, 502 A.2d 114 (Pa. 1985), and ruled unanimously that there is no state constitutional right to public funding for abortions. Notwithstanding our ordinary adherence to precedent, abortion providers (Plaintiffs) now ask this Court to overrule that unanimous decision, presumably because the composition of the Court has changed.
Without implying that any political party has cornered the market on vice, it is abundantly clear that for several decades the creeping poison of abortion rhetoric has been infecting the Democrat Party. Pro-life Governor Casey asked in 1992, “What has become of the Democratic Party I once knew?” One Democrat on the Court, Chief Justice Debra Todd, sided with Mundy in upholding the legitimacy of Fischer, but they were overruled by the three other Democrats—Christine Donohue, David Wecht, and Kevin Dougherty. Before returning the case to the Commonwealth Court, Donohue and Wecht careened far out of their lane by insisting that the Pennsylvania Constitution did, indeed, provide the right to “reproductive autonomy.”
Mundy’s response to this judicial overreach mirrored the objections of William Rehnquist and Byron White, the sole dissenters in Roe v. Wade. Clearly, the Pennsylvania judiciary had not internalized the lessons of history. Fortunately, however, as neither Todd nor Dougherty had joined their colleagues in asserting reproductive autonomy, that part of the ruling could not be held as binding. Judiciary caution had partly prevailed—even though the lower court would not exercise the same degree of prudence.
When Allegheny Reproductive returned to the Commonwealth Court, the abortion providers also found a predictable ally in Valeria Arkoosh. In her official position as Acting Secretary of the DHS, Arkoosh was supposed to be representing the interests of the state, but she promptly joined the plaintiffs in filing a 67-page Joint Statement of Undisputed Facts, smugly signaling her approval of their demand for summary relief from the Coverage Exclusion, as the case filing documents:
The Department wishes to inform the Court, that, after thoroughly reviewing the Supreme Court’s January 29, 2024, decision in this matter, it has concluded that the provisions of the Abortion Control Act challenged by Petitioners violate the Pennsylvania Constitution…The Department has previously argued that the Pennsylvania Constitution protects the fundamental right to reproductive autonomy, which includes the right to abortion, and it stands by that position.
Arkoosh’s abdication left the case without a respondent, spurring Republican Attorney General Dave Sunday to enter the fray in the state’s interests. Sunday, who had assumed office at the same time as Governor Shapiro, was a Harrisburg native who had spent his twenties serving in the Navy and working at UPS to put himself through law school. He had run for Attorney General on a “law and order” platform, shying away from identification as a pro-life politician—not an atypical move after the backlash from the 2022 Dobbs ruling.
Nevertheless, the Attorney General professed himself as dedicated to upholding the law, and it was his intention to advance unanswerable arguments for the Medicaid Coverage Exclusion, a tall order now that Fischer had been set aside. In remanding the case to Commonwealth Court, the Supreme Court had directed them to apply strict scrutiny, a standard far more favorable to the abortion providers, rather than the rational basis review which had anchored the Fischer decision.
Sunday accordingly filed a brief on behalf of the Commonwealth, alleging disputed facts between the parties which should be submitted for trial. First, he opined, fetal heartbeat proves that the fetus destined for abortion is alive. Second, the state has the duty to protect the health of women from the harm of abortion, including potential psychological harm. Finally, the state must honor the conscience rights of those who do not wish their tax dollars to kill unborn babies. None of these points was earth-shaking; all of them would be logical to a reasonable person open to debate. However, the Commonwealth Court Majority were simply not playing.
Four judges (two men and two women, one of them a Republican) dismissed all three of these arguments, saying that it was not necessary to bring them to trial. Judge Matthew Wolf, who wrote the majority opinion, noted that providers “do not dispute that a fetus is a form of potential life [my emphasis],” demonstrating a callous disregard for the life of the unborn. The Majority also concluded that “the Commonwealth’s interest in ‘protecting a competent adult from feeling regret for her free choices’ is paternalistic and uncompelling.”
Judge Patricia McCullough, who joined Republicans Anne E. Covey and Stacy Wallace in opposing the Allegheny Reproductive ruling, authored a blistering dissent. The Majority’s embrace of “reproductive autonomy,” she observed, with classic irony:
includes the “right to self-determination,” the right to “make important reproductive healthcare decisions,” a “gender-neutral right to make decisions without government intrusion [except payment] into those private matters that play a defining role in the course of a lifetime,” and a right “to be left alone [except payment] to pursue happiness and enjoy liberty.”
