Pa. Justice Dougherty Took On Abortion, Gun Rights, Voting
Former Law Partner of Steven Marino, Esquire of Marino Associates, Supreme Court Justice Kevin Dougherty Weighs in Before Election Day of Pa.’s High Court
News Coverage: Public Interest
Law360.com | October 30, 2025 | By: James Boyle
Kevin Dougherty, justice of the Supreme Court of Pennsylvania
As he faces a vote on Election Day over whether he should be retained for a second 10-year term on the Pennsylvania Supreme Court, Justice Kevin Dougherty is leaning on a record that includes key opinions over voting rights, abortion, gun control, and immunity for public officials.
Justice Dougherty has joined fellow Supreme Court Justices David Wecht and Christine Donohue on the airwaves and through direct mail campaigns in asking voters to say “yes” to their retention and to keep the court intact on Election Day.
The yes-no retention question has attracted an unusual level of attention and resulted in millions of ad dollars spent around the state as Democrats seek to hold onto a 5-2 partisan majority and Republicans see an opportunity to break up the majority.
Justice Dougherty was elected to the state’s high court in November 2015 alongside Justices Donohue and Wecht. It was a time of highly public turmoil for the court, coming after two members resigned as a result of scandals over misuse of public resources and leaked emails that contained pornographic and other inappropriate material.
Justice Dougherty earned his law degree in 1987 from Antioch School of Law in Washington, D.C., now the University of the District of Columbia’s David A. Clarke School of Law. He worked as an assistant district attorney in Philadelphia until 1995. From there, he co-founded his own private practice, Marino & Dougherty LLP, where he remained until Gov. Tom Ridge appointed him to the Philadelphia County Court of Common Pleas in 2001. Later that year, Dougherty was elected to the court for a 10-year term, and he was retained for another term in 2011.
While serving on the Philadelphia County bench, Justice Dougherty was named supervising judge in the family division’s juvenile court, then later took over as administrative judge in the trial division.
Justice Dougherty’s family is no stranger to Philadelphia politics. His brother John J. Dougherty, or “Johnny Doc,” served at the top of a local labor union that contributed millions over the years to chosen political candidates and causes, including Justice Dougherty’s 2015 campaign for the Supreme Court, before he was convicted on 70 counts of fraud and embezzlement in 2023.
With the arrival of Justices Dougherty, Donohue and Wecht, the court’s partisan balance shifted from a 4-3 Republican majority to a 5-2 Democratic majority.
Justice Dougherty had a say in several high-profile and controversial issues in his first 10-year term on the appellate bench. Here, Law360 takes a look at Justice Dougherty’s opinions on gun control laws, abortion rights, mail-in ballots and the immunity doctrine.
Doe v. Franklin County
Early in his term, Justice Dougherty sided with law enforcement with an opinion addressing the right to sue a public official for actions carried out as part of his or her official duties. Justice Dougherty wrote the unanimous 7-0 opinion in 2017 finding that the state’s absolute immunity doctrine applied to a county sheriff facing claims under the Pennsylvania Uniform Firearms Act.
According to Justice Dougherty’s opinion, four anonymous plaintiffs sued Franklin County Sheriff Dane Anthony, claiming he violated the confidentiality provision of the UFA by using unsealed postcards to send out notices about whether their applications for firearms licenses had been approved or denied. The postcards displayed the applicants’ personal information, including names and addresses, the lawsuit said.
The Pennsylvania Supreme Court was asked to decide whether the state’s General Assembly intended to create an exception to the absolute immunity doctrine for high public officials, such as sheriffs, when it enacted the UFA. Upholding a decision from the state’s Commonwealth Court, Justice Dougherty wrote for the majority that the sheriff remained protected by absolute immunity for acts within his official capacity, and thus could not be sued for damages under the UFA.
“There is no dispute that, as county sheriff, Sheriff Anthony is a high public official,” Justice Dougherty wrote in the opinion. “In Pennsylvania, high public official immunity is a long-standing category of common law immunity that acts as an absolute bar to protect high public officials from lawsuits arising out of actions taken in the course of their official duties and within the scope of their authority.”
The opinion went on to say that the UFA statute’s language was not strong enough to infer that the legislature intended to exempt public officials from immunity, and that if the General Assembly had meant to do so, it should do so with more clarity.
“We decline to hold the General Assembly implicitly abrogated immunity for the sheriff through the use of general, undefined terms,” Justice Dougherty wrote.
Barris v. Stroud Township
While the Franklin County case had a tangential connection to state gun laws, Justice Dougherty considered a more direct question about the issue with a February 2024 opinion upholding a local ordinance prohibiting the firing of firearms in a Monroe County municipality.
The decision stemmed from a challenge brought by Jonathan Barris, a Stroud Township resident who alleged that a local law banning the discharge of guns except at permitted ranges violated his Second Amendment rights.
According to the opinion, Barris had constructed a home shooting range on his property, and the township ordinance unconstitutionally prevented him from training with his firearms on his own land. A Monroe County judge initially dismissed his claims, but the state’s Commonwealth Court ruled on appeal that the township had violated Barris’ Second Amendment rights.
