10th Circuit will not rehear Planned Parenthood defunding case.

Appeals Court Continues to Block Utah’s Attempt to Defund Planned Parenthood

Appeals Court Continues to Block Utah’s Attempt to Defund Planned Parenthood

The XX Factor
What Women Really Think
Oct. 28 2016 4:18 PM

Appeals Court Continues to Block Utah’s Attempt to Defund Planned Parenthood

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Today's decision is just the latest finding that attempts to strip money from Planned Parenthood cannot survive legal scrutiny

Ilana Panich-Linsman/Reuters

Another day, another court decision siding with Planned Parenthood in the ongoing battle to defund the organization. On Friday, the U.S. Court of Appeals for the 10th Circuit, sitting en banc, refused to reconsider an earlier ruling by a panel of judges concluding that Utah’s effort to defund Planned Parenthood violated the Constitution. Following that decision, at least one judge requested that the entire court rehear the case, presumably hoping that it would reach a different outcome. But the full court refused to do so, allowing the previous decision to stand and maintaining the injunction against Utah Republican Gov. Gary Herbert’s order defunding the organization.*

Friday’s decision will come as terrific news for Planned Parenthood, which has lately been on a roll in the courts. Judge after judge has found that conservative states’ attempts to strip money from the organization cannot survive legal scrutiny. The 10th Circuit’s ruling was perhaps the strongest of the pack: A majority of the panel held that Herbert’s directive constituted an “unconstitutional condition” under the First Amendment. In effect, Herbert was punishing Planned Parenthood for advocating in favor of abortion rights, associating with groups that support abortion access, and affiliating with clinics that provide abortion.

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But promoting abortion rights and associating with pro-choice groups is protected by the First Amendment, and abortion itself is protected by the 14th Amendment. Thus, the 10th Circuit ruled, Utah had imposed an unconstitutional penalty on Planned Parenthood for its speech and association and for providing access to a constitutionally protected right. (A George W. Bush-appointed judge came to the same conclusion in blocking Ohio’s efforts to defund the organization.)

At least five judges were skeptical of the 10th Circuit panel’s finding that Herbert had punished Planned Parenthood for exercising constitutional rights—but only four wanted a rehearing. One judge, who dissented from the initial decision, nonetheless wrote that a rehearing was unnecessary because “the panel opinion will [not] significantly affect future appeals.” The remainder of the judges simply voted against a rehearing without comment. That adds up to another victory for Planned Parenthood, and another indication that the courts are fed up with underhanded efforts to deprive women of autonomy.

* Correction, Oct. 28: This post originally misidentified Gary Herbert as governor of Ohio.

Mark Joseph Stern covers courts and the law for Slate.