Judge Wolf dismissed the Attorney General’s third objection, on the grounds of conscience, in an equally disingenuous matter:
On the third interest—protecting taxpayers’ conscience rights—it is not clear what the Attorney General means by ‘conscience.’ If the interest is in favoring one group of taxpayers’ religious beliefs by making tax expenditures that favor those beliefs over other citizens’ contrary beliefs of conscience, that does not seem like a legitimate state interest.
Wolf’s treatment of conscience calls to mind the observations of George Cardinal Pell. In this 2005 article for First Things The Inconvenient Conscience – First Things, the Cardinal prophetically exposes the folly in the modern trend of equating conscience with “doing whatever’s best for me.” While teaching a basic morality class to a group of student nurses, he discovered that many of them balked at acknowledging the existence of any objective moral standard. His attempt to demonstrate the flaws in their reasoning yielded an intriguing result:
I used to ask them whether the British authorities in India were justified in banning the practice of suttee, where a widow was immolated on the funeral pyre of her husband. None of the nurses had any enthusiasm for the practice, but what was extraordinary was the variety of arguments they used to explain their objections—all desperate, convoluted attempts to dodge the general idea of moral truth, to avoid saying that suttee was simply wrong.
Where nurses go, judges can follow. The well-tended moral landscape that unified the Fischer Court in 1985 has, forty-four years later, become weedy and overgrown, inviting habitation by the demonic. With chilling accuracy, Cardinal Pell puts his finger on the real objective of Allegheny Reproductive—not liberty, but license:
Why do people strain to accommodate absolute sexual freedom as a matter of conscience? Why does no one plead for the right to racism or sexism as a matter of conscience? Could it be because the liberal concept of conscience has been specially formulated in order to facilitate the sexual indiscipline that our culture upholds?
Without doubt, this mess is not the blessing of being left alone to work out one’s life that William Penn envisioned, when he began his “Holy Experiment” in brotherly love and religious tolerance in the new colony of “Penn’s Woods.” In a little book of maxims called Fruits of Solitude, the founder of our fair state said:
We understand little of the Works of God, either in Nature or Grace. We pursue False Knowledge, and Mistake Education extreamly. We are Violent in our Affections, Confused and Immethodical in our whole Life; making That a Burthen, which was given for a Blessing.
Penn valued freedom, certainly. Nevertheless, he clearly realized something that most of American society has forgotten—freedom without reference to our Creator does not enrich us; rather, it becomes a source of self-destruction:
‘Tis very observable, if our Civil Rights are invaded or incroach’d upon, we are mightily touched, and fill every Place with our Resentment and Complaint; while we suffer ourselves, our Better and Nobler Selves, to be the Property and Vassals of Sin, the worst of Invaders. In vain do we expect to be delivered from such Troubles, till we are delivered from the Cause of them, our Disobedience to God.
Meanwhile, in Pennsylvania, chaos continues its reign. The court of public opinion, zealously abetted in the wake of the Dobbs decision by mainstream horror stories of women who lost their lives to the privations of “forced birth,” has already recast even measured restrictions to abortion as the heartless tyranny of old, white, rich men in Congress. Abortion activists like Governor Josh Shapiro and Dr. Valerie Arkoosh ride the wave of Allegheny, which would be likely to prevail at the Supreme Court level, based on the current makeup of judges. State House Democrats brandish the “personal reproductive liberty amendment,” which is required by law to be advertised in each county—at an estimated cost of between $600,000 and a million dollars to the Commonwealth. At the same time, the priests in our pulpits (or at least most of them) maintain silence about the disaster of April 20th, as we continue the long, lingering slide toward absolute sexual license.
“Hearts,” some may object, “are not changed by legislation.” That maxim is generally true. Fighting abortion at the ballot box cannot take the place of prayer, of outreach to women in crisis, or of educating young people about God’s plan for holy sexuality. However, as long as pro-abortion radicals choose the path of political agitation as the way to “pursue their happiness,” faithful Catholics must pay attention. We close our eyes at our peril.
