Pennsylvania court has found a way to undermine Judge Samuel Alito's extremism

MSNBC columnist Jessica Levinson flagged an order from the Pennsylvania Supreme Court that outlines a path for reasserting abortion rights.

"The majority opinion not only thoroughly rebutted the U.S. Supreme Court’s error-filled Dobbs decision overturning Roe v. Wade, it signaled a possible new path for reasserting abortion rights," she wrote on Sunday.

Previously, she wrote that there was an option to shield abortion using the equal protection clause. "But though that case was initially accepted by the Supreme Court, the justices never heard arguments, and they ended up eschewing the equality theory in favor of the freedom theory of abortion rights. Until, of course, they didn’t."

She cited a Pennsylvania Supreme Court ruling from 1985 that was a 3-2 vote upholding the law and setting a different standard.

"The legal issue, according to a majority of the court, is whether the law discriminates on the basis of sex and violates the state’s equal rights amendment. The court appeared to dance with the idea that the right of an abortion is protected by the state’s equal protection clause, but paused before making that conclusion," Levinson explained.

In this case, the Pennsylvania ruling is based on the state Constitution, not the national one. However, she said, it uses the state's equal rights amendment, which she says is "hinting at an 'equal protection' argument for abortion rights has obvious implications for other states and the federal government."

The state case is on whether the law banning Medicaid funds for abortion was discrimination based on gender. The ruling acknowledges that transgender men can become pregnant and also seek abortions, but most seeking abortions "identify as women."

The court also says that it is discrimination for those who can't afford the procedure vs. those who carry a pregnancy to term and are given money for medical care.

She went on to cite legal analysts Dahlia Lithwick and Mark Joseph Stern, who attacked Justice Samuel Alito for "cherry-picking" through the Dobbs argument to kill abortion. He relied on legal understanding from an era when marital rape wasn't a crime and women couldn't own property. In fact, the citations came from a time in which women weren't considered full citizens.

Similarly, Levinson cited Professor Reva Siegel, who explained in a law review article, “the Court’s history-and-traditions method provides new justifications for enforcing old forms of status inequality.”

Ultimately, she concluded there are "rays of hope" for those continuing to fight for reproductive freedom. Such reasoning could be a guide for other states, not just the Supreme Court.

Read the full piece here.