In some previous posts, I wrote about Mike Pence’s tie-breaking vote in favor of a bill that would allow states to deny federal grants to women’s health care programs.  The bill would allow states to refuse to provide Title X family planning grants to health care providers for any reason, including because an eligible recipient counsels women about abortions.  Specifically, the bill would allow states to terminate family planning grants to organizations that are “focused on reproductive health”—i.e., those organizations that provide access to certain forms of contraception and those organizations that provide access to or counseling related to abortion.

The bill is bad policy by any measure.  States that refuse to provide Title X grants to recipients for reasons other than the quality, convenience, or cost of the family planning services can and will reduce access to the family planning services that Title X grants are supposed to provide.  These services include services such as breast cancer screening; cervical cancer screening; counseling on contraception; testing and counseling for sexually transmitted diseases; and pregnancy tests and counseling.

Here, I’ll flag some of the possible legal challenges we might see to the bill, if it becomes law.

First Amendment.  In a prior post, Niko Bowie and I discussed the Supreme Court’s 2013 decision in Agency for International Development v. Alliance for Open Society International, Inc. That decision struck down a law that withheld federal grants to combat HIV/AIDs from organizations that didn’t declare their opposition to prostitution. The law complemented a prior law that prohibited organizations from using federal funds for prostitution. The new law was unconstitutional, the Court explained, because its only purpose was to “deman[d] that funding recipients adopt—as their own—the Government’s view on an issue of public concern.” The Court described the case as “about compelling a grant recipient to adopt a particular belief as a condition of funding.”

It’s likely that states will wield their newfound power under the proposed bill in a similar fashion. That is, states will use the law to deny grants to organizations that are open to counseling patients on abortion, or are open to counseling patients on certain kinds of contraception and pregnancy prevention.  There is already a federal law that prohibits federal funds from being used for abortions. The bill would go further and allow states to deny grants to any organization that uses its own money to discuss or provide abortion, effectively punishing those organizations for particular viewpoints and policies on family planning.

Fundamental Rights.  The law also might be challenged on the ground that it unconstitutionally infringes’ the fundamental right to contraception.  Griswold v. Connecticut and Eisenstadt v. Baird held that married and unmarried individuals have a fundamental right to methods of birth control.  And reducing the number and availability of clinics that counsel patients on contraception and offer contraception may reduce access to contraception.

The law also might be challenged on the ground that it unconstitutionally infringes on the fundamental right to decide to end a pregnancy.   In a pair of decisions (Maher v. Roe and Harris v. McRae), the Supreme Court upheld restrictions on public funds being used for abortions in any case except where the life of the mother would be endangered.  Maher upheld a state regulation that granted Medicaid benefits for childbirth expenses but denied benefits for abortions that were not medically necessary.  Harris upheld the federal law (the Hyde Amendment) that prohibits the use of federal Medicaid funds to perform abortions except where medically necessary or in cases of rape or incest. 

Equal Protection.  The law also might be challenged as a denial of equal protection.  There is reason to think the law will disproportionately burden low-income women, women in medically under-served communities (rural or remote communities), immigrant women, and women of color.  But under current doctrine, that disparate impact (the differential burdens the law imposes on different groups) does not mean the law is necessarily unconstitutional. Under Washington v. Davis, (or Personnel Administrator of Massachusetts v. Feeney), the plaintiffs would also need to show that a motivating purpose of the law was to limit those women’s access to reproductive health services.  On the other hand, laws that create differential burdens on fundamental rights (meaning laws that burden one group's fundamental rights, but not other groups' fundamental rights) are constitutionally suspect, and more carefully reviewed.  In light of Maher and Harris, however, it is not clear how that rule applies where the fundamental right that is burdened is the decision to end a pregnancy.

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