HARRISBURG — When Dave Sunday became Pennsylvania’s attorney general in 2025, a complicated situation awaited him.
Two weeks after the Republican’s January swearing-in, judges on Commonwealth Court assembled in Pittsburgh to hear oral arguments about the constitutionality of the state’s ban on Medicaid-funded abortions.
A group of reproductive health care providers challenged the law in 2019. When Sunday’s term started, the state’s highest court had already set a new precedent — that abortion restrictions can be considered sex-based discrimination under Pennsylvania’s Equal Rights Amendment — before sending it back down to Commonwealth Court for full arguments.
The problem was, nobody was defending the law before Commonwealth Court.
As attorney general, Democrat Josh Shapiro delegated the case to the state Department of Human Services. DHS initially defended the law. But by early 2025, the department had changed its position in the wake of the new state Supreme Court precedent and argued that the law was unconstitutional — the same position as the plaintiffs.
Soon after, Sunday would step in to defend the ban before Commonwealth Court. He appealed a loss there to the state Supreme Court, which this week agreed to take up the case again.
Unlike some attorneys general, Sunday stays away from hot-button political issues. During his campaign, he declined to share his personal position on abortion, though he did say during a debate that he didn’t think the state constitution guaranteed access to it. He later pledged that he would “follow the law regardless” of his personal feelings about abortion.
Sunday has said he took up the case because of a state statute that dictates the attorney general is responsible for upholding and defending the constitutionality of state law “in the absence of a controlling decision by a court of competent jurisdiction.”
“I have irritated the entire political spectrum, because I am defending statutes whether you like them or not. That’s literally my job,” Sunday told the Philadelphia Inquirer in June. “What a lot of people don’t understand is that the [Medicaid] law is part of the Abortion Control Act — the same law that allows abortions to occur up to six months of pregnancy, the very same law.”
Legal experts who spoke with Spotlight PA say that’s legitimate reasoning, though some noted that attorneys general have opted to delegate their responsibility for defending state laws to the governor’s administration without facing consequences.
While Sunday has taken great pains to remain apolitical, that hasn’t stopped political actors from pressuring him, according to court filings and internal emails.
Ahead of last year’s Commonwealth Court arguments, Republican lawmakers and anti-abortion activists were already working to get Sunday to defend the Medicaid ban. Meanwhile, advocates for abortion access were hoping he’d let the matter lie.
Sunday’s entry
The factors that would complicate Commonwealth Court’s February 2025 oral arguments in the Medicaid abortion case had been brewing for years.
The defendant that day was technically the state Department of Human Services. The first time the case was argued before Commonwealth Court, in 2020, the department argued the petitioners lacked standing, and the state Supreme Court had already ruled on the constitutionality of the abortion ban decades ago.
But in 2025 — a year after the state Supreme Court’s consequential new precedent — attorneys for the department said they now held that the abortion law was unconstitutional. In fact, they agreed with the plaintiffs on all the major points of the case. The two ostensibly opposing parties were literally sitting on the same side of the courtroom.
The judges assembled in Pittsburgh tried to figure out how to proceed. As Judge Patricia McCollough said, “There's no adversarial parties here. There's no controversy. There's no justiciable matter that we're here deciding … I don’t know what this is.”
As they struggled, one person kept coming up.
“Can this court make any ruling without the attorney general being present?” Judge Michael Wojcik asked a lawyer for GOP lawmakers. No, the lawyer said.
Pennsylvania’s attorney general typically defends the state’s laws as a matter of course, as that is the office’s duty under the Commonwealth Attorneys Act. But the act also explicitly allows the attorney general to authorize the Governor’s Office of General Counsel or an independent agency to defend litigation in their stead “upon determining that it is more efficient or otherwise is in the best interest of the Commonwealth.”
The attorney general in power for most of the abortion litigation was Shapiro, who became governor in 2023. He delegated the case to the administration of then-Gov. Tom Wolf. Sunday’s office inherited Shapiro’s stance and that of Shapiro’s appointed successor, Michelle Henry.
The week Sunday was sworn into office, a member of his staff sent an email about the agency’s position on the abortion case.
“My recollection is that we designated it to [Office of General Counsel] some time ago, and we weren’t going to take it back for a number of reasons. One of those reasons being that [DHS] is not a willing ‘client’ for us,” wrote Marguerite Quinn, the attorney general’s director of government affairs and a former Republican state representative.
Brett Hambright, a spokesperson for the Office of Attorney General, said Quinn was “refreshing her recollection of the actions of the prior administration,” rather than referring to Sunday’s.
“While we do not wish to speak for a prior administration, the decision … not to intervene was just that: another administration’s decision,” Hambright said in a statement to Spotlight PA.
Quinn’s unredacted email was one of many obtained by the Pennsylvania Democratic Party through a Right-to-Know request. The attorney general’s office later informed the party it had improperly redacted the records. Spotlight PA’s own Right-to-Know request returned the same emails, but with redactions. The office did not dispute the content of the emails.
In February 2025 oral arguments before Commonwealth Court, attorneys for reproductive health care providers said they hoped the attorney general's office would continue not to be involved.
Attorney Susan Frietsche said the plaintiffs wanted the court to “grant our motion for summary relief, which we are entitled to because there are no material disputes of fact.”
