IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Allegheny Reproductive Health Center, :

Allentown Women’s Center, :

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 14, 2020

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 Judge1

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: March 26, 2021

1 This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt 

completed her term as President Judge.
2

Petitioners are Allegheny Reproductive Health Center, Allentown 

Women’s Center, 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). They are medical providers licensed by the 

Commonwealth of Pennsylvania to provide abortion services. Reproductive Health 

Centers have filed a petition for review seeking declaratory and injunctive relief, 

asserting that Sections 3215(c) and (j) of the Abortion Control Act2are 

unconstitutional because they discriminate against pregnant women enrolled in 

Medical Assistance who choose to have an abortion. 

Respondents are the Pennsylvania Department of Human Services; the 

Secretary of Human Services, Teresa Miller; the Executive Deputy Secretary of 

Human Services, Leesa Allen; and the Deputy Secretary for the Office of Medical 

Assistance Programs, Sally Kozak (collectively, Commonwealth Respondents). The

Commonwealth Respondents have moved to dismiss the petition, asserting that 

Reproductive Health Centers lack standing to raise constitutional claims that belong 

to other persons, i.e., women enrolled in Medical Assistance. The Commonwealth 

Respondents also assert, along with the Intervenors,3that the petition for review fails 

to state a legally cognizable claim under the Pennsylvania Constitution.

2 18 Pa. C.S. §3215(c), (j).

3 Senate Intervenors are Senators Joseph B. Scarnati, III, Jacob Corman, Ryan Aument, Michele 

Brooks, John DiSanto, John Gordner, Scott Hutchinson, Wayne Langerhole, Daniel Laughlin, 

Scott Martin, Robert Mensch, Michael Regan, Mario Scavello, Patrick Stefano, Judy Ward, Kim 

Ward, Eugene Yaw, and David Arnold. On February 9, 2021, the parties filed a stipulation to 

dismiss Senators Scarnati and Arnold from the action. On February 10, 2021, the Court marked 

the action discontinued and ended as to Senators Scarnati and Arnold.
3

For the reasons that follow, we sustain the preliminary objections and 

dismiss the petition.

Background

Medicaid is a joint federal-state public program that provides medical 

services to low-income persons; in Pennsylvania, it is known as Medical Assistance

and administered by the Department of Human Services. Petition for Review ¶40,

¶¶44-45. Medical Assistance includes a Fee-for-Service program that “reimburses 

providers directly for covered medical services provided to enrollees” as well as a 

managed care program, HealthChoices, that “pays a per enrollee amount to managed 

care organizations that agree to reimburse health care providers that provide care for 

enrollees.” Id. ¶46. “With some exceptions, Medical Assistance enrollees are 

required to enroll with a managed care organization participating in HealthChoices 

rather than the Fee-for-[S]ervice program.” Id. ¶47. 

Medical Assistance covers family planning and pregnancy-related care, 

including prenatal care, obstetrics, childbirth, neonatal, and post-partum care. 

Petition for Review ¶48. Medical Assistance does not cover nontherapeutic 

abortions. Id. ¶50. Pennsylvania’s Abortion Control Act4 prohibits the expenditure 

of appropriated state and federal funds for abortion services except where (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). Likewise, 

regulations of the Department of Human Services prohibit Medical Assistance 

House Intervenors are Representatives Bryan D. Cutler, Stan E. Saylor, Kerry A. 

Benninghoff, Marcy Toepel, Donna Oberlander, Michael Reese, Kurt A. Masser, and Martin T. 

Causer.

4 18 Pa. C.S. §§3201-3220.
4

coverage for abortions, except in the above-listed exceptional cases.

5

 Id. ¶50. 

Collectively, the Abortion Control Act and the Department’s regulations are referred 

to as the “coverage ban.” Id. ¶¶49-50. 

On January 16, 2019, Reproductive Health Centers filed a petition for 

review seeking declaratory and injunctive relief in order to end this coverage ban. 

Reproductive Health Centers provide approximately 95% of the abortion services 

performed in the Commonwealth. Petition for Review ¶33. Their patients include 

women enrolled in Medical Assistance. Id. ¶57. The coverage ban prohibits

Reproductive Health Centers from billing or being reimbursed for abortion services 

provided to women enrolled in Medical Assistance whose pregnancies do not fall 

into one of the three above-enumerated exceptions. Id. ¶52. 

The petition alleges that the coverage ban harms women enrolled in

Medical Assistance because they are forced to choose between continuing their 

pregnancy to term or using funds needed for essentials of life to pay for an abortion

procedure. Petition for Review ¶59. Because the facilities in Pennsylvania that 

perform abortions are few in number, some women must travel significant distances

to obtain a safe and legal abortion. Id. ¶60. If abortion were a covered procedure, 

some of those transportation costs would be reimbursed by Medical Assistance. Id. 

The coverage ban causes women on Medical Assistance to delay an abortion while 

they raise funds to pay for the procedure. Id. ¶61. Although Reproductive Health 

Centers assist their Medical Assistance patients to obtain this funding, they are not 

always successful. Id. ¶62. The coverage ban has forced many women to carry their 

pregnancies to term against their will. Id. ¶¶63-64.

5 See 55 Pa. Code §§1141.57, 1163.62 and 1221.57.
5

The petition alleges that the coverage ban has also caused direct harm 

to Reproductive Health Centers. Specifically, the coverage ban forces them to divert 

money and staff from “other mission-central work” to help women enrolled in

Medical Assistance who lack the funds to pay for their abortions. Petition for 

Review ¶84. Reproductive Health Centers “regularly subsidize (in part or in full) 

abortions for Pennsylvania women on Medical Assistance who are not able to pay 

the fee on their own.” Id. ¶85. Reproductive Health Centers expend “valuable staff 

resources to assist patients in securing funding from private charitable organizations 

that fund abortion[s] for women on Medical Assistance.” Id. ¶86. Staff must also 

delve “into personal matters that the patient may not wish to discuss,” i.e., whether 

the pregnancy was the result of rape or incest. Id. ¶87.

