PHILADELPHIA — As several members of the Pennsylvania Supreme Court have signaled they are open to ruling that the state constitution recognizes abortion as a right, the frontrunners to be the state's next attorney general have differing views on whether that's the case.

Both of the major party candidates — Democrat Eugene DePasquale and Republican Dave Sunday — believe abortion access should remain the same in the state, as leaders nationwide continue to grapple post-Roe v. Wade reversal and individual states decide whether the procedure should be available. And whether Pennsylvania's constitution guarantees the right to abortion is still up for interpretation.

To DePasquale, a former state auditor general, abortion access is a constitutional right in Pennsylvania under the state's Equal Rights Amendment and its equal protections provisions. He has vowed to do everything he could to protect that right.

Sunday, York County's district attorney, promises to follow Pennsylvania's current state law, which allows for abortion up to 24 weeks and is unlikely to change under Democratic Gov. Josh Shapiro, who has vowed to veto any legislation restricting access. Sunday does not believe Pennsylvania's constitution guarantees residents the right to an abortion, he said during a debate earlier this year.

The Pennsylvania Supreme Court, which has five Democrats and two Republicans, stopped short of recognizing abortion as a right protected by the state's constitution in a ruling earlier this year. But three justices signaled they were open to such a finding in the future.

State courts elsewhere, including in New Jersey, have found such a right in their state constitutions.

What DePasquale and Sunday believe

The issue is personal to DePasquale: His wife, Tracy, found out she had an ectopic pregnancy at the 10th week of gestation, putting her at risk of death or the inability to have children if she did not get an abortion. DePasquale is now the father of two adult children.

“There's now five states where you could go to jail for that,” DePasquale said during an interview last month, citing the nation's most restrictive abortion laws. “That's insane.”

If elected attorney general on Nov. 5, DePasquale said he'd have an “expansive view of the Pennsylvania law” in regards to abortion rights in defining what constitutes an emergency or blocking other states that ban abortion from taking action against someone who received the procedure in Pennsylvania.

Sunday, ideologically, said he believes the job of attorney general is to follow and enforce the laws as written. And with the caveat that Pennsylvania is unlikely to change its abortion laws in the next four years, he promised to enforce the current Abortion Control Act as written.

Unlike DePasquale, he does not believe the attorney general should be an “activist” frequently challenging state and federal policies, and says it is the job of legislative bodies to write the law.

DePasquale has made it a point to promise that he would not prosecute any woman or doctor for an abortion at the request of other states, pointing to the Texas Attorney General Ken Paxton, who has sued to stop a rule shielding medical records of women who received out-of-state abortions from criminal investigations.

Sunday agreed he would not prosecute for these reasons, but said the notion was a “legal fiction” and “is not even a real thing,” in an interview last month.

Future abortion laws in Pa.

While Shapiro has promised to veto any abortion restrictions sent to his desk, the General Assembly has some powers it can take on its own.

For example, in 2022, when Republicans controlled both chambers, they advanced a constitutional amendment that would clearly define there is no right to an abortion in Pennsylvania. The governor cannot veto a constitutional amendment, which must be passed in two consecutive sessions before it is put before voters during the next election.

Democrats control the state House by a narrow majority, and if reelected into the majority, promised to block any similar efforts in the future.

In addition, attorneys general nationwide continue to play defense on which federal policies go into effect in their states, so Pennsylvania's next attorney general would likely weigh in on any future federal abortion laws.

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