There may be no jurisdiction right now more hostile to women’s rights than the Fifth Circuit Court of Appeals. The most recent evidence of a deep and structural bias against women in general and reproductive rights in particular is the decision to allow the state of Texas to move forward with de-funding Planned Parenthood.
The legal challenge to the regulation that bars state money from going to any clinic or any affiliate clinic that provides abortion services like other abortion-funding cases turned not on access to reproductive health care, but the First Amendment rights of the clinics. When the government conditions the receipt of funds on promoting a particular agenda, the government is in effect subsidizing that speech. These cases involve a murky area of the law known as the “unconstitutional conditions” doctrine.
The unconstitutional conditions doctrine says, essentially, that a funding condition, such as excluding abortion services, can’t be unconstitutional if there is some way the government can impose that condition directly. In the case of Texas and the WHP program, that would mean that the regulations cutting of funding to Planned Parenthood and its affiliates is constitutional if the state could achieve the same goal–ending abortion services–directly and not by conditioning receipt of state funds to get there.
Thanks to Roe v. Wade the state of Texas clearly cannot unilaterally shut down abortion services, either legislatively or through some other means. So, it should be pretty clear that any regulation that attempts to do the same, under the unconstitutional conditions doctrine, should fail as an unconstitutional condition on other rights–in this case the association rights of women’s health providers.
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But in a decision where up is down and black is white, the Fifth Circuit held that while the Texas restriction “functions as a speech-based funding condition, it also functions as a direct regulation of the content of a state program” and because states are generally given wide latitude to construct the content of state programs, this particular regulation survives.
In short, Texas created the WHP and can regulate the “content” of the program, as it sees fit, even if regulating that “content” unconstitutionally restricts the rights of others.
To come to this conclusion the court relies on Rust v. Sullivan, a 1991 unconstitutional conditions case, involved a since-rescinded Title X regulation that prohibited abortion counseling, referral, and advocacy with Title X funds. The Supreme Court upheld the regulations, reasoning that the government could disfavor abortion within its own subsidized program, and that exclusively subsidizing non-abortion family planning speech did not penalize abortion speech.
Here, the Fifth Circuit reasoned that since it was the specific policy goal of the state to subsidize non-abortion family planning speech to the exclusion of abortion speech it was free to appropriate funds to promote that policy, because the authority of Texas to promote that policy would be meaningless if it were forced to enlist organizations as health care providers and message-bearers that were abortion advocates.
The decision, essentially, explodes open the precedent from Rust v. Sullivan by holding that everything is, essentially, content of the state’s WHP program. By deciding who is and is not allowed to participate, the state of Texas is directing the “content” of the WHP program by the 5th Circuit’s logic. Texas can constitutionally target Planned Parenthood for de-funding and so long as their reasons are grounded in dictating the “content” of the WHP program.
To be clear, the courts decision and analysis was in the context of lifting a preliminary injunction, so it is not a final read on the merits of the regulation. A trial on the merits is set to start in federal district court in Austin in October, but at this point reproductive rights activists hands are in a bind. The Fifth Circuit has already said, essentially, that at first blush it believes the regulations are constitutional, and given the glee the circuit seems to take in stripping women’s rights, another review would provide it an opportunity to solidify this holding into more bad reproductive rights law in the circuit. Finally, then-Principal Deputy US Solicitor General John Roberts, one of the lead attorneys defending the regulation at issue in Sullivan, argued in that case for overruling Roe entirely. Now, sitting as Chief Justice of the Supreme Court you have to think he’d love an opportunity to see that argument through.