The petition for review contains two counts. Count I asserts that the 

coverage ban violates Article I, Section 28 of the Pennsylvania Constitution, 

commonly referred to as Pennsylvania’s Equal Rights Amendment,

6 because it

denies 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 

6 The Equal Rights Amendment provides:

Equality of rights under the law shall not be abridged in the Commonwealth of 

Pennsylvania because of the sex of the individual.

PA. CONST. art. I, §28. 
6

Constitution, specifically Article I, Sections 17and 268and Article III, Section 32,9

that establish the guarantee of equal protection of the laws. Asserting that the 

coverage ban unconstitutionally restricts indigent women in the exercise of their 

right to terminate a pregnancy, Reproductive Health Centers request this Court to 

declare the coverage ban unconstitutional and to enjoin its enforcement. 

The Commonwealth Respondents, along with the Senate Intervenors

and the House Intervenors, have filed preliminary objections in the nature of a 

demurrer. Specifically, they assert that the petition for review fails to state a cause 

of action upon which relief can be granted. In addition, the Commonwealth 

Respondents assert that Reproductive Health Centers lack standing to vindicate the 

individual constitutional rights of other parties, i.e., all women enrolled in Medical 

Assistance.

10

7 This Section states:

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.

8 This Section provides:

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.

9 This Section states, in part:

The General Assembly shall pass no local or special law in any case which has been 

or can be provided for by general law[.]

PA. CONST. art. III, §32.

10 Four amici curiae briefs were filed in support of Reproductive Health Centers’ position. Amici

are: (1) The National Health Law Program; (2) New Voices for Reproductive Justice and 

Pennsylvania and National Organizations Advocating for Black Women and Girls; (3) Members 

of the Democratic Caucuses of the Senate of Pennsylvania and the Pennsylvania House of 
7

Preliminary Objections

In reviewing preliminary objections in the nature of a demurrer, this 

Court “must accept as true all well pleaded material allegations in the petition for 

review, as well as all inferences reasonably deduced therefrom.” Buoncuore v. 

Pennsylvania Game Commission, 830 A.2d 660, 661 (Pa. Cmwlth. 2003). We are 

not required to accept as true “conclusions of law, unwarranted inferences from 

facts, argumentative allegations, or expressions of opinion.” Id. For this Court to 

sustain preliminary objections, “it must appear with certainty that the law will not 

permit recovery[.]” McCord v. Pennsylvania Gaming Control Board, 9 A.3d 1216, 

1218 n.3 (Pa. Cmwlth. 2010) (quotation omitted). Where there is any doubt, this 

Court will overrule the preliminary objections. Fumo v. Hafer, 625 A.2d 733, 734 

(Pa. Cmwlth. 1993). 

I. Standing

We begin with the assertion of the Commonwealth Respondents that 

Reproductive Health Centers lack standing to initiate litigation to vindicate the 

constitutional rights of their patients enrolled in Medical Assistance. Although the 

petition for review alleges that the coverage ban causes Reproductive Health Centers

to provide abortion services at a loss, the Commonwealth Respondents respond that

these alleged pecuniary and administrative harms do not fall within the zone of 

interests protected by the Equal Rights Amendment and the equal protection clause 

of the Pennsylvania Constitution, or by the Abortion Control Act. In short, the 

Commonwealth Respondents assert that Reproductive Health Centers lack standing 

to bring this action either in their own right or on behalf of women enrolled in 

Medical Assistance who seek an abortion.

Representatives; and (4) The Pennsylvania Religious Coalition for Reproductive Justice

(PARCRJ). 
8

Generally, “a party seeking judicial resolution of a controversy ‘must 

establish as a threshold matter that he has standing to maintain the action.’” Johnson 

v. American Standard, 8 A.3d 318, 329 (Pa. 2010) (quoting Fumo v. City of 

Philadelphia, 972 A.2d 487, 496 (Pa. 2009)). Our Supreme Court explained in the 

seminal case William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269 

(Pa. 1975), that 

[t]he core concept, of course, is that a person who is not adversely 

affected in any way by the matter he seeks to challenge is not 

“aggrieved” thereby and has no standing to obtain a judicial 

resolution of his challenge. In particular, it is not sufficient for 

the person claiming to be “aggrieved” to assert the common 

interest of all citizens in procuring obedience to the law.

Id. at 280-81 (footnote omitted). 

In determining whether a person is aggrieved, courts consider whether 

the person has a substantial, direct, and immediate interest in the claim sought to be 

litigated. Fumo, 972 A.2d at 496. In this regard, our Supreme Court has established 

the following principles:

A “substantial” interest is an interest in the outcome of the 

litigation which surpasses the common interest of all citizens in 

procuring obedience to the law.... A “direct” interest requires a 

showing that the matter complained of caused harm to the party’s 

interest.... An “immediate” interest involves the nature of the 

causal connection between the action complained of and the 

injury to the party challenging it, ... and is shown where the 

interest the party seeks to protect is within the zone of interests 

sought to be protected by the statute or constitutional guarantee 

in question. 

South Whitehall Township Police Service v. South Whitehall Township, 555 A.2d 

793, 795 (Pa. 1989) (citations omitted). The “keystone to standing in these terms is 
9

that the person must be negatively impacted in some real and direct fashion.” 

Markham v. Wolf, 136 A.3d 134, 140 (Pa. 2016) (quoting Pittsburgh Palisades Park, 

LLC v. Commonwealth, 888 A.2d 655, 660 (Pa. 2005)). Critically, our Court has 

held that generally a “party may not contest the constitutionality of a statute because 

of its effect on the putative rights of other persons or entities.” Philadelphia 

Facilities Management Corporation v. Biester, 431 A.2d 1123, 1131 (Pa. Cmwlth. 

1981) (citations omitted). 

Reproductive Health Centers contend that they have standing to assert 

the constitutional rights of others, i.e., their patients enrolled in Medical Assistance. 

They point out that this Court has specifically allowed medical professionals to 

assert the constitutional rights of their patients. The Commonwealth Respondents 

rejoin that this was allowed in the narrow circumstance where the constitutional 

interests of those medical providers and their patients were inextricably entwined. 

