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Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
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Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
It’s Time to Constitutionalize Opposition to the Planned Parenthood Exclusion, aka "Defunding"
It looks like the current version of the Republican healthcare bill is a dead letter, but Repubs are saying a new version is due out today that will “appease both sides” of their party’s divide. here.
We’ll see about that. Maybe they’ll add back in coverage for preexisting conditions, reduce by a million or two the number of people who will lose health care. We’ll find out. What I doubt will change is the way the bill guts health care provided for women. First, they will undoubtedly mess with the preventive services package, gutting the required coverage for contraception or creating a refusal clause you could drive a truck through. Think women shouldn’t have sex unless they would welcome a pregnancy? No problem. Sign here. How about prenatal and delivery services for those women who get pregnant? Is “maternity” care still on the chopping block? We’ll see.
One thing you can be sure of though is that the new version of the healthcare bill will “defund” Planned Parenthood. The Republicans claim they are “defunding” Planned Parenthood because they don’t want to support Planned Parenthood’s abortion care. Of course, the federal government doesn’t fund abortions, or even Planned Parenthood in any case. They cover non-abortion services for women on insurance programs like Medicaid and in block grants like Title X, and Planned Parenthood is an eligible provider of preventive services. In fact, Planned Parenthood is one of the best providers around of prenatal care, preventive health services, cancer screenings, vaccines, and primary care for kids. In many areas of the country, it’s the only provider of those services. Blah Blah Blah.
You’ve heard it all before – at least I hope you have. The main message we hear is that Planned Parenthood is great health care, vital for many women in the country. Your daughter, sister, wife, mother, cousin have probably gone there if you haven’t gone yourself. There are not six degrees of separation from you and Planned Parenthood. You are closer to PP than you are to Kevin Bacon that’s for sure. It’s a great message; I have nothing against it; it’s true; it probably tests well in focus groups, etc.
But one thing you don’t hear about is that making Planned Parenthood or any otherwise eligible medical provider ineligible to provide covered health care services in a federal program because they provide constitutionally-protected abortions using their own non-government funds is, you guessed it, unconstitutional.
I don’t mean that I think it is unconstitutional or that current case law should be interpreted as saying it is unconstitutional. No. The claim that defunding Planned Parenthood is unconstitutional is far from off-the-wall, because the Supreme Court has already said that it is unconstitutional. In 1986, the Supreme Court summarily affirmed a Court of Appeals decision that held unconstitutional an Arizona law that “defunded” Planned Parenthood because it provided abortions with its own private funds. Babbitt v. Planned Parenthood of Cent. & N. Ariz., 479 U.S. 925 (1986), aff’g mem., 789 F.2d 1348, 1350 (9th Cir. 1986). In Babbitt, the Supreme Court held that a state cannot withhold family planning funds from an organization that uses its own non-state funds to perform abortions.
As the Court of Appeals held in Babbitt, “the State need not support, monetarily or otherwise, [abortion or abortion-related speech] activities,” but the State “may not unreasonably interfere with the right of Planned Parenthood to engage in abortion or abortion-related speech activities” by conditioning funding for non-abortion activities on Planned Parenthood’s abandonment of provision of abortions or abortion-related speech performed with private funds. Planned Parenthood of Cent. & N. Arizona v. State of Ariz., 718 F.2d 938, 944 (9th Cir. 1983) (provision of appropriations law prohibiting expenditure of social welfare funds for non-abortion-related activities to support NGOs that perform abortions and engage in abortion activities with private funds was unconstitutional if separation of government and private funds could be adequately monitored and remanding for determination of factual question regarding adequacy), appeal after remand, 789 F.2d 1348 (confirming after remand that there was convincing evidence of the feasibility of monitoring the segregation of funds), aff’d mem. sub nom, Babbitt v. Planned Parenthood of Cent. & N. Ariz., 479 U.S. 925 (1986); see also Rust v. Sullivan (restriction on use of Title X funding constitutional where provision specifically allowed restricted activities to be performed using private funds that were segregated from government funding scheme).
