Full Sixth Circuit Takes Up Abortion Clinic Funding

CINCINNATI (CN) – The decision of a Sixth Circuit panel to strike down an Ohio law that revokes health care funding from abortion providers was debated before the en banc court on Wednesday.

A panel of three judges ruled in April that Ohio Revised Code 3701.034, which revokes funding for six federal programs from abortion providers, is unconstitutional.

Planned Parenthood sued the Ohio Department of Health after the law was passed in 2015 as part of House Bill 294, and won a permanent injunction the following year.

The Sixth Circuit panel upheld the injunction granted by U.S. District Judge Michael Barrett, ruling that the statute improperly “restricts funds in programs that are completely unrelated to family planning or abortion.”

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.

Attorney Stephen Carney argued Wednesday on behalf of Ohio, and repeatedly told the full Sixth Circuit that the proposed law does not place an undue burden on a woman’s right to obtain an abortion.

Carney cited the U.S. Supreme Court’s opinion in Planned Parenthood v. Casey, telling the judges there is no underlying constitutional right for Planned Parenthood to provide abortions, and that the right instead lies with the women themselves.

The state’s attorney stressed that in the current case, Planned Parenthood has conceded it will continue to provide abortions to women in Ohio regardless of whether the law goes into effect.

Attorney Hashim Mooppan argued on behalf of the United States as an amici, or friend of the court, on the side of Ohio. He also emphasized the undue burden test set forth in Casey.

“The whole point of Casey,” Mooppan said, “was to not adopt strict scrutiny … and adopt the undue burden [standard].”

U.S. Circuit Judge Helene White asked whether Ohio could simply pile on conditions regarding health care funding to put pressure on abortion providers.

“If this was just a tax,” Mooppan replied, “it would not be analyzed as an unconstitutional condition.”

Judge White continued down that line of questioning, asking if the state could enact legislation to prevent doctors who perform abortions from providing any other medical services.

Mooppan said such a regulation was possible, but only if a woman’s ability to obtain an abortion was not impeded.

Attorney Alan Schoenfeld argued on behalf of Planned Parenthood, and told the Sixth Circuit judges that factual findings in the district court proved the law places an undue burden on women seeking abortions.

He cited the 2016 Supreme Court decision in Whole Woman’s Health v. Hellerstedt, in which the nation’s high court struck down restrictions in Texas that forced women to travel extensive distances to obtain abortions.

“Women [in Ohio],” Schoenfeld said, “would be traveling distances similar to those in Hellerstedt.”

U.S. Circuit Judge Richard Griffin peppered the attorney with questions and interruptions, and asked if the fact that Planned Parenthood will continue to provide abortions – regardless of whether the law is enacted – effectively ends the case.

“We don’t decide hypothetical cases here,” Judge Griffin told Schoenfeld.

“No hypothesizing [is] necessary,” Schoenfeld responded. “There is no case that requires a party to submit to an unconstitutional condition to challenge it.”

Ohio’s attorney, Carney, picked up on Judge Griffin’s sentiments in his rebuttal, and told the court the “extreme hypotheticals” proffered by Planned Parenthood should not decide the case.

“You need to show an effect on women, and they don’t,” the attorney said.

Carney also pointed out that the district court failed to conduct the “intense factual analysis” required by the undue burden standard, and urged the en banc Sixth Circuit to reverse the lower court’s decision.

No timetable has been set for the court’s decision.

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