They contend that circumstance does not exist here.

In Harrisburg School District v. Harrisburg Education Association,

379 A.2d 893 (Pa. Cmwlth. 1977), two labor unions representing striking teachers 

of the school district appealed a trial court order enjoining their teacher members

from picketing at the homes of school board members. The trial court held that the 

school district had standing to represent the interests of its school board members. 

This Court held otherwise, concluding that the school board members’ right to 

privacy was not “inextricably bound up” with the school district’s collective 

bargaining interests. Id. at 896. Additionally, there was no obstacle to the school 

board members bringing an action on their own to protect their privacy interests.

In reaching this conclusion, this Court applied the analytical paradigm 

developed in Singleton v. Wulff, 428 U.S. 106 (1976), for determining a litigant’s 
10

standing to assert the constitutional rights of others. In Singleton, drawing on 

precedent, the United States Supreme Court held, first, that courts should not 

adjudicate constitutional rights unnecessarily because, inter alia, it may be that the 

holders of these rights do not wish to assert them. Second, the Supreme Court held, 

as characterized by this Court, that 

third parties themselves usually will be the best proponents of 

their own rights. The courts depend upon effective advocacy, 

and therefore should prefer to construe legal rights only when 

the most effective advocates of those rights are before them.

Harrisburg School District, 379 A.2d at 895 (emphasis added). Using the Singleton

analytical framework, this Court concluded that the Harrisburg School District

lacked standing. The school district’s collective bargaining interests were not 

inextricably connected to the privacy interests of its board members to feel secure in 

their homes.

In Pennsylvania Dental Association v. Department of Health, 461 A.2d 

329 (Pa. Cmwlth. 1983), the dental association challenged an amendment to the 

standard agreement between Pennsylvania Blue Shield and each participating 

dentist, which had been approved by the Pennsylvania Department of Health.

11

 The 

amendment gave Blue Shield access to patient files when necessary to audit the 

dentist. The dental association asserted that this contract amendment violated the

11 An organization does not have standing by virtue of its purpose. See Armstead v. Zoning Board 

of Adjustment of City of Philadelphia, 115 A.3d 390, 399-400 (Pa. Cmwlth. 2015). Nevertheless, 

an organization may have standing to bring a cause of action if at least one of its members has 

standing individually. North-Central Pennsylvania Trial Lawyers Association v. Weaver, 827 

A.2d 550, 554 (Pa. Cmwlth. 2003). “Where the organization has not shown that any of its members 

have standing, the fact that the challenged action implicates the organization’s mission or purpose 

is not sufficient to establish standing.” Americans for Fair Treatment, Inc. v. Philadelphia 

Federation of Teachers, 150 A.3d 528, 534 (Pa. Cmwlth. 2016).
11

constitutional right to privacy of its members and their patients. This Court held that 

the dental association had standing because the privacy interests of its member 

dentists were “inextricably bound up” with the privacy interests of their patients. Id. 

at 331. We explained that 

unless individual patients had some means of knowing that the

effect of the [Blue Shield amendment] may be to disclose some

medical information which they may be entitled to withhold by

invoking their constitutional claim of privacy, the only way those

rights could be protected would be by the dentist who is

responsible for the patient’s records.

Id. (emphasis added).

As noted above, this Court adopted the Singleton analytical framework 

in Harrisburg School District. We later confirmed that adoption in Pennsylvania 

Dental Association, stating that the “exceptions set forth in Singleton appl[y].”

Pennsylvania Dental Association, 461 A.2d at 331. It is not lost on the Court that in 

Singleton, the United States Supreme Court held that licensed physicians had

standing to challenge the constitutionality of a Missouri statute excluding Medicaid

coverage of abortions that were not medically indicated. It does not follow, 

however, that the Singleton holding requires the conclusion that Reproductive 

Health Centers have standing to challenge Pennsylvania’s coverage ban in this 

Court.

In federal courts, standing jurisprudence springs from Article III of the 

United States Constitution, which requires a case in controversy. ASARCO, Inc. v. 

Kadish, 490 U.S. 605, 617 (1989). Our Supreme Court has explained that in 

Pennsylvania’s state courts, standing precepts are not derived from the Pennsylvania 

Constitution, and, further, our state courts “are not governed by Article III and are 

thus not bound to adhere to the federal definition of standing.” In re Hickson, 821 
12

A.2d 1238, 1243 n.5 (Pa. 2003). Pennsylvania’s standing doctrine “is a prudential, 

judicially-created tool meant to winnow out those matters in which the litigants have 

no direct interest in pursuing the matter.” Id. at 1243. Singleton’s grant of standing 

to physicians to challenge the Missouri coverage ban under the United States 

Constitution is interesting but irrelevant because Reproductive Health Centers are in 

state court and assert only state constitutional claims.

Standing in Pennsylvania’s courts requires a substantial, direct, and

immediate interest in the matter sought to be litigated. William Penn Parking, 346 

A.2d at 280-82. That prime directive informs our application of the Singleton

paradigm to determine whether Reproductive Health Centers have standing to assert

the claims of some of their patients that the coverage ban violates their rights under 

the Equal Rights Amendment and the equal protection clause of the Pennsylvania 

Constitution.

We conclude that the application of the Singleton paradigm leads to a 

different conclusion in this case. First, to allow Reproductive Health Centers to 

assert the rights of others will require this Court to rule on constitutional questions

when the Court has no way of knowing that the patients on whose behalf 

Reproductive Health Centers purport to speak even want this assistance. Second, 

the petition for review does not allege facts to show that the interests of Reproductive

Health Centers are “inextricably bound up” with the equal protection rights of their 

patients. Harrisburg School District, 379 A.2d at 896. By contrast, in Pennsylvania 

Dental Association, the interest of the dentists and their patients were aligned 

perfectly on their shared constitutional right of privacy. Third, we can ascertain no 

reason, and none is alleged, why women enrolled in Medical Assistance cannot

assert the constitutional claims raised in the petition for review on their own behalf. 
13

Unlike the patients in Pennsylvania Dental Association, who had no way of knowing 

that their privacy interests were at stake, the patients of Reproductive Health Centers

will be informed, in advance, that abortion services are not covered by Medical 

Assistance. There is no obstacle to these patients initiating litigation on their own 

behalf, and none is alleged in the petition for review.

