By a vote of 11 to 6*, the en banc Sixth Circuit ruled today (in Planned Parenthood of Greater Ohio v. Hodges) that an Ohio law that bars its health department from funding organizations that perform nontherapeutic abortions is constitutionally permissible.
Judge Sutton’s twelve-page majority opinion is, as usual, a model of clarity and soundness. (Disclosure: I have known and admired Judge Sutton since we clerked together for Justice Scalia some twenty-seven years ago.) Sutton explains that the Planned Parenthood affiliates’ claim that the law imposes an unconstitutional condition on public funding in violation of the Due Process Clause fails for the simple reason that, under Supreme Court precedent, the affiliates “do not have a due process right to perform abortions.” Rather, any right they have is entirely derivative of a woman’s (putative) right to obtain an abortion. And that (putative) right to obtain an abortion does not include a right to have the government subsidize the abortion. So the unconstitutional-conditions doctrine (if the very confused rulings on unconstitutional conditions can be said to form a doctrine) does not even come into play.
* The Sixth Circuit has sixteen authorized judgeships, but its rules allow “any senior judge of the court who sat on the original panel” to take part in the en banc court. Senior judge Eugene Siler took part in the original panel ruling in favor of the Planned Parenthood entities; indeed, he joined that ruling but changed his vote in the en banc proceeding. Sixth Circuit rules also provide that the en banc court includes “all judges in regular active service at the time of a hearing or rehearing” (emphasis added), so Judge Batchelder and Judge Cook, who, as I understand it, took senior status upon the confirmations of Eric Murphy and Chad Readler (respectively) last week, also took part. (Murphy argued the case for Ohio in front of the original panel.)