IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Allegheny Reproductive Health Center, :
Allentown Women’s Center, Berger & :
Benjamin LLP, Delaware County Women’s :
Center, Philadelphia Women’s Center, :
Planned Parenthood Keystone, Planned :
Parenthood Southeastern Pennsylvania, and :
Planned Parenthood of Western Pennsylvania, :
Petitioners :
:
v. : No. 26 M.D. 2019
: Argued: October 4, 2019
Pennsylvania Department of Human Services, :
Teresa Miller, in her official capacity as :
Secretary of the Pennsylvania Department of :
Human Services, Leesa Allen, in her official :
capacity as Executive Deputy Secretary for the :
Pennsylvania Department of Human Service’s :
Office of Medical Assistance Programs, and Sally :
Kozak, in her official capacity as Deputy Secretary :
for the Pennsylvania Department of Human :
Service’s Office of Medical Assistance Programs, :
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: January 28, 2020
Before this Court are two applications for leave to intervene. The first
was filed by 18 members of the Pennsylvania State Senate1 (Proposed Senate
1
The Senate members’ application was filed by President Pro Tempore Senator Joseph B. Scarnati,
III, Majority Leader Senator Jacob Corman, and Senators Ryan Aument, Michele Brooks, John
DiSanto, Michael Folmer, John Gordner, Scott Hutchinson, Wayne Langerholc, Daniel Laughlin,
Scott Martin, Robert Mensch, Michael Regan, Mario Scavello, Patrick Stefano, Judy Ward, Kim
Ward, and Eugene Yaw. Folmer filed a Praecipe to Withdraw as a Proposed Senate Intervenor on
September 19, 2019.
Intervenors) and the second was filed by eight members of the Pennsylvania House
of Representatives2 (Proposed House Intervenors) (collectively, Proposed
Intervenors). On June 21, 2019, the Court denied both applications to intervene in
Allegheny Reproductive Health Center v. Pennsylvania Department of Human
Services (Pa. Cmwlth., No. 26 M.D. 2019, filed June 21, 2019) (single judge opinion
by Judge Robert Simpson) (Allegheny I). Proposed Intervenors requested
reargument, which this Court granted on July 22, 2019. Thereafter, the Court heard
argument on whether Proposed Intervenors are entitled to intervene under
Pennsylvania Rule of Civil Procedure No. 2327(3) and (4). Concluding that they
have established grounds for intervention under Rule No. 2327(4), we grant the
applications to intervene.
Background
On January 16, 2019, Allegheny Reproductive Health Center,
Allentown Women’s Center, Berger & Benjamin LLP, Delaware County Women’s
Center, Philadelphia Women’s Center, Planned Parenthood Keystone, Planned
Parenthood Southeastern Pennsylvania, and Planned Parenthood of Western
Pennsylvania (collectively, Reproductive Health Centers) filed a petition for review
in the nature of a complaint seeking declaratory and injunctive relief against the
Pennsylvania Department of Human Services; Teresa Miller, Secretary of Human
Services; Leesa Allen, Executive Deputy Secretary for Medical Assistance
Programs; and Sally Kozak, Deputy Secretary for the Office of Medical Assistance
Programs (collectively, Department).
2
The House members’ application was filed by Speaker Mike Turzai, House Majority Leader
Bryan D. Cutler, Chairman of the House Appropriations Committee Stan E. Saylor, House
Majority Whip Kerry A. Benninghoff, House Majority Caucus Chair Marcy Toepel, House
Majority Caucus Secretary Michael Reese, House Majority Caucus Administrator Kurt A. Masser,
and House Majority Policy Committee Chair Donna Oberlander.
