CINCINNATI (CN) – Attorneys for Ohio facing a Sixth Circuit panel on Thursday defended the constitutionality of a law that revokes health care funding from abortion providers and asked the appeals court to throw out an injunction against it.
Planned Parenthood of Greater Ohio and Planned Parenthood Southwest Ohio Region won a permanent injunction in Southern Ohio federal court a year ago, when U.S. District Judge Michael Barrett found that Ohio Revised Code 3701.034 violates the First and Fourteenth Amendments.
The statute, passed with Ohio House Bill 294 in November 2015, revoked funding for six health and education programs to facilities that also provide therapeutic abortions.
The programs affected by the statute include 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.
Judge Barrett ruled that the law impermissibly “condition[s] funding for these programs based on a recipient’s exercise of the right to free speech or association outside of these programs.”
He granted Planned Parenthood’s motion for a permanent injunction and wrote that “if section 3701.034 were to go into effect, [Planned Parenthood] would no longer be able to offer free of charge some of the services under the programs … [and] the requirement to pay even a reduced fee will deter patients from seeking these potentially life-saving services.”
Attorney Eric Murphy – representing Lance Himes, interim director of the Ohio Department of Health – told a three-judge panel of the Sixth Circuit on Thursday morning that Planned Parenthood does not have abortion rights that can be vindicated through a suit of this nature, and that “the woman holds the right that can be infringed.”
He urged the panel to vacate the injunction, and told the judges that “plaintiffs in this case admitted unequivocally they would continue providing abortions as before” if the law went into effect.
Murphy cited the Seventh Circuit case Planned Parenthood of Indiana v. Indiana State Dept. of Health, in which a similar statute was upheld as constitutional in 2012.
In that case, U.S. Circuit Judge Diane Sykes wrote for the Seventh Circuit that, “Planned Parenthood does not argue that the loss of its block-grant funding imposes an undue burden—directly or indirectly—on a woman’s right to obtain an abortion. If, as the foregoing cases hold, the government’s refusal to subsidize abortion does not unduly burden a woman’s right to obtain an abortion, then Indiana’s ban on public funding of abortion providers—even for unrelated services—cannot indirectly burden a woman’s right to obtain an abortion.”
On Thursday, U.S. Circuit Judge Eric Clay asked Murphy if he was claiming the Seventh Circuit case was binding, to which the attorney responded, “No, but to affirm [the district court decision], you would have to create a split with the Seventh Circuit.”
Paul Wolfson argued on behalf of Planned Parenthood, and told the panel that the case is not about government funding or subsidization of abortion, but rather about the state’s decision to “apply coercive pressure” to force his clients to stop performing abortions.
Judge Clay asked why an injunction is necessary if Planned Parenthood would continue to provide abortions even if the law went into effect.
Wolfson argued that under the unconstitutional-conditions doctrine, “it doesn’t matter whether you surrender or not. The claim can be made by people who are willing to stand up to the state.”
The attorney also reminded the Sixth Circuit panel that the Ohio statute includes an “affiliation clause,” which prevents funding to groups who affiliate with providers of abortions.
Under that clause, the Ohio Planned Parenthood organizations would still be cut off from funding even if they stopped providing abortions, as they would still interact with the national Planned Parenthood organization, according to Wolfson.
In closing his argument asking the court to affirm the district court’s decision to issue an injunction, Wolfson said, “None of these programs have anything to do with abortions, [and we have] a long history of participating in these programs successfully.”
Clay was joined on the panel by U.S. Circuit Judges Helene White and Eugene Siler Jr.
No timetable has been set for the court’s decision.