ANTI-CHOICE LAWS
Biased Counseling & Mandatory Delay
A woman may not obtain an abortion until at least 24 hours after the attending or referring physician orally informs her of: (1) the probable gestational age of the fetus; (2) the nature of the proposed procedure, including risks and alternatives; and (3) the medical risks of carrying the pregnancy to term.
In addition, at least 24 hours prior to an abortion, the woman must receive from the attending or referring physician, a health-care practitioner, physician's assistant, technician, or social worker a state-mandated lecture that must include: (1) that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care; (2) that the "father" is liable for child support, even if he offered to pay for an abortion; and (3) that she has a right to review state-prepared materials that describe the "unborn child" and list agencies that offer alternatives to abortion.
The state-prepared materials must: (1) describe with pictures the probable anatomical and physiological characteristics of the fetus at two-week gestational increments, including the possibility of survival; (2) provide information about medical assistance benefits for prenatal care, childbirth, and neonatal care; (3) state that a physician who provides abortion services without a woman's "informed" consent may be liable to her for damages in a civil action; (4) state that the "father" is liable for child support, even if he offered to pay for an abortion; (5) state that adoptive parents may legally pay the costs of prenatal care, childbirth, and neonatal care; (6) describe the commonly employed abortion procedures, the medical risks associated with each, the "possible detrimental psychological effects of abortion," and the medical risks of carrying a pregnancy to term; and (7) provide a comprehensive list of public and private agencies and services, including adoption agencies, available to assist the woman through pregnancy, upon childbirth, and while the child is dependent, or include a 24-hour toll-free hotline to obtain such a list.
18 Pa. Cons. Stat. Ann. §§ 3205, 3208 (Enacted 1982; Last Amended 1989).
The U.S. Supreme Court held that this law is constitutional. Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992).
The state-prepared materials include enlarged color photographs of fetuses. Dep't Of Health, Commonwealth Of Pennsylvania, Abortion: Making A Decision (undated).
Counseling Ban/Gag Rule
A project that receives funds to provide support services to women seeking alternatives to abortion, through a women's service programs grant to a nonprofit agency whose primary function is to assist pregnant women seeking alternatives to abortion, may not: (1) refer for abortion; (2) engage in any counseling that is inconsistent with the appropriation; or (3) be physically or financially connected to another entity engaging in such activities. 72 Pa. Cons. Stat. Ann. § 1729-B (Enacted 2006).
Insurance Prohibition for Abortion
Health and disability insurance providers must offer a policy that expressly excludes coverage for abortion not necessary to preserve the woman's life or to terminate pregnancies resulting from rape or incest. 18 Pa. Cons. Stat. Ann. § 3215(e) (Enacted 1982; Last Amended 1988).
Employee health plans funded by the state may not include coverage for abortion unless an independent physician certifies that the abortion is necessary to preserve the woman's life or the pregnancy is the result of rape personally reported by the victim to a law enforcement agency prior to the abortion or incest personally reported by the victim to a law enforcement agency or child protective services prior to the abortion. 18 Pa. Cons. Stat. Ann. §§ 3215(c), (d) (Enacted 1982; Last Amended 1988).
Other Anti-Choice Law
Pennsylvania has created additional threats to privacy and choice by adding anti-choice language to its state code to express its opposition to abortion and its intent to restrict the right to choose.
"In every relevant civil or criminal proceeding in which it is possible to do so without violating the Federal Constitution, the common and statutory law of Pennsylvania shall be construed so as to extend to the unborn the equal protection of the laws and to further the public policy of this commonwealth encouraging childbirth over abortion."
18 Pa. Cons. Stat. Ann. § 3202(c) (Enacted 1982).
Public Facilities Restriction
A woman may not obtain an abortion at a health facility owned or operated by a state entity unless: (1) an independent physician certifies that the procedure is necessary to preserve her life; (2) the pregnancy is the result of rape personally reported by the victim to a law enforcement agency prior to the abortion; or (3) the pregnancy is the result of incest personally reported by the victim to a law enforcement agency or to child protective services prior to the abortion. 18 Pa. Cons. Stat. Ann. §§ 3215(a) - (b) (Enacted 1982); 18 Pa. Cons. Stat. Ann. § 3215(c) (Enacted 1982; Last Amended 1988).
Refusal to Provide Medical Services
ABORTION REFUSAL CLAUSE
Pennsylvania allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Physicians, nurses, staff members, employees of hospitals or other health care facilities, or hospitals.
