In an 11-6 decision, the 6th Circuit Court of Appeals ruled Tuesday that Ohio can cut off $1.5 million in funding for all 27 Planned Parenthood-affiliated health clinics in the state because three of those clinics perform abortions. The decision allows the state to punish clinics that don’t perform abortions if they associate with clinics that do by barring any public funding for them to provide other health services. As the judge who wrote the dissent said, the state is using unconstitutional means to achieve something indirectly that it can’t achieve directly. You can read the decision and dissent in Planned Parenthood of Greater Ohio v. Hodges.
Even though federal law bars the spending of tax revenue for most abortions, forced-birthers have for years sought to eliminate public funding for any organization that performs abortions, even if it only uses the public money it receives to provide non-abortion services like screening for sexually transmitted diseases and cancer, providing birth control, testing for HIV, conducting pelvic examinations, and assisting clients with pregnancy-related health matters.
But foes of this funding have argued—falsely, according to Planned Parenthood—that public and private monies are intermingled, and that therefore no services offered by a clinic that also performs abortions should be publicly funded. The Ohio law and the circuit court’s ruling in its favor go still further than that in support of forced-birthers’ additional argument that a mere affiliation of a clinic that doesn’t provide abortions with clinics that do is a legitimate reason for the state to refuse to fund the health services the non-abortion clinic offers.
All 11 judges in the majority are Republican appointees, including four appointed by Donald Trump. All but one of the six dissenters are Democratic appointees, the sixth having been appointed by President George W. Bush as part of a one-for-one deal with Democrats in which their choice was placed on the appeals court in exchange for supporting the simultaneous appointment of another Republican judge by Bush.
The law in question was passed in 2016 and defended in the lower courts by then-Attorney General Mike DeWine, who is now Ohio’s Republican governor. A district court decision to stay implementation of the law was upheld by a three-judge panel of the 6th Circuit, a decision the en banc court overturned Tuesday, as reported at Slate by Mark Joseph Stern:
“Plaintiffs do not claim an entitlement to government funds,” Judge Helene White wrote for the [three-judge panel of the] court. “What they do claim is a right not to be penalized in the administration of government programs based on protected activity outside the programs.” White explained that, under the Supreme Court’s unconstitutional conditions jurisprudence, “the government may not require the surrender of constitutional rights,” including free speech and reproductive autonomy, “as a condition of participating in an unrelated government program.”
In his majority opinion [for the full court, however], Judge Jeffrey Sutton (a George W. Bush appointee) boiled down the case to one simple question: Does the Constitution safeguard the right to perform abortion? Deciding that it does not, Sutton easily disposed of Planned Parenthood’s challenge. The Supreme Court has never expressly stated that medical centers “have a constitutional right to offer abortions.” Thus, Ohio has not penalized clinics for engaging in “constitutionally protected activities” and, by extension, has not imposed an unconstitutional condition on Planned Parenthood. Case closed.
In her dissent Tuesday, White argued that Sutton is flat-out wrong:
The majority makes short work of Plaintiffs’ arguments with three simple assertions. Because Plaintiff clinics have no independent constitutional right to perform abortions, it is impossible for Ohio to violate their due process rights by withholding benefits or imposing burdens based on their abortion activities; a woman has a due process right to obtain certain non-therapeutic abortions, but no condition violates that right unless it imposes an undue burden on that right; because Plaintiff providers have made clear that they will not accede to Ohio’s funding conditions, there is no undue burden on a woman’s abortion right.
The majority does not mention, much less apply, the test the Supreme Court has recently articulated governing the unconstitutional-conditions doctrine. That doctrine prohibits the government from conditioning the grant of funds under a government program if: (1) the challenged conditions would violate the Constitution if they were instead enacted as a direct regulation; and (2) the conditions affect protected conduct outside the scope of the government program. [...]
For the proposition that there is “no such thing” as a right to perform abortions, the majority cites the statement in the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey that a provider’s constitutional right “is derivative of the woman’s position.” 505 U.S. 833, 884(1992). (Maj. Op. at 5.) The majority then assumes that a “derivative” right is no right at all. But of course, “derivative” simply means “developed from . . . something else.” Black’s Law Dictionary (10th ed. 2014). An abortion provider’s constitutional right may be derivative of the patient’s right—but it is a right nonetheless.
And, even if the abortion right belongs only to women, it has long been understood that “the right is inextricably bound up with” a provider’s ability to offer these services. Singleton v. Wulff, 428 U.S. 106, 114 (1976) (plurality opinion). Further, the Supreme Court has never suggested that a party that could prevail in challenging a direct regulation is nevertheless powerless to challenge a law that attempts to achieve the same result by imposing a condition on unrelated funding. The majority’s novel rule gives the government the authority to impose almost any condition it wants on abortion providers so long as the providers continue to perform abortions. The government acknowledged as much at oral argument. This type of assault on a constitutional right is precisely the type of harm the unconstitutional-conditions doctrine is meant to protect against.
What we have here is another abortion ruling in what Stern rightly labels “death by a thousand cuts”:
There is very little chance the Supreme Court will take this case—but a strong possibility that other courts will adopt Sutton’s reasoning to uphold other attacks on abortion rights. Conservative judges do not need Brett Kavanaugh’s permission to disregard or disrespect Roe v. Wade. They already have the tools to topple it on their own.
The damage being done to the judiciary system by Donald Trump will be with us long after his regime is ashes and dust.