Two hours and 11 minutes is a long airport layover. It’s a short opera. It’s a common projected wait time for customer service.
For Pittsburgh reproductive rights attorney Susan Frietsche, 2 hours and 11 minutes was the time she and her fellow Women’s Law Project (WLP) litigators were given to address 40 years of sex-based discrimination legislated into the Pennsylvania legal code.
On Oct. 26, starting at 9:45 a.m. as the first case on the docket, Frietsche, Drexel University professor David Cohen and Women’s Law Project staff attorney Christine Castro stood in an 8th-floor chamber room in the City-County Building on Grant Street and presented oral arguments before the Pennsylvania Supreme Court as petitioners in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services.
The suit asked the court to reverse the state’s 1982 Abortion Control Act banning Medicaid funds from covering abortion care except in narrow circumstances, asserting that the ban violates several equal protection provisions of the Pennsylvania Constitution and the state’s own Equal Rights Amendment passed in 1971.
Legal scholars predict the eventual court decision will affect not only the approximately 30,000 women who each year seek abortions in Pennsylvania, but could also establish a major legal precedent impacting reproductive rights for millions of women and their families throughout the U.S.
The Women’s Law Project was founded in 1974 in Philadelphia as a nonprofit legal advocacy organization with a mission to defend and advance the rights of women, girls and LGBTQ+ people in Pennsylvania.
Frietsche joined the organization in 1992. In 2002 she opened the Pittsburgh office that currently pursues a wide range of civil litigation involving sexual harassment and sexual assault in education and employment settings, Title IX athletics, LGBTQ+ discrimination, incarcerated women, race and gender bias in the legal system, and the criminalization of pregnancy.
A graduate of Bryn Mawr College and Temple University School of Law, Frietsche teaches courses in reproductive law and policy and gender and the law at the University of Pittsburgh School of Law.
She says she didn’t know she wanted to be an attorney until she was already in law school.
“I was a lobbyist in Harrisburg for ACLU Pennsylvania,” she recalls, “and decided I needed to have more knowledge on how to look up for myself laws and statutes related to issues I was lobbying for. I applied to law school with no intention of going into the actual legal profession. The plan changed on my first day of law school, and I realized that’s what I wanted to do.”
In conversation with NEXTpittsburgh, she offers insights into the pending Pennsylvania Supreme Court case and the role state law plays in protecting women’s health.
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NEXTpittsburgh: The Women’s Law Project takes on cases covering a lot of areas. What does the organization see as the most important issue likely to come up in the near future?
Frietsche: All those cases are interconnected. The sweep of our organization is very broad, and it is hard to pick out one issue that is most important in this very big struggle to achieve equality and dignity for everyone. I have to say that 2022 has been very challenging for reproductive rights. We’re putting a lot of our time into that struggle now.
NEXTpittsburgh: When do you anticipate the Pennsylvania Supreme Court might render a decision on Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services?
Frietsche: It could come anytime. It’s not unusual for decisions from the court in this posture to take months or even a year or so. We really don’t know.
NEXTpittsburgh: The law you’re seeking to overturn was enacted by the Pennsylvania legislature in 1982. What made the WLP decide in 2019 to bring about the suit on behalf of the Allegheny Reproductive Health Center and the other abortion providers?
Frietsche: We’ve known for a long time that this discriminatory Medicaid policy does not cover abortion but does cover other pregnancy options. We’ve known for a long time that this policy is the biggest barrier to abortion access in Pennsylvania.
What we’ve only come to understand more thoroughly is what that means for the health and equality interests of pregnant Pennsylvanians. New research has come out detailing the profound harm that is done to people when they’re denied a wanted abortion. It is harm that affects their health in a profound and lasting way. It affects the well-being of their children, their mental outlook, their ability to plan for the future, even the ability to have plans for the future. The Medicaid coverage ban has had a devastating impact on their sense of control of their own destiny, and it has had a disparate racial impact on women of color.
All of that was very motivating for us to take a closer look at whether our state constitution was able to address the injustice represented by the Medicaid coverage ban.
NEXTpittsburgh: After last June’s U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization eliminated the federally-guaranteed constitutional right to abortion, did the Women’s Law Project see more interest from people who don’t usually follow what happens in the state Supreme Court?
Frietsche: There is a lot of passion that has arisen from people who haven’t been political before. When they saw what the U.S. Supreme Court did in the Dobbs decision, it was like a slap in the face. It was women being told, “you are not full citizens.” It’s terrifying to think what the next step might be. For the Women’s Law Project, it’s a challenge to be able to deploy all the help that’s being offered to us, but we welcome it. People are correctly very worried.
NEXTpittsburgh: If the court rules in your favor, what do you think the impact might be?
Frietsche: If Medicaid will cover all pregnancy options, it will improve the health of Pennsylvania women, no question. It will improve our maternal mortality rate, which has been awful and getting worse, particularly among women of color. It will be a step in improving public health in our state.
NEXTpittsburgh: And if the court rules for Human Services and upholds the current coverage ban?
Frietsche: There are several ways we could lose. We could lose if the court ruled that reproductive providers don’t have standing to sue against restrictions against reproductive healthcare. That would be a very radical and unique ruling; no other states are going down that path.
We could lose if the court decides the state’s Equal Rights Amendment doesn’t affect this issue. Depending on their reasoning, that could be devastating not to just abortion rights but even to gender equality as a whole. We have a specific provision in our state constitution to protect people from sex stereotypes, from government policies based on generalizations about what men can do and what women can do. If that provision is interpreted in a way to make it very weak, that will very likely have ramifications outside the abortion context.
NEXTpittsburgh: Does the Women’s Law Project only represent organizations, or can an individual ask for help directly?
Frietsche: Many of our cases come about from individuals. We’re perhaps unusual in that, when you call us, most times a person will answer. You will get to talk to someone fairly quickly. For people who are pregnant and are experiencing trouble from their employer or co-workers or school, we have the Legal Navigator Program. It’s a free, confidential service.
NEXTpittsburgh: For cases of workplace discrimination?
Frietsche: There is a patchwork of laws protecting against pregnancy discrimination and laws that require reasonable accommodations made to permit pregnant persons to stay in their jobs or in their school. But they’re somewhat complicated, and when people early in their pregnancy don’t know what their rights are, or what they’re entitled to expect or ask for, sometimes the relationship with their employer or school goes downhill to the point where it can’t be saved.
We encourage people to get in touch with us as early as possible if they sense there is something not right in their negotiations with their employer about their pregnancy leave. Sometimes very early intervention sets things right and avoids going to court or filing a charge with the Equal Employment Opportunity Commission or Human Relations Commission.
People can call us, we will do an intake, our lawyers will figure out the best advice we can give, and in appropriate cases, if necessary, we will represent people. The real goal is to get employers and schools to do the right thing in the first place.
NEXTpittsburgh: What can someone reading this article do to support the anti-discrimination work of groups like the Women’s Law Project?
Frietsche: Vote. If you’re not voting in every election, you are missing an opportunity to protect yourself and your family and your community. No one should pass up the ability to exercise that kind of power. It is power.
NEXTpittsburgh: And also pay more attention to elections for state-level judges?
Frietsche: It takes some work to be an informed voter, especially in judicial elections, to educate yourself about the issues you care about. With judges, it’s difficult because they are challenged to stay neutral in cases that come before them and to approach them with an open mind and no preconceptions. But it’s not impossible to learn about their decisions, and it’s very important.