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.
Much of what passes as concern for the fetus is in truth the punitive reaction of those who perceive abortion as an instrument of left-wing ideology; their anti-abortion stance is simply a smokescreen enabling them to vent their antagonism for
Photo Courtesy of Juliana Morgan‑Trostle Introduction On June 27, 2016, the Supreme Court decided Whole Woman’s Health v. Hellerstedt, a case referred to as “the most significant abortion case to come before the court since 1992.” The case centered
Discusses the problem of Casey and the confusion and ambiguity it has caused and argues against the revival of pre-Casey criminal abortion statutes.
This article analyzes the medical evidence (or lack thereof) behind "health-justified" abortion regulations, and argues that such restrictions fail to meet the evidence-based standard of Whole Woman’s Health.