A federal appeals court held on Tuesday that abortion providers “do not have a Fourteenth Amendment right to perform abortions” — and thus the state of Ohio could require them to either give up public funding for non-abortion care or stop performing abortions.
The United States Court of Appeals for the Sixth Circuit’s decision in Planned Parenthood of Greater Ohio v. Hodges was handed down entirely along party lines, with a total of 11 Republican judges joining a majority opinion by Judge Jeffrey Sutton and six Democrats in dissent. (Although the dissent was authored by Judge Helene White, a Bush appointee, White was appointed to the bench at the urging of Democrats, and as part of a deal that also allowed Bush to appoint Republican Judge Raymond Kethledge.)
The crux of Sutton’s opinion is that abortion providers have no independent right to perform abortions under the Supreme Court’s abortion decisions. As Sutton notes, the Supreme Court said in Planned Parenthood v. Casey that, at least within the context of that case, a doctor’s right to perform an abortion is “derivative of the woman’s position,” and thus he claims that abortion providers have only a limited ability to challenge anti-abortion laws in federal court.
Sutton roots much of his decision in a longstanding rule that the government is not required to subsidize abortion care. Typically, however, the rule that the government may choose which activities it wishes to subsidize is limited by a doctrine known as “Unconstitutional Conditions.” As Judge White notes in dissent, this doctrine prevents the government from imposing “conditions which require the relinquishment of constitutional rights.”
Thus, the government could not tell a welfare beneficiary that they will lose their benefits if they engage in speech the government finds objectionable. It cannot require a business that receives a tax subsidy to refuse to hire black workers. And it cannot require a pregnant individual to choose between having an abortion and receiving a subsidized health plan under the Affordable Care Act.
But the impact of Sutton’s conclusion that abortion providers do not have an independent right to perform abortions is that the state may require clinics to give up public health subsidies if they wish to perform abortions — even if those subsidies do not fund abortions or related care. The potential impact of this decision is quite breathtaking, as law professors Leah Litman and Samuel Bagenstos noted on Twitter Tuesday.
What if a state said that a nonprofit entity that performed abortions could not receive generally-available tax exemption under the state's tax code? Or said doctors who perform abortions should pay double income tax? Sutton seems to say those might be constl.
— Sam Bagenstos (@sbagen) March 12, 2019
In fairness, Sutton does acknowledge one limit on his ruling. Under Casey, individual patients still have a constitutional right to an abortion, and laws that impose an “undue burden” on this right are invalid. So if a state imposed financial burdens on abortion clinics that were so great that many patients were no longer able to obtain abortions, that law would still be invalid even under Sutton’s reasoning.
But Sutton’s decision could still allow states to impose significant burdens on abortion clinics. In practice, it may lead many clinics that offer a broad array of reproductive care to spin off their abortion practices, increasing the cost of abortive care and leading many patients to receive less comprehensive care as a result.
Sutton’s opinion also fits into a pattern of Republican judges handing down bold anti-abortion decisions in the wake of Justice Anthony Kennedy’s retirement. With no majority on the Supreme Court to protect abortion rights, such judges have little reason to fear that their most aggressive decisions will be reversed.