Michael Barrett is not the sort of person you would expect to be overflowing with sympathy for abortion clinics. A former chair of the Hamilton County, Ohio Republican Party, Barrett is a George W. Bush-appointee to a federal trial court in Ohio.
And yet, Judge Barrett also handed down a decision on Monday that could have significant implications for states that seek to restrict access to abortion, at least if much of his reasoning is embraced by higher courts. Though his Monday order is temporary and expires in two weeks, it embraces a reading of precedents governing abortion and government grants that could prove useful to pro-choice advocates if it is adopted in future decisions.
At least part of Barrett’s legal reasoning should be a slam dunk even in the eyes of the most conservative jurists. Last February, Ohio enacted a state law that not only strips a great deal of funding from organizations that “perform nontherapeutic abortions,” it also provides that groups which receive certain funding may not “promote nontherapeutic abortions.” Thus, the law does not simply strip money from groups that actually perform abortions (the two Planned Parenthood groups that brought this suit stand to lose a total of about $1.5 million), it also targets groups that engage in advocacy supportive of the right to terminate a pregnancy.
That’s a violation of the First Amendment. As Barrett explains, the “unconstitutional conditions” doctrine provides that “the government ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech,’” even if the person has no constitutional right to the benefit itself. That is, the government isn’t obligated to offer funding to Planned Parenthood. But if it does do so, it cannot condition this funding on Planned Parenthood silencing itself.
(To be clear, the government may place limits on how its own funds are spent, but it cannot regulate what advocacy Planned Parenthood decides to engage in with funds it does not collect from the government.)
A somewhat more difficult question than whether Ohio can try to censor Planned Parenthood’s speech, however, is whether it can force the organization to choose between government funding and continuing to provide abortion care.
Though the unconstitutional conditions doctrine applies to other constitutional protections outside of the First Amendment, the constitutional right to terminate a pregnancy does not enjoy the same robust protection that free speech does under existing doctrine. In Planned Parenthood v. Casey, the Supreme Court held that the fact that a law has “the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” Rather, an abortion restriction is invalid “only where state regulation imposes an undue burden on a woman’s ability” to receive an abortion.
In practice, this “undue burden” standard has proved to be a very malleable, with conservative courts treating it as a broad invitation to uphold abortion restrictions and liberal courts being more inclined to strike such restrictions down.
In an unconstitutional conditions case, Judge Barrett suggests, “a state funding condition can violate the constitutional right to abortion only if the effect of the funding condition itself is to place an undue burden on women’s ability to choose to have an abortion.” Nevertheless, Barrett appears to believe that the Ohio law runs afoul of this test. He cites claims in the record suggesting that a significant number of Ohio women will lose access to abortive care if the Ohio law takes effect:
Plaintiffs explain that they provided approximately 30% (approximately 6,257 of 21,186) of the abortions in the State of Ohio in calendar year 2014. Plaintiffs point out that in 2014, [Planned Parenthood of Greater Ohio] provided approximately 36% (approximately 1,500 of 4,137) of the abortions in Franklin County and 23% (approximately 2,000 of 8,548) of the abortions in Cuyahoga County. Plaintiffs explain that the loss of these services in Franklin and Cuyahoga counties would likely overwhelm existing providers, expand wait times, and leave some women in those counties with no feasible option for exercising their constitutional right to choose to have an abortion.
That’s enough, Barrett concludes, to justify giving temporary relief to Planned Parenthood until more of this litigation can play out.
Of course, the judge could still reverse course in a later stage of the case. And Barrett’s decisions will ultimately appeal to the United States Court of Appeals for the Sixth Circuit, a very conservative court dominated by Republican appointees. At the very least, however, his Monday order indicates that even Bush-appointed judges may view the Ohio law with skepticism.