One judge, no law

In a move that would make most activist judges blush, a U.S. District Court judge in Massachusetts has taken it upon herself to override the Constitution and Congress—all in the service of America’s most powerful abortion provider. In Planned Parenthood v. Kennedy, a case filed and decided within hours on the same day, the district court ordered the federal government to continue funding Planned Parenthood with taxpayer dollars. This despite the fact that Congress had just passed, and the president just signed, a law cutting off that very funding.

Just before July 4, Congress passed tax and economic legislation known colloquially as the “One Big Beautiful Bill.” That bill expressly said that taxpayer Medicaid funds should not flow to abortion providers. It prohibits facilities that offer abortion from accepting Medicaid funds for other services they provide. (Federal law already prohibits the direct taxpayer funding of abortion.) This makes sense as money is fungible. Any support for Planned Parenthood is support for abortion, and our democratically elected Congress said “no” to it.

Yet with the stroke of a pen, a single district judge decreed that taxpayer dollars must continue flowing to the abortion industry. So much for democracy.

Worse, the district judge ordered the federal government to continue funding Planned Parenthood vis-à-vis a temporary restraining order, or TRO, without ever hearing from the government. TROs are granted in unusual circumstances, usually to maintain the status quo when necessary to preserve rights. Yet they are also an attractive tool for judicial overreach. The reason? They are typically unappealable. That means no one gets to review the judge’s work. But as Justice Alito has recently written, TROs should be appealable when instead of merely “restrain[ing]” the Government’s challenged action to “preserve the status quo,” the TRO requires affirmative action by the Government. That’s true of the order here.

And worse still, the judge offered no opinion. No reasoning. Just raw judicial power. We are left to guess why the judge believed that Congress lacked the power to prohibit funds from flowing to abortion providers. For their part, the Planned Parenthood plaintiffs mainly argue that the defunding provision is a “bill of attainder,” a constitutional prohibition on targeting an individual for punishment. But Congress routinely funds—and defunds—specific programs and contractors. That’s not punishment; it’s governance.

But this lawsuit isn’t about constitutional law. It’s about the belief that abortion providers like Planned Parenthood are entitled to taxpayer money no matter what the people or their elected representatives say.

Yet the people’s elected representatives directed that Medicaid funds should go to healthcare providers that focus on more than abortion. That’s reasonable. A review of Planned Parenthood’s 2022-23 annual report by the Charlotte Lozier Institute found that “abortions made up 97.1% of Planned Parenthood’s pregnancy resolution services, while prenatal services, miscarriage care, and adoption referrals accounted for only 1.6% (6,316), 0.9% (3,604), and 0.4% (1,721), respectively.” Planned Parenthood, in other words, performs almost exclusively abortions.

And an investigation by none other than The New York Times reveals other troubling issues. In 2022 alone, the abortion giant raked in $498 million in donations. Yet the Times found that it provided its employees with inadequate training, which resulted in poor care, and that many of its state affiliates lack funding. In New York, for instance, Planned Parenthood reportedly closed four facilities for budgetary reasons. Why? According to The New York Times, “the majority of the money is spent on the legal and political fight to maintain abortion rights.”

Women and their children deserve better. That’s why Congress redirected money to other healthcare providers. Congress’s decision regarding whom to fund, not the policy views of an unelected judge, are what matters from a constitutional perspective. One can hope that the district court’s assault on the separation of powers is not long for this world.