HHS legal memo blasts court order: ‘Planned Parenthood has no right to taxpayer money’

#1: Planned Parenthood is attempting to force the legislative and executive branches to fund their operations:

All three democratically elected components of the Federal Government collaborated to enact [the budget reconciliation bill] consistent with their electoral mandates from the American people as to how they want their hard-earned taxpayer dollars spent.

But Plaintiffs — Planned Parenthood Federation of America … and its members … now want this Court to reject that judgment and supplant duly enacted legislation with their own policy preferences. Indeed, they demand emergency injunctive relief forcing the Government to continue to support them with taxpayer funds.

That request is legally groundless and must be firmly rejected.

#2: Planned Parenthood is incorrectly arguing that the bill is a punishment inflicted on it and it alone.

The bill actually ensures that no facility committing elective abortions shall receive federal Medicaid reimbursements.

“They claim that the provision retaliates against them for advocating for abortion— but the law turns on action, not advocacy,” the HHS memorandum states (emphasis added). “And they invoke equal protection, but offer no viable theory of discrimination.”

It continued:

Importantly, the statute does not depend on whether any entity advocates for abortion.

Planned Parenthood and its members may continue to engage in First Amendment activity; they can only be disqualified from Medicaid if they continue to provide certain abortions on or after October 1, 2025.

Though Planned Parenthood claims the new rule is in “opposition to its ‘message and mission,'” it turns out that “message and mission are two very different things. It is appropriate for Congress to burden the ‘mission’ of providing elective abortion.”

#3: Planned Parenthood wrongly argued that prohibiting it from receiving Medicaid funding violates the First Amendment.

HHS responded by saying that it isn’t speech that is being hindered, but conduct (emphases added), which does not only apply to Planned Parenthood:

There is no viable First Amendment challenge because providing abortions is conduct, not speech, and courts may not invalidate federal legislation based on speculation about illicit subjective motives.

Nor is there any serious equal protection argument, because Congress has broad line-drawing power when it comes to allocating scarce federal funds, and it exercised that power rationally here.

While only the Planned Parenthood (and any other) facilities that actively commit induced abortions would be defunded by the reconciliation bill, the lawsuit wants the restraining order to cover all of the abortion corporation’s facilities out of concern that “they will be swept into the prohibition by virtue of their affiliation with PPFA…”

HHS pointed out that these are “the only claims” that have any “likelihood of success” in court:

Planned Parenthood presses those contingent constitutional claims only as to a small subset of its members, yet this Court nonetheless granted interim relief enjoining the law as to all Plaintiffs.

Even if these claims did have a likelihood of success, that could not justify the relief that the Court granted, or the sweeping preliminary injunction that Planned Parenthood seeks.

In addition, HHS argued (emphasis added):

[T]he balance of equities and public interest firmly favor the Government’s interests in enforcing a statute duly enacted by Congress and signed by the President, especially because (as the Amended TRO observed), third-party patients can always seek Medicaid-eligible services from other providers.

Plaintiffs’ request for a preliminary injunction should be denied.

Those other providers include Federal Qualified Health Centers, which largely outnumber Planned Parenthood locations and are a viable option for Planned Parenthood patients using Medicaid for their health care.

#4: Planned Parenthood can cease committing elective abortions at any time and re-qualify for federal Medicaid funding.

HHS explained that Planned Parenthood has a choice — to do what needs to be done to qualify, or remain a “prohibited entity” by providing elective abortions:

[T]he plain language of the provision makes clear that entities that conform their conduct to the Act’s requirements between its enactment and the first day of the first quarter thereafter will continue to qualify for Medicaid funding.

Any PPFA member can therefore remove itself from the provision’s scope by ceasing to qualify as a prohibited entity, including by ceasing to provide for abortions and disaffiliating with entities that do.

#5: Planned Parenthood claimed that because the Hyde Amendment already prohibits federal Medicaid from funding abortions except in certain circumstances (rape/incest, life of the mother), the reconciliation bill is acting only to prohibit Medicaid funding for services other than abortion.

To that, HHS argued that funding is fungible:

So what? Congress may make a policy choice not to contract with abortion providers even for covered medical care.

Further, because money is fungible, Congress could reasonably conclude that withholding Medicaid funding from entities that perform abortions will discourage at least some of those abortions.

Indeed, Plaintiff’s own declarant asserts that denial of Medicaid funding may reduce their provision of abortions.

HHS also argued that with its lawsuit, Planned Parenthood “failed to demonstrate irreparable harm. A ‘find of irreparable harm must be grounded on something more than conjecture, surmise, or a party’s unsubstantiated fears of what the future may have in store.’ … ‘[S]peculative injury’ is not enough.”

The Backstory:

President Trump signed the budget reconciliation bill dubbed “The Big Beautiful Bill” on July 4, which included a one-year Medicaid defunding of any business that commits abortions that are considered elective.

Planned Parenthood immediately filed lawsuit to stop the bill, claiming that it violated the First Amendment and would cause irreparable harm.

A judge decided to put a temporary restraining order on the bill, allowing Planned Parenthood to continue to receive Medicaid reimbursements for at least 14 days.

The Bottom Line:

In the document, HHS made it clear that “Congress has ‘broad discretion to tax and spend for the “general Welfare,” including by funding particular state or private programs or activities,'” and also has “the authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends.”

“Planned Parenthood’s claims attempt to usurp this authority,” HHS wrote, adding (emphases added):

Even before Dobbs, the Supreme Court had made clear the Government can ‘subsidize family planning services which will lead to conception and childbirth,’ while declining to ‘promote or encourage abortion.’

… And Dobbs eliminated any special constitutional protection for abortion.

… Simply put, Planned Parenthood has no right to taxpayer money, and this Court should not invent such a right.

The Court should uphold Congress’s lawful exercise of its authority to decide to whom it will entrust taxpayers’ hard-earned dollars.

In addition, HHS stated that Planned Parenthood does not need a preliminary injunction to ensure that it receives Medicaid funding, because states have two years to submit claims to state Medicaid agencies. Therefore, if the Court finds in its final judgment that Planned Parenthood must be funded through Medicaid, Planned Parenthood could seek at the end of the case payments for any services provided while the case played out in court.

Read the entire memorandum filed in opposition.

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