What does the refusal clause allow? No physician, nurse, staff member, or employee of a hospital or other health care facility, who objects in writing on moral, religious, or professional grounds, may be required to or held liable for refusing to participate or cooperate in abortion.
A person who is discriminated against because of a refusal to aid, abet, or facilitate abortion against his or her conscience may bring a claim for damages including $5000 in punitive damages. No private hospital or other health care facility may be required to or held liable for refusing to perform or permit abortion contrary to a written ethical policy adopted after January 22, 1973 and posted conspicuously for public inspection.
The expressed willingness or refusal of a private facility to perform or permit abortion may not be a basis for discrimination, denial of public funds, or other penalty. This denial clause does not permit a student or an employee to either: (1) refuse to participate in an emergency surgical procedure that involves an inevitable abortion; or (2) refuse to complete participation in a surgical procedure voluntarily undertaken without knowing it would involve an abortion.
No hospital or other health care facility may be required to perform or permit the performance of abortion contrary to its stated ethical policy. The refusal to perform an abortion may not be grounds for liability.
Must the refusal be in writing? Yes.
Does the law require the refusing entity to notify the persons affected? No. However, except for facilities that perform abortions exclusively, each facility that performs abortions must post prominently a notice of the right not to participate for medical personnel.
Are there circumstances under which a refusal clause may not be exercised? Yes. The expressed willingness or refusal of a person to participate or cooperate in abortion may not be a basis for discrimination, disciplinary action, denial of public funds, or other penalty except where:
(1) this expression constitutes an overt, disruptive act, or endangers the health or safety of a patient;
(2) an employer proves that accommodating the person's needs constitutes an undue hardship or that non-objection to abortion is a bona fide occupational qualification; or
(3) the employer is a health care facility operated exclusively for the performance of abortion.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
43 Pa. Cons. Stat. Ann. § 955.2 (Enacted 1973); 18 Pa. Cons. Stat. Ann. § 3213 (Enacted 1982; Last Amended 1988); 16 Pa. Code §§ 51.1 - 51.61 (Enacted 1977).
STERILIZATION REFUSAL CLAUSE
Pennsylvania allows certain individuals or entities to refuse to perform or participate in sterilizing procedures.
To whom does the refusal clause apply? Physicians, nurses, staff members, employees of hospitals or other health care facilities, or hospitals.
What does the refusal clause allow? No physician, nurse, staff member, or employee of a hospital or other health care facility, who objects in writing on moral, religious, or professional grounds, may be required to or held liable for refusing to participate or cooperate in a sterilization.
No private hospital or other health care facility may be required to or held liable for refusing to perform or permit a sterilization contrary to a written ethical policy adopted after January 22, 1973 and posted conspicuously for public inspection.
The expressed willingness or refusal of a private facility to perform or permit a sterilization may not be a basis for discrimination, denial of public funds, or other penalty. This denial clause does not permit a student or an employee to either: (1) refuse to participate in an emergency surgical procedure that involves an inevitable abortion; or (2) refuse to complete participation in a surgical procedure voluntarily undertaken without knowing it would involve an abortion.
No hospital or other health care facility may be required to perform or permit the performance of sterilization contrary to its stated ethical policy. The refusal to perform a sterilization may not be grounds for liability.
Must the refusal be in writing? Yes.
Does the law require the refusing entity to notify the persons affected? Yes. Except for facilities that perform abortions exclusively, each facility that performs abortions must post prominently a notice of the right not to participate.
Are there circumstances under which a refusal clause may not be exercised? Yes. The expressed willingness or refusal of a person to participate or cooperate in abortion may not be a basis for discrimination, disciplinary action, denial of public funds, or other penalty except where:
(1) this expression constitutes an overt, disruptive act, or endangers the health or safety of a patient;
(2) an employer proves that accommodating the person's needs constitutes an undue hardship or that non-objection to abortion is a bona fide occupational qualification; or
(3) the employer is a health care facility operated exclusively for the performance of sterilization.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
43 Pa. Cons. Stat. Ann. § 955.2 (Enacted 1973); 18 Pa. Cons. Stat. Ann. § 3213 (Enacted 1982; Last Amended 1988); 16 Pa. Code §§ 51.1 - 51.61 (Enacted 1977).