In Fischer v. Department of Public Welfare, 444 A.2d 774 (Pa. Cmwlth. 

1982) (Fischer I), the lead petitioner was a taxpayer, but other petitioners were 

indigent women advised to terminate their pregnancies for medical reasons. 

Thereafter a second amended petition for review was filed, and the case was tried 

before the Commonwealth Court. This Court, in a single-judge opinion by Judge 

McPhail, concluded that the coverage ban violated the equal protection clause and 

the Equal Rights Amendment of the Pennsylvania Constitution. Fischer v. 

Department of Public Welfare, 482 A.2d 1137 (Pa. Cmwlth. 1984) (Fischer II).

12

 

Notably, the Department of Public Welfare challenged the standing of some of the 

petitioners, including clergy and non-profit organizations, at trial. However, this 

Court held that the issue of standing had been waived because it had not been raised 

in the Department’s pleading. Id. at 1139, n.11. The history of the Fischer litigation 

shows that women enrolled in Medical Assistance are fully able to pursue the 

constitutional claims raised in the instant petition for review without the assistance 

of their medical providers. 

12 Thereafter, the Department of Public Welfare filed exceptionsto the decree nisi entered by Judge 

McPhail. In an en banc decision, this Court sustained the exceptions in part. Fischer v. 

Department of Public Welfare, 482 A.2d 1148 (Pa. Cmwlth. 1984) (Fischer III). This Court held 

that the Abortion Control Act did not violate the Equal Rights Amendment or the equal protection 

clause of the Pennsylvania Constitution. It affirmed the injunction against enforcing the 

requirement that the victim of rape or incest report its occurrence within 72 hours to qualify for 

Medical Assistance coverage of an abortion. The Department did not appeal this injunction. 

Fischer v. Department of Public Welfare, 502 A.2d 114, 117 n.8 (Pa. 1985) (Fischer IV). 
14

We conclude that Reproductive Health Centers do not have standing to 

vindicate the constitutional rights of all women on Medical Assistance, some of 

whom may not be their patients, and who may or may not agree with the claims 

asserted on their behalf in the petition for review. The interests of Reproductive 

Health Centers are not inextricably bound up with the equal protection interests of 

all women enrolled in Medical Assistance.

Alternatively, Reproductive Health Centers assert that they have 

standing because they perform abortions at a financial loss. Petition for Review ¶36. 

Specifically, they “lose money” because they “regularly subsidize (in part or in full) 

abortions for Pennsylvania women on Medical Assistance who are not able to pay 

the fee on their own.” Id. ¶85. Further, their staff must assist patients to secure 

funding and question patients about personal matters to determine if they qualify for 

a coverage ban exception. Id. ¶¶84-87. Reproductive Health Centers acknowledge 

that the purpose of Pennsylvania’s Equal Rights Amendment is to prohibit “sexbased discrimination by government officials in Pennsylvania.” Id. ¶89. Likewise, 

they acknowledge that equal protection provisions guarantee “equal protection of 

the law” and prohibit “discrimination.”13 Id. ¶94. Reproductive Health Centers do 

not allege that they have been the victim of sex discrimination or denied equal 

protection of the law in violation of the Pennsylvania Constitution. 

The harms to Reproductive Health Centers identified in their pleading 

are administrative or pecuniary, which do not bear a causal relationship to the 

constitutional claims presented in their petition for review. As such, their interest in 

13 As determined by the Fischer IV Court, the right at issue is the “purported right to have the state 

subsidize the individual exercise of a constitutionally protected right, when it chooses to subsidize 

alternative constitutional rights.” Fischer IV, 502 A.2d at 121. Fischer IV established that there 

is no fundamental right to have the state fund the exercise of the right to an abortion.
15

the litigation they seek to advance is not “substantial, direct[,] and immediate.” Funk 

v. Wolf, 144 A.3d 228, 243 (Pa. Cmwlth. 2016) (quoting Fumo, 972 A.2d at 496). 

An “immediate” interest requires a “causal connection between the action 

complained of and the injury to the party challenging it.” South Whitehall Township 

Police Service, 555 A.2d at 795. Stated otherwise, to have standing, the litigant must 

show that its interest falls “arguably within the zone of interests sought to be 

protected or regulated by the statute or constitutional guarantee in question.” 

Application of Biester, 409 A.2d 848, 851 n.6 (Pa. 1979) (citation omitted)

(quotations omitted).

Here, the interest “protected or regulated” by the coverage ban is “the 

life and health of the women subject to abortion and to protect the life and the health 

of the child subject to abortion.” 18 Pa. C.S. §3202(a). The interests sought to be 

protected by the Pennsylvania Constitution are the guarantee to equal protection of 

the laws and the prohibition against discrimination on the basis of sex. Reproductive 

Health Centers’ asserted administrative and pecuniary interests do not fall within the 

“zone of interests” addressed in either the Abortion Control Act or the Pennsylvania 

Constitution.

Applying the principles established in William Penn Parking and 

Harrisburg School District, we hold that Reproductive Health Centers lack standing

to vindicate the constitutional rights of third parties, who may or may not agree with 

this litigation brought on their behalf. They have not alleged harms to their own 

interests that are protected by the provisions of the Pennsylvania Constitution that 

they seek to vindicate. Accordingly, we will sustain the Commonwealth 

Respondents’ demurrer to the petition for review for the reason that Reproductive 

Health Centers lack standing.
16

II. Failure to State a Claim

In Fischer IV, 502 A.2d 114, the Pennsylvania Supreme Court

considered each constitutional claim raised in the petition for review sub judice. At 

the outset, the Supreme Court stated that “[t]his case does not concern the right to 

an abortion.” Id. at 116. Rather, the Supreme Court defined the question as whether, 

“because this Commonwealth provides funds to indigent women for a safe delivery,” 

it is “equally obliged to fund an abortion.” Id. The Supreme Court concluded that 

the answer was no. It held, expressly, that the coverage ban did not violate any of

the provisions of the Pennsylvania Constitution cited in the instant petition for 

review. This Court is bound by the decisions of the Pennsylvania Supreme Court. 

