Norton v. Rocky Mountain Planned Parenthood, Inc.

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ADVANCE SHEET HEADNOTE

January 22, 2018

2018 CO 3

No. 16SC112, Norton v. Rocky Mountain Planned Parenthood, Inc.—Constitutional

Law—Article V, section 50—Motion to Dismiss.

In this case, the supreme court considers whether the petitioner’s complaint

alleged a violation of article V, section 50 of the Colorado Constitution sufficient to

overcome a motion to dismiss. The supreme court holds that to state a claim for relief

under section 50, a complaint must allege that the State made a payment to a person or

entity—whether directly to that person or entity, or indirectly through an

intermediary—for the purpose of compensating them for performing an abortion and

that such an abortion was actually performed. Because the petitioner’s complaint did

not allege that the State made such a payment, the complaint failed to state a claim for

relief under C.R.C.P. 12(b)(5). Accordingly, the supreme court affirms the judgment of

the court of appeals.

The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2018 CO 3

Supreme Court Case No. 16SC112

Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 14CA1816

Petitioner:

Jane E. Norton,

v.

Respondents:

Rocky Mountain Planned Parenthood, Inc. a/k/a Planned Parenthood of the Rocky

Mountains, Inc., a Colorado nonprofit corporation; John W. Hickenlooper, in his official

capacity as Governor of the State of Colorado; Susan E. Birch, in her official capacity as

Executive Director of the Colorado Department of Health Care Policy and Financing; and

Larry Wolk, in his official capacity as Executive Director of the Colorado Department of

Public Health & Environment.

Judgment Affirmed

en banc

January 22, 2018

Attorneys for Petitioner:

Michael J. Norton

Greenwood Village, Colorado

The Law Office of Natalie L. Decker, LLC

Natalie L. Decker

Littleton, Colorado

Attorneys for Respondent Rocky Mountain Planned Parenthood, Inc.:

Heizer Paul LLP

Kevin C. Paul

Cynthia A. Coleman

Denver, Colorado

Attorneys for Respondents John W. Hickenlooper, Susan E. Birch, and Larry Wolk:

Cynthia H. Coffman, Attorney General

W. Eric Kuhn, Senior Assistant Attorney General

Denver, Colorado

Attorneys for Amici Curiae Colorado Family Action, Genesis Family Church,

Kingdom Way Ministries, Summit Ministries, and Christina Darlington:

SDG Law LLC

David M. Hyams

Denver, Colorado

Attorneys for Amici Curiae Faith and Freedom Coalition of Colorado, Family Talk,

Dr. James Dobson, and the Colson Center for Christian Worldview:

MRDLaw

Michael Francisco

Denver, Colorado

CHIEF JUSTICE RICE delivered the Opinion of the Court.

JUSTICE BOATRIGHT dissents, and JUSTICE COATS joins in the dissent.

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¶1 In this case, we consider whether a complaint alleging a violation of article V,

section 50 of the Colorado Constitution (“section 50”) based solely on a theory of

subsidization states a claim for relief sufficient to overcome a motion to dismiss

pursuant to C.R.C.P. 12(b)(5). We hold that it does not. Instead we hold that to state a

claim for relief under section 50, a complaint must allege that the State made a payment

to a person or entity—whether directly to that person or entity, or indirectly through an

intermediary—for the purpose of compensating them for performing an abortion and

that such an abortion was actually performed.

I. Facts and Procedural History

¶2 Petitioner Jane E. Norton sued Rocky Mountain Planned Parenthood, Inc.

(“RMPP”), Governor John W. Hickenlooper, the Executive Director of the Colorado

Department of Health Care Policy and Financing, and the Executive Director of the

Colorado Department of Public Health and Environment (“CDPHE”), for violating

section 50. Section 50 provides, “No public funds shall be used by the State of

Colorado, its agencies or political subdivisions to pay or otherwise reimburse, either

directly or indirectly, any person, agency or facility for the performance of any induced

abortion . . . .”

