Published June 3, 2021
It’s not often that a court case brought by Koch-supported Americans for Prosperity Foundation and the Catholic Thomas More Law Center can garner support from the American Civil Liberties Union, NAACP Legal Defense Fund, Human Rights Campaign, Council on American-Islamic Relations (CAIR), Southern Poverty Law Center, and People for the Ethical Treatment of Animals.
But that is exactly what happened in Americans for Prosperity Foundation v. Bonta, a case pending at the U.S. Supreme Court after being argued on April 26. The case involves a challenge to a California law that would require all nonprofits operating in the state to disclose to California the names of their top donors listed on their confidential IRS Form 990 Schedule B.
Nearly 300 diverse groups filed or signed onto “friend-of-the-court” briefs opposing California’s donor disclosure law and supporting privacy rights. These groups represent a range of issues from human rights, religious liberties, racial justice, and LGBT preferences to free speech, animal welfare, international aid, and tax reform, among others.
Plaintiffs in the case cited California’s improper posting of donor records as a prime example of the law’s grave threat to advocacy organizations. Despite assurances of confidentiality, California improperly posted more than 1,800 confidential Schedule B forms, including for Planned Parenthood’s California affiliate for fiscal year 2009, listing the names and addresses of hundreds of donors on a public website.
Planned Parenthood emailed the office of then-California Attorney General Kamala Harris, asking for help “in getting [the Schedule B] information removed immediately from the publicly accessible database.” The email explained: “the unintended public availability of this information is potentially damaging to both [Planned Parenthood] and its donors, and the longer it remains available, the greater the risk it poses.”
Even though Planned Parenthood was directly implicated in this litigation and is the quintessential example how donor disclosure laws can have a chilling effect on donors, you may be surprised to learn that Planned Parenthood did not join the coalition of diverse groups petitioning the Supreme Court on the issue (in fact, the only abortion advocacy group represented was a local North Carolina affiliate of NARAL Pro-Choice America).
So why the silence? Perhaps Planned Parenthood was too busy, or maybe it wasn’t as troubled as the numerous groups supporting plaintiffs in the case by its donors’ identities being unmasked. Or perhaps, Planned Parenthood is focused on its more lucrative asks pending with the Biden-Harris administration.
According to Planned Parenthood’s latest annual report, the organization received $618.1 million in taxpayer dollars for fiscal years ended during 2019, making up nearly 40 percent of its total revenue. These funds largely came in the form of Medicaid reimbursements and Title X grants for family planning services, despite Title X’s explicit prohibition against its funds from being “used in programs where abortion is a method of family planning.”
Since taking office, President Joe Biden signed Democrats’ enormous additional stimulus bill that provided a $50 million increase to the Title X program. The Department of Health and Human Services (HHS) under Secretary Xavier Becerra — formerly Vice President Harris’ successor as California attorney general — has proposed new Title X regulations that would reverse the Trump administration’s efforts to stop funding Big Abortion through the Title X program.
The Trump-era Title X regulations, passed in 2019, require physical and financial separation between Title X projects and abortion activities. They also prohibit abortion referrals, although they allow, but do not require, nondirective counseling on abortion. Rather than comply with these requirements, Planned Parenthood chose to withdraw from the Title X program, forfeiting that government funding stream.
In an effort for the new Title X regulations to be in place by early fall in time for the 2022 grant awards, HHS is rushing through the proposed regulations with a shortened 30-day public comment period that ended on May 17 (the 2019 regulations had a 60-day public comment period).
The proposed regulations blatantly aim to “refund” Planned Parenthood. In an inappropriate, yet telling statement, HHS noted that after dropping out of the Title X project, Planned Parenthood “conducted a major fundraising campaign,” but if funding was distributed instead through Title X, “it would represent a cost saving attributable to the proposed rule.”
To be clear: the only cost savings would be Planned Parenthood’s. Underlying HHS’s acknowledgment is the assumption that Planned Parenthood will receive Title X grant funding come 2022. You can read my in-depth critique of the proposal here.
You can be sure that with the $50 million increase in Title X funding, Planned Parenthood’s share will be even more lucrative. After all, the new administration has already taken steps to remove barriers to taxpayer dollars from funding abortion, such as signing legislation without Hyde Amendment protections (which prevent taxpayer dollars from paying for elective abortion procedures).
If the arguments supporting California’s donor disclosure law raised in court by Harris and Becerra during their tenures as California attorney general prevail at the Supreme Court, it would certainly chill Planned Parenthood’s fundraising.
Although Planned Parenthood’s conspicuous silence on the matter appears surprising, it is not so shocking given that Harris and Becerra are funneling taxpayer funds to Planned Parenthood in amounts that will more than make up for any donor shortfalls. Why let a little thing like past disputes over principles get in the way of such a lucrative friendship?
Rachel N. Morrison is an attorney and policy analyst at the Ethics and Public Policy Center, where she works on EPPC’s HHS Accountability Project.