Defunding Planned Parenthood: Would the courts block Congress?

Judges across the board have blocked conservative states from trying to defund Planned Parenthood on their own. At least eight states have tried, and failed, to block the women’s health and abortion provider from seeing low-income women who have Medicaid coverage.

Among them are Utah, Arkansas, Ohio, Louisiana, Mississippi, Alabama and Kansas, which targeted Planned Parenthood after undercover videos released in 2015 from activist David Daleiden showed how some of its clinics supply aborted fetal tissue for medical research.

Last month, a federal judge granted Planned Parenthood a temporary injunction blocking Texas officials from removing it from the list of Medicaid providers.

When striking such laws, courts have pointed to the underlying Medicaid statute, which says patients may seek care from any qualified provider. Since Planned Parenthood is a qualified provider, states can’t ban its clinics from Medicaid just because they use non-taxpayer dollars to provide abortions, judges have ruled.

But Republicans and conservatives are still hoping to win on the issue by amending the Medicaid rules themselves. After years of promising to defund Planned Parenthood, the GOP likely has the votes in Congress and support from the White House it needs.

“It’s a whole different question when you look at Congress passing a federal law addressing the issue of free taxpayer money to Planned Parenthood,” said Cathy Ruse, a legal fellow at the conservative Family Research Council.

Last week, acting House Budget Committee Chairwoman Diane Black told reporters defunding will be included in a measure repealing big parts of Obamacare, and Capitol Hill lobbyists say that’s still the plan even as Republicans struggle to agree on the details of the overall package.

“Last fall, Americans went to the polls and rejected Planned Parenthood’s callous extremism,” said Black, R-Tenn. “Now it’s time for Congress to do the same.”

If Black and her party follow through, Planned Parenthood would lose most of its Medicaid reimbursements, which make up about 30 percent of its total funding.

“I hope that the sands of time blow over that Capitol dome before we ever give one more dime of taxpayer dollars to this insidious, deceptive and evil enterprise,” said Rep. Trent Franks, R-Ariz.

But while the legislative pathway is relatively clear, the legal pathway isn’t. If defunded, Planned Parenthood almost certainly would challenge it in court, although the group didn’t respond to a query from the Washington Examiner.

Even if Congress changes the underlying Medicaid statute, allowing abortion providers to be cut out of Medicaid even though the dollars can’t be used for abortions, Planned Parenthood could challenge it under a constitutional claim.

Priscilla Smith, a Yale law professor who defended an abortion provider in the landmark Supreme Court case Gonzales v. Carhart, said Planned Parenthood could appeal to what’s known as the Unconstitutional Conditions Doctrine. That precedent says the government can’t withhold a government benefit based on the waiver of a constitutional right.

Applied to Planned Parenthood, courts could interpret the doctrine to mean that states can’t ban healthcare providers from providing abortions in order to serve Medicaid patients, Smith said.

“The constitutional claim is very strong,” Smith said. “You can’t make somebody give up their constitutional right to speak or do something in order to get a benefit from the government.”

A federal law blocking Planned Parenthood from participating in the Medicaid program would be likely to attract attention from the Supreme Court, since it’s relatively uncharted territory. The swing vote would likely be Justice Anthony Kennedy. Smith said she’s hopeful he wouldn’t approve of blocking healthcare providers from Medicaid just because they provide abortions using non-taxpayer funds.

“I think this court would not look favorably upon that kind of motive,” Smith said.