2
In their petition for review, Reproductive Health Centers allege that
they provide approximately 95 percent of the abortion services performed in the
Commonwealth. Their patients include women enrolled in Medical Assistance,3
which provides health insurance coverage to low-income persons. Medical
Assistance coverage includes family planning and pregnancy-related care, such as
prenatal care, obstetrics, childbirth, neonatal and post-partum care. However,
Pennsylvania’s Abortion Control Act4 prohibits the expenditure of appropriated state
and federal funds for abortion services unless (1) necessary to avert the death of the
pregnant woman; (2) the pregnancy resulted from rape; or (3) the pregnancy resulted
from incest. 18 Pa. C.S. §3215(c). Regulations promulgated by the Department
prohibit Medical Assistance coverage for abortions except in these three
circumstances. See 55 Pa. Code §§1141.57, 1163.62 and 1221.57.
The petition of Reproductive Health Centers contains two counts.
Count I asserts that the Abortion Control Act and the Department’s regulations,
known as the “coverage ban,” violate Pennsylvania’s Equal Rights Amendment5
because they deny coverage of a medical procedure that can be used only by women.
Count II asserts that the coverage ban violates several other provisions of the
Pennsylvania Constitution, i.e., Article I, Sections 1 and 26 and Article III, Section
32,6 that establish the guarantee of equal protection of the laws. Reproductive Health
3
Medical Assistance “is a joint federal and state program, and must be administered consistent
with both federal and state law.” Eastwood Nursing and Rehabilitation Center v. Department of
Public Welfare, 910 A.2d 134, 136 (Pa. Cmwlth. 2006) (internal footnote and emphasis omitted).
4
18 Pa. C.S. §§3201-3220.
5
It states:
Equality of rights under the law shall not be denied or abridged in the
Commonwealth of Pennsylvania because of the sex of the individual.
PA. CONST. art. I, §28.
6
Article I, Section 1 states:
3
Centers contend that the coverage ban restricts indigent women in the exercise of
their right to terminate a pregnancy and thereby violates the Pennsylvania
Constitution.
Reproductive Health Centers request this Court to declare 18 Pa. C.S.
§3215(c) and (j) and the related regulations unconstitutional and to enjoin their
enforcement.7 In Fischer v. Department of Public Welfare, 502 A.2d 114, 116 (Pa.
All men are born equally free and independent, and have certain inherent and
indefeasible rights, among which are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting property and reputation, and of
pursuing their own happiness.
PA. CONST. art. I, §1. Section 26 states:
Neither the Commonwealth nor any political subdivision thereof shall deny to any
person the enjoyment of any civil right, nor discriminate against any person in the
exercise of any civil right.
PA. CONST. art. I, §26. Article III, Section 32 states, in relevant part, as follows:
The General Assembly shall pass no local or special law in any case which has been
or can be provided for by general law and specifically the General Assembly shall
not pass any local or special law….
PA. CONST. art. III, §32.
7
Section 3215(c) of the Abortion Control Act states:
(c) Public funds.--No Commonwealth funds and no Federal funds which are
appropriated by the Commonwealth shall be expended by any State or local
government agency for the performance of abortion, except:
(1) When abortion is necessary to avert the death of the mother on
certification by a physician. When such physician will perform the
abortion or has a pecuniary or proprietary interest in the abortion
there shall be a separate certification from a physician who has no
such interest.
(2) When abortion is performed in the case of pregnancy caused
by rape which, prior to the performance of the abortion, has been
reported, together with the identity of the offender, if known, to a
law enforcement agency having the requisite jurisdiction and has
been personally reported by the victim.
(3) When abortion is performed in the case of pregnancy caused
by incest which, prior to the performance of the abortion, has been
4
1985), our Supreme Court considered a 1985 constitutional challenge to the
Abortion Control Act and rejected the claim that the case even concerned “the right
personally reported by the victim to a law enforcement agency
having the requisite jurisdiction, or, in the case of a minor, to the
county child protective service agency and the other party to the
incestuous act has been named in such report.