¶3 Prior to filing this suit as a private citizen, Norton had served as Executive

Director of CDPHE. In 2001, while serving in that role, Norton hired an accounting

firm to determine whether RMPP was “separately incorporated, maintain[ed] separate

facilities, and maintain[ed] financial records which demonstrate[d] financial

independence” from Planned Parenthood of the Rocky Mountains Services Corporation

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(“Services Corp.”), an organization that offers abortion services. The accounting firm

determined that RMPP was “subsidizing the rent for Services Corp., an affiliate that

performs abortions.” From this information, Norton concluded that whenever CDPHE

provided funding to RMPP, for example by contracting with RMPP to perform breast

and cervical cancer screenings, it was violating section 50. As a result, Norton

terminated the State’s contractual relationship with RMPP and ceased all taxpayer

funding of that organization. In 2009, after Norton had left CDPHE, the State resumed

making payments to RMPP, prompting Norton to file this lawsuit in which she sought

declaratory and injunctive relief against the State officials and pursued a claim of unjust

enrichment against RMPP.

¶4 Norton alleged in her complaint that the State officials violated section 50 by

paying approximately $14 million1 of public funds to RMPP for non-abortion medical

services. Specifically, Norton’s complaint alleged that, in making these payments, the

State subsidized the abortion operations of Services Corp., because giving state funds to

RMPP allowed RMPP to charge below-market rent to Services Corp. for the use of

RMPP’s facilities. Norton did not allege that the State paid public funds to RMPP or to

Services Corp. to compensate either organization for actually performing abortions.

¶5 The trial court dismissed Norton’s complaint under C.R.C.P. 12(b)(5) for failure

to state a claim, concluding that Norton did not allege “any specific abortion that is

being supported with [state funds].” The trial court reasoned that, in order to fall

1The trial court determined that only $1.4 million of the funds identified in Norton’s

complaint were state funds.

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within the scope of section 50, a payment made by the State, whether directly or

indirectly, to a health care provider must be connected to the performance of an

abortion.

¶6 The court of appeals affirmed, holding that the language of section 50 “requires

that the purpose for which the State makes the payment be analyzed.” Norton v. Rocky

Mountain Planned Parenthood, Inc., 2016 COA 3, ¶ 17, __ P.3d __. The court of appeals

concluded that if it were to adopt Norton’s interpretation of “directly or indirectly” to

refer to how the funds ultimately are used by the payee, it would lead to an absurd

result. Id. at ¶ 24. For example, the State pays salaries to its employees. The court of

appeals reasoned that if one of those employees donated money to Services Corp.,

under Norton’s interpretation, the payment of salary to the employee would be an

indirect payment for an induced abortion and would violate section 50. Id. The court

of appeals held that this result cannot have been intended by the electorate when it

enacted section 50 because the connection to an induced abortion is too attenuated from

the reason for the initial payment of salary to the employee. Id. The court of appeals

concluded that because, in this example, the State paid the employee for services other

than performing induced abortions, section 50 was not violated. Id. The court of

appeals held that the same is true for the State paying RMPP for services other than

performing induced abortions. Id. at ¶ 25. Accordingly, the court of appeals concluded

that, because Norton did not allege that the State made payments to RMPP or Services

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Corp. for the purpose of reimbursing them for performing abortion services, the trial

court properly dismissed the complaint. Id. at ¶ 26. We granted certiorari.2

II. Standard of Review

¶7 We review a C.R.C.P. 12(b)(5) motion to dismiss de novo and apply the same

standards as the trial court. Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo.

2011). We accept all factual allegations in the complaint as true, viewing them in the

light most favorable to the plaintiff, but we are not required to accept bare legal

conclusions as true. Id. We will uphold the grant of a C.R.C.P. 12(b)(5) motion only

when the plaintiff’s factual allegations do not, as a matter of law, support the claim for

relief. Id. When considering a motion to dismiss for failure to state a claim, we may

consider the facts alleged in the pleadings, documents attached as exhibits or

incorporated by reference, and matters proper for judicial notice. Id.

