Guns, abortion & voting rights: 5 critical PA Supreme Court cases to keep an eye on in 2022

The Supreme Court of Pennsylvania's 300th anniversary year is promising to be an impactful one, say legal scholars.

Recent rulings from the Supreme Court of the United States have upset precedent and, in some cases, allowed individual states to tailor their laws more independently of federal interpretation. The most notable example has been the Dobbs decision, which overturned Roe v. Wade and brought abortion rights into question.

"If the U.S. Supreme Court is going to retreat on the protection of various rights, then people can turn to the state constitution as a source of authority," said Stephen Ross, a professor at Penn State Law in University Park.

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The Supreme Court of Pennsylvania already has a handful of critical cases on the docket in 2022. Here are some of the proceedings to keep an eye on, according to attorney and longtime legal scholar John Hare.

Allegheny Reproductive Health Center v. the Pennsylvania Department of Human Services

An abortion legal battle was already brewing in Pennsylvania prior to the overturning of Roe v. Wade.

Allegheny Reproductive Health Services v. the Pennsylvania Department of Human Services challenges a 1982 state statute limiting the use of Medicaid funds for abortions. Exceptions are permitted only in cases of rape, incest and pregnancies that endanger the life of the mother.

"It really brings into high relief the renewed focus on whether state constitutions provide greater protection of individual rights than the United States Constitution," said Hare, who is chair of appellate litigation at Marshall Dennehey law firm.

Hare added that there are two main questions at issue in this case. The first is whether the plaintiffs have standing to challenge the statute, and the second is whether the law violates Pennsylvania's equal rights amendment by disparately impacting women.

Article 1, section 28 of the Constitution of Pennsylvania prohibits the "denial or abridgment of equality of rights because of sex."

The briefing schedule for this case dates back to October of last year. It's unclear when the Supreme Court of Pennsylvania justices will rule on this matter.

Barris v. Stroud Township

Pennsylvania's chief justices have also accepted a gun rights case.

Barris v. Stroud Township challenges a municipal ordinance that limits target shooting to two non-residential zoning districts. The plaintiffs argue that this restriction violates their Second Amendment rights.

Hare said this case is compelling because gun rights are also addressed by the state constitution under Article 1, Section 21: "The right of the citizens to bear arms in defense of themselves and the State shall not be questioned."

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"It's construed more broadly than the Second Amendment," he said.

According to Hare, the case was accepted in June and has not yet been briefed. He expects it to be heard either late this year or early in 2023.

"That's an important case," he said, "(and) timely, given the U.S. Supreme Court's decision on gun rights."

Commonwealth v. Dunn

Another case identified by Hare is one that could impact criminal trials.

"It deals with the notice that prosecutors must provide criminal defendants about expert witnesses. The question is really whether the due process clauses of the Pennsylvania and U.S. Constitution require the prosecution to disclose certain expert witnesses to the defendant before the trial," he said.

"There's some ambiguity about whether certain types of experts need to be disclosed."

According to Hare, a ruling in this case could mean that additional advance notice will be given regarding expert witnesses to allow attorneys to either preclude the witness or more fully prepare for cross examination of that witness.

Bert Co. v. Turk

Civil litigation could also be altered by an upcoming case.

In Bert Co. v. Turk, the justices are asked to decide whether to limit punitive damages awards. Hare said this would impact civil litigation against big businesses and corporations such as pharmaceutical companies.

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"The Pennsylvania Supreme Court is going to consider whether the ratio between compensatory damages and punitive damages recognized in federal court applies equally in Pennsylvania," he said, "and, if so, how punitive damages are calculated when compensatory damages are awarded jointly against defendants."

"This case will decide whether Pennsylvania is going to follow the federal trend or strike out on its own. This is a huge issue, especially important in the civil litigation particularly against corporations, pharmaceutical companies."

McLinko v. Commonwealth

In addition, a GOP challenge to vote by mail is expected to be heard this year.

The Republican-led General Assembly passed Act 77 to allow an expansion of mail-in voting in 2019. Unhappy with court interpretation of this law, Republican lawmakers have now challenged it on constitutional grounds.

"That's a very important case which also potentially implicates another distinct provision of the Pennsylvania Constitution," Hare said, "which is the so-called 'free elections clause.'"

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Article 1, Section 5 of the state constitution states that elections "shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage." McLinko v. Commonwealth could be a test regarding how this section is viewed by the justices.

"This sample of cases indicates that our Supreme Court does not duck tough issues, but has attempted when possible to develop our state constitutional law independently of what the federal courts have done with the federal Constitution," Hare said.

According to Ross, this may be just the beginning. He believes the current U.S. Supreme Court has a right-wing composition that will result in additional state-level challenges to education, reproductive rights and climate change policies.

"I think you're going to see more pressure on the (Pennsylvania) Supreme Court in that way," Ross said.

Bruce Siwy is a reporter for the USA Today Network's Pennsylvania state capital bureau. He can be reached at bsiwy@gannett.com or on Twitter at @BruceSiwy.