Analysis Law and Policy

Abortion Rights and Judicial Bias in Texas Planned Parenthood Decision

Jessica Mason Pieklo

The Fifth Circuit Court of Appeals appears willing to stop at nothing to enshrine its hostility to abortion access into law.

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.

Roundups Law and Policy

Gavel Drop: The Fight Over Voter ID Laws Heats Up in the Courts

Jessica Mason Pieklo & Imani Gandy

Texas and North Carolina both have cases that could bring the constitutionality of Voter ID laws back before the U.S. Supreme Court as soon as this term.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts

Texas Attorney General Ken Paxton intends to ask the U.S. Supreme Court to reinstate the state’s voter ID law.

Meanwhile, according to Politifact, North Carolina attorney general and gubernatorial challenger Roy Cooper is actually saving taxpayers money by refusing to appeal the Fourth Circuit’s ruling on the state’s voter ID law, so Gov. Pat McCrory (R) should stop complaining about it.

And in other North Carolina news, Ian Millhiser writes that the state has hired high-powered conservative attorney Paul Clement to defend its indefensible voter ID law.

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Alex Thompson writes in Vice that the Zika virus is about to hit states with the most restrictive abortion laws in the United States, including Alabama, Louisiana, Mississippi, and Texas. So if you’re pregnant, stay away. No one has yet offered advice for those pregnant people who can’t leave Zika-prone areas.

Robin Marty writes on Care2 about Americans United for Life’s (AUL) latest Mad Lib-style model bill, the “National Abortion Data Reporting Law.” Attacking abortion rights: It’s what AUL does.

The Washington Post profiled Cecile Richards, president of the Planned Parenthood Federation of America. Given this Congress, that will likely spur another round of hearings. (It did get a response from Richards herself.)

Kimberly Strawbridge Robinson writes in Bloomberg BNA that Stanford Law Professor Pamela Karlan thinks the Supreme Court’s clarification of the undue burden standard in Whole Woman’s Health v. Hellerstedt will have ramifications for voting rights cases.

This must-read New York Times piece reminds us that we still have a long way to go in accommodating breastfeeding parents on the job.

Analysis Politics

Timeline: Donald Trump’s Shifting Position on Abortion Rights

Ally Boguhn

Trump’s murky position on abortion has caused an uproar this election season as conservatives grapple with a Republican nominee whose stance on the issue has varied over time. Join Rewire for a look back at the business mogul's changing views on abortion.

For much of the 2016 election cycle, Donald Trump’s seemingly ever-changing position on reproductive health care and abortion rights has continued to draw scrutiny.

Trump was “totally pro-choice” in 1999, but “pro-life” by 2011. He wanted to shut down the government to defund Planned Parenthood in August 2015, but claimed “you can’t go around and say that” about such measures two months later. He thinks Planned Parenthood does “very good work” but wants to see it lose all of its funding as long as it offers abortion care. And, perhaps most notoriously, in late March of this year Trump took multiple stances over the course of just a few hours on whether those who have abortions should be punished if it became illegal.

With the hesitancy of anti-choice groups to fully embrace Trump—and with pro-choice organizations like Planned Parenthood, NARAL, and EMILY’s List all backing his opponent, Democratic nominee Hillary Clinton—it is likely his stance on abortion will remain a key election issue moving into November.

Join Rewire for a look back at the business mogul’s changing views on abortion.

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