Zauflik v. Pennsbury School District, 72 A.3d 773, 783 (Pa. Cmwlth. 2013). On this 

basis, the Commonwealth Respondents and the Intervenors have demurred to the 

instant petition for review.

In Fischer IV, the appellants were a taxpayer, several women enrolled 

in medical assistance who were pregnant and desired nontherapeutic abortions, a 

clergyman, medical providers of abortion services and a charitable organization that 

counseled rape victims (collectively, Fischer appellants). The Fischer appellants

challenged the constitutionality of the coverage ban, arguing that it violated the

following provisions of the Pennsylvania Constitution: the equal protection 

guarantees contained in Article I, Section 1 and Article III, Section 32; the antidiscrimination prohibition in Article I, Section 26; and the Equal Rights Amendment 

in Article I, Section 28. 

Beginning with the Fischer appellants’ equal protection claim, our 

Supreme Court explained that Article I, Section 1, and Article III, Section 3214

14 This section provides:
17

guarantee the citizens of this Commonwealth equal protection under the law. 

Nevertheless, a citizen’s right to engage in an activity free of government 

interference does not require the Commonwealth to provide the means to do so. 

However, when the Commonwealth funds an activity, it must fund it for all, unless 

there is a constitutionally valid reason to limit that funding. 

The Supreme Court framed the Fischer appellants’ constitutional issue 

as the “purported right to have the state subsidize the individual exercise of a 

constitutionally protected right, when it chooses to subsidize alternative 

constitutional rights.” Fischer IV, 502 A.2d at 121. Noting that “financial need” did 

not create a suspect class, id. at 122, the Supreme Court applied the rational 

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:

1. Regulating the affairs of counties, cities, townships, wards, 

boroughs or school districts:

2. Vacating roads, town plats, streets or alleys:

3. Locating or changing county seats, erecting new counties or 

changing county lines:

4. Erecting new townships or boroughs, changing township lines, 

borough limits or school districts:

5. Remitting fines, penalties and forfeitures, or refunding moneys 

legally paid into the treasury:

6. Exempting property from taxation:

7. Regulating labor, trade, mining or manufacturing:

8. Creating corporations, or amending, renewing or extending the 

charters thereof:

Nor shall the General Assembly indirectly enact any special or local 

law by the partial repeal of a general law; but laws repealing local 

or special acts may be passed.

PA. CONST. art. III, §32.
18

relationship test.

15

 This requires that the legislative classification be directed at the 

accomplishment of a legitimate governmental interest and operate in a manner that 

is neither arbitrary nor unreasonable. Id. at 123. 

In the case of the coverage ban, the legislative classification 

distinguishes abortions necessary to save the life of the mother from nontherapeutic 

abortions. The Supreme Court concluded that this classification relates to the stated

legislative objective of life preservation because it encourages “the birth of a child 

in all situations except where another life would have to be sacrificed.” Id. at 122. 

Further, the stated purpose of “preserving potential life” was accomplished by the 

coverage ban because “it accomplishes the preservation of the maximum amount of 

lives, i.e., those unaborted new babies, and those mothers who will survive though 

their fetus be aborted.” Id. at 122-23.

16

 

The Supreme Court next considered the Fischer appellants’ argument

that the state punished women who elected abortions in violation of Article I, Section 

26 of the Pennsylvania Constitution, which provides that citizens are not to be 

harassed or punished for the exercise of their constitutional rights. The Supreme 

Court rejected this claim, explaining that Article I, Section 26 cannot be construed 

as an entitlement provision; nor can it be construed in a manner 

which would preclude the Commonwealth, when acting in a 

manner consistent with state and federal equal protection 

15 The Supreme Court also held that even if an intermediate level of scrutiny was appropriate, the 

coverage ban would pass “constitutional muster.” Fischer IV, 502 A.2d at 123.

16 Although the Fischer appellants did not raise claims under the United States Constitution, our 

Supreme Court observed that the federal limitation on funding abortions, known as the Hyde 

Amendment, Pub. L. 96-123, §109, 93 Stat. 926, had been sustained by the United States Supreme 

Court, which reasoned that the government’s choice to favor childbirth over abortion did not 

offend the United States Constitution. Fischer IV, 502 A.2d at 120. 
19

guarantees, from conferring benefits upon certain members of a 

class unless similar benefits were accorded to all. 

Fischer IV, 502 A.2d at 123. The Supreme Court concluded that the Commonwealth 

has “merely decided not to fund [abortion] in favor of an alternative social policy,” 

and this decision did not offend Article I, Section 26. Fischer IV, 502 A.2d at 124.

The Supreme Court then turned to the argument of the Fischer

appellants that the classification between pregnant women who choose to give birth

and pregnant women who choose to have an abortion offended the Equal Rights 

Amendment in Article I, Section 28 of the Pennsylvania Constitution. The Fischer

appellants argued that because medically necessary services for men were covered 

and a medically necessary abortion, which can only affect women, was not covered, 

“the state has adopted a standard entirely different from that which governs 

eligibility for men.” Fischer IV, 502 A.2d at 124 (quotation omitted). The Supreme 

Court rejected the notion that the legislative classification in question related to sex. 

The Supreme Court explained that the purpose and intent of the Equal 

Rights Amendment 

is to insure equality of rights under the law and to eliminate sex 

as the basis for distinction. The sex of citizens of this 

Commonwealth is no longer a permissible factor in the 

determination of their legal rights and legal responsibilities. The 

law will not impose different benefits or different burdens upon 

the members of a society based on the fact that they may be a 

man or a woman.