18 Pa. C.S. §3215(c). Section 3215(j) states:
(j) Required statements.--No Commonwealth agency shall make any payment
from Federal or State funds appropriated by the Commonwealth for the
performance of any abortion pursuant to subsection (c)(2) or (3) unless the
Commonwealth agency first:
(1) receives from the physician or facility seeking payment a
statement signed by the physician performing the abortion stating
that, prior to performing the abortion, he obtained a non-notarized,
signed statement from the pregnant woman stating that she was a
victim of rape or incest, as the case may be, and that she reported
the crime, including the identity of the offender, if known, to a law
enforcement agency having the requisite jurisdiction or, in the case
of incest where a pregnant minor is the victim, to the county child
protective service agency and stating the name of the law
enforcement agency or child protective service agency to which the
report was made and the date such report was made;
(2) receives from the physician or facility seeking payment, the
signed statement of the pregnant woman which is described in
paragraph (1). The statement shall bear the notice that any false
statements made therein are punishable by law and shall state that
the pregnant woman is aware that false reports to law enforcement
authorities are punishable by law; and
(3) verifies with the law enforcement agency or child protective
service agency named in the statement of the pregnant woman
whether a report of rape or incest was filed with the agency in
accordance with the statement.
The Commonwealth agency shall report any evidence of false statements, of false
reports to law enforcement authorities or of fraud in the procurement or attempted
procurement of any payment from Federal or State funds appropriated by the
Commonwealth pursuant to this section to the district attorney of appropriate
jurisdiction and, where appropriate, to the Attorney General.
18 Pa. C.S. §3215(j).
5
to an abortion.” It held that the funding restrictions in the Abortion Control Act did
not offend Pennsylvania’s Equal Rights Amendment or Article I, Sections 1 and 26
and Article III, Section 32 of the Pennsylvania Constitution. Reproductive Health
Centers argue that Fischer was incorrectly decided; conflicts with recent
developments in Pennsylvania law; and is inconsistent with the modern-day
understanding that any restriction on a woman’s reproductive autonomy is a form of
sex discrimination. They further seek a declaration that abortion is a fundamental
right under the Pennsylvania Constitution.
Allegheny I Ruling
On April 17, 2019, Proposed Intervenors filed their respective
applications for leave to intervene.8 On May 21, 2019, the Court held a hearing and
heard oral argument. No evidence was proffered.
Proposed Intervenors asserted that they qualified for intervention under
the Pennsylvania Rules of Civil Procedure. Specifically, they invoked Rule No.
2327(3), which authorizes intervention for persons that could have been named in
the original action, and Rule No. 2327(4), which authorizes intervention for persons
with a legally enforceable interest at issue. Reproductive Health Centers opposed
their intervention, arguing that the Proposed Intervenors lacked standing to defend
the constitutionality of a statute that was enacted in 1982.
8
On April 16, 2019, the Department filed preliminary objections in the nature of a demurrer to the
petition for review filed by Reproductive Health Centers, asserting Fischer v. Department of
Public Welfare, 502 A.2d 114 (Pa. 1985), established that Section 3215(c) and (j) of the Abortion
Control Act is constitutional. The Department also asserts Reproductive Health Centers lack
standing because they cannot sue on behalf of their patients. On April 17, 2019, Proposed House
Intervenors also filed preliminary objections in the nature of a demurrer to the petition for review.
On July 31, 2019, this Court suspended the briefing schedule on the preliminary objections until
disposition of the applications for leave to intervene.
6
This Court denied intervention, reasoning, inter alia, that a putative
intervenor must establish that he is “aggrieved,” which requires “a substantial, direct
and immediate interest in the outcome of the litigation” in order to be deemed to
have standing. Allegheny I, slip op. at 14 (quoting In re Hickson, 821 A.2d 1238,
1243 (Pa. 2003)). The Court concluded that Proposed Intervenors were not
aggrieved, noting that the “last iteration of the coverage ban was voted on and went
into effect in 1989….” Id. at 15. At that point, the interest of Proposed Intervenors
ended. The Court dismissed the argument of Proposed Intervenors that the outcome
of this litigation will limit their legislative power to appropriate funds as “tenuous.”
Id. at 16.
On July 22, 2019, this Court granted reargument to consider the
challenge of Proposed Intervenors to the decision in Allegheny I.
