Florida cannot defund abortion clinics, judge rules.

Judge Permanently Blocks Florida’s Unconstitutional Attempt to Defund Abortion Clinics

Judge Permanently Blocks Florida’s Unconstitutional Attempt to Defund Abortion Clinics

The XX Factor
What Women Really Think
Aug. 19 2016 11:23 AM

Judge Permanently Blocks Florida’s Attempt to Defund Abortion Clinics

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Even ultraconservative governors like Florida's Rick Scott are realizing that their doomed efforts to restrict abortion aren’t worth the cost or effort.

Joe Raedle/Getty Images

Florida’s attempt to regulate and defund abortion clinics out of existence has officially failed. On Thursday, U.S. District Judge Robert Hinkle permanently blocked a Florida law that would have prevented the distribution of state or local funds to any organization that provides abortions. (State and federal law already prohibit the use of public funds to finance abortion itself.) Hinkle also enjoined a provision of the law that would have vastly increased record inspection requirements for abortion clinics while offering no additional safety benefits for patients. As part of the order, Florida Republican Gov. Rick Scott agreed to forego further litigation, meaning both measures are effectively dead in the water.

Hinkle’s decision is the latest in a series of rulings that proscribe states from cutting funding to women’s health organizations because they support abortion. Under the Supreme Court’s “unconstitutional conditions” doctrine, the government can’t deprive a group of funds simply because it exercises a fundamental right that the government doesn’t like. This punishment through the purse strings violates the group’s free association rights under the First Amendment, as well as its protected liberty interests under the 14th Amendment. As the U.S. Court of Appeals for the 10th Circuit recently reasoned, state efforts to defund organizations for contracting with abortion providers fit neatly into this doctrine by penalizing a group for its pro-choice associations in a manner that restricts the fundamental right to abortion.

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Hinkle arrived at the same conclusion, writing that “a government cannot prohibit indirectly—by withholding otherwise-available public funds—conduct that the government could not constitutionally prohibit directly.” His ruling will prevent Florida from depriving Planned Parenthood of the $500,000 it expected to receive to fund health care screenings, as well as a school dropout prevention program. It’s also a considerable victory for medical privacy: The records inspection provision of the law that Hinkle enjoined would have allowed the state to access thousands of patient records at facilities that provide abortions, easily uncovering details about their HIV status, abortion history, and mental health treatments.

Thursday’s ruling, then, is a substantial victory for free association, privacy rights, and personal autonomy. It also suggests that ultraconservative governors like Scott are finally realizing that their doomed efforts to restrict abortion aren’t worth the cost or effort. By agreeing to cease litigation, Scott is taking a page of out Oklahoma Republican Gov. Mary Fallin’s book, arresting the damage before the legal bill spirals out of control. States that defend unconstitutional abortion laws and lose in court wind up paying the other side’s attorneys’ fees, money that often goes to abortion rights advocacy organizations. Better for Scott to quit while he’s behind than lose big time down the road—and leave taxpayers footing the pro-choice side’s bill.

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.