Dan McLaughin and Charles W. Cooke both do an excellent job highlighting the absurdity of Judge Indira Talwani’s recent opinion requiring Congress to fund Planned Parenthood. The argument that Planned Parenthood deserves federal funding because it engages in viewpoint advocacy is absurd. The First Amendment guarantees people the right to free speech. It certainly does not guarantee that such speech be funded by taxpayer dollars.

An additional fact worth noting is that on matters of fiscal policy, judges typically show a great deal of deference to Congress and legislatures. Constitutional limits on federal spending have been largely ignored since the New Deal. At the state level, judges often fail to enforce various budget rules and fiscal limits, typically citing vague statutory or constitutional language for “adequate” spending on various public services.

However, when it comes to spending on abortion or entities that perform abortions, liberal judges take on a far more activist role. In the late 1970s, multiple courts blocked enforcement of the Hyde amendment. Furthermore, the Supreme Court upheld the Hyde amendment by only a single vote in Harris v. McRae in 1980. Additionally, there are nine states whose Medicaid programs fund elective abortions because of judicial rulings.

So it is unsurprising that Judge Talwani issued a ruling requiring Congress to continue to fund certain Planned Parenthood facilities. That said, there is a good chance that pro-lifers will win on appeal. This June in Medina v. Planned Parenthood South Atlantic,  the Supreme Court allowed South Carolina to exclude Planned Parenthood and other entities that perform abortions from its state Medicaid program. It seems likely that the Court would rule similarly on federal legislation preventing Planned Parenthood from receiving Medicaid funds.