Abortion Clinics Win Battle With Ohio in Sixth Circuit

CINCINNATI (CN) – An Ohio law that revokes funding from abortion providers for unrelated federal health care programs is unconstitutional, a Sixth Circuit panel ruled Wednesday.

The panel upheld a permanent injunction granted by U.S. District Court Judge Michael Barrett in August 2016 and ruled that Ohio Revised Code 3701.034 violates abortion providers’ due process and First Amendment rights.

Planned Parenthood of Greater Ohio and Planned Parenthood of the Southwest Ohio Region sued Lance Himes, interim director of the Ohio Department of Health, or ODH, to stop enforcement of the statute.

The statute revoked funding from abortion providers for six federal programs, including the STD Prevention Program; the Minority HIV/AIDS Initiative; the Personal Responsibility Education Program; the Breast and Cervical Cancer Prevention Program; the Ohio Infant Mortality Reduction Initiative; and the Violence Against Women Act Sexual Violence Prevention Program.

Planned Parenthood claimed the state law denied abortion providers funds “because of – and in retaliation for – their constitutionally protected advocacy for abortion rights,” while the state argued the providers are not necessarily entitled to any government funds.

ODH appealed to the Sixth Circuit after Judge Barrett granted Planned Parenthood the injunction, and the case was argued in August 2017.

U.S. Circuit Judge Helene White authored Wednesday’s opinion, writing that ODH “mischaracterizes plaintiffs’ argument.”

“Plaintiffs do not claim an entitlement to government funds,” she wrote. “They acknowledge the government’s right to define the parameters of its own programs, and have complied with all program requirements.”

White added, “What they do claim is a right not to be penalized in the administration of government programs based on protected activity outside the programs.”

The judge cited the 1991 U.S. Supreme Court case Rust v. Sullivan, and conceded that not only is the government not required to subsidize abortion services, “the failure to subsidize the exercise of a constitutional right does not abridge the right.”

However, she was quick to point out the crucial differences between Rust and the current litigation.

“Critically,” White wrote, “the regulations at issue in Rust, unlike [ORC] 3701.034, were directly related to the use of the program funds. … Here, the statute restricts funds in programs that are completely unrelated to family planning or abortion. Further, the regulations challenged in Rust, unlike the statute here, did not penalize abortion providers for activities outside the federally funded family-planning program.”

The statute, therefore, violates the abortion providers’ First Amendment rights, the Sixth Circuit panel concluded.

“It does not permit the grantee to keep the abortion-related speech and activities separate from governmental programs; it does not leave the grantee unfettered in its other activities; and it does not permit the grantee to ‘continue to perform abortions, provide abortion-related services, and engage in abortion advocacy … through programs that are separate and independent from the project[s] that receive[] the [six program funds],’” the ruling states. (Brackets in original.)

ODH had argued that the 2012 Seventh Circuit decision in Planned Parenthood v. Commissioner of Indiana State Department of Health allows for states to restrict funding to abortion providers.

The panel in that case ruled that “the government need not be neutral between abortion providers and other medical providers, particularly regarding the use of public funds, and that as long as the difference in treatment does not unduly burden a woman’s right to obtain an abortion, the government is free to treat abortion providers differently from other medical providers.”

The Sixth Circuit panel rejected the position espoused by its sister circuit, however, and criticized its analysis of the issue.

“Its analysis,” Judge White wrote, “does not grapple with the argument that although the government may constitutionally place conditions on the use of program funds, favoring one public policy over others even in the face of a constitutional right to pursue the disfavored policy, the government may not constitutionally exclude a recipient from funding based on the recipient’s exercise of constitutional rights outside the parameters of the program that have no bearing on or nexus to the program.”

The Sixth Circuit also failed to see any merit in ODH’s argument that the statute advanced legitimate state interests, including the promotion of life and the state’s preference of childbirth over abortion.

“Precluding plaintiffs from funding under the six federal preventive-health programs that have nothing to do with abortion does little to promote these interests,” White wrote.

The panel’s decision was unanimous, with White being joined by fellow U.S. Circuit Judges Eugene Siler and Eric Clay.

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