Harris and Whole Woman’s Health Collide: No Funding Provisions Unduly Burden Reproductive Freedom
33 Pages Posted: 1 Nov 2018 Last revised: 21 Nov 2018
Date Written: October 10, 2018
This Note analyzes the pro-life crusade to defund Planned Parenthood and exclude private insurance plans that cover abortions from all subsidized insurance markets, ostensibly in accordance with decades-old caselaw that upheld the Hyde Amendment and other laws that prohibit Medicaid and Title X family planning program funds from being used to pay for abortions. That jurisprudence was based on two premises: (1) that governments have a legitimate interest in favoring live birth over abortion, and (2) that funding restrictions do not constitute unwarranted governmental interference with reproductive freedom because they do not impede abortion access but only disfavor it. While the truthfulness of those premises are debatable, this Note does not argue that old caselaw should be overturned. Rather, it argues that more recent caselaw is applicable to proposed No Taxpayer Funding for Abortion provisions, which go beyond simply denying government funds for abortions and are actually intended to undermine abortion rights by shutting down abortion providers and coercively forcing private insurers to drop abortion coverage as a standard feature of their health plans. Specifically, if enacted, these provisions should be subject to the undue burden standard laid out in Whole Woman’s Health v. Hellerstedt. Further, this Note concludes that the No Taxpayer Funding for Abortion provisions should be deemed unconstitutional under the undue burden standard or, in the alternative, because they violate the unconstitutional conditions doctrine.
Keywords: Planned Parenthood, defund, abortion, undue burden, American Health Care Act, reproductive health, reproductive freedom
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