Tuesday, September 29, 2015

The Constitutionality of Defunding Planned Parenthood

Would it be constitutional for a state or the federal government to defund Planned Parenthood? The answer lies in the interpretation of the Spending Clause and the First Amendment.

Planned Parenthood is a private organization providing women's health services including birth control, cancer screening, and gynecological care. It is an approved Medicaid provider, meaning that it qualifies for state and federal funding to provide these health services to women in poverty. Under federal law no Medicaid funds may be spent on abortions or abortion counseling; accordingly, any abortion services conducted by Planned Parenthood -- about 3% of its operations -- are performed separate and apart from any government-funded programs.

Recently a number of undercover videos were released regarding the role of Planned Parenthood in securing fetal tissue for scientific research. Persons who are opposed to abortion or to fetal tissue research wish to disqualify Planned Parenthood's eligibility to be a Medicaid provider. Congress is considering legislation that would accomplish this, and Louisiana Governor Jindal has issued an executive order announcing his intention to remove Planned Parenthood as an approved provider in that state, despite the fact that the two Planned Parenthood clinics in Louisiana do not perform abortions.

Would it be constitutional for the state or federal government to stop funding Planned Parenthood?

Congress' power under the Spending Clause is broader than its power under the Commerce Clause, and its spending power is broader than the regulatory power of the states. For example, neither Congress nor the states may make it illegal for a woman to terminate a pregnancy prior to viability of the fetus (approximately 24 weeks). However, Congress and the states may choose not to provide funding for abortions. The government has the power -- the people have the right -- to favor childbirth over abortion, and have no duty under the Constitution to fund abortions. Maher v. Roe (1977). Nor is there any duty to fund abortion counseling or referrals as part of a program of government-provided health care. Rust v. Sullivan (1991).

However, there are limits to Congress' power under the Spending Clause. Congress may decline to fund certain activities; but it has no power to impose conditions on the receipt of funding that are unrelated to the purpose of the funding. In short, Congress may refuse to fund abortions and abortion counseling, but it may not prohibit an organization from providing abortion services in the absence of government funding.

This is a well-established principle. Perhaps the most significant Supreme Court case in recent years delineating the limitations on Congress' power under the Spending Clause is NFIB v. Sebelius (2012) where the Supreme Court struck down a provision of the Affordable Care Act that would have coerced the states into expanding Medicaid. The ACA would have empowered the federal government to withdraw existing Medicaid funding from any state that refused to expand Medicaid -- an "all-or-nothing" approach. The Supreme Court ruled that existing Medicaid (serving certain identified groups such as the disabled) and expanded Medicaid (serving all persons below the poverty level) were two separate programs, and that it was unconstitutional for Congress make participation in the expanded Medicaid program a condition to participation in the existing program. This is an example of the principle that any condition or limitation on eligibility for government funding must be related to the purpose of the funding.

The Supreme Court reiterated this point the following year in Agency for International Development v. Alliance for Open Society International (2013). Congress agreed to fund efforts to combat AIDS and HIV, but it placed two conditions on the receipt of those funds. First, no organization could spend any of those funds to promote the legalization of prostitution. Second, any organization receiving these funds must expressly adopt a formal policy opposing the legalization of prostitution. The Supreme Court upheld the first requirement, because Congress has the power to direct how taxpayer funds may be spent. If an organization applies for federal funding, it should of course spend those funds for the purposes, and only the purposes, for which the funds are granted. But the Court struck down the second condition, finding that the funds were not being awarded for the purpose of outlawing prostitution but rather for the purpose of fighting AIDS. The requirement that grantees must expressly oppose the legalization of prostitution was not sufficiently related to the purpose of the funding. It was an "unconstitutional condition" on the receipt of the funds. Chief Justice Roberts described the applicable standard in these words:
In the present context, the relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program -- those the specify the activities Congress wants to subsidize -- and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.
It is clearly constitutional for Congress and the states to refuse to fund abortion services. It is not constitutional to prohibit any organization receiving funds for women's health services from performing abortion services without government funding. So long as Planned Parenthood keeps its government-funded health service activities separate from abortion services the government may not disqualify it from eligibility as a Medicaid provider.

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