Can Trump Defund Planned Parenthood Through Executive Action?

Despite continuous promises to the pro-life cause, Republican budgets still fund Planned Parenthood to the tune of over $500 million each year. Efforts to decertify the nation’s largest abortion-mill chain ran into stiff opposition during the ObamaCare repeal effort from Susan Collins and Lisa Murkowski, and Democrats torpedoed an attempt to include it in the budget agreement. The legislative path seems all but dead unless Republicans can win enough Senate seats to overcome a filibuster as well as hold onto the House in November — an outcome with odds on the order of having the Cleveland Browns win the next Super Bowl.

But does another path exist without congressional approval? The Hill says … maaaaybeeee. Donald Trump may take a page out of Ronald Reagan’s playbook:

Opponents of abortion have launched an all-out campaign urging the administration to bring back Reagan-era abortion restrictions on federal family planning dollars that would target Planned Parenthood.
The regulations would ban organizations that receive family planning dollars under the Title X Family Planning Program, which funds organizations providing services like birth control to low-income women and men, from promoting abortion or referring patients for abortions.
Former President Reagan first issued the regulations, which Democrats describe as a “domestic gag rule,” in 1988. They also require a physical and financial separation of Title X funding recipients from abortion providers.

The Supreme Court upheld Reagan’s action in Rust v Sullivan in 1991, but by that time it was moot. Reagan’s term had ended, and subsequent administrations have either not wanted to press the issue (the Bushes) or were openly hostile to the policy (Clinton and Obama). With legislative options exhausted — at least for now — pro-life activists are now pressing Trump to use his executive authority to shut down the funding stream to Planned Parenthood.

One argument in favor of this is sheer electoral politics:

Republicans see the action as a way to motivate the GOP base ahead of the midterm elections, where the party’s majorities in the House and Senate are in play.
“The life issue is a huge motivator for the right. Getting a win on the pro-life side, even if it’s regulatory rather than legislative, would be huge, and encourage people to come out and vote for the members who pushed for action on this,” said Kelly Marcum, a legislative assistant for the conservative Family Research Council, which has been pushing for the changes.

I’m in favor of the policy, but am skeptical of this argument for it. Using executive power to resolve this issue actually removes it from concern for at least the next couple of years. It might make for an effective strategy for 2020 — If you don’t vote for Trump, you’re voting to give Planned Parenthood $500 million a year! — but an EO or regulatory change puts this completely outside the context of legislative elections. It might work better as it is now to hammer Democrats for continuing to fund abortion mills with taxpayer dollars.

If Trump decides to go forward with this strategy, it’ll be a long time before the dollars get cut off. The Supreme Court may have finally blessed Reagan’s action in 1991, but that won’t keep Planned Parenthood and its defenders from filing lawsuits in multiple jurisdictions to force it back into the courts. It might be three or more years again before courts stop imposing temporary injunctions on the Trump administration to suspend any new “gag rule.”

That doesn’t mean it’s not a worthwhile choice, but it does demonstrate that it’s still best to work though the legislature where possible to enact changes in policy. Failing that, though, it may be the only option to deal with the issue. As Yuval Levin and Ben Domenech wrote three years ago, Planned Parenthood and its supporters engage in a bit of a bait-and-switch when it comes to that funding:

“The instinct to respond to the tapes by forcing a shutdown over the federal funds that Planned Parenthood clinics can get through Title X and Medicaid is understandable and appropriate. Title X is not supposed to make funds available to abortion providers, but Planned Parenthood gets around the legal prohibition by formally separating its abortion clinics and its other family planning services, even when those are located in the same facility and essentially funded jointly. When states have tried to limit Planned Parenthood’s access to Medicaid funds, meanwhile, the Obama administration has told them they can’t, even though federal law prohibits federal Medicaid dollars from funding abortion. In both cases, federal dollars are being spent in ways that contravene the intent and spirit of the legal prohibitions on federal funding of abortion provision, and the biggest beneficiary by far is Planned Parenthood (which has been for many years, for instance, the largest single recipient of Title X money).”
The point is that by drawing an artificial line between its abortion practices and its abortion promoting practices, Planned Parenthood has been circumventing the intent of the legal funding prohibitions for decades in order to access Title X funds. They have an arm funded by the taxpayers which is in the business of promoting abortion, and then another arm that profits from those abortions (in ways, we are finding, that are much more macabre than we assumed). But the Supreme Court has already vindicated Ronald Reagan’s rule on the matter, meaning that the next president could lawfully adopt the same approach to determining how these funds are distributed and in one act dramatically undercut Planned Parenthood.

In other words, it might be worth trying just for all the clarity such an action would provide.

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