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Abortion Rights and Judicial Bias in Texas Planned Parenthood Decision

Written by Jessica Mason Pieklo for RH Reality Check.This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

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.

But in a decision where up is down and black is white, theFifth 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.


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