Id. (quoting Henderson v. Henderson, 327 A.2d 60, 62 (Pa. 1974)). The 

classification in the coverage ban related to a procedure, abortion, and to a woman’s 

voluntary choice. Id. at 125. It did not impose a benefit or burden on the basis of 

the citizen’s sex simply because the procedure involved “physical characteristics 
20

unique to one sex.” Id. (quoting People v. Salinas, 551 P.2d 703, 706 (Colo. 1976)). 

Thus, the Supreme Court held that the coverage ban did not violate Pennsylvania’s 

Equal Rights Amendment.

Reproductive Health Centers raise the precise constitutional claims that 

were raised in Fischer IV, 502 A.2d 114, and unequivocally rejected by the Supreme 

Court. Reproductive Health Centers acknowledge that “Fischer[IV] is precedential” 

but argue that it was “wrongly decided.” Reproductive Health Centers’ Brief at 2. 

They contend that our Supreme Court’s holding was “poorly reasoned at the time it 

was decided” and that “legal developments since the decision also undermine its 

legitimacy.” Id. at 2-3. Even if they are correct, this Court is bound by Fischer IV

and is “powerless to rule that decisions of [our Supreme] Court are wrongly decided 

and should be overturned.” Griffin v. Southeastern Pennsylvania Transportation 

Authority, 757 A.2d 448, 451 (Pa. Cmwlth. 2000) (citations omitted).17 In short, any 

argument that Fischer IV was wrongly decided must be presented to the 

Pennsylvania Supreme Court. See Griffin, 757 A.2d at 451.

The petition for review does not state a claim upon which relief can be 

granted. All of its legal claims have been addressed, and rejected, by our Supreme 

Court in Fischer IV, 502 A.2d 114.

17 Amicus Curiae PARCRJ argues that intermediate courts have refused to follow the Pennsylvania 

Supreme Court’s decisions on “rare occasions” and that this Court should do so here. PARCRJ 

Brief at 17-18. PARCRJ cites a decision of the Pennsylvania Superior Court in Manley v. Manley, 

164 A.2d 113, 119-20 (Pa. Super. 1960), that declined to follow Matchin v. Matchin, 6 Pa. 332 

(1847), a Supreme Court decision holding that a wife in a divorce action could not raise insanity 

as a defense. Matchin had been severely criticized by courts of other jurisdictions and

commentators on the subject of divorce, and subsequent Supreme Court rulings had weakened its 

precedential value. Manley, 164 A.2d at 120. Indeed, for 65 years, the Supreme Court made no 

reference to Matchin. By contrast, our Supreme Court has not called into question the Fischer IV

decision.
21

Conclusion

We hold that Reproductive Health Centers lack standing to challenge 

the coverage ban on the basis of the constitutional rights belonging to third parties

and sustain the demurrer of the Commonwealth Respondents. Because the petition 

for review fails to state a claim upon which relief can be granted, we sustain the 

demurrer of the Commonwealth Respondents and the Intervenors. Accordingly, we 

dismiss the petition for review.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge

Judge Brobson and Judge Crompton did not participate in the decision in this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Allegheny Reproductive Health Center, :

Allentown Women's Center, :

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 :

O R D E R

AND NOW, this 26th day of March, 2021, the preliminary objections 

of Respondents are SUSTAINED as set forth in the attached Opinion, and

Petitioners’ petition for review is DISMISSED.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Allegheny Reproductive Health :

Center, Allentown Women’s Center, :

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 14, 2020

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 RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

CONCURRING AND DISSENTING OPINION 

BY JUDGE CEISLER FILED: March 26, 2021
I concur with the outcome reached by the majority. However, I respectfully 

disagree with the majority’s conclusion that Petitioners lack standing to bring this 

action.

Petitioners (Providers) are medical providers asserting that Pennsylvania’s 

statutory restriction under 18 Pa. C.S. § 3215(c) (Coverage Ban) on public abortion 

funding for recipients of publicly funded medical benefits (Medical Assistance) is a 

violation of patients’ rights under the Pennsylvania Constitution’s equal rights and 

equal protection guarantees. See Pa. Const. art. I, §§ 1, 26, 28; art. III, § 32. 

Respondents, various Commonwealth parties (Commonwealth), contend Providers 

lack standing to assert claims on behalf of non-party patients. However, applicable 

precedents demonstrate that Providers have standing based on their connection to 

their patients and their allegations of direct harm to themselves.

Providers aver that they collectively provide about 95% of all abortions 

performed in Pennsylvania. Pet. for Review, ¶ 56. Providers further aver that they 

are suing on behalf of their patientsreceiving Medical Assistance who seek abortions 

but are ineligible for Medical Assistance coverage of the cost because of the 

Coverage Ban. Id., ¶ 39. Providers also assert that they themselves are directly 

harmed by the Coverage Ban’s funding limitation for abortions, because they have 

to divert money and staff time from other work to help their patients who cannot 

afford an abortion, they subsidize abortions for women who cannot afford them, they 

expend staff resources to assist patients in securing private funding for abortions, 

and they are required to explore personal matters with their patients to determine 

whether one of the Coverage Ban’s exceptions applies. Id., ¶¶ 36, 58, 84-87.

The Commonwealth argues these averments are insufficient to confer thirdparty standing for Providers to assert constitutional challenges on behalf of non-
EC - 2

party patients. In my view, Providers have standing, and the Commonwealth’s 

preliminary objection on this issue should be overruled.

The Commonwealth cites authorities for the general proposition that standing 

requires allegations of direct harm. The Commonwealth argues Providers have not 

pleaded sufficient direct harm. However, the Commonwealth offers no analysis or 

authority relating specifically to medical providers and their patients.

By contrast, Providers offer detailed analysis and citations of authorities 

directly on point. Providers argue persuasively that analogous United States

Supreme Court authority, adopted by this Court as applicable in Pennsylvania, 

confers standing in the circumstances of this case.

Singleton v. Wulff

In Singleton v. Wulff, 428 U.S. 106 (1976), two physicians challenged a 

Missouri statute that limited public funding of abortions to cases where abortion was 

medically indicated. The defendants filed a pre-answer motion challenging the 

plaintiffs’ standing. A plurality of the United States Supreme Court held that the 

physicians had standing to bring constitutional claims on behalf of Medical 

Assistance patients seeking abortions. Id. at 118.

