Activist Judge Blocks Congressional Effort to Defund Abortion Services

Must taxpayers fund elective abortions to preserve free speech?

(Photo by Erik McGregor/LightRocket via Getty Images)

Yet another Barack Obama-appointed judge has granted a preliminary injunction to thwart a Trump administration initiative. US District Judge Indira Talwani in Boston issued a court order that temporarily prevents cuts to Medicaid funding for Planned Parenthood. Specifically, this injunction protects hundreds of millions of taxpayer dollars that support Planned Parenthood’s network of Medicaid providers from being reduced under the Big Beautiful Bill.

Free Speech Versus Government Funding

The judge’s ruling employs a wide range of legal theories to preserve Medicaid funding, including freedom of speech, the right to association, the equal protection clause, and (for good measure) the constitutional prohibition against bills of attainder. The rationale for the ruling largely hinges on the statutory construction of “affiliated organizations,” which the judge says are unduly prejudiced; she claimed the law could potentially extend its reach to include other entities, even if they don’t provide abortion services. The government argued that the Big Beautiful Bill’s provisions will not necessarily be applied in a speech-discriminating fashion, and that the case for a preliminary injunction is thus premature.

Preliminary injunctions are extraordinary rulings because they often effectively determine a case’s outcome prior to trial – in this case, allowing federal funds to continue flowing to entities that provide abortion services despite Congress’ efforts to stop it. Talwani acknowledged that Congress has the authority to control the purse for the general welfare and that it is illegal for abortions to be paid through public funding. Yet the judge concluded that, because constitutional protections could be compromised, the enforcement of Congress’ funding cuts must be paused until the legal issues are resolved.

The injunction is only partial and specifically allows the government to terminate funding to entities that directly perform abortions. However, the judge interpreted the bill as unconstitutional because it could potentially threaten funding for service providers affiliated with Planned Parenthood that do not provide elective abortion services. She claimed it would undercut important non-abortion medical care for those in need and compromise the free speech and freedom of association liberties of those affected.

Abortion Prohibition

Judge Talwani wrote:

“To the extent that Section 71113 may be applied to Planned Parenthood Members who do not provide abortion, Plaintiffs are likely to succeed in establishing that the law impermissibly conditions the receipt of Medicaid reimbursements on these Members foregoing their right to associate with Planned Parenthood Federation and other Members.

“While Defendants contend that Section 71113 does not regulate speech, the record demonstrates that Members’ affiliation via their membership in Planned Parenthood Federation is expressive … The association between Members and with Planned Parenthood Federation is protected expression that is ‘outside the contours’ of the Medicaid program.”

The court ruled that while Congress could legally regulate abortion funding, it could not indirectly impinge on the freedom of affiliated providers to associate and to express their support of abortion where they do not directly provide abortion services. The government argued it was not clear that Section 71113 of the Big Beautiful Bill would deprive affiliates of Medicaid reimbursement, but this ripeness objection (an argument that the court was jumping the gun) was dismissed by the court in footnote 14:

“Defendants’ assertion that Plaintiffs’ arguments concerning the law’s application to ‘affiliates’ are not ripe fails where, without injunctive relief, Planned Parenthood Members who do not provide abortion services will need to decide whether to disaffiliate from other Planned Parenthood Members before October 1, 2025, or risk ineligibility for Medicaid reimbursements because of their continuing membership in Planned Parenthood Federation.”

This may prove to be Talwani’s weak point on appeal. Her assertion is speculative, in support of what is supposed to be an extraordinary remedy (the preliminary injunction) to avert irreparable harm. To shore up her defense of abortion liberties, the judge threw in additional hurdles for the government.

Additional Legal Hurdles

Reviewing years of congressional efforts, the judge found that the government had singled out Planned Parenthood for punitive treatment, ruling that this amounted to an unconstitutional “bill of attainder.” Bills of attainder, she held, “commonly included as punishment ‘imprisonment, banishment, and the punitive confiscation of property by the sovereign.’” She concluded:

“In sum, Plaintiffs have demonstrated that they are substantially likely to establish that Planned Parenthood Federation and its Members are the ‘easily ascertainable’ target of Section 71113 where its criteria encompass every Planned Parenthood Member but only two entities not affiliated with Planned Parenthood Federation.”

The judge also found that the law violates the equal protection clause because it disproportionately impacts Planned Parenthood vis-à-vis other entities that provide similar services, dismissing the law’s application to at least two other entities as immaterial.

This is not a decision that locks horns with President Donald Trump. Instead, it opposes a majority of Congress seeking to end federal funding for elective abortion procedures. The government agencies responsible for implementing the new law will doubtless appeal, testing what may prove to be fragile legal justifications to block the will of the people.

(Originally published in Liberty Nation News.)