Yet another Barack Obama-appointed judge has granted a preliminary injunction to thwart the implementation of a Trump administration initiative. This time, however, the ruling blocks not a unilateral executive directive but comprehensive congressional legislation. US District Judge Indira Talwani in Boston granted a preliminary injunction to Planned Parenthood to shield hundreds of millions of taxpayer dollars supporting its network of Medicaid providers from funding cuts targeting abortion services under the Big Beautiful Bill.
The judge’s ruling employs an “everything but the kitchen sink” phalanx of legal theories to preserve Medicaid funding, including freedom of speech, the right to association, the equal protection clause, and (for good measure) the constitutional prohibition against bills of attainder. The rationale for the ruling largely hinges on the statutory construction of “affiliated organizations,” which the judge claims are unduly prejudiced by the law’s potential extension beyond those entities solely providing abortion services. The government argued that the Big Beautiful Bill’s provisions will not necessarily be applied in that speech-discriminating fashion, and that the case for a preliminary injunction is thus premature.
The injunction is only partial and specifically allows the government to terminate funding to entities that directly perform abortions. However, the judge interpreted the bill as unconstitutional because it could potentially threaten funding for service providers affiliated with Planned Parenthood that do not provide elective abortion services, undercutting important non-abortion medical care for those in need, while compromising the free speech and freedom of association liberties of those affected.
Judge Talwani wrote:
“To the extent that Section 71113 may be applied to Planned Parenthood Members who do not provide abortion, Plaintiffs are likely to succeed in establishing that the law impermissibly conditions the receipt of Medicaid reimbursements on these Members foregoing their right to associate with Planned Parenthood Federation and other Members.
“While Defendants contend that Section 71113 does not regulate speech, the record demonstrates that Members’ affiliation via their membership in Planned Parenthood Federation is expressive … The association between Members and with Planned Parenthood Federation is protected expression that is ‘outside the contours’ of the Medicaid program.”
The court ruled that while Congress could legally regulate abortion funding, it could not indirectly impinge on the freedom of affiliated providers to associate and to express their support of abortion where they do not directly provide abortion services. The government argued it was not clear that Section 71113 of the Big Beautiful Bill would deprive affiliates of Medicaid reimbursement, but this ripeness objection (an argument that the court was jumping the gun) was dismissed by the court in footnote 14:
“Defendants’ assertion that Plaintiffs’ arguments concerning the law’s application to ‘affiliates’ are not ripe fails where, without injunctive relief, Planned Parenthood Members who do not provide abortion services will need to decide whether to disaffiliate from other Planned Parenthood Members before October 1, 2025, or risk ineligibility for Medicaid reimbursements because of their continuing membership in Planned Parenthood Federation.”
This may prove to be Talwani’s weak point on appeal. Her assertion is speculative, in support of what is supposed to be an extraordinary remedy (the preliminary injunction) to avert irreparable harm. To shore up her defense of abortion liberties, the judge threw in additional hurdles for the government.
Reviewing years of congressional efforts, the judge found that the government had singled out Planned Parenthood for punitive treatment, ruling that this amounted to an unconstitutional “bill of attainder.” Bills of attainder, she held, “commonly included as punishment ‘imprisonment, banishment, and the punitive confiscation of property by the sovereign.’” She concluded:
“In sum, Plaintiffs have demonstrated that they are substantially likely to establish that Planned Parenthood Federation and its Members are the ‘easily ascertainable’ target of Section 71113 where its criteria encompass every Planned Parenthood Member but only two entities not affiliated with Planned Parenthood Federation …”
The judge also found that the law violates the equal protection clause because it disproportionately impacts Planned Parenthood vis-à-vis other entities that provide similar services, dismissing the law’s application to at least two other entities as immaterial.
This is not a decision that locks horns with President Donald Trump but with a majority of Congress seeking to end federal funding for elective abortion procedures. The government agencies responsible for implementing the new law will doubtless appeal, testing what may prove to be fragile legal justifications to block the will of the people.
Liberty Vault: The Constitution of the United States
Liberty Vault: The Bill of Rights