Progressives spend a lot of time fretting that the Supreme Court will soon overturn Roe v. Wade—for good reason, since four justices are ready to abolish abortion rights immediately, and another seems to be simply waiting for the right opportunity. But the lower courts need not wait for Roe to go to dramatically limit Americans’ access to abortion. They can effectively kill Roe by a thousand cuts, manipulating doctrine to let states shutter clinics and force women to carry unwanted pregnancies to term.
That is precisely what the 6th U.S. Circuit Court of Appeals did on Tuesday, permitting Ohio to defund Planned Parenthood by proclaiming that there is no “Fourteenth Amendment right to perform abortions.” The court’s threadbare reasoning ignores controlling Supreme Court precedent and disregards the impact of Ohio’s crusade against abortion providers on women. But that doesn’t matter to the majority, which includes all four President Donald Trump appointees who participated in the case. For these judges, what’s important is that Ohio may now strip Planned Parenthood of $1.5 million each year—money that supported STI tests, cancer screenings, and contraception, but not abortion. The majority neatly illustrates how courts can undermine Roe while pretending to uphold the Constitution.
Tuesday’s decision in Planned Parenthood of Greater Ohio v. Hodges revolves around a 2016 Ohio law designed to close Planned Parenthood’s 27 clinics in the state. For years, the organization has participated in Ohio programs designed to reduce STIs, cancer, teen pregnancy, infant mortality, and sexual violence. No money that Planned Parenthood receives from Ohio pursuant to this program is used to cover abortions. But three Planned Parenthood clinics do offer abortion services, which are paid for independently. The 2016 law denies state funds to all clinics that “contract with” or become “an affiliate of any entity that performs or promotes nontherapeutic abortions.” Because all 27 clinics affiliate with Planned Parenthood, and because that organization “performs or promotes” abortions, Ohio attempted to cut off their funding. Two Planned Parenthood affiliates sued.
A federal district court blocked the law the day it was set to take effect, ruling that it imposed “unconstitutional conditions” on Planned Parenthood’s right to free speech and due process. A panel of judges for the 6th Circuit agreed. “Plaintiffs do not claim an entitlement to government funds,” Judge Helene White wrote for the court. “What they do claim is a right not to be penalized in the administration of government programs based on protected activity outside the programs.” White explained that, under the Supreme Court’s unconstitutional conditions jurisprudence, “the government may not require the surrender of constitutional rights,” including free speech and reproductive autonomy, “as a condition of participating in an unrelated government program.”
But the 6th Circuit is increasingly conservative, and by the time the panel handed down its decision, Trump had placed four new judges on the bench. A majority of the court quickly voted to re-hear the case en banc. And on Tuesday, it reversed the lower court’s decision by an 11–6 vote, with all four Trump appointees ruling against Planned Parenthood. (There are two other Trump-appointed judges on the court who were not seated in time to rule in the case—including Eric Murphy, the former Ohio solicitor general who helped defend the state’s anti-abortion law in the district and circuit courts. Murphy likely would’ve recused himself had he been seated in time.)
In his majority opinion, Judge Jeffrey Sutton (a George W. Bush appointee) boiled down the case to one simple question: Does the Constitution safeguard the right to perform abortion? Deciding that it does not, Sutton easily disposed of Planned Parenthood’s challenge. The Supreme Court has never expressly stated that medical centers “have a constitutional right to offer abortions.” Thus, Ohio has not penalized clinics for engaging in “constitutionally protected activities” and, by extension, has not imposed an unconstitutional condition on Planned Parenthood. Case closed.
To White, writing in dissent, Sutton is just plain wrong, warping precedent to shrink the contours of Roe. The Supreme Court has said that doctors have a “derivative” right to perform abortion since the right to terminate a pregnancy is “inextricably bound up with“ doctors’ ability to do so legally. So the majority’s premise is fundamentally flawed; Planned Parenthood does have a right to help women terminate their pregnancies, and the Ohio law does penalize providers for performing “constitutionally protected activities.” By punishing clinics for exercising a constitutional right with their own money, the state ran afoul of due process.
But even if Planned Parenthood had no right to perform abortions, White asserted, the Ohio law would still be unconstitutional. In a case called Agency for International Development v. Alliance for Open Society International, the Supreme Court limited the government’s ability to impose conditions on funding. The court held that funding conditions which seek to achieve indirectly what the government could not do directly are subject to special scrutiny. These conditions may not “reach outside” the program to accomplish otherwise unconstitutional goals.
Here, White wrote, Ohio’s goal is to limit or halt the performance of abortions by burdening clinics that perform them. It could not legally accomplish this goal by, for instance, banning abortions outright, or imposing needless regulations on clinics. So it has instead targeted these clinics by defunding them. But the public money the clinics receive has nothing to do with abortion. Ohio has therefore “reached outside” its public health program to achieve an otherwise unconstitutional aim. By doing so, it has infringed upon the rule set out in Agency for International Development.
Here’s the icing on the cake: Ohio isn’t just penalizing Planned Parenthood for performing abortions. It is also punishing the organization for promoting abortion rights by defunding clinics that associate with the group. As White notes, the state has plainly imposed unconstitutional conditions on these clinics’ rights to free speech and association. Ohio has given them a choice: Stop associating with an organization that supports abortion access, or forgo state funds for a program that is unrelated to abortion. The state is using funding conditions to engage in flagrant censorship, a clear First Amendment violation.
In his majority opinion, Sutton does not discuss Agency for International Development or the clinics’ First Amendment claim. His cursory analysis omits the Supreme Court decisions that render Ohio’s law unconstitutional, cherry-picking precedent to uphold the state’s assault on Planned Parenthood. There is very little chance the Supreme Court will take this case—but a strong possibility that other courts will adopt Sutton’s reasoning to uphold other attacks on abortion rights. Conservative judges do not need Brett Kavanaugh’s permission to disregard or disrespect Roe v. Wade. They already have the tools to topple it on their own.