But Republican lawmakers, despite not having standing to defend the case, filed amicus briefs arguing that the state’s abortion law is constitutional, and they explicitly brought up having Sunday step in and defend it. That’s the idea David Dye, an attorney for state House Republican leaders, presented to Commonwealth Court.
“The attorney general who delegated responsibility to DHS … [was] the former attorney general,” Dye noted. “The attorney general we currently have has been in office for, I think, two weeks. Maybe maybe two weeks and a day.”
“We could at least notify him,” President Judge Renée Cohn Jubelirer said.
Sunday’s office had, in fact, already been notified by a number of conservatives.
Dye said in court that he knew there had been “a communication to the attorney general's office indicating … that we are going to be here today, and your name may very well be invoked.” Republicans had also sent a filing to the court arguing that Sunday should defend the law, Wojcik said.
Internal emails from the attorney general’s office show that ahead of the court’s oral arguments, Ted Meehan, the legislative director of the Pro-Life Coalition of Pennsylvania, had sought a meeting with Sunday. Days after the inauguration, Meehan told Quinn in an email that the need to defend the Medicaid abortion ban was “the ‘most’ time-sensitive topic” he wished to discuss.
“We believe that the immediate entry of Attorney General Sunday — to defend against this suit — is essential given that the only sympathetic members of the Defense have been removed,” Meehan wrote, referencing the legislative Republicans who unsuccessfully sought to intervene in the case.
The emails show that Meehan had a meeting with Sunday scheduled for late April, but the attorney general was ultimately unable to attend as “a pressing matter developed,” according to Hambright. A member of his staff went in his stead.
Hambright said the office’s meeting with Meehan did not influence Sunday’s decision to get involved in the case, as it had filed to intervene in February 2025, shortly after oral arguments.
“And that meeting, involving an OAG staff member, took place long after OAG took its action to intervene,” Hambright told Spotlight PA.
What is the AG’s obligation to defend state law?
After taking on the case, Sunday’s office offered three “compelling” state interests to defend the ban, according to a Commonwealth Court ruling: protecting fetal life, preventing abortion to protect women from alleged psychological harm, and “not violating the conscience of those who object to abortion.”
Ultimately, Commonwealth Court ruled 4-3 in April of this year that the state’s ban on Medicaid-funded abortion violates the Pennsylvania Constitution. The majority rejected the attorney general’s arguments, finding the interests put forth by the office were not compelling and that the ban is not “the least intrusive means of pursuing them.”
The following month, Sunday appealed that ruling to the state Supreme Court. It agreed in mid-July to take up the case once more.
Lawyers and legal experts who spoke to Spotlight PA generally agreed that a strict reading of the Commonwealth Attorneys Act requires Sunday to defend the law, but weren’t unified on whether he was also obligated to appeal.
“In my opinion he has to,” said Chris Carusone, an attorney who served as chief deputy attorney general under former GOP Gov. Tom Corbett, referring to the law’s requirement that attorneys general defend laws without “a controlling decision” from a court.
“In this case you have a Commonwealth Court decision that's being appealed to the state Supreme Court, so you don't have a controlling decision at the moment,” he said.
But Ted Ruger, a professor and the former dean of the University of Pennsylvania’s Law School, also noted that attorneys general who have declined to defend state laws in the past have faced no legal issues.
That includes Democrat Kathleen Kane. In 2013, she declined to defend the state’s ban on gay marriage, and did the same with a Republican-passed gun law the following year. (The moves were unrelated to Kane eventually having her law license suspended.)
"I believe that AG Sunday would face no legal consequence if he didn't take this appeal, but I also feel he wouldn't be following the clear terms of the CAA," Ruger told Spotlight PA, referring to the Commonwealth Attorneys Act.
Matt Haverstick, an attorney who often represents Republican lawmakers and also served on Sunday's transition team, said the prosecutor is doing a “basic requirement of the job,” and attorneys general should have been doing this all along. Haverstick also represented state Senate Republicans when they applied to intervene in the Medicaid case in 2022.
"That's my problem with an inconsistent application. It opens it up to politics," Haverstick told Spotlight PA.
Among people concerned with the politics — and practical impacts — of the Medicaid abortion case, Sunday’s handling of it has drawn criticism from multiple directions.
Elizabeth Lester-Abdalla, a staff attorney at Women’s Law Project who worked on the case, told Spotlight PA she disagrees with Sunday’s interpretation of his responsibilities, particularly when it comes to appealing the case.
The Commonwealth Attorneys Act dictates that attorneys general defend the constitutionality of all statutes, absent a “controlling decision by a court of competent jurisdiction.” Lester-Abdalla argued that Commonwealth Court’s latest ruling serves as that controlling decision.
“Nothing in the Commonwealth Attorneys Act requires the attorney general to appeal and continue to assert the constitutionality of the statute,” Lester-Abdalla told Spotlight PA.
Ruger said he was unsure on that point, as he couldn’t find a clear statutory definition of what counts as a “court of competent jurisdiction.”
Anti-abortion advocates have meanwhile countered that not only was it Sunday’s responsibility to appeal under the Commonwealth Attorneys Act, but he should also have done it sooner.
(Sunday appealed the ruling published April 20 on May 19, and his office says there was no hesitation.)
“We were disappointed in Sunday's initial reaction. He should have said, ‘This is an outrage,’” said Mike McMonagle, the president of the Pro-Life Coalition of Pennsylvania. “He hesitated for almost a whole month before he finally decided to appeal the case, but again, when he appealed it, he did a good job.”