¶8 The interpretation of a constitutional provision is a question of law that we

review de novo. Gessler v. Colo. Common Cause, 2014 CO 44, ¶ 7, 327 P.3d 232, 235.

“When interpreting a constitutional amendment adopted by citizen’s initiative, we ‘give

effect to the electorate’s intent in enacting the amendment.’” Dwyer v. State, 2015 CO

58, ¶ 19, 357 P.3d 185, 191 (quoting Colo. Ethics Watch v. Senate Majority Fund, LLC,

2012 CO 12, ¶ 20, 269 P.3d 1248, 1253). To this end, words used in the Constitution are

2 We granted certiorari to review the following issue:

1. [REFRAMED] Whether the court of appeals erred in interpreting Colo.

Const. art. V, section 50 to bar the use of state funds to pay for the

performance of any induced abortion only to the extent that the

performance of an induced abortion is the purpose for which the state

makes the payment.

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to be given “the natural and popular meaning usually understood by the people who

adopted them.” Urbish v. Lamm, 761 P.2d 756, 760 (Colo. 1988). If the language of a

constitutional provision is clear and unambiguous, we will enforce it as written. Colo.

Ethics Watch, ¶ 20, 269 P.3d at 1254.

III. Analysis

¶9 Norton argues that her complaint alleged a violation of section 50 by stating that

(1) the State made payments to RMPP using public funds; (2) RMPP and Services Corp.

are “conjoined, interrelated, and integrated affiliates”; and (3) Services Corp. offers

abortion services. Norton thus contends that, regardless of what the payments are for,

when the State pays any public funds to RMPP, it “indirectly” pays for the abortion

operations of Services Corp. in violation of section 50. Under Norton’s theory, when the

State pays RMPP for any service, RMPP earns a profit, making it possible for RMPP to

subsidize Services Corp. by charging below-market rent and sharing medical staff and

supplies.

¶10 We conclude that section 50 does not support a claim alleging a violation based

on such a theory of subsidization. We reach this conclusion by reviewing section 50’s

plain language, focusing in particular on the terms “pay for” and “indirectly.”

Consistent with the unambiguous meaning of those terms, we hold that, to state a claim

for relief under section 50, a plaintiff must allege that the State paid or reimbursed some

entity, either directly or indirectly (i.e., through an intermediary), in exchange for that

entity’s performance of an induced abortion. Applying our holding, we determine that,

because Norton did not allege that the State paid any entity for actually performing

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abortions, she did not state a claim for relief under section 50 and the trial court

properly dismissed her complaint.

A. Section 50 Prohibits Only State Payments for a Specific Service

¶11 Section 50 prohibits the State from spending public funds “to pay or otherwise

reimburse, either directly or indirectly, any person, agency or facility for the

performance of any induced abortion.” (Emphasis added.) Norton argues that the

word “indirectly” prohibits the State from paying organizations that offer abortion

services—or entities closely affiliated with organizations that perform abortions—for

any reason. Paying these organizations for any service, she argues, subsidizes their

abortion operations in violation of section 50. We disagree. Norton misinterprets the

term “indirectly” and ignores the key phrase in section 50 that identifies the specific

procedure that the State is prohibited from paying for: “the performance of any induced

abortion.”

