Judge Talwani Still Bending Over Backwards for Planned Parenthood

M assachusetts federal Judge Indira Talwani is at it yet again: bending the law in any possible way to keep Planned Parenthood immune from democratically enacted legislation.

After Congress passed the One Big Beautiful Bill Act defunding Planned Parenthood for a year due to its continued practice and promotion of abortion (as well as gender-transition surgeries), Judge Talwani immediately enjoined the OBBBA the very day it became effective, without even bothering to offer a legal reason why. Her eventual explanations were legally laughable, and her aim transparent: to run out the clock to keep Planned Parenthood funded until a new Congress could restore its funding. I’ve covered this in detail here, here, and here. (For good measure, she ruled against the Trump administration on flimsy grounds in the SNAP-funding cases during the government shutdown).

Since then, Judge Talwani’s order in the Planned Parenthood lawsuit has been stayed by the First Circuit, which is a far cry from a conservative appeals court. But that has not deterred her. In her latest decision, filed Tuesday, she managed her way temporarily around that stay by ordering the same relief, reinstating the same funding, in a lawsuit by 22 blue states.

The hash of arguments accepted by Judge Talwani in this opinion gives some sense of how completely she is focused on reaching a particular result or, at a minimum, how locked into preserving the status quo she is that she simply cannot imagine that a democratically elected legislature might be permitted to change it through new law.

Standing

Before even getting to the merits, there’s the question of how it is that states have standing to sue, given that they are not the ultimate recipients of Medicaid reimbursement to medical service providers.

First, Judge Talwani concluded that the states had standing to sue based on their injuries in increased administrative costs from the law’s changing. Even “an identifiable trifle” of such costs, she insisted (quoting a 2019 First Circuit case) is enough for standing. Never mind that the Supreme Court, in the Obamacare mandate case in 2021, rejected incidental state paperwork burdens as a basis for standing.

Second, Judge Talwani’s fallback argument for standing to sue is that states will have to step up and offer replacement coverage in areas where Planned Parenthood has a large share of the market for providing things like contraception and screening for sexually transmitted diseases. “In light of Planned Parenthood’s outsized presence in some states, if a Planned Parenthood entity in those states is no longer able to provide Medicaid-covered services, other health facilities within a state’s care system would need to drastically expand their coverage to meet demand, which, in some instances, state systems are unequipped to do.”

This is not as obviously flimsy an argument as the paperwork theory, but the courts have typically been much more skeptical of standing in cases (such as the 2023 Supreme Court decision finding no state standing to challenge nonenforcement of federal immigration law) where states spent more money picking up the slack voluntarily for downstream effects from federal policy choices. What happens if states choose not to? While the states argue that Medicaid law requires them to ensure the continuation of services, the Supreme Court only in June ruled that states cannot be sued for defunding Planned Parenthood, and there is no realistic prospect that the executive branch under Donald Trump will go after states for complying with an act of Congress signed by Trump. Moreover, it’s inconsistent for Judge Talwani to argue that states are harmed by providing funding through alternative service providers, then turn around in the section on balancing the equities for purposes of remedies and insist that the federal government has no significant interest in which service providers are used.

The Merits: Ambiguity and Surprise

So, how exactly does Judge Talwani conclude that Congress’s changing of the law is illegal? This is where things get really wild.

First, Judge Talwani finds the statutory language just too confusing for states to figure out who is barred from receiving funding, violating a doctrine under which the spending clause must specify the conditions attached to federal money (never mind the bewildering forest of rules for Medicaid and other federal spending programs). This is a deeply ironic conclusion, given that she has previously ruled that the exact same statutory language was unconstitutionally specific in targeting Planned Parenthood, supposedly in violation of the bill of attainder clause, and that everybody on the planet knows that the law was written to exclude from federal funding the nation’s largest abortion provider. This is a real quote from the opinion:

Plaintiff States contend that Section 71113 fails to lay out with sufficient clarity how a state is to determine whether a provider is “primarily engaged in family planning services, reproductive health, and related medical care” where the statutory language does not define these services and medical care, does not set forth a quantifiable standard on which to decide if a provider is “primarily engaged” in the listed care types, and does not specify the basis on which a provider’s engagement in such services should be measured.

Weren’t we just told that these are services the states are legally required to cover, and that the states will be harmed if they can’t cover through this particular service provider? According to Judge Talwani, the states are “unprepared and ill-equipped to determine who qualifies as a prohibited entity and how to exclude those providers from their billing systems.” Talk about deliberately playing dumb.

Second, we get to the real argument: that “removing ‘prohibited entities’ from health care providers eligible to provide care for Medicaid participants is a retroactive condition that the Plaintiff States could not have anticipated when they joined Medicaid.” As if the states wouldn’t have joined Medicaid in 1965 at its enactment — when abortion was illegal in 49 states — if they’d known that major abortion providers would be ineligible recipients. This stands on its head the presumption that Congress is allowed to change laws. It’s not at all like the situation in the Obamacare Medicaid expansion where the scale of the program was changed so massively as to be unconstitutionally coercive: Nobody claims that excluding one provider marks a fundamental change in Medicaid. These states just don’t like what Congress did, and they think that they have a constitutional veto over any changes.

Judge Talwani is grudging at best in acknowledging that the people’s representatives in Congress are allowed to amend their own work: “The problem posed by Section 71113 for States is not merely that Congress has changed what providers are eligible for Medicaid funds, which Congress may well be entitled to do with clear notice. . . . Even assuming that Congress’s decision to disqualify certain providers of elective abortions from Medicaid is otherwise constitutional, the decision to do so after the State has received CMS approval for its Medicaid plan and entered into managed care plans with health plans, and after those managed care plans have entered into contracts with providers and enrolled Medicaid beneficiaries, does not withstand scrutiny” (italics added; underlining in original). Very generous of her to acknowledge that Congress might be allowed to change laws that it wrote in the first place. It’s simply preposterous to suggest that states had no notice that Medicaid rules can change from year to year.

In deciding whether to yet again enter basically the same injunction that was previously stayed by the appeals court, Judge Talwani then claims that “injury in this case” from thwarting Congress in enforcing its laws “is minimal where the preliminary injunction sought by Plaintiff States will only maintain the status quo.” But the whole point of changing the law was to change the status quo.

To top it off, she required the states to post only a “nominal” $100 bond and denied the federal government’s request to stay her order pending appeal, concluding that “Defendants have not shown that they are likely to prevail on appeal” even though her previous order got stayed by the same appeals court.

What can, and should, be done about this sort of judicial resistance? As I’ve noted before, Judge Talwani is just playing for time because Congress defunded Planned Parenthood for only a year, so she plainly hopes to prevent the law from ever becoming effective. If Congress takes the law seriously, it can respond by extending the ban for the rest of Trump’s presidential term. The First Circuit can also respond by removing her from these cases. I would not go quite so far as to make this the test case for Congress impeaching a judge over lawless rulings — but it’s playing close to that line.