Lessons From Trinity Lutheran: An Entity-Based Approach to Unconstitutional Conditions and Abortion Defunding Laws


This Article argues for a new approach to applying the unconstitutional conditions doctrine to laws that strip abortion providers of public funding. Abortion defunding initiatives are increasingly common at both the state and federal level. The Supreme Court has not squarely addressed the issue in over 25 years. In that time, defunding laws have evolved significantly. Once focused primarily on direct funding of abortions, laws today go much further. Frequently, these laws prevent abortion providers from receiving any public funds, even for services wholly unrelated to abortion, simply because they provide abortions. All of the federal appeals courts that have looked at these types of measures have upheld them, but their reasoning varies. Thus, the time is ripe for the Court to revisit this issue. This paper turns to the Court’s most recent religious liberties case, Trinity Lutheran v. Comer, to argue for an entity-based, as opposed to an individual rights-based, approach to challenging defunding measures. It proceeds in four parts. Part I provides a brief review of the right to an abortion. Part II turns specifically to the unconstitutional conditions doctrine as applied to defunding laws. It provides a comprehensive overview of how federal courts have dealt with new defunding laws. It also offers analysis of both inter- and intra-circuit tensions in the current caselaw. Part III argues that the religion clauses of the First Amendment hold underappreciated interpretative value for analyzing the right to an abortion, based on parallel rights and restraints present in both areas of the law. Part IV explains the benefits of this approach and how it overcomes tensions in existing caselaw. Ultimately, this Article presents a new approach to the unconstitutional conditions doctrine for defunding cases that focuses primarily on the status of the entity, modeled off Trinity Lutheran. This approach offers a clearer, stronger method for challenging defunding laws.

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