The plurality observed that the standing issue raised two distinct questions. 

The first question was whether the plaintiffs had alleged an “injury in fact,” a 

sufficiently concrete interest in the outcome of the litigation to invoke a federal 

court’s jurisdiction. Id. at 112. The plurality concluded that the physicians had 

alleged a sufficiently concrete interest in the outcome, because they stated they had 

performed and would continue to perform abortions for which they would be entitled 

to reimbursement if not for the challenged statute. If the physicians prevailed, the 

plurality reasoned, they would benefit by receiving payment from the state. 
EC - 3

However, because this first inquiry relates solely to invoking federal jurisdiction, it 

is not involved here.

The second standing question is “whether, as a prudential matter, the 

plaintiff[s] are proper proponents of the particular legal rights on which they base 

their suit.” Id. The plurality easily concluded that the physicians had standing to 

the extent they were asserting their own “constitutional rights to practice medicine.” 

Id. at 113. The real issue was whether the physicians had standing to assert claims 

based on the rights of their patients. Id.

The plurality observed that standing to assert constitutional rights of third 

parties should be accorded sparingly. The true holders of the rights at issue may not 

wish them asserted, and in any event, they themselves are usually the best 

proponents of their own rights. Id. at 114. Therefore, the plurality formulated a twopart test for standing to assert the rights of third parties:

First, the relationship between the litigant and the third party whose rights are 

asserted must be such that “the right is inextricably bound up with the activity the 

litigant wishes to pursue. . . .” Id. Further, the relationship between the litigant and 

the third party must be such that the litigant is “fully, or very nearly, as effective a 

proponent of the right” as the third party. Id. at 115 (citing doctor-patient 

relationships in Griswold v. Connecticut, 381 U.S. 479, 481 (1965), and Doe v. 

Bolton, 410 U.S. 179, 188-89 (1973)).

Second, the third party must lack the ability to assert her own right. There 

must be “some genuine obstacle to such assertion, [such that] the third party’s 

absence from court loses its tendency to suggest that [her] right is not truly at stake, 

or truly important to [her], and the party who is in court becomes by default the 

right’s best available proponent.” Id. at 116 (noting, for example, that forcing a third 
EC - 4

party to assert her own right to remain anonymous “‘would result in nullification of 

the right at the very moment of its assertion.’” Id. (quoting NAACP v. Alabama, 357 

U.S. 449, 459 (1958)).

Applying the first factor, the parties’ relationship, the plurality found:

The closeness of the relationship is patent . . . . A woman cannot 

safely secure an abortion without the aid of a physician, and an 

impecunious woman cannot easily secure an abortion without the 

physician’s being paid by the State. The woman’s exercise of her right 

to an abortion, whatever its dimension, is therefore necessarily at stake 

here. Moreover, the constitutionally protected abortion decision is one 

in which the physician is intimately involved. See Roe v. Wade, 410 

U.S. [113,] 153-156 [(1973)]. Aside from the woman herself, 

therefore, the physician is uniquely qualified to litigate the 

constitutionality of the State’s interference with, or discrimination 

against, that decision.

Singleton, 428 U.S. at 117 (emphasis added).

Applying the second factor, the plurality recognized “several obstacles” to 

women’s ability to assert their own abortion rights, including their desire to maintain 

the privacy of their decisions and the “imminent mootness” of any individual claim. 

Id. The plurality acknowledged these obstacles could be overcome: a woman might 

bring suit under a pseudonym; she might avoid mootness and retain her right to 

litigate after pregnancy because the issue was “capable of repetition yet evading 

review”; and a class action might be possible. Id. Regarding the class action, 

however, the plurality observed that “if the assertion of the right is to be 

‘representative’ to such an extent anyway, there seems little loss in terms of effective 

advocacy from allowing its assertion by a physician.” Id. at 117-18. 

Accordingly, applying the two factors it had identified, the plurality 

concluded “that it generally is appropriate to allow a physician to assert the rights 
EC - 5

of women patients as against governmental interference with the abortion decision

. . . .” Id. at 118 (emphasis added).

Harrisburg School District v. Harrisburg Education Association

Singleton, standing alone, is not binding authority here for three reasons: it 

was a plurality opinion, it related only to claims under the federal constitution, and 

it analyzed standing only in relation to claims in federal courts. However, in 

Harrisburg School District v. Harrisburg Education Association, 379 A.2d 893 (Pa. 

Cmwlth. 1977) (en banc), this Court expressly adopted the Singleton plurality’s 

two-factor analysis for determining standing to assert a third party’s constitutional 

rights in Pennsylvania courts. Id. at 896.

In Harrisburg School District, the school district sued the teachers’ union, 

seeking injunctive relief to stop striking teachers from picketing the school board 

members’ private homes. The claim asserted the board members’ privacy rights 

under the Pennsylvania Constitution. The union filed preliminary objections 

challenging the school district’s standing to assert the board members’ individual 

constitutional rights.

After quoting extensively from the Singleton plurality opinion, this Court 

held:

Singleton . . . offers two “factual elements” for consideration in 

determining whether the general rule that one may not claim standing 

to vindicate the constitutional rights of others should not apply[:] the 

first, whether the relationship of the litigant to the third party is such 

that enjoyment of the right by the third party is inextricably bound up 

with the activity the litigant seeks to pursue; and the second, whether 

there is some obstacle to the assertion by the third party of his own 

right. We adopt this rule for standing to assert third party 

constitutional rights.

Id. (emphasis added). 
EC - 6

This Court found standing absent under the facts of Harrisburg School 

District. However, this Court expressly acknowledged the conclusion in Singleton

that under the two-factor test, physicians had standing to assert a constitutional 

challenge to an abortion funding restriction on behalf of their patients. Id.

In short, the analysis of the United States Supreme Court plurality in Singleton

concluded that physicians have standing to assert constitutional claims on behalf of 

their clients in federal court. This Court in Harrisburg School District concluded 

that the analytical framework applied in Singleton is also applicable to constitutional 

standing in Pennsylvania. Taken together, Singleton and Harrisburg School District

strongly support Providers’ standing to assert their patients’ constitutional rights 

here.