Reargument Issues
Proposed Intervenors challenge this Court’s denial of intervention on
three grounds. First, they argue that the Court erred in holding that Proposed
Intervenors had to establish the level of standing that is needed by a plaintiff to
initiate a legal action. Second, they argue that the Court erred in holding that
Proposed Intervenors could not have been named as parties in the action, a basis for
intervention under Rule No. 2327(3). Third, they argue that the Court erred in
holding they did not establish a legally enforceable interest in preserving the scope
of their power to legislate, a basis for intervention under Rule No. 2327(4).
However, Proposed Intervenors agree with this Court’s holding with respect to Rule
No. 2329, i.e., that the Proposed Intervenors’ interest in this litigation was not
adequately represented by the Department.
7
Pennsylvania Law on Intervention
Intervention is governed by the Pennsylvania Rules of Civil Procedure. Rule
No. 2327 states as follows:
At any time during the pendency of an action, a person not a party
thereto shall be permitted to intervene therein, subject to these
rules if
(1) the entry of a judgment in such action or the satisfaction of
such judgment will impose any liability upon such person to
indemnify in whole or in part the party against whom judgment
may be entered; or
(2) such person is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the
court or of an officer thereof; or
(3) such person could have been named as an original party in
the action or could have been joined therein; or
(4) the determination of such action may affect any legally
enforceable interest of such person whether or not such person
may be bound by a judgment in the action.
PA. R.C.P. No. 2327. The corollary rule on intervention is found at Rule No. 2329,
which sets forth the reasons for denying intervention. It states as follows:
Upon the filing of the petition and after hearing, of which due
notice shall be given to all parties, the court, if the allegations of
the petition have been established and are found to be sufficient,
shall enter an order allowing intervention; but an application for
intervention may be refused, if
(1) the claim or defense of the petitioner is not in
subordination to and in recognition of the propriety
of the action; or
(2) the interest of the petitioner is already
adequately represented; or
8
(3) the petitioner has unduly delayed in making
application for intervention or the intervention will
unduly delay, embarrass or prejudice the trial or the
adjudication of the rights of the parties.
PA. R.C.P. No. 2329.
This Court has held that a grant of intervention is mandatory where the
intervenor satisfies one of the four bases set forth in Rule No. 2327 unless there
exists a basis for refusal under Rule No. 2329. We reasoned as follows:
Considering Rules 2327 and 2329 together, the effect of Rule
2329 is that if the petitioner is a person within one of the classes
described in Rule 2327, the allowance of intervention is
mandatory, not discretionary, unless one of the grounds for
refusal under Rule 2329 is present. Equally, if the petitioner does
not show himself to be within one of the four classes described
in Rule 2327, intervention must be denied, irrespective of
whether any of the grounds for refusal in Rule 2329 exist. Thus,
the court is given the discretion to allow or to refuse intervention
only where the petitioner falls within one of the classes
enumerated in Rule 2327 and only where one of the grounds
under Rule 2329 is present which authorizes the refusal of
intervention.
Larock v. Sugarloaf Township Zoning Hearing Board, 740 A.2d 308, 313 (Pa.
Cmwlth. 1999) (internal citations omitted and emphasis added).
Proposed Intervenors argue that they are “such” persons identified as
appropriate intervenors in Rule No. 2327(3) and (4) and, further, there exist no
grounds for refusal of intervention under Rule No. 2329. Thus, they contend that
the grant of their applications for leave to intervene was mandatory and that this
Court erred in otherwise holding in Allegheny I.
9
I.
We begin with Pennsylvania Rule of Civil Procedure No. 2327(4)
which permits intervention where the determination “may affect any legally
enforceable interest” of a proposed intervenor. PA. R.C.P. No. 2327(4) (emphasis
added). Proposed Intervenors assert that the litigation initiated by Reproductive
Health Centers will certainly affect their power to legislate, i.e., a “legally
enforceable interest,” particularly in the area of appropriating funds. Indeed, the
petition for review rests expressly on Article III, Section 32 of the Pennsylvania
Constitution, which is part of Chapter E, entitled “Restrictions on Legislative
Power.” See Petition for Review, ¶94 at 29. Proposed Intervenors argue that this
litigation, if successful, will enlarge the restrictions on legislative power that are
specified in Article III, Section 32 and create new restrictions.