¶12 Our resolution of this case turns on the meaning of the words “pay for” and

“indirectly” in section 50. The phrase “pay . . . for” in section 50 is a prepositional verb

completed by its object, the phrase “the performance of any induced abortion.” Thus,

the phrase “the performance of any induced abortion” tells the State which specific

service it cannot pay for. The preposition “for” means “in order to bring about or

further,” or “in order to obtain.” For, Webster’s Third New International Dictionary

(unabr. ed. 2002). Therefore, the sentence “[n]o public funds shall be used by [the State]

to pay . . . [any entity] for the performance of any induced abortion” prohibits the State

from paying public funds to any entity in order to “bring about” or “obtain” the

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performance of an induced abortion. Thus, section 50 focuses on the service that the

State pays for in exchange for its money. Notably, Section 50 does not bar the State

from contracting with an entire class of health care providers, although other states

have adopted such provisions. For example, a statute in Indiana bars the Indiana state

government from contracting with or making grants to “any entity that performs

abortions or maintains or operates a facility where abortions are performed that

involves the expenditure of state funds or federal funds administered by the state.”

Ind. Code § 5-22-17-5.5 (2017). Section 50 does not go that far. Instead, it bars the State

only from using public funds to pay for one specific medical service.

¶13 Norton nevertheless seizes upon the word “indirectly,” arguing that the State so

paid Services Corp. for the performance of induced abortions by actually paying its

affiliate, RMPP, for non-abortion medical services. We disagree.

¶14 In Keim v. Douglas Cty. School Dist., 2017 CO 81, ¶ 32, 397 P.3d 377, 385, we

held that the phrase “directly or indirectly,” as it relates to a provision within

Colorado’s Fair Campaign Practices Act (“FCPA”), § 1-45-117(1)(a)(I), C.R.S. (2017),

encompasses an intermediary theory. In that case, we interpreted the FCPA, which

prohibits political subdivisions from making “contributions” in certain campaigns.

Keim, ¶ 23, 397 P.3d at 382–83. The FCPA adopts the definition of “contribution” used

in article XXVIII, section 2(5) of the Colorado Constitution. § 1-45-103(6)(a), C.R.S.

(2017). Keim interpreted article XXVIII, section 2(5)(a)(IV), which defines

“contribution” as “anything of value given, directly or indirectly, to a candidate for the

purpose of promoting the candidate’s . . . election.” Keim, ¶ 20, 397 P.3d at 382.

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We held that the phrase “directly or indirectly” in section 2(5)(a)(IV) modifies the

contributor’s act of giving to the candidate, meaning a candidate may receive a thing of

value in two ways: “directly” from the contributor or “indirectly” through one or more

intermediaries. Id. at ¶ 28, 397 P.3d at 384. In either case, we held, the candidate must

ultimately receive the thing of value given by the contributor. Id. Thus, in the FCPA

context, “indirectly” refers to contributions that are actually received by the candidate,

but arrive to that candidate through an intermediary. Id.

¶15 The phrase “directly or indirectly” performs the same function in section 50.

Here, “directly or indirectly” modifies the State’s act of paying a health care provider

for the performance of an abortion, meaning the State can violate section 50 in two

ways: by paying some entity directly for performing an abortion, or by paying an

intermediary who then pays some entity for performing an abortion. In either case, the

State must make the payment for the purpose of compensating a health care provider

for performing an induced abortion. For example, section 50 prohibits the State from

paying or reimbursing a physician for abortion care directly, e.g., writing a check to the

physician to compensate them for performing that specific service. Section 50 also

prohibits the State from paying a physician for abortion care through an intermediary

such as a health maintenance organization (“HMO”).3

3As Colorado Attorney General Duane Woodard explained in a 1985 Advisory

Opinion, section 50 prohibits the State from using public funds to pay the premium for

an HMO that pays for abortion care as a benefit to State employees. Op. Att’y Gen.,

No. AD AC AGANY, 1985 WL 194202, at *2 (Feb. 6, 1985). By paying the premiums to

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¶16 Accordingly, we hold that to state a claim for a violation of section 50, a

complaint must allege that the State made a payment to a person or entity—whether

directly to that person or entity, or indirectly through an intermediary—for the purpose

of compensating them for performing an abortion and that such an abortion was

actually performed.

¶17 Having reached this conclusion, we now consider whether Norton’s complaint

stated a claim for relief.