Restrictions on Low-Income Women's Access to Abortion
Pennsylvania prohibits public funding for abortion for women eligible for state medical assistance for general health care unless the procedure is necessary to preserve her life or the pregnancy is the result of rape or incest. If the woman has been raped or is the victim of incest, she must personally report the incident to a law enforcement agency or child protective services before the abortion, unless the physician certifies that the woman was unable to report the crime for physical or psychological reasons. Pa. Dep't of Public Welfare, Medical Assistance Bulletin, Clarification of Payment Policy for Abortion Services (Nov. 28, 2006) at http://www.dpw.state.pa.us/PubsFormsReports/NewslettersBulletins/003673169.aspx?BulletinId=1538.
Partially invalid and partially enjoined statutes provide that a woman eligible for state medical assistance may not obtain public funds for an abortion unless a second, independent physician certifies that the procedure is necessary to preserve her life or the pregnancy is the result of a rape personally reported by the victim to a law enforcement agency prior to the abortion or incest personally reported by the victim to a law enforcement agency or to child protective services prior to the abortion. 18 Pa. Cons. Stat. Ann. §§ 3215(c), (j) (Prior Statute Enacted 1974; Current Statute Enacted 1982; Last Amended 1989); 62 Pa. Cons. Stat. Ann. § 453 (Enacted 1980).
A court held that § 3215(c)'s independent physician certification and § 3215(j)'s non-waivable rape and incest reporting requirements conflict with federal law, and has issued an injunction prohibiting their enforcement. Elizabeth Blackwell Health Ctr. for Women v. Knoll, 61 F.3d 170 (3d Cir. 1995), cert. denied, 516 U.S. 1093 (1996).
A court upheld in part and invalidated in part previous versions of § 3215(c) and § 453 that limited funding to cases of life endangerment, or rape or incest reported within 72 hours. The court held that limiting funding to cases of life endangerment, rape, or incest did not violate the Pennsylvania Constitution by denying some medically necessary abortions; however, the court held that the 72-hour reporting requirement for rape and incest was unconstitutional. Fischer v. Dep't. of Pub. Welfare, 482 A.2d 1148 (Pa. Commw. Ct. 1984), aff'd, 502 A.2d 114 (Pa. 1985) (addressing only the limiting of funding for some medically necessary abortions).
Restrictions on Young Women's Access to Abortion
Pennsylvania law restricts young women's access to abortion.
Is the law enforceable? Yes. The United States Supreme Court held that this law is constitutional. Planned Parenthood of S. E. Pa. v. Casey, 505 U.S. 833 (1992).
Who is considered a minor? A young woman under the age of 18 who is not emancipated.
What is required - parental consent or parental notice? Consent.
Who must provide consent? One parent.
Are there other trusted adults who may provide consent instead? Yes, but only if neither parent is available; then any adult person standing in loco parentis is sufficient.
What is the process for obtaining consent? A young woman may not obtain an abortion unless the attending physician secures the "informed" consent of one parent. If the young woman's pregnancy resulted from incest with her father, the mother's consent is sufficient.
May the parental mandate be waived if a young woman is a victim of rape or incest? No.
May the parental mandate be waived if a young woman is a victim of child abuse? No.
May the parental mandate be waived if a young woman's health is threatened? Yes, but only if a medical emergency exists. A medical emergency is defined as a medical condition of the young woman that necessitates an immediate abortion to preserve her life or for which a delay will create "serious risk of substantial and irreversible impairment of major bodily function."
May the parental mandate be waived under any other circumstances? Yes, the young woman may try to obtain permission from a judge.
If a young woman must obtain permission from a judge, what is the process? She must secure a court order stating either that she is mature and capable of giving informed consent or that an abortion is in her best interests.
Are there other significant requirements under the law? No.
Has a court considered the constitutionality of this law? Yes.
The U.S. Supreme Court held that this law is constitutional. Planned Parenthood of S. E. Pa. v. Casey, 505 U.S. 833 (1992).
Other information about the law: None.
18 Pa. Cons. Stat. Ann. §§ 3206 (Enacted 1982; Last Amended 1992), 3203 (Enacted 1982; Last Amended 1989).
Spousal Notice
The U.S. Supreme Court held that Pennsylvania's husband notification requirement for abortion is unconstitutional. Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992). This law provides that a married woman may not obtain an abortion until she has notified her husband unless: he is not the "father" of the fetus; the husband, "after diligent effort, could not be located"; the pregnancy is the result of reported spousal sexual assault; or she has reason to believe that notification would result in the infliction of bodily injury upon her. 18 Pa. Cons. Stat. Ann. § 3209 (Enacted 1989).
Targeted Regulation of Abortion Providers (TRAP)
Pennsylvania imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including:
Restrictions on Where Abortions May Be Performed
Pennsylvania places medically unnecessary restrictions on where abortions may be performed.
