Pennsylvania State Capitol building in Harrisburg. Photo: Shutterstock

Several Pennsylvania legislators have the right to intervene in a challenge to a state law that bars tax dollars from being used to fund groups that provide abortion services, the Commonwealth Court has ruled.

A unanimous three-judge panel of the intermediate appeals court determined that 18 state senators and eight representatives can intervene in the case, Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, which was brought by several Planned Parenthood chapters and health centers across the state. The decision comes after the Commonwealth Court agreed to reconsider the issue with a three-judge panel after a single Commonwealth Court judge initially denied the legislator's efforts to intervene.

Big Law firms in Pennsylvania are present on both sides of the dispute.

The senators, including Senate President Pro Tempore Joe Scarnati, R-Jefferson, are being represented by attorneys from Blank Rome. The Camp Hill, Pennsylvania-based firm Ball, Murren & Connell is representing the House members.

On the other side, Pepper Hamilton and the Women's Law Project are representing the plaintiffs.

According to President Judge Mary Hannah Leavitt, who wrote the court's unanimous opinion, the legislators had a legally recognized interest in the case since the challenge deals with their ability to allocate state funds.

"Proposed intervenors seek to preserve their authority to propose and vote on funding legislation in the future," Leavitt said. "The constitutional authority of the members of the General Assembly to control the commonwealth's finances constitutes a legally enforceable interest that entitles them to intervene and be heard before the court rules in this matter."

Judges Michael Wojcik and Bonnie Brigance Leadbetter joined Leavitt's decision.

According to Leavitt, the plaintiffs filed a complaint seeking an injunction against the Department of Human Services, alleging that Pennsylvania's Abortion Control Act violates the Equal Rights Amendment of the state constitution. The law bars the state from spending public money on abortion services unless they would avert death, or the pregnancy was the result of rape or incest. As a result, DHS regulations bar the state's Medical Assistance program, which provides heath insurance coverage for low-income people, from providing coverage for abortions except in those three circumstances.

The plaintiffs, according to Leavitt, contended they provide about 95% of abortion services in the state, and also provide care to women enrolled in Medical Assistance. Since the Abortion Control Act, which was enacted in 1982, results in the denial of coverage for a procedure that can only be used by women, the plaintiffs contended it violated the state constitution.

The state legislators sought to intervene in the case in April, arguing they had an interest in the case and could have been named as a defendant in the original action, but in June Commonwealth Court Judge Robert Simpson denied the motion, finding that the legislators were not "aggrieved."

On reargument, lawmakers contended that they had a legally enforceable interest in the case, since a ruling could narrow their legislative powers, particularly regarding appropriations.

Although the plaintiffs' countered those arguments citing case law and saying that they did not intend to expand restrictions on the power of the legislature, Leavitt said the case, unlike the case law that was cited, dealt directly with the legislators' power to appropriate funds.

"[The intervenors] argue that the object of this litigation is to change the substance and manner by which the General Assembly can appropriate funds in the future for the Medical Assistance program," Leavitt said. "We agree."

In an emailed statement, Susan Frietsche of the Women's Law Project said the decision was "purely procedural."

"By deciding that individual legislators can participate as parties, this case is now out of the holding pattern it has been in since last summer, and we can proceed to the litigation of the merits of our clients' claims," she said.

An attorney with Ball Murren referred comment to a spokesman for House Majority Leader Bryan Cutler, R-Lancaster, who said the House members agreed with the court's ruling.

"We obviously agree that the court recognized the authority of the General Assembly to appropriate tax dollars," spokesman Mike Straub said. "With no one else sufficiently representing that interest, we appreciate the court giving us the opportunity to offer an opinion from that standing."

Neither Jan Levine of Pepper Hamilton, nor Blank Rome's Brian Paszamant returned a call seeking comment.