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Progressives spend a lot of time worrying about the upcoming overthrow of the Supreme Court Roe v. Wade– for good reason, since four judges are ready to immediately abolish the right to abortion and another seems to just wait for the right opportunity. But the lower courts do not need to wait roe severely limit Americans' access to abortion. They can kill effectively roe by a thousand cuts, manipulation of the doctrine to let states close clinics and force women to carry out unwanted pregnancies.
This is precisely what the 6th The US Federal Court of Appeal on Tuesday authorized Ohio to stop funding Planned Parenthood by proclaiming that there is no "right to the Fourteenth Amendment to perform abortions." ". The thorny reasoning of the court ignores the control of Supreme Court jurisprudence and ignores the impact of the Ohio Crusade against abortion providers. women. But that does not matter to the majority, which includes the four people named by President Donald Trump who participated in the case. For these judges, the important thing is that Ohio can now withdraw $ 1.5 million a year from Planned Parenthood – an amount that will be used to fund STI testing, cancer screening and contraception. do not Abortion. Majority clearly illustrates how courts can undermine roe pretending to respect the Constitution.
Tuesday's decision Parenting Planning in Greater Ohio c. Hodges is based on a 2016 law in Ohio to close the 27 Planned Parenthood clinics in that state. For years, the organization has participated in Ohio programs designed to reduce STIs, cancer, early pregnancy, child mortality and sexual violence. No money that Planned Parenthood receives from Ohio under this program is used to cover abortions. But three family planning clinics offer abortion services, which are paid for independently. The 2016 law denies public funding to all clinics that "contract" or become "a subsidiary of any entity practicing or promoting non-therapeutic abortions". Because all 27 clinics are affiliated with Planned Parenthood and this organization "conducts or promotes" abortions, Ohio has attempted to cut funding. Two family planning affiliates prosecuted.
A federal district court blocked the law the same day it came into force, ruling that it had imposed "unconstitutional conditions" on Planned Parenthood's right to freedom of speech and due process. A panel of judges for the 6thth Agreed circuit. "The plaintiffs do not claim the right to public funds," Judge Helene White wrote to the court. "What they claim is a right not to be sanctioned in the administration of government programs based on protected activity outside of them." White explained that according to the Supreme Court's case law on unconstitutional conditions, "the government can not demand the renunciation of constitutional rights. , Including freedom of speech and reproductive autonomy, "as a condition of participation in without link government program. "
But the 6th Circuit is becoming more conservative and by the time the committee made its decision, Trump had put four new judges on the bench. A majority of the court quickly voted to rehearse the case on the bench. And on Tuesday, he overturned the lower court's decision by 11 votes to 6, with the four Trump appointees ruling Planned Parenthood. (There are two other judges appointed by Trump in the court who were not sitting in time to rule on the case – including Eric Murphy, the former Solicitor General of Ohio who helped defend the state's anti-abortion law in district and district courts, Murphy would probably have recused if he had been sitting on time.)
Majority clearly illustrates how courts can undermine roe pretending to respect the Constitution.
In his majority opinion, Judge Jeffrey Sutton (appointed by George W. Bush) summarized the case to a simple question: does the Constitution guarantee the right to carry out Abortion? Deciding that this was not the case, Sutton easily eliminated Planned Parenthood's challenge. The Supreme Court has never expressly stated that medical centers "have the constitutional right to offer abortions". Thus, Ohio did not penalize the clinics for participating in "constitutionally protected activities" and, by extension, did not impose an unconstitutional condition on Planned Parenthood. Case closed.
For White, writing in a dissenting opinion, Sutton is simply wrong, preventing previous ones from reducing the contours of Deer. The Supreme Court stated that doctors had a "derivative" right to abort because the right to terminate a pregnancy was "inextricably linked to" the ability of doctors to do so legally. The premise of the majority is therefore fundamentally flawed; Family planning does have the right to help women terminate their pregnancies, and the Ohio law penalizes claimants for their "constitutionally protected activities". By punishing clinics that exercise a constitutional right with their own money, the state has broken the procedure.
But even if Planned Parenthood was not allowed to perform an abortion, said White, but Ohio's law would still be unconstitutional. In a case called Agency for International Development v. Alliance for Open Society International, the Supreme Court limited the government's ability to impose funding conditions. The court ruled that the funding conditions that aim to achieve indirectly what the government could not do directly are subject to a special examination. These conditions can not "reach" outside the program to achieve otherwise unconstitutional goals.
Here, White wrote, the goal of Ohio is to limit or halt the performance of abortions by making the clinics that practice them heavier. It could not legally achieve this goal by, for example, prohibiting abortions or imposing unnecessary regulations on clinics. So he has targeted these clinics by disengaging them. But the public money that clinics receive has nothing to do with abortion. Ohio has "overtaken" its public health agenda to achieve an otherwise unconstitutional goal. In doing so, he violated the rule set out in International Development Agency.
The icing on the cake: Ohio does not penalize only Planned Parenthood for its abortions. It also punishes the organization for the promotion of the right to abortion by reducing the funding of clinics associated with the group. As White notes, the state clearly imposed unconstitutional conditions on the right of these clinics to freedom of speech and association. Ohio has given them the choice: stop associating with an organization that supports access to abortion or give up public funds for a program unrelated to the government. ;abortion. The state uses funding conditions to engage in blatant censorship, a flagrant violation of the First Amendment.
In his majority opinion, Sutton does not discuss International Development Agency or the first amendment claim of clinics. In his superficial analysis, he omits the decisions of the Supreme Court that make the Ohio law unconstitutional, an undeniable precedent for maintaining the state's attack on Planned Parenthood. It is highly unlikely that the Supreme Court will hear this case, but it is quite possible that other courts will adopt Sutton's reasoning to defend other attacks on the right to abortion. Conservative judges do not need Brett Kavanaugh's permission to ignore or disrespect Roe v. Wade. They already have the tools to reverse it themselves.
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