CINCINNATI (CN) – The en banc Sixth Circuit ruled 11-6 Tuesday that Ohio can withhold funding for public health programs from abortion providers, most notably Planned Parenthood.
The majority opinion, authored by U.S. Circuit Judge Jeffrey Sutton, overturns a previous ruling made by a three-judge panel that upheld a federal judge’s injunction against Ohio Revised Code 3701.034.
The law, passed in 2015 as part of House Bill 294, allowed the state to revoke funding for six federal health programs from clinics that provided abortions.
Those programs include the STD Prevention Program; Minority HIV/AIDS Initiative; Personal Responsibility Education Program; Breast and Cervical Cancer Prevention Program; Ohio Infant Mortality Reduction Initiative; and Violence Against Women Act Sexual Violence Prevention Program.
In April 2018, the three-judge panel ruled in favor of Planned Parenthood, with U.S. Circuit Judge Helene White writing that the abortion providers cannot “be penalized in the administration of government programs based on protected activity outside the programs.”
The parties argued before the entire Sixth Circuit in October.
In Tuesday’s opinion, Judge Sutton admitted “the state may not condition a benefit by requiring the recipients to sacrifice their constitutional rights,” but ultimately determined the clinics do not have a constitutionally protected right to perform abortions.
“The Ohio law,” Sutton wrote, “does not violate a woman’s right to obtain an abortion. It does not condition a woman’s access to any of these public health programs on refusing to obtain an abortion.”
He added, “It makes these programs available to every woman, whether she seeks an abortion or not. Nor, on this record, has there been any showing that the Ohio law will limit the number of clinics that offer abortions in the state.”
Sutton cited the 2012 Seventh Circuit case Planned Parenthood v. Commissioner of Indiana State Department of Health, in which that court upheld a nearly identical Indiana law.
Planned Parenthood argued the law is a way for Ohio to indirectly outlaw abortions because it cannot ban them directly, but the majority refused to concede that the clinic has a constitutional right to perform abortions.
“Truth be told,” Judge Sutton opined, “general concerns about indirect efforts to accomplish what cannot be accomplished directly illustrate what is wrong with this claim. Medical centers do not have a constitutional right to offer abortions. Yet, if we granted Planned Parenthood relief today, we would be effectively saying that they do. That is not the role of the unconstitutional-conditions doctrine.”
Planned Parenthood also argued it may be forced to stop providing abortions in order to receive funding for the programs, but Sutton and the majority were unconvinced and called the argument “premature and unsupported by the record.”
“For one, it is not clear that the plaintiffs filed an undue-burden challenge on behalf of individual women, as opposed to an unconstitutional-conditions challenge on their own behalf,” Sutton wrote. “For another, the record contains more speculation than evidence about what would happen if these two Planned Parenthood affiliates stopped providing abortions. For still another, the only hard evidence on point is that Planned Parenthood does not plan to stop providing abortions, as representatives from each affiliate testified that they would sacrifice government funding to continue providing abortions.”
Judge White authored an exhaustive dissent that measured nearly twice the length of Sutton’s 12-page majority opinion.
“The majority’s novel rule gives the government the authority to impose almost any condition it wants on abortion providers so long as the providers continue to perform abortions. The government acknowledged as much at oral argument,” White wrote. “This type of assault on a constitutional right is precisely the type of harm the unconstitutional-conditions doctrine is meant to protect against.”
White cited the 2013 Supreme Court decision in Agency for International Development v. Alliance for Open Society International, or AOSI, and argued the majority failed to implement the unconstitutional-conditions test established by the country’s highest court.
According to White, the test “prohibits the government from conditioning the grant of funds under a government program if: (1) the challenged conditions would violate the Constitution if they were instead enacted as a direct regulation; and (2) the conditions affected protected conduct outside the scope of the government program.”
“A straightforward application of these principles,” White wrote, “establishes the statute’s unconstitutionality. First, [the Ohio Department of Health] could not impose the conduct provision as a direct regulation, because to do so would mean passing a law prohibiting the performance of nontherapeutic abortions. There is no dispute that outlawing abortions in Ohio would be an undue burden on women’s ability to access the procedure in that state.”
The statute also violates the second portion of the AOSI test, according to the dissenting judges.
“The condition contained in the conduct provision of 3701.034 … does not ‘define the limits’ of the six federal programs at issue because those programs have nothing to do with abortion,” White wrote. “Indeed, federal and Ohio law already mandate that funds from those six programs, or any other government funds, cannot be used to subsidize nontherapeutic abortions. Thus, there is no question that this condition ‘reach[es] outside’ the six federal programs and therefore constitutes an unconstitutional condition.”
U.S. Circuit Judges Eugene Siler Jr., Alice Batchelder, Julia Smith Gibbons, Deborah L. Cook, Richard Allen Griffin, Raymond Kethledge, Amul Thapar, John Bush, Joan Larsen and John Nalbandian joined Sutton in the majority.
White’s dissenting opinion was joined by Chief U.S. Circuit Judge R. Guy Cole Jr. and U.S. Circuit Judges Karen Nelson Moore, Eric Clay, Jane Branstetter Stranch and Bernice Donald.
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