Judge Indira Talwani has delivered what may be one of the most questionable judicial decisions in recent memory—and that’s saying something given the current judicial climate. Her handling of the Planned Parenthood funding case is a textbook case of judicial overreach.
The saga began on July 7 with a temporary restraining order that commanded the Department of Health and Human Services to “take all steps necessary to ensure that Medicaid funding continues to be disbursed” to Planned Parenthood despite provisions in the One Big Beautiful Bill eliminating that funding. The problem? Talwani offered no reasoning whatsoever for this sweeping directive.
When criticism mounted, she scrambled to provide cover. On July 11, she amended her order with constitutional analysis consisting of two hastily written paragraphs that grudgingly acknowledged “at least some of” Planned Parenthood’s First and Fifth Amendment claims.
On Monday she followed that up with a 36-page memorandum attempting to justify her actions. Unfortunately for Talwani, length doesn’t equal legal rigor. The opinion only highlighted the weakness of her position.
Let’s start with the obvious: Planned Parenthood has no constitutional right to taxpayer funding. None. Yet Talwani attempted an elaborate workaround, invoking the “unconstitutional conditions doctrine” to argue that funding restrictions violated Planned Parenthood’s freedom of association.
This argument falls apart under scrutiny. Talwani cited no precedent supporting her theory that similar funding conditions violate associational rights. That’s because there isn’t any. The funding restriction has nothing to do with Planned Parenthood organizations’ “expressive association” with each other—it’s about the services they provide.
Talwani made much of the organizations’ “affiliate” status, but if her reasoning were taken seriously, it would obliterate a host of long-accepted federal statutes that distinguish between organizations based on their functions and structures.
The judge’s Fifth Amendment analysis fared no better. She claimed the statute violates equal protection under the Due Process Clause, but her reasoning was paper-thin. Missing from her analysis was any coherent theory of discrimination or explanation for why the funding restriction fails even the most lenient constitutional test—rational basis review.
This puts Talwani at odds with established precedent. In 2002, none other than then-Judge Sonia Sotomayor rejected a nearly identical equal protection challenge to the Mexico City Policy, which barred foreign aid to organizations performing or promoting abortions. Sotomayor’s reasoning, citing the Supreme Court’s decision in Rust v. Sullivan (1991), was straightforward: “The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds.”
Talwani also dismissed the government’s common-sense argument that “money is fungible,” claiming that the government had failed to show how the law “relates to Congress’s goal of reducing abortion.” Really? The connection between restricting abortion funding and reducing abortions requires explanation?
Judge Talwani’s ever-lengthening attempts to defend her judgment are a clear example of judicial overreach—complete with legal theories untethered from precedent and constitutional analysis that reads more like wishful thinking than rigorous jurisprudence. The Trump administration should have little trouble appealing this order, whether in the First Circuit or at the Supreme Court.