Since the Supreme Court ruled in Dobbs v. Jackson Women’s Health that the Constitution contains no right to abortion, the abortion industry has waged a campaign to ensure that an abortion right would continue in effect, if not in law.

Planned Parenthood, the cause’s corporate embodiment, won another victory in that campaign on Monday when it convinced a federal judge in Boston that by excluding Planned Parenthood from Medicaid reimbursements, Congress violated the First Amendment and unconstitutionally punished the abortion provider.

The Massachusetts litigation concerns Planned Parenthood’s challenge to the recently enacted “One Big Beautiful Bill Act,” a provision of which disqualified organizations like Planned Parenthood from receiving Medicaid reimbursements.

Federal law already prohibits public funding of abortions, but because money is fungible, public funds paid to Planned Parenthood, even for other medical services, still effectively underwrite the abortion business.

The act is a spending bill, a type of bill that usually implicates constitutional concerns only if it coerces or misleads the states that agree to take federal funds. Seldom do these bills grant enforceable rights to third parties, like Medicaid providers or patients.

In fact, the Supreme Court said as much just a month ago in Medina v. Planned Parenthood, where it held that Planned Parenthood’s customers had no right to challenge South Carolina’s decision to exclude the organization from the state’s Medicaid program. To hold otherwise would have confused “mere benefits” with “enforceable rights” and allowed private parties to interfere with government decisions about how best to run a government health care program.

But Planned Parenthood found another way to create an effective “right” to federal money—at least for now.

Just days after President Donald Trump signed the act, Planned Parenthood came before Judge Indira Talwani, an Obama appointee, in Boston, demanding that she enjoin the law and restore the flow of public funds. To obtain this “extraordinary form” of preliminary relief, Planned Parenthood had to convince the judge that its legal arguments are likely to succeed once fully presented.

Yet Planned Parenthood’s legal theories are—charitably speaking—creative and far from being clear winners on their merits.

Take the claim that when Congress chose not to fund the organization, it enacted an unconstitutional “bill of attainder.”

If that term sounds unfamiliar, there’s a good reason why. It refers to a legal theory seldom asserted by litigants and accepted even less by courts.

The Constitution’s prohibition on bills of attainder prevents Congress from singling out individuals for punishment such as loss of property or life without due process. But current federal funding recipients have no property right entitling them to receive perpetual federal funding.

As legal commentator Ed Whelan explains, “In common law, bills of attainder were legislative acts that, without trial, condemned specifically designated persons or groups [of persons] to death.” But “[e]ven under the Court’s more expansive test, you still need *punishment* of a *person*. Defunding an organization isn’t close.”

Consider also Planned Parenthood’s obligatory First Amendment gambit.

Given how broadly the Supreme Court has construed the category of “expressive conduct,” it might be legal malpractice for lawyers to forgo the opportunity of reframing their clients’ conduct as protected speech.

Here, the argument goes that membership in the Planned Parenthood Federation is expressive activity and constitutionally protected association because the Federation advocates before Congress for abortion and contraception. Thus, Congress cannot remove funding based on the Federation’s national abortion advocacy—at least not from members that do not provide abortion services. 

Only by isolating the sub-entities that supposedly do not provide abortions could Talwani make this reasoning plausible. Such an exercise seems ironic within an organization that has made itself synonymous with abortion. But of course, the relief—restored federal funding—applies even to those Planned Parenthood entities that do perform abortions.

From a judicial perspective, then, Talwani arrives at an aggressive approach to congressional spending legislation. Under her reasoning, any recipient of federal funding could prevent Congress from removing its funding if it or its affiliates happened to lobby Congress for their pet causes. 

When funding recipients can so easily defeat Congress’s spending choices based on the associational rights of their affiliates, can it still truly be said that Congress alone has the power of the purse?

Or perhaps Talwani thinks this First Amendment immunity to defunding argument is not available to all lobbying industries. Perhaps it is abortion-specific. Maybe only Planned Parenthood—because of its crusade for “abortion rights”—is uniquely impervious to all legislative reconsideration of its funding.

Ruling by ruling, judges like Talwani are restoring protected status to abortion by making abortion providers a protected class.

As others have observed, Talwani is enjoining not an executive action, or an agency rule masquerading as a statute, but a duly enacted law that received majority support from the nation’s representatives. Whether the law was wise or not, it was a rare instance of the old-fashioned, bicameralism-and-presentment, school-house-rock-style legislation. But it seems that federal judges are now so comfortable striking down policies with which they disagree that doing so is now a reflex that scarcely distinguishes between the types of government action being challenged.

While an imminent government appeal makes the longevity of Talwani’s order uncertain, one thing is clear: abortion and its providers retain a special solicitude from some federal judges, even after Dobbs corrected that constitutional error.

The post Federal Judge Tries To Affirm a New Protected Status for Abortion appeared first on The Daily Signal.