The Washington PostDemocracy Dies in Darkness

Pennsylvania GOP aims to bypass governor’s veto on abortion restrictions

Similar constitutional amendments have succeeded in other states

Pennsylvania legislators at the Capitol in Harrisburg. (Mark Pynes/Patriot-News/AP)
6 min

Pennsylvania Gov. Tom Wolf (D) has vowed to use his veto pen to block Republican efforts to restrict abortions in the state. He had already done so three times before the Supreme Court overturned Roe v. Wade last month.

The state’s GOP is not taking those rebuffs lying down. On Friday, the Republican-controlled General Assembly took the first step to bypass Wolf’s veto by approving a constitutional amendment that would clear the way for a statewide abortion ban in the future.

Republicans say abortion restrictions, which have been repeatedly thwarted by the governor, should be decided by voters. “Giving one branch of government sole control over abortion laws does not represent a balanced approach to this issue,” Rep. Kathy L. Rapp (R) said on the state House floor on Friday.

But the aggressive tactic raised allegations of undemocratic dealings from reproductive rights advocates. “Of course they don’t want to have to deal with the governor and the veto,” said Elizabeth Randol, legislative director for the American Civil Liberties Union of Pennsylvania. “But that’s not how democracy is supposed to operate.”

Pennsylvania is the latest state to turn to the ballot to enshrine abortion restrictions in the state constitution. Similar efforts have succeeded in Tennessee, West Virginia and Louisiana. Kansas voters will weigh in on a similar measure on the August primary ballot. Kentuckians will do the same in November.

On Tuesday, Wolf signed an executive order designed to protect out-of-state patients and residents who seek abortions in Pennsylvania. The order says that the governor will not comply with investigations of abortion services that are legal in Pennsylvania.

“Here in Pennsylvania, I will not stand for this attack on women and pregnant people,” Wolf said in a statement Tuesday. “By signing this executive order, I am affirming that individuals seeking and providing reproductive health services are safe in the commonwealth from discipline and prosecution.”

The proposed constitutional amendment in Pennsylvania, which says that “there is no constitutional right to taxpayer-funded abortion or other right relating to abortion,” would allow lawmakers to skirt a Democratic governor who would block similar measures approved in a bill. It would also insulate future abortion restrictions passed through legislation from being challenged in state court. The amendment must be approved again in the next legislative session before voters can weigh in on the ballot.

The strategy reflects Republican lawmakers’ mounting frustration with Wolf, who has vetoed more bills than any other governor since the 1970s amid growing polarization in the Capitol. Although Pennsylvania voters are split fairly evenly between parties — Democrats have a slight edge in registrations — Republicans have controlled both chambers of the state legislature since 2011, in part because of a gerrymandered redistricting map that was ultimately thrown out by the state Supreme Court.

Despite the party’s tight hold on the legislature, Wolf has tempered the GOP’s ambitions since he took office in 2015.

“Things have gotten so much more hardball in the presence of this partisan divide,” said Craig Green, a law professor at Temple University in Philadelphia.

Pennsylvania Republicans have increasingly turned to the constitutional amendment as Wolf has repeatedly opposed their legislative goals. After fraught disagreements over pandemic shutdowns, the GOP used the amendment process in 2020 and 2021 to limit the governor’s emergency powers. Because of the change, Wolf was able to enact certain public safety measures, such as mandatory masking, for only 21 days without legislative approval. In the same measure that would put abortion on the ballot, lawmakers also proposed questions that would tighten voter ID requirements and allow gubernatorial candidates to select a running mate to run for lieutenant governor.

According to Green, constitutional amendments that make it on the ballot almost always succeed. Since 1968, 49 amendments have been approved by Pennsylvania voters — six have been rejected.

In the past, a longtime emphasis on the checks and balances between the three branches of the state government had restrained lawmakers from pushing controversial changes through the amendment process, Green said.

“The stability of the Pennsylvania Constitution depended on political norms,” he said, “but those political norms are under really serious and multifaceted attack.”

While debating the proposed amendment on Friday, Republican lawmakers insisted that the language would not amount to an abortion ban and focused instead on the “taxpayer-funded” aspect of the change.

“Senate Bill 106 is a constitutional amendment that reiterates the status quo, that the Pennsylvania Constitution does not grant a right to an abortion or the taxpayer funding of abortion,” Sen. Judy Ward (R) said in a statement. “If approved, it will prevent taxpayer dollars from funding elective terminations and will preserve the authority of elected officials — not the judicial branch — to enact future abortion laws.”

Democrats did not buy the assurances that little would change if the amendment became enshrined in the state constitution. As discussion of the bill dragged on into Friday evening, Rep. Malcolm Kenyatta (D) questioned why Republicans would need to vote on a bill that did not change the state’s laws.

“They’ve suggested numerous times that if we pass S.B. 106, nothing will change,” he said on the state House floor. “They’ve said it so many times that this bill would not actually ban abortion. That this bill would do nothing to make this commonwealth more pro-life. This bill is just more of the same. Why are you here ... to do something that does nothing?”

Rapp similarly said on the state House floor that the amendment would “not end abortion in the commonwealth.” But after the vote, she championed the amendment for aiming to free the legislature “to protect life post-Roe v. Wade.”

Before Friday night ended, both the state House and Senate voted to approve S.B. 106 largely along party lines. The late-night vote did not sit well with reproductive rights activists.

“They were legislating peoples’ bodies in the middle of the night,” said Signe Espinoza, executive director of Planned Parenthood Pennsylvania Advocates and PAC.

One more obstacle remains before Pennsylvania voters might see the abortion question on their ballots. Both houses of the state’s General Assembly must approve the amendment one more time in the next session, which takes place after the November elections. If they do so, the amendment could be on ballots as early as the May primaries next year.

It is unclear whether the amendment could clear the final hurdle of a popular vote, but if the question came up on a primary ballot, the voter pool would be much smaller than in a general election.

Still, reproductive rights activists hope that the issue would draw out voters to rebuke Republicans’ efforts to elude the governor’s veto.

“Abortion is still legal in the state of Pennsylvania,” Espinoza said. “But our rights are at risk.”