The Court also responded in that case to a claim repeated by Republicans today, that any funding to an abortion provider, even for services that had nothing to do with abortion, end up supporting abortion by “freeing up” funds. After confirming that the segregation of funds could be adequately monitored, Planned Parenthood of Cent. & N. Arizona v. State of Ariz., 789 F.2d at 1351, the Court of Appeals specifically rejected the government’s “freeing up theory,” holding that “as a matter of law, the freeing-up theory cannot justify withdrawing all state funds from otherwise eligible entities merely because they engage in abortion-related activities disfavored by the state.” 718 F.2d at 945. As the Court of Appeals noted, "Applying the logic of the freeing-up argument to another setting shows its hazards. It can be argued that by providing welfare benefits to a pregnant indigent woman, a state would be freeing up whatever other funds she may have at her disposal for use in paying for an abortion." Id. at 946. But no one would argue that the State could deny welfare benefits to an otherwise eligible woman simply because she was pregnant. (Or would they? These days, it’s hard to know.)
Perhaps the relative silence concerning the unconstitutionality of the Planned Parenthood exclusion has to do with the Court’s use of summary affirmance to dispose of the issue? If anything, though, that should give the Court’s decision more, not less, weight. As readers of this blog are aware, summary affirmance is a rarely used procedure, reserved for situations where the law is settled, and the issues in a case are so clear-cut that no additional briefing and argument is needed to decide the case. See, e.g., United States v. Reidel, 402 U.S. 351, 355 (1971) (noting issues in previous case were “sufficiently clear to warrant summary affirmance.”); compare Pavan v. Smith, No. 16-992, 2017 WL 2722472, at *3 (U.S. June 26, 2017) (Gorsuch, J, dissenting from summary reversal) (dissenting from per curiam summary reversal claiming that case did not meet the summary reversal standard which “is usually reserved for cases where ‘the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.’”) (quoting Schweiker v. Hansen, 450 U.S. 785, 791 (1981) (Marshall, J., dissenting). The law is also clear that summary disposition, “either by affirmance or by dismissal for want of a substantial federal question, is a disposition on the merits,” Hicks v. Miranda, 422 U.S. 332, 344-45 (1975) (quoting C. Wright, Law of Federal Courts 495 2d ed. 1970), that is binding on lower courts “until such time as the Court informs (them) that (they) are not.” Id.
It is easy to see why defunding Planned Parenthood is unconstitutional. The government cannot penalize people for exercising their constitutional rights, and Roe v. Wade recognized that women have a constitutional right to choose not to bring a pregnancy to term. The First Amendment protects Planned Parenthood’s right to counsel women about abortion.
But why should Democrats constitutionalize their opposition to defunding Planned Parenthood? Is it not enough to say that defunding Planned Parenthood is bad policy? Constitutionalizing opposition to defunding Planned Parenthood would have a number of positive consequences.
Importantly, opposing defunding Planned Parenthood as an unconstitutional infringement on the right to abortion strengthens the abortion right. The mainstream media will need to repeat and explain the argument to their readers and viewers. The public needs to understand that the right to abortion is deeply-rooted constitutional law and that defunding Planned Parenthood is an attack on constitutional values. I’m not sure that this would galvanize public opposition, but it might.
Moreover, it would ensure that House and Senate Democrats make appropriate constitutional objections to the provision, which would help to bolster the case for judicial review should the provision defunding Planned Parenthood ultimately pass.
The are plenty of good reasons to oppose efforts to defund Planned Parenthood, of course. It plays a crucial role in all aspects of women’s health, from providing access to contraception, to pap smears and mammograms to thousands of women across the nation. But access to abortion and abortion counseling, and speaking about abortion are vital constitutional rights. Opponents of the Planned Parenthood exclusion should make it clear that defunding Planned Parenthood infringes on those rights.