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All 11 judges in the majority were appointed by Republican presidents; five of the six dissenters were appointed by Democrats
ABORTION OPPONENTS have railed against Roe v Wade, the Supreme Court ruling recognising a right to abortion, ever since it was handed down in 1973. Roe remains the law of the land 46 years later, but the anti-abortion movement has found increasing success in pushing for measures that chip away at it. Bans on so-called “partial birth” (or, in medical terms, “dilation-and-extraction”) abortion, onerous clinic regulations and forced ultrasounds are a few of the ways states have made inroads against Roe.
Another tactic is to stanch the flow of funds to Planned Parenthood, the largest provider of abortions and reproductive services in America. For decades, the law has blocked public funding of elective abortions. But conservative legislators in many states are now keen to take that rule one huge step further: barring all government dollars to organisations that deal in abortion, even if the funding is for public-health programmes that have nothing to do with terminations. Along these lines, Ohio passed a law in 2016 barring its health department from sending any preventive health funding to organisations that perform or promote—or affiliate?with organisations that perform or promote—“nontherapeutic abortions”. The law was quickly blocked in federal district court as a violation of the federal constitution. But on March 12th, a federal appeals court reversed the district court and gave the law its blessing.?
The majority opinion in Planned Parenthood of Greater Ohio v Hodges by Judge Jeffrey Sutton of the Sixth Circuit Court of Appeals—joined by four recent Donald Trump appointees and six other judges appointed by Republican presidents—was succinct. While abortion choice before fetal viability is indeed a well-established constitutional right, Judge Sutton wrote, there is nothing in the constitution that prevents a state from declining to fund organisations that provide abortion services or referrals. “Private organisations”, he wrote, “do not have a constitutional right to obtain governmental funding to support their activities”. Just as the government “has no obligation to provide a platform for an individual’s free speech”, it has no constitutionally imposed mandate to “pay for a woman’s abortion”.??
Judge Sutton’s opinion reckoned with two competing claims. First, Planned Parenthood contended its freedom of speech was violated when Ohio made state funding conditional on its decision to stop promoting abortion. Second, it claimed the Fourteenth Amendment’s due-process clause protected Planned Parenthood against the rule that it could not perform abortions at the three (of 27) clinics in Ohio where abortions are provided. The free-speech claim is weak, the Sixth Circuit said, since the state is free to decide which message it wants to send, and Ohio has chosen to “promote childbirth over abortion” and avoid “‘muddl[ing]’ that message by using abortion providers as the face of state healthcare programmes”. The due-process complaint is similarly flimsy, according to Judge Sutton. “Governments generally may do what they wish with public funds” and may put conditions on their use. While states may not insist that individuals jump through hoops in order to exercise their rights, they may require organisations that facilitate such individuals’ actions to do—or in this case, not do—certain things. In short, “the Supreme Court has never identified a freestanding right to perform abortions”.
To bar Ohio from taking action against Planned Parenthood, Judge Sutton wrote, is to “move the law perilously close to requiring states to subsidise abortions”, something no previous case has done. As for Planned Parenthood’s final claim—that the Ohio law will impose an “undue burden” on women seeking abortion—Judge Sutton called on much the same argument Justice Brett Kavanaugh used on February 7th when he expressed his displeasure over the Supreme Court’s refusal to allow Louisiana to implement its abortion regulations. In June Medical Services v Gee, Justice Kavanaugh would have let Louisiana impose its mandate—identical to a Texas law the Supreme Court struck down in 2016—that abortion providers have admitting privileges at a nearby hospital. If the new rule actually wound up imposing an undue burden on women by shuttering clinics, Justice Kavanaugh wrote, it could always be challenged later. Likewise, Judge Sutton wrote, it is “premature” for the courts to determine how burdensome Ohio’s abortion landscape would become for women if several of Planned Parenthood’s clinics were forced to close.
In dissent, Judge Helene White argued Ohio’s law amounts to an unconstitutional condition on a woman’s right to choose abortion. Abortion clinics do in fact have a constitutionally protected right to perform abortions, she wrote, that is “derivative of the patient’s right”. But, Judge White points out, not a dime of the $1.5m in state money that Planned Parenthood stands to lose has anything to do with abortion. The funding, instead, has been earmarked for organisations that work to reduce teen pregnancy, infant mortality, sexual violence and sexually transmitted infections (STIs)—services Planned Parenthood provides to thousands of women across Ohio. Making Planned Parenthood’s eligibility for these state funds contingent on its agreement to stop performing and promoting abortion is, for the six dissenting judges, well outside the scope of Ohio’s power. “[F]ederal and Ohio law already mandate[s]” that government funds may not subsidise elective abortion, Judge White notes. So “there is no question” that the 2016 law regarding the expenditure of funds “constitutes an unconstitutional condition”.?
The dissent imagines other examples of states taking aim at an individual right by tying strings to benefits associated with entities essential to the exercise of the right. What if a state hostile to the second amendment tried to undermine the right to bear arms by withholding “all existing tax breaks, subsidies and government benefits to any store that sells guns”? Or take an example not mentioned in the ruling: a town unfriendly to same-sex marriage that denied garbage collection or zoning variances to wedding halls hosting gay weddings. Judge Sutton considered worries like these to be “straw men” stemming from a “fertile imagination”, but his rejoinders gave rather short shrift to the Supreme Court precedent from 2013 Judge White cited regarding “unconstitutional conditions”: Agency for International Development v Alliance for Open Society International. In that case, the court held 6-2 that the government cannot strong-arm organisations into adopting its views by withholding funding. Chief Justice John Roberts described the tactic of forcing private entities to “pledge allegiance” to the state’s position as a clear violation of the freedom of speech.
The crux of Agency for International Development, Judge White wrote in her dissent, “is to prevent the government from achieving indirectly what it cannot constitutionally achieve directly”. Eleven judges on the Sixth Circuit disagree, a fact that should worry not only Ohioans but all Americans. Conservatives rage against Planned Parenthood in a number of other states, and on March 4th, Donald Trump’s administration joined the fight by making a new rule regarding Title X, a federal programme for poor women. Under the new regime, Title X funding—which helps 4m women access Pap smears, breast-cancer screenings and STI tests, among other services—may go only to organisations that neither provide nor refer patients to abortion care.?
Some 22 states are suing to block the new rule, but if Judge Sutton’s view in Hodges prevails in other courts, official disdain for abortion may get a green light in other jurisdictions. The ruling is particularly jarring in light of Judge Sutton’s recent book, “51 Imperfect Solutions”, which hails states as laboratories of liberty. Louis Brandeis, the celebrated Supreme Court justice of the early 20th century, Judge Sutton writes, believed state legislatures had “far more freedom to ‘try novel social and economic experiments without risk to the rest of the country’”.?