There is a difference between personal standing and legislative
standing, which difference this Court addressed in Sunoco Pipeline L.P. v.
Dinniman, 217 A.3d 1283 (Pa. Cmwlth. 2019). Therein, we explained that personal
standing requires a party to have a direct, immediate, and substantial interest in order
to initiate litigation. See William Penn Parking Garage, Inc. v. City of Pittsburgh,
346 A.2d 269, 280 (Pa. 1975). Nevertheless, a legislator that lacks personal standing
may be able to initiate litigation in his legislative capacity, where the legislator can
demonstrate an injury to his ability “to act as a legislator.” Sunoco Pipeline, 217
A.3d at 1291.
Legislative standing was first addressed by this Court in Wilt v. Beal,
363 A.2d 876 (Pa. Cmwlth. 1976). There, State Representative Wilt sought to enjoin
the Secretary of Public Welfare from using a newly constructed geriatric center as a
mental healthcare facility; his standing as a legislator to initiate the action was
10
challenged. This Court summarized the relevant principles of legislative standing
as follows:
[L]egislators … are granted standing to challenge executive
actions when specific powers unique to their functions under the
Constitution are diminished or interfered with. Once, however,
votes which they are entitled to make have been cast and duly
counted, their interest as legislators ceases. Some other nexus
must then be found to challenge the allegedly unlawful action.
We find this distinction to be sound for it is clear that certain
additional duties are placed upon members of the legislative
branch which find no counterpart in the duties placed upon the
citizens the legislators represent.
Id. at 881 (internal footnote omitted). Legislators have duties not shared with
citizens, but enforcement of existing statutory law is not a special concern of
legislators.
In Fumo v. City of Philadelphia, 972 A.2d 487 (Pa. 2009), state
legislators challenged the City’s issuance of a license for the construction of a casino
upon submerged lands in the Delaware River. They asserted that the City’s action
had usurped their legislative authority to regulate riverbeds, a prerogative belonging
solely to the General Assembly. The Supreme Court agreed, explaining as follows:
Legislators and council members have been permitted to bring
actions based upon their special status where there was a
discernible and palpable infringement on their authority as
legislators. The standing of a legislator or council member to
bring a legal challenge has been recognized in limited instances
in order to permit the legislator to seek redress for an injury the
legislator or council member claims to have suffered in his
official capacity, rather than as a private citizen. Legislative
standing has been recognized in the context of actions brought to
protect a legislator’s right to vote on legislation or a council
member’s viable authority to approve municipal action.
Legislative standing also has been recognized in actions alleging
11
a diminution or deprivation of the legislator’s or council
member’s power or authority. At the same time, however,
legislative standing has not been recognized in actions seeking
redress for a general grievance about the correctness of
governmental conduct.
Id. at 501. Because the City had invaded the legislature’s exclusive authority to
regulate riverbeds, the Supreme Court concluded that the legislators had legislative
standing to challenge the City’s action.9
More recently, our Supreme Court addressed legislative standing in
Markham v. Wolf, 136 A.3d 134 (Pa. 2016). In that case, state legislators sought to
intervene in a civil action challenging an executive order that authorized home
healthcare workers to organize. The Supreme Court listed the requirements of
legislative standing as follows:
Standing exists only when a legislator’s direct and substantial
interest in his or her ability to participate in the voting process is
negatively impacted, see Wilt, or when he or she has suffered a
concrete impairment or deprivation of an official power or
authority to act as a legislator, see Fumo (finding standing due to
alleged usurpation of legislators’ authority to vote on licensing).
Id. at 145. Conversely, a legislator lacks standing
where he or she has an indirect and less substantial interest in
conduct outside the legislative forum which is unrelated to the
voting or approval process, and akin to a general grievance about
the correctness of governmental conduct, resulting in the
standing requirement being unsatisfied.
9
The legislators did not have standing to challenge the manner in which the license was issued
because that claim did not “demonstrate any interference with or diminution in the state legislators’
authority as members of the General Assembly[.]” Fumo, 972 A.2d at 502.
