On Tuesday, by an 11-6 en banc vote, the U.S. Court of Appeals for the Sixth Circuit held that Ohio can properly cut state funding to Planned Parenthood, the nation’s largest abortion provider. In 2016, during the midst of his ill-fated presidential campaign, then-Ohio Gov. John Kasich had signed into law a bill that defunded the abortion provider.
The case is Planned Parenthood of Greater Ohio v. Hodges.
As Politico notes, four of the 11 judges in the en banc majority are nominees of President Donald Trump:
A majority of the 6th Circuit Court of Appeals ruled Tuesday that Ohio can cut state funding to Planned Parenthood because the organization performs abortions, overturning a lower court ruling that blocked the state from stripping the network of clinics of the money.
Four of the 11 judges who sided with the state in the decision were appointed by President Donald Trump. The judges said Ohio’s law barring state health department funding from going to any provider who offers “non-therapeutic abortions” or advocates for abortion rights, “does not violate the Constitution because the affiliates do not have a due process right to perform abortions.” …
The ruling affects six state public health programs, but doesn’t touch Medicaid. The Supreme Court in December declined to review a case brought by other Republican-led states seeking to cut off Medicaid funding for Planned Parenthood and other reproductive health organizations that offer abortions.
The majority opinion, written by Judge Jeffrey Sutton, makes clear that “The Supreme Court has never identified a freestanding right to perform abortions.” Instead, Sutton cites the 1992 Supreme Court case of Planned Parenthood of Southeastern Pennsylvania v. Casey, which upheld the abortion “right” initially fabricated in 1973’s Roe v. Wade, for the proposition that any abortion “right” is necessarily “derivative of the woman’s [underlying] position.”
1/ J. Sutton, for en banc CA6, finds "The Supreme Court has never identified a freestanding right to perform abortions." Citing Casey the right is "derivative of the woman’s position." https://t.co/HQxyza5P8h pic.twitter.com/YV6AajgA8J
— Josh Blackman (@JoshMBlackman) March 12, 2019
Conservative legal commentator Ed Whelan further elaborates at National Review’s “Bench Memos” blog:
Sutton explains that the Planned Parenthood affiliates’ claim that the law imposes an unconstitutional condition on public funding in violation of the Due Process Clause fails for the simple reason that, under Supreme Court precedent, the affiliates “do not have a due process right to perform abortions.” Rather, any right they have is entirely derivative of a woman’s (putative) right to obtain an abortion. And that (putative) right to obtain an abortion does not include a right to have the government subsidize the abortion.
This is a substantial pro-life victory that is roughly analogous to the U.S. Court of Appeals for the Fifth Circuit’s recent ruling in Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc. v. Smith, which The Daily Wire also reported upon. There, the Fifth Circuit panel reversed a district court’s preliminary injunction preventing Texas from terminating state Medicaid funding to Planned Parenthood, thereby clearing the way for Texas’ own defunding of Planned Parenthood. Ohio, unlike Texas, did not seek to touch Medicaid.