Any medical facility - including a private physician's office - in which an abortion is performed must be approved by the state as an abortion facility. 28 Pa. Code § 29.43(a). All abortion facilities must meet additional administrative, professional qualification, patient testing, and physical plant requirements. 28 Pa. Code § 29.33, .38.
Abortion facilities that perform 100 or more abortions per year must pay a fee similar to that of an ambulatory surgical facility. These facilities must meet yet even more administrative requirements. 40 Pa. Cons. Stat. Ann. § 305(c), 315(a)-(c) (Enacted 2002; Last Amended 2006).
All providers must be located within 30 minutes of a hospital that has agreed in writing to "supply emergency services" to the clinic's patients. 28 Pa. Code § 29.33(10). No exception is made for rural areas.
Pennsylvania has a partially unconstitutional requirement that all abortions after the first trimester be performed in a hospital that maintains an "obstetrical service" in compliance with state regulations. 28 Pa. Code § 29.34.
The U.S. Supreme Court held that a second trimester hospitalization requirement unconstitutionally burdens a woman's right to choose an abortion. Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983).
Restrictions on Who May Perform Abortions
Pennsylvania prohibits certain qualified health care professionals from performing abortions.
Only a physician or doctor of osteopathy licensed to practice medicine in the state may perform an abortion. 18 Pa. Cons. Stat. Ann. § 3203 (Enacted 1982; Last Amended 1990); 18 Pa. Cons. Stat. Ann. § 3204 (Enacted 1982; Last Amended 1990).
PRO-CHOICE LAWS
Low-Income Women's Access to Family Planning
Pennsylvania provides increased access to reproductive health care services through a Section 1115 family planning waiver. The waiver allows the state to cover family planning services for all female Pennsylvania residents between the ages of 18 and 44 with incomes at or below 185% of the federal poverty level who are not otherwise eligible for state health care programs and who have no other family planning insurance coverage.
Beneficiaries of family planning coverage available through the waiver are not required to pay premiums or co-payments for covered services. Covered services include: contraceptives (includes FDA-approved over-the-counter drugs, injectables, and implants); voluntary sterilization; office visits, examinations and HIV blood screenings/sexually transmitted infection testing in conjunction with a family planning encounter; and laboratory and radiology procedures associated with a family planning encounter.
The waiver will expire on June 1, 2012.
Pa. Family Planning Demonstration Fact Sheet, Ctrs. for Medicare and Medicaid Servs., May 17, 2007 at http://74.125.45.132/search?q=cache:l076OqY9xQ8J:www.cms.hhs.gov/medicaidstwaivprogdemopgi/mwdl/itemdetail.asp%3FfilterType%3Dnone%26filterByDID%3D0%26sortByDID%3D2%26sortOrder%3Ddescending%26itemID%3DCMS1199308%26intNumPerPage%3D10+family+planning+waiver+pennsylvania&hl=en&ct=clnk&cd=9&gl=us (last visited Nov. 17, 2008); NARAL Pro-Choice America Survey of State Medicaid Offices
OTHER LAWS
Post-Viability Abortion Restriction
Pennsylvania's post-viability abortion restriction provides that no abortion may be performed after the 23rd week of pregnancy unless the attending physician and another physician who has examined the woman concur in writing that the procedure is necessary to preserve the woman's life or to prevent a "substantial and irreversible impairment of a major bodily function." The physician must use the abortion method most likely to result in fetal survival unless in the physician's good faith medical judgment that method poses a significantly greater risk of the woman's death or a "substantial and irreversible impairment of a major bodily function" of the woman than other available methods. A second physician must attend a post-viability abortion. 18 Pa. Cons. Stat. Ann. § 3211 (Enacted 1989).
With respect to a previous version of this law, the U.S. Supreme Court held that the requirement that the physician use the abortion method most likely to result in fetal survival was unconstitutional because it required the woman to bear an increased medical risk in order to save the viable fetus. Thornburgh v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747, 769 (1986).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions so long as they contain adequate exceptions to protect the life and health of the woman. NARAL Pro-Choice America opposes Pennsylvania's post-viability restriction because the health exception is dangerously narrow. NARAL Pro-Choice America also opposes this law because it is unconstitutional to the extent that it prohibits pre-viability abortions by defining viability at 24 weeks. A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside of a woman's body. Roe v. Wade, 410 U.S. 113, 163 (1973). Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age. Colautti v. Franklin, 439 U.S. 379, 388-89 (1979).