12
Id. The Supreme Court concluded that the legislators did not demonstrate that the
executive order impacted their “ability to propose, vote on or enact legislation.” Id.
Indeed, they were free to enact legislation that would overrule the executive order.
In short, the legislators lacked the legally cognizable interest required for
intervention.
Proposed Intervenors assert that Markham is distinguishable and did
not hold that legislators had to meet the standards of William Penn Parking, 346
A.2d 269, merely to intervene in existing litigation. Rather, they argue that the
standards for intervention are governed by the rules of procedure that govern a
tribunal’s proceedings. In Sunoco Pipeline, 217 A.3d at 1288, this Court
acknowledged this point. We noted that the standard for intervention in a proceeding
before the Public Utility Commission is easily satisfied. See 52 Pa. Code §5.72(a)(3)
(Public Utility Commission regulation permitting intervention where it “may be in
the public interest”). Thus, it does not follow that because a legislator was permitted
to intervene in a Commission proceeding that he has standing to initiate a proceeding
before the Commission. Simply, the test for standing to initiate litigation is not co-
terminus with the test for intervention in existing litigation.
Nevertheless, the principles of legislative standing are relevant to a
determination of whether a putative intervenor has demonstrated a “legally
enforceable interest” for purposes of Rule No. 2327(4). Here, Proposed Intervenors
argue that the outcome sought by Reproductive Health Centers could narrow their
ability to exercise “legislative power,” particularly in the matter of appropriation.
Under Article III, Section 24 of the Pennsylvania Constitution, state government
cannot expend funds “except on appropriations made by law” by the General
13
Assembly. PA. CONST. art. III, §24.10 The ruling sought by Reproductive Health
Centers will directly limit the General Assembly’s exclusive authority to appropriate
moneys from the treasury, a principle long recognized by our Supreme Court.
Accordingly, in Shapp v. Sloan, 391 A.2d 595 (Pa. 1978), the Supreme Court held
that executive branch agencies cannot spend moneys obtained by federal grants
unless and until those funds are appropriated by the legislature. Proposed
Intervenors argue that because the instant litigation “may affect” their power to
appropriate funds, they are entitled to intervene under Rule No. 2327(4).
Reproductive Health Centers deny that they seek to expand the
restrictions on legislative power set forth in Article III, noting that this petition for
review only cites Article III, Section 32 because it is part of the construct of equal
protection in the Pennsylvania Constitution. They also argue that legislators have
no interest in the enforcement of the Abortion Control Act and, in support, invoke
Robinson Township v. Commonwealth, 84 A.3d 1054, 1055 (Pa. 2014). In that case,
legislators were denied intervention in a constitutional challenge to “Act 13” of the
Oil and Gas Act.11 The legislators wanted to offer “their perspective on the
correctness of governmental conduct, i.e., that the General Assembly did not violate
the substantive and procedural strictures of the Pennsylvania Constitution in
enacting Act 13.” Id. at 1055. The Supreme Court rejected this proffer because it
10
Article III, Section 24 states:
No money shall be paid out of the treasury, except on appropriations made by law
and on warrant issued by the proper officers; but cash refunds of taxes, licenses,
fees and other charges paid or collected, but not legally due, may be paid, as
provided by law, without appropriation from the fund into which they were paid on
warrant of the proper officer.
PA. CONST. art. III, §24.
11
Act 13 is codified at 58 Pa. C.S. §§2301-3504.
14
did not relate to a “defense of the potency of their right to vote,” and legislators do
not have the right to offer “their perspective on the correctness of their conduct.” Id.
What distinguishes this case from Markham or Robinson Township is
that the instant litigation relates directly to the legislative power to appropriate. To
be sure, this Court dismissed this argument as “tenuous at best” in Allegheny I. See
Allehgheny I, slip op. at 16. Proposed Intervenors challenge this dismissive
statement as conclusory and unfounded. They 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. We agree.
