Defunding Planned Parenthood is legal, but don't expect the courts to act like it

It is settled law that the government’s refusal to subsidize abortion does not impermissibly burden a woman’s right to obtain an abortion. If a ban on public funding for abortion does not directly violate the abortion right, then Indiana’s ban on other forms of public subsidy for abortion providers cannot be an unconstitutional condition that indirectly violates the right.

While current law does not allow the government to place an “undue burden” on the right to an abortion, the law does not require that the government favor abortion access or even to remain neutral. The federal government can, as a matter of policy and practice, prefer life and fund only private family-planning programs that reject abortion.

Given this precedent, a well-drafted law would cut off all Title X funding to any entity that promotes or provides referrals for abortion and would deny any and all Medicaid funds to providers who do the same. By functionally amending Medicaid while not affirmatively blocking access to abortions, the bill should survive legal scrutiny.

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