Politics & Policy

Defunding Planned Parenthood Is Legal, but Don’t Expect the Courts to Act Like It

(Photo Illustration: NRO)

The Left’s commitment to Planned Parenthood is extraordinary. Not only are Democratic politicians vowing to shut down the government, if necessary, to keep more than $500 million flowing to the organization that is willing to provide “less crunchy” abortions to maintain the supply of intact baby body parts, some leftists are now claiming that there may be insurmountable legal hurdles to defunding the abortion giant. In other words, even if Republicans can ram legislation through Congress and past the president, the courts will keep the money flowing.

Their argument rests on Medicaid. While it would be fairly simple for Congress to cut off Planned Parenthood’s share of grants under the Title X family-planning program, approximately 75 percent of Planned Parenthood’s government funding comes from Medicaid — typically through reimbursements for services rendered — and Medicaid contains a provision protecting patient choice in qualified providers. As the Ninth Circuit Court of Appeals put it (quoting the relevant statute):

State Medicaid programs must allow Medicaid recipients to obtain care from “any [provider] qualified to perform the service or services required,” and . . . enrollment in a Medicaid managed-care plan “shall not restrict the choice of the qualified [provider] from whom the individual may receive” “family planning services.”

Relying on this provision, the Ninth and Seventh Circuits have struck down state efforts to defund Planned Parenthood. The Seventh Circuit held that the “defunding law excludes Planned Parenthood from Medicaid for a reason unrelated to its fitness to provide medical services, violating its patients’ statutory right to obtain medical care from the qualified provider of their choice.”

Yet these cases involved a conflict between a state statute and the federal Medicaid law, where Planned Parenthood could rely on the Constitution’s supremacy clause to argue that the federal law controls. If Congress can push through a properly drafted federal defunding law — one that effectively amended the Medicaid statute — the supremacy-clause argument would be unavailable. The federal government is simply better positioned to apportion Medicaid dollars than the states.

‘It is settled law that the government’s refusal to subsidize abortion does not impermissibly burden a woman’s right to obtain an abortion,’ the Seventh Circuit Court of Appeals has noted.

But even then, Planned Parenthood would likely push forward with its legal challenge, falling back on the argument that defunding Planned Parenthood would impose an unconstitutional condition on its First Amendment right to promote abortion and associate with abortion providers. The unconstitutional-conditions doctrine “is premised on the notion that what a government cannot compel, it should not be able to coerce.” As a general matter, the doctrine prevents the federal government from placing draconian speech and association-related restrictions on the receipt of federal funds.

Yet federal courts of appeal have been largely unsympathetic to this argument in the abortion context, with both the Fifth and the Seventh Circuits holding that it didn’t apply even to state defunding bills. The reason is simple:

It is settled law that the government’s refusal to subsidize abortion does not impermissibly burden a woman’s right to obtain an abortion. If a ban on public funding for abortion does not directly violate the abortion right, then Indiana’s ban on other forms of public subsidy for abortion providers cannot be an unconstitutional condition that indirectly violates the right.

While current law does not allow the government to place an “undue burden” on the right to an abortion, the law does not require that the government favor abortion access or even to remain neutral. The federal government can, as a matter of policy and practice, prefer life and fund only private family-planning programs that reject abortion.

#related#Given this precedent, a well-drafted law would cut off all Title X funding to any entity that promotes or provides referrals for abortion and would deny any and all Medicaid funds to providers who do the same. By functionally amending Medicaid while not affirmatively blocking access to abortions, the bill should survive legal scrutiny.

While there should not be any valid legal barrier to defunding Planned Parenthood, that does not mean that there will not be an effective legal barrier. Bitter experience with Roe v. Wade, Planned Parenthood v. Casey, and, most recently, Obergefell v. Hodges teaches us that a majority of the Supreme Court will often do what is necessary to establish the religion of radical sexual autonomy. Never forget Justice Kennedy’s magical “mystery” passage: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

A court that can write those words with a straight face is a court that can’t be entrusted to interpret regulations, statutes, or the Constitution in a manner consistent with reason and logic. Yes, applying the Constitution and current legal precedent, Congress can defund Planned Parenthood. But can the Constitution and precedent survive the Supreme Court?


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