B. Norton’s Complaint Fails to State a Claim for Relief

¶18 As explained above, section 50 prohibits the State from paying public funds for a

specific purpose—to obtain or bring about an abortion procedure. Therefore, even

accepting the factual allegations in Norton’s complaint as true, her complaint does not

state a claim for relief under section 50. Norton alleged that the State paid money to

RMPP and that RMPP uses its income to subsidize the operations of Services Corp. But

she did not allege that either RMPP or Services Corp. actually performed abortions in

exchange for State funds. To the contrary, the trial court found that all of the funds the

State paid to RMPP financed non-abortion medical procedures, including breast and

cervical-cancer screenings. Norton argues that her subsidization theory is an indirect

payment for an abortion, just like the HMO example, but the two are different in kind.

In the HMO example, a physician provides an induced abortion in exchange for

payment from the HMO, an account of State funds set aside for the purpose of paying

the HMO which, in turn, pays the medical provider for abortion procedures, the State

indirectly pays for the performance of induced abortions. Id.

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medical expenses. In contrast, Norton did not allege that the State paid or reimbursed

RMPP for actually providing an abortion. Accordingly, the trial court properly

dismissed Norton’s complaint for failure to state a claim.

III. Conclusion

¶19 For the foregoing reasons, we hold that the State does not violate section 50 when

it pays RMPP for non-abortion medical services. To state a claim for relief under

section 50, a plaintiff must allege that the State paid or reimbursed some entity, either

directly or indirectly (through an intermediary), to provide an abortion. Because

Norton did not allege that the State paid or reimbursed RMPP, directly or indirectly, for

providing an abortion, the trial court properly dismissed her complaint under

C.R.C.P. 12(b)(5). Accordingly, we affirm the judgment of the court of appeals.

JUSTICE BOATRIGHT dissents, and JUSTICE COATS joins in the dissent.

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JUSTICE BOATRIGHT, dissenting.

¶20 An amendment to the Colorado Constitution prohibits the State from using

public funds “directly or indirectly” for abortion services. Colo. Const. art. V, § 50.

That language is very broad. It makes clear that state funds are not to be used in any

way to fund abortion services. The amendment does not mention the State’s purpose

for using the funds. In fact, the words “intent” or “purpose” are completely absent.

Nevertheless, today the majority creates a “purpose” requirement and grafts it onto the

amendment. But the plain language of the Constitution does not support such a

purpose requirement; instead, the amendment focuses exclusively on how the funds are

ultimately used. For this reason, I respectfully dissent.

¶21 Article V, section 50 of the Colorado Constitution states, in relevant part: “No

public funds shall be used by the State of Colorado, its agencies or political subdivisions

to pay or otherwise reimburse, either directly or indirectly, any person, agency or

facility for the performance of any induced abortion.” Based on this language, I believe

that a complaint alleging that State funds are being used for abortion services, directly

or indirectly, states a sufficient claim for purposes of C.R.C.P. 12(b)(5). The majority,

however, holds that a plaintiff must additionally allege that the State made a payment

to a person or entity for the purpose of paying for abortion services, and that the party

here, Jane Norton, did not make such an allegation. Hence, the majority concludes that

Norton’s complaint was properly dismissed for failing to state a claim upon which relief

can be granted under C.R.C.P. 12(b)(5). Maj. op. ¶ 1.

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¶22 Motions to dismiss under Rule 12(b)(5) are generally viewed unfavorably.

Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011). A complaint will survive a

motion to dismiss if, accepting all the factual allegations in the complaint as true, the

complaint states a plausible claim for relief. See Warne v. Hall, 2016 CO 50, ¶¶ 9, 24,

327 P.3d 588, 591, 595 (explaining the federal pleading standard and adopting it in

Colorado).