Article III of the Pennsylvania Constitution is entirely dedicated to the
subject of “legislation.” It imposes standards for the form and consideration of bills
and their passage and contains numerous provisions that relate directly to
appropriations. See, e.g., Article III, Section 3 (Form of Bills), Section 11
(Appropriation Bills),12 and Section 24 (Paying Out Public Moneys). PA. CONST. art.
III, §§3, 11, 24. A general appropriation act often contains language that is
conditional or incidental to the subject of appropriation. See, e.g., Commonwealth
ex rel. Greene v. Gregg, 29 A. 297, 298 (Pa. 1894) (holding that designating funds
for Supreme Court prothonotary was permissible incidental language in a general
appropriation act). Opinions of the Pennsylvania Attorney General have repeatedly
approved the use of incidental language in a general appropriations act. See, e.g.,
Op. Atty. Gen. No. 59 (1958), and Op. Atty. Gen. No. 12 (1957). Indeed, the use of
12
It states:
The general appropriation bill shall embrace nothing but appropriations for the
executive, legislative and judicial departments of the Commonwealth, for the public
debt and for public schools. All other appropriations shall be made on separate bills,
each embracing but one subject.
PA. CONST. art. III, §11.
15
conditional language in a general appropriation act enjoys wide currency in many
states. As the Michigan Supreme Court has explained,
The tieing of legislative strings to appropriation of state funds for
governmental purposes has never been considered as adding a
second object to an appropriation law[.]
Lewis v. State, 90 N.W.2d 856, 860 (Mich. 1958) (quoting an opinion of the
Michigan Attorney General).
The Abortion Control Act is part of the Crimes Code. If Reproductive
Health Centers are successful in their litigation, the challenged provisions will be
rendered null and void. However, the constitutional principle Reproductive Health
Centers seek to establish will extend beyond the statute and the Department’s
regulations. It could bar the General Assembly from “tieing legislative strings” to
its appropriation of funds for the Medical Assistance program. Reproductive Health
Centers freely acknowledge this point. They believe that if they succeed in this
litigation, the general appropriation act could not, for example, condition funding of
Medical Assistance to coverage of only those reproductive health services that will
ensure a full-term pregnancy. Similarly, the general appropriation act could not tie
Medical Assistance funding for abortion services to the availability of federal
funds.13
Reproductive Health Centers seek to restrict the substance and form of
appropriation bills. They seek to eliminate the ability of legislators to add
conditional or incidental language to a general appropriation act insofar as it relates
13
In Fischer, 502 A.2d at 119, our Supreme Court discussed the Hyde Amendment, which limits
federal funding of abortion to life-threatening situations, and observed that in Harris v. McRae,
448 U.S. 297 (1980), the federal limit had been held not to contravene the right of indigent women
to abortion in other circumstances.
16
to providing coverage of reproductive health services for indigent woman enrolled
in Medical Assistance. Likewise, they seek to expand the prohibition against special
laws in Article III, Section 32 to eliminate the General Assembly’s power to decide
the circumstances under which abortion services will be funded by the treasury.
Proposed Intervenors seek to do more than offer “their perspective on
the correctness of their conduct.” Robinson Township, 84 A.3d at 1055. Article III
is peculiar to the legislative branch of state government, imposing both strictures and
responsibilities. Proposed Intervenors seek to preserve their voting power as it
currently exists under Article III and their authority to appropriate Commonwealth
funds, a key legislative duty. As our Supreme Court has explained, the “General
Assembly enacts the legislation establishing those programs which the state provides
for its citizens and appropriates the funds necessary for their operation. The
executive branch implements the legislation by administering the programs.” Shapp,
391 A.2d at 604. In doing so, the executive branch must abide by “the requirements
and restrictions of the relevant legislation, and within the amount appropriated by
the legislature.” Id. See also Jubelirer v. Rendell, 953 A.2d 514, 529 (Pa. 2008).
Proposed Intervenors seek to preserve their authority to propose and
vote on funding legislation in the future. 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.
We conclude that Proposed Intervenors have established grounds to
intervene pursuant to Rule No. 2327(4) and so hold.
17
II.