After reviewing the case in line with recent U.S. Supreme Court precedent requiring historical analysis of gun control laws, Justice Dougherty wrote for a 4-1 majority that Stroud Township’s ordinance permissibly regulated conduct protected by the Second Amendment. Chief Justice Debra Todd and Justice Wecht joined Justice Dougherty’s opinion, while Justice Donohue filed a partial concurrence and Justice Sallie Mundy filed a dissenting opinion. Justice Kevin Brobson did not participate in the matter, according to court records.
“We have combed the hundred-plus purported historical analogues … and our painstaking review confirms the township’s discharge ordinance is fully consistent with this nation’s historical tradition of firearm regulation,” Justice Dougherty wrote in the majority’s opinion.
The majority found that prohibiting Barris’ use of a personal outdoor range was permissible because Stroud Township’s ordinance implied a right to keep and bear arms. Justice Dougherty wrote in the majority opinion that upholding the township’s action adheres to a test established in the U.S. Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen in 2022 requiring that gun control laws be compared to the kinds of measures in effect at the time of the Second Amendment’s ratification.
Applying the test, Justice Dougherty found that Stroud Township’s ordinance was consistent with similar historical restrictions of the use of firearms. The opinion highlighted several examples from American history, including colonial Massachusetts’ prohibition on the discharge of guns at night unless there is an emergency or attack.
“To put it simply,” Justice Dougherty wrote, “by all accounts the township’s discharge ordinance appears to be exactly the type of sensible firearm regulation the Second Amendment permits.”
The court affirmed that Stroud Township’s ordinance does not completely ban firearms or possession, but instead was designed to regulate the time and place of discharging guns — part of what Justice Dougherty called a “sustained and wide-ranging effort by municipalities, cities, and states of all stripes — big, small, urban, rural, Northern, Southern, etc. — to regulate a societal problem that has persisted since the birth of the nation.”
Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services
In 2024, Justice Dougherty slightly parted ways with Justices Donohue and Wecht in a case regarding Pennsylvania’s ban on using Medicaid to fund abortions.
While agreeing with most of a majority opinion allowing abortion providers to proceed with a lawsuit to overturn the ban, he declined to join Justices Donohue and Wecht to find that abortion rights are protected under the state constitution. By joining Justice Todd and Justice Mundy’s dissent on that aspect of the case, the question of whether the Pennsylvania Constitution protects abortion rights remains unresolved.
The appeal stemmed from a suit filed by a group of abortion clinics, including the Allegheny Reproductive Health Center, alleging that the ban violated the state’s Equal Rights Amendment because it allowed men to receive Medicaid coverage for all reproductive healthcare needs while denying the same to women.
The ban had previously been upheld in a 1985 case, Fischer v. Department of Public Welfare, over whether the law unconstitutionally denied coverage for women who choose to have an abortion while providing it to those who choose to give birth. In the Fischer decision, the high court found that laws and policy based on physical characteristics unique to one sex did not violate Pennsylvania’s Equal Rights Amendment prohibition against sex-based discrimination.
Faced with the new challenge to the ban, the Commonwealth Court threw out the suit based on the Fischer precedent. The Supreme Court, however, reversed the dismissal and remanded the case for further proceedings, finding in a majority opinion authored by Justice Donohue and joined by Justices Todd, Dougherty and Wecht that the Fischer precedent should be subjected to heightened scrutiny.
However, Justice Dougherty did not join Justices Donohue and Wecht in finding that the Pennsylvania Constitution contains a fundamental right to an abortion. In a partial dissent, he wrote that broader consideration of abortion rights was premature and should be left for another time.
“Of course, there is little doubt the issue eventually will make its way back to this court, and the majority’s incredibly insightful position may ultimately prevail in the end,” Justice Dougherty wrote. “But I believe we should take such an important issue directly, only after the lower court has entertained it, with full notice to the bench, bar and public.”
Center for Coalfield Justice v. Washington County Board of Elections
Justice Dougherty took on voting rights in Pennsylvania as he penned a majority opinion in September holding that voters should have an opportunity to cast a provisional ballot if a mail-in ballot is found to be defective.
The ruling stemmed from a complaint filed by a group of voters who claimed that Washington County election officials had improperly failed to notify them that mail-in ballots they cast in the April 2024 primary election had been thrown out because the outer envelopes in which they were returned had defects such as missing signatures or dates. The plaintiffs argued that the county should have provided them an opportunity to exercise their right to vote through a provisional ballot or other means.
The Washington County Court of Common Pleas and the Commonwealth Court sided with the plaintiffs, saying mail-in voters whose ballots came in defective outer envelopes should be notified and allowed the opportunity to cast a provisional ballot.
In a majority opinion affirming the lower courts, Justice Dougherty wrote that voters have a constitutional right to know when their completed mail-in ballots are thrown out over an outer envelope defect, and that they should be allowed to cast a provisional ballot on Election Day as a fail-safe.
“We must interpret the election code and its statutory procedures in a way that favors the fundamental right to vote and enfranchises, rather than disenfranchises, the electorate,” Justice Dougherty wrote.
–Additional reporting by Matthew Santoni and Theresa Schliep. Editing by Robert Rudinger.
