Denying Funding to Planned Parenthood Groups Because Their "Affiliates" Perform Abortions Violates First Amendment

Yesterday’s decision by Judge Indira Talwani (D. Mass.) in Planned Parenthood Fed. of Am., Inc. v. Kennedy (appeal pending) considered Section 71113(a) of the Reconciliation Act, which bars federal funding to any “entity, including its affiliates, subsidiaries, successors, and clinics,” that provides abortions and satisfies certain other criteria (to oversimplify somewhat).

The court acknowledged that “Congress has long prohibited the use of any federal funds to reimburse the cost of abortions under the Medicaid program except in limited circumstances,” and that “The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way.” But it concluded that the restriction on funding groups because of the actions of their affiliates violated the freedom of expressive association protected by the First Amendment. Here’s a short excerpt from the long opinion:

Section 71113 does not merely “withhold[ ] funding based on whether entities provide abortion services,” but also based on whether “an entity, including its affiliates,” provides abortion services. And Defendants assert that “two entities’ existence under common control” would satisfy the dictionary definition of an “affiliate,” and that, in Defendants’ view, Planned Parenthood Federations’ “membership standards,” “accreditation standards,” and “shared medical standards and guidelines,” would be sufficient to show common control such that Planned Parenthood Members who do not provide abortion could be “affiliates” of the Planned Parenthood Members who do.

To the extent that Section 71113 may be applied to Planned Parenthood Members who do not provide abortion, Plaintiffs are likely to succeed in establishing that the law impermissibly conditions the receipt of Medicaid funding on these Members foregoing their right to associate with Planned Parenthood Federation and other Members. Members who do not provide abortions cannot escape the law’s burden except by disassociating from Members that do. And because Section 71113 may be applied to Members who are affiliates of each other via the structure, governance, and membership requirements of Planned Parenthood Federation, disassociating with other Members requires disassociating from Planned Parenthood Federation itself.

While Defendants contend that Section 71113 does not regulate speech, the record demonstrates that Members’ affiliation via their membership in Planned Parenthood Federation is expressive. Planned Parenthood Federation advocates before Congress, provides education and information about sexual and reproductive health, and through Planned Parenthood Action Fund, communicates with the public regarding lawmakers’ voting records, supports campaigns for ballot initiatives, and supports candidates for federal, state, and local officials who will support reproductive freedom in furtherance of its mission. Members engage in those activities with Planned Parenthood Federation and each other.

Additionally, Planned Parenthood Federation provides leadership and financial support to Members around shared policy and program initiatives. Moreover, each Member licenses the use of the Planned Parenthood name, which expresses that each Member stands for particular values. Membership in Planned Parenthood Federation—and corresponding affiliation with other Members—is thus part and parcel with Planned Parenthood Members’ associational expression….

The Supreme Court has underscored that the use of separate corporate entities, even where closely related, allows Congress to set conditions with its spending powers without unconstitutionally leveraging the funding to regulate speech. In Regan v. Taxation With Representation of Wash. (1983), the Court upheld a prohibition on “substantial lobbying activities” by 501(c)(3) organizations against an unconstitutional conditions challenge in part because the organization remained free to use a “dual structure …, with a § 501(c)(3) organization for non-lobbying activities and a § 501(c)(4) organization for lobbying,” meaning the prohibition did not necessarily inhibit the organization’s ability to engage in First Amendment activities.

In F.C.C. v. League of Women Voters of Cal. (1984), the Court struck down a statute barring any recipient of certain federal grants from engaging in editorializing. In so holding, the Court explained that “if Congress were to adopt a revised version” of the statute “that permitted … broadcasting stations to establish ‘affiliate’ organizations” that engaged in editorializing, “such a statutory mechanism would plainly be valid” because “[a] public broadcasting station[ ] would be free … to make known its views on matters of public importance through its nonfederally funded, editorializing affiliate without losing federal grants for its noneditorializing broadcast activities.”

Here, Section 71113 prohibits the type of dual structure that would have insulated the abortion restriction from an unconstitutional conditions challenge. Instead of merely prohibiting Planned Parenthood Members that receive Medicaid funds from providing abortions, the statute prohibits them from affiliating with entities that do. Moreover, the record is devoid of evidentiary support for Defendants’ suggestion that Planned Parenthood entities share funds that are ultimately used for abortions. Therefore, restricting funds based on affiliation with an abortion provider operates only to restrict the associational right of Members that do not provide abortion.

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