Pennsylvania Dental Association v. Department of Health

In Pennsylvania Dental Association v. Department of Health, 461 A.2d 329 

(Pa. Cmwlth. 1983) (en banc), the Pennsylvania Dental Association (PDA) alleged 

that statutory and regulatory amendments to reporting and file inspection 

requirements for dentists would violate the constitutional privacy rights of dental 

patients. The Department of Health (DOH) challenged the PDA’s standing to assert 

the constitutional rights of patients. Citing Singleton and Harrisburg School 

District, this Court found that dentists had standing to assert their patients’

constitutional rights:

[U]nless individual patients had some means of knowing that the 

effect of the [new] regulation may be to disclose some medical 

information which they may be entitled to withhold by invoking their 

constitutional claim of privacy, the only way those rights could be 

protected would be by the dentist who is responsible for the patient’s 

records. We are of the opinion that the exception set forth in Singleton

applies and that PDA has standing to raise this issue.
EC - 7

Pa. Dental Ass’n, 461 A.2d at 331.

Fischer v. Department of Public Welfare

This Court’s evenly divided decision in Fischer v. Department of Public 

Welfare, 444 A.2d 774, 776 (Pa. Cmwlth. 1982) (en banc), is not to the contrary. In 

Fischer, the petitioners challenged the Coverage Ban’s limitations on Medical 

Assistance for abortions. They argued that public funding should be available to 

women whose physicians recommended abortions to preserve their health, even if 

their lives were not in imminent danger. Further, they contended that abortion 

coverage should be available to Medical Assistance recipients seeking abortions on 

religious grounds.1 They also challenged the notice provisions that were part of the 

Coverage Ban at that time, which required a woman to notify criminal authorities 

within 72 hours of a rape or discovery of a pregnancy resulting from incest, in order 

to be eligible for Medical Assistance coverage for the related abortion.

In addition to women who were receiving Medical Assistance, the petitioners 

in Fischer included physicians and nonprofit providers of counseling and other 

services to Medical Assistance recipients. The physicians asserted the Coverage 

Ban would cause them direct economic hardship and would prevent them from 

providing necessary medical services according to their best medical judgment. Id.

at 776.

1 One petitioner in Fischer v. Department of Public Welfare, 444 A.2d 774, 776 (Pa. 

Cmwlth. 1982) (en banc), claimed the tenets of her faith supported the abortion she was seeking. 

As one three-judge opinion (Craig opinion) in Fischer explained, “certain religious sects deem 

abortion to be the only moral response to certain pregnancies including those which will result in 

great suffering on the part of the pregnant woman or great danger to her health short of the threat 

of death necessary for reimbursement under the [statutory restriction on public abortion funding 

contained in 18 Pa. C.S. § 3215(c) (Coverage Ban)].” Id. at 782. Thus, the religious argument 

was closely aligned with the health preservation argument.
EC - 8

The respondents filed preliminary objections challenging the standing of the 

physicians and counseling entities to assert claims relating to the Coverage Ban’s 

reporting requirements. This Court’s en banc panel was evenly split three to three 

on that issue. Thus, neither three-judge opinion is precedential.

1. Blatt Opinion

One three-judge group (Blatt opinion) would have upheld the challenge to 

standing. The Blatt opinion reasoned:

There are clearly no allegations that the petitioner-doctors are in 

any way harmed or that the nonprofit organizational petitioners suffer 

any direct harm to themselves as a result of the reporting requirements. 

Absent such allegations of direct, substantial and immediate injury to 

such petitioners themselves we must conclude that the doctors and these 

organizations do not have standing to bring this action. William Penn 

Parking Garage, Inc. v. City of Pittsburgh, . . . 346 A.2d 269 ([Pa.] 

1975).

Fischer, 444 A.2d at 779. The Blatt opinion observed, “[W]e cannot say that mere 

concern for or attempts to aid a certain class of persons automatically endows [sic]

an organization with standing to sue on their behalf.” Id. Notably, the Blatt opinion 

did not mention the analysis of Singleton or Harrisburg School District. Thus, it 

appears the Blatt opinion was issued without the benefit of considering the most 

closely applicable precedents. Its reasoning is arguably contrary to those decisions.

Moreover, the Blatt opinion is distinguishable. First, in Fischer, the only 

challenge to standing related to reporting requirements for victims of rape and incest 

who were seeking to terminate the resulting pregnancies. The reporting 

requirements did not bear the same close relation to physicians’ services that the 

abortions themselves did. Further, here, Providers expressly pleaded that they do 

and will continue to incur direct damages of the same type alleged in Singleton due 
EC - 9

to providing abortion services for which they are not reimbursed. Therefore, the 

Blatt opinion’s reasoning against standing is inapplicable here.2

2. Craig Opinion

By contrast, the other three-judge panel in Fischer(Craig opinion) would have 

overruled the preliminary objection to standing. Relying on Singleton and 

Harrisburg School District, the Craig opinion concluded that the physicians in 

Fischer were alleging the same kinds of direct financial damages that helped to 

confer standing in Singleton and Harrisburg School District. Fischer, 444 A.2d at 

781-82.

As stated above, Providers here pleaded the same sorts of direct financial 

damage. See Pet. for Review, ¶¶ 36, 58, 84-87. The Craig opinion therefore offers 

persuasive authority that Providers have standing here.

Conclusion

Based on all of the authorities discussed above, I conclude that Providers have 

standing to maintain this action. Therefore, I respectfully dissent on that issue.

__________________________________

ELLEN CEISLER, Judge

2

In addition, although not mentioned in the Blatt opinion, it is notable that in Fischer, a 

number of patients were parties and were asserting their own constitutional rights, thus 

undermining the existence of any genuine obstacle to their assertion of such rights. Therefore, the 

rationale behind the plurality rule in Singleton v. Wulff, 428 U.S. 106 (1976), was at least partially 

absent.