¶23 Norton’s complaint begins by describing the amendment at issue, which

prohibits the State from directly or indirectly funding abortion services. It then alleges,

in detail, that the State provides funds to RMPP, RMPP provides a rent subsidy to its

Services Corp., and the Services Corp. performs abortion services. Then, logically

following the flow of money from the State to the Services Corp., the complaint alleges

that the State has “directly or indirectly subsidized [Planned Parenthood’s Services

Corp.].” Therefore, accepting all the factual allegations in the complaint as true, the

complaint plausibly articulates that the State is indirectly funding abortion services and

thus meets the requirements to state a claim for a violation of section 50.

¶24 Yet the majority holds that Norton did not plead sufficient facts because she did

not allege that the State paid RMPP for the purpose of performing abortion services.

Maj. op. ¶ 18. Of course she did not allege that the State paid RMPP for the purpose of

performing abortion services; the plain language of section 50 does not require

payments to be made with the purpose of performing abortion services. Thus, the only

way the majority can conclude that Norton failed to state a claim is to add language to

section 50 in the form of a purpose requirement. This it may not do.

2

¶25 When interpreting a constitutional amendment, we must not add words that the

amendment does not contain, see Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007), and

we must avoid unreasonable interpretations that lead to absurd results, Huber v. Colo.

Mining Ass’n, 264 P.3d 884, 889 (Colo. 2011). As I have discussed, the amendment is

silent as to the State’s purpose in providing the funds. From this silence, the majority

extracts a purpose requirement. But such an interpretation would not be necessary if

the majority followed the amendment’s plain language, which imposes no such

purpose requirement.

¶26 The majority creates the “purpose” requirement by analyzing the words “pay

for” and “indirectly” in the amendment. Maj. op. ¶ 12. In doing so, it relies on our

statutory analysis in Keim v. Douglas Cty. Sch. Dist., 2017 CO 81, 397 P.3d 377. See maj.

op. ¶¶ 14–17. Keim concerns a dispute that arose when the Douglas County School

Board sent information to potential voters during a pending election. See Keim, ¶ 1, 397

P.3d at 378. We analyzed whether that was a violation of the Colorado Fair Campaign

Practices Act (“FCPA”). Id. at ¶¶ 30–34, 397 P.3d at 385–86. The FCPA prohibits

political subdivisions of the state from making contributions that would taint the

electoral process. Id. at ¶ 23, 397 P.3d at 382. Specifically, the statute prohibits political

subdivisions of the state from making contributions “to urge electors to vote in favor of

or against” any ballot issue, referred measure, or recall measure. See § 1-45-117(1)(a)(I),

C.R.S. (2017). More simply, the statute prohibits a subdivision of the State from making

contributions for the purpose of persuading electors. Thus, in Keim, the statute in

question required us to look at the purpose of the expenditure.

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¶27 As such, there is a fundamental difference between the statute in Keim and the

amendment we interpret today; the statute in Keim contained a prohibited purpose for

expenditures, while the amendment here contains a prohibited use of expenditures.

That difference renders the majority’s reliance on Keim misplaced.

¶28 By focusing on the State’s purpose for providing the funds, the majority renders

section 50 practically unenforceable. Apparently, the State can now give funds to any

facility that provides abortion services without running afoul of Colorado’s

constitution, so long as the money is not specifically earmarked for abortion services. In

my view, that is not what the voters intended in enacting this constitutional

amendment. They intended that no taxpayer dollars be used to fund abortion services.

¶29 Norton’s civil action is at its inception. Only a complaint and a motion to dismiss

have been filed. At this juncture, the only issue is whether the complaint states a claim

for relief. The majority concludes that it does not. I disagree. I would instead hold that

Norton’s complaint plausibly alleges that the State is indirectly funding abortion

services, based on the plain language of article V, section 50, and thus states a claim. At

the very least, the majority should remand this case with instructions to allow Norton to

amend her complaint if she so chooses, so that she may plead facts to meet this new

purpose requirement.

¶30 I therefore respectfully dissent.

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