Rule No. 2329 prohibits intervention if the interest of the proposed
intervenor is already adequately represented or intervention will cause undue delay
or prejudice. PA. R.C.P. No. 2329(2) and (3).14 Proposed Intervenors claim that their
interest is not shared with the Department. In fact, in Allegheny I, this Court
acknowledged that Proposed Intervenors’ interest may not be adequately represented
by the Department “given the vastly different responsibilities and powers of the
executive and legislative branches of government as they relate to the coverage ban.”
Allegheny I, slip op. at 17. Nor has prejudice been shown. As noted by Proposed
Senate Intervenors, “although there are multiple Proposed Intervenors, they speak
herein with one, unified voice – a voice that represents an entirely different set of
long-term interests and goals from [the Department].” Proposed Senate Intervenors’
Brief at 17. The Department has no legally enforceable interest in matters relating
to Commonwealth appropriations. An executive branch agency is simply not in a
position to represent Proposed Intervenors’ interest in the exercise of legislative
power under Article III of the Pennsylvania Constitution.
Reproductive Health Centers counter that even if intervention was
appropriate under Rule No. 2327, this Court should deny intervention because
Proposed Intervenors will unduly delay, embarrass or prejudice the case in
contravention of Rule No. 2329(3). They contend that the sheer number of Proposed
Intervenors will unnecessarily complicate the matter. However, Reproductive
Health Centers cite neither precedent nor evidence to support their contention that
14
Rule No. 2329(l) applies to cases where “the claim or defense of the petitioner is not in
subordination to and in recognition of the propriety of the action[.]” PA. R.C.P. No. 2329(1). This
subsection is not at issue in this case.
18
legislator intervention has ever unduly complicated the orderly process of a judicial
proceeding.
As held in Allegheny I, Proposed Intervenors’ interest in the case will
not be represented by the Department. This holding is unassailable under Shapp v
Sloan, 391 A.2d at 604. Reproductive Health Centers’ contention that Proposed
Intervenors will cause prejudice or delay relies upon no more than speculation and,
thus, is rejected as unfounded.
Conclusion
For all the above reasons, we conclude that Proposed Intervenors have
established grounds to intervene pursuant to Rule No. 2327(4) and have established
that none of the grounds for refusal set forth in Rule No. 2329 are applicable.15
Accordingly, we grant Proposed Intervenors’ applications for leave to intervene.
_____________________________________
MARY HANNAH LEAVITT, President Judge
Judge Fizzano Cannon did not participate in the decision in this case.
15
Because we grant intervention pursuant to Rule No. 2327(4), we need not decide whether
Proposed Intervenors are also entitled to intervention under Rule No. 2327(3).
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Allegheny Reproductive Health Center, :
Allentown Women's Center, Berger & :
Benjamin LLP, Delaware County Women's :
Center, Philadelphia Women's Center, :
Planned Parenthood Keystone, Planned :
Parenthood Southeastern Pennsylvania, and :
Planned Parenthood of Western Pennsylvania, :
Petitioners :
:
v. : No. 26 M.D. 2019
:
Pennsylvania Department of Human Services, :
Teresa Miller, in her official capacity as :
Secretary of the Pennsylvania Department of :
Human Services, Leesa Allen, in her official :
capacity as Executive Deputy Secretary for the :
Pennsylvania Department of Human Service's :
Office of Medical Assistance Programs, and Sally :
Kozak, in her official capacity as Deputy Secretary :
for the Pennsylvania Department of Human :
Service's Office of Medical Assistance Programs, :
Respondents :
ORDER
AND NOW, this 28th day of January, 2020, the applications for leave
to intervene filed by members of the Pennsylvania State Senate and by members of
the Pennsylvania House of Representatives are hereby GRANTED.
Pursuant to this Court’s order of July 31, 2019 (granting a stay pending
disposition of the applications for leave to intervene), Respondents shall file a brief
in support of their preliminary objections within 30 days of this order.
_____________________________________
MARY HANNAH LEAVITT, President Judge
Allegheny Reproductive Health Center v. PA DHS
Combined Opinion