Bench Memos

Law & the Courts

Very Confused Ruling Requiring Ohio to Fund Abortion Providers

On Monday, federal district judge Michael R. Barrett (a Bush 43 appointee) granted Planned Parenthood affiliates in Ohio a temporary restraining order against an Ohio law that directs the state department of health to “ensure” that funds it receives through six programs not be used to perform or promote nontherapeutic abortions or to contract with any entity that performs or promotes such abortions.

Applying the standard for a TRO, Barrett ruled that the Planned Parenthood affiliates had established a strong likelihood of success on their claims that the state law violates their First Amendment rights, that it imposes an “undue burden” on a woman’s right to abortion, and that it violates the Equal Protection Clause. (Much of his rhetoric goes even further than “strong likelihood of success.”)

Barrett’s order is badly confused, perhaps because he fails to pay attention to the fact that the state law provides (at least) two separate and independent bases for the state department of health not to fund the Planned Parenthood affiliates: their performing nontherapeutic abortions and their promoting nontherapeutic abortions.

How, under longstanding Supreme Court precedents, can there possibly be a constitutional obligation on the part of a state to channel funds to entities that perform abortions? How could there be any First Amendment protection for conduct that is not expressive? Since a woman has no constitutional right to government funding of her abortion, how can a state’s refusal to fund abortion providers violate the woman’s right to abortion? How can abortion providers have an Equal Protection right to state funding?

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