The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0076p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PLANNED PARENTHOOD OF GREATER OHIO; PLANNED ┐
PARENTHOOD OF SOUTHWEST OHIO REGION, │
Plaintiffs-Appellees, │
│
> No. 16-4027
v. │
│
│
LANCE HIMES, in his official capacity as Interim │
Director of the Ohio Department of Health, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:16-cv-00539—Michael R. Barrett, District Judge.
Argued: August 3, 2017
Decided and Filed: April 18, 2018
Before: SILER, CLAY, and WHITE, Circuit Judges.
_________________
COUNSEL
ARGUED: Eric E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellant. Paul R.Q. Wolfson, WILMER CUTLER PICKERING HALE AND DORR
LLP, Washington, D.C., for Appellees. ON BRIEF: Eric E. Murphy, Hannah C. Wilson, Ryan
L. Richardson, Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellant. Paul R.Q. Wolfson, Kimberly A. Parker, WILMER CUTLER
PICKERING HALE AND DORR LLP, Washington, D.C., Jennifer L. Branch,
GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Helene T. Krasnoff, Carrie Y.
Flaxman, PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, D.C., for
Appellees. Aaron D. Lindstrom, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, Laura Etlinger, OFFICE OF THE NEW YORK ATTORNEY GENERAL,
Albany, New York, Jyotin Hamid, DEBEVOISE & PLIMPTON LLP, New York, New York, for
Amici Curiae.
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 2
_________________
OPINION
_________________
HELENE N. WHITE, Circuit Judge. Enacted in 2016, Ohio Revised Code § 3701.034
requires the Ohio Department of Health (ODH) to ensure that all funds it receives through six
non-abortion-related federal health programs are not used to contract with any entity that
performs or promotes nontherapeutic abortions, or becomes or continues to be an affiliate of any
entity that performs or promotes nontherapeutic abortions.1
Plaintiffs Planned Parenthood of Greater Ohio (PPGOH) and Planned Parenthood
Southwest Ohio Region (PPSWO) filed this action for declaratory and injunctive relief under
42 U.S.C. § 1983, alleging that § 3701.034 violates 1) their First Amendment rights “by denying
state and federal funds” to Plaintiffs “because of–and in retaliation for–their constitutionally
protected advocacy for abortion rights and affiliation with other organizations that also advocate
for abortion rights and/or provide abortion services”; 2) the Due Process Clause “by denying
state and federal funds” to Plaintiffs “because of––and in retaliation for––[Plaintiffs’] own
constitutionally protected right to provide abortions and their patients’ exercise of the
constitutional right to choose to have abortion”; and 3) the Equal Protection Clause “by singling
out abortion providers and those who ‘promote’ abortions, including Plaintiffs, for unfavorable
treatment without a constitutionally sufficient justification.” PID 1/Complaint; PID 27-28.
Plaintiffs sought to enjoin ODH from enforcing § 3701.034 or terminating Plaintiffs’ funding
under the six federal programs pursuant to that statute. PID 309.
The district court entered a temporary restraining order on the day § 3701.034 was to take
effect. PID 308/Dist. Ct. Op. 5/23/16. Following expedited discovery, Plaintiffs filed motions
for judgment on the merits and to permanently enjoin ODH from enforcing § 3701.034, Fed. R.
Civ. P. 65(a)(2). PID 2122-23/Dist. Ct. Op. 8/12/16. Applying the unconstitutional-conditions
1
The statutory language, quoted infra at pp. 3–5, can be read to prohibit the recipient’s use of program
funds to perform or promote abortion, or to contract or affiliate with organizations that do. However, ODH has
made clear that it reads the provisions as prohibiting ODH from using program funds to contract with organizations
that perform or promote abortions or affiliate with entities that do so, even if the funds are used strictly for program
purposes, which by definition are unrelated to abortion. See PID 883.
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 3
doctrine, the district court determined that § 3701.034 impermissibly conditions funding under
programs that are unrelated to abortion based on a recipient’s foregoing exercise of its First
Amendment rights to free speech or association outside the contours of the six programs, and
foregoing provision of abortion services protected by the Due Process Clause.2 Planned
Parenthood of Greater Ohio v. Hodges, 201 F. Supp. 3d 898 (S.D. Ohio 2016). The district
court granted Plaintiffs’ motions for judgment on the merits and a permanent injunction. Id.
ODH appeals, challenging Plaintiffs’ standing to assert the due process claims, and
arguing that we should not reach Plaintiffs’ First Amendment claim because the statute’s
“conduct provision,” which bars funding for entities that perform abortions, does not violate due
process. ODH challenges the district court’s ruling on the First Amendment claim as well.
Relying on Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Department
of Health, 699 F.3d 962 (7th Cir. 2012), cert. denied, 569 U.S. 1004 (2013), ODH also
challenges the district court’s application of the unconstitutional-conditions doctrine to Plaintiffs’
due process claim, asserting that in the abortion context, the unconstitutional-conditions doctrine
at most bars conditions that impose an undue burden on women’s access to abortion, which is
not present here. Because we conclude the district court properly applied the unconstitutional-
conditions doctrine and that § 3701.034 is unconstitutional under that doctrine, we AFFIRM.
I.
Ohio Revised Code § 3701.034
Ohio Revised Code § 3701.034, which was to take effect on May 23, 2016, provides:
Prohibition on use of certain funds concerning nontherapeutic abortions
(A) As used in this section:
(1) “Affiliate” means an entity that has with another entity a legal
relationship created or governed by at least one written
instrument that demonstrates any of the following:
2
The district court did not reach Plaintiffs’ Equal Protection claim.
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 4
(a) Common ownership, management, or control;
(b) A franchise agreement;
(c) The granting or extension of a license or other
agreement that authorizes an entity to use the other
entity’s brand name, trademark, service mark, or
other registered identification mark.
(2) “Violence Against Women Act” means section 1910A of
section 40151 of the “Violent Crime Control and Law
Enforcement Act of 1994,” part A of Title XIX of the “Public
Health and Human Services Act,” 108 Stat. 1920 (1994), former
42 U.S.C. 300w, 42 U.S.C. 280b-1b, as amended.
(3) “Breast and Cervical Cancer Mortality Prevention Act” means
the “Breast and Cervical Cancer Mortality Prevention Act of
1990,” 104 Stat. 409 (1990), 42 U.S.C. 300k, as amended.
(4) “Infertility prevention project” means the infertility prevention
project operated by the United States centers for disease control
and prevention.
(5) “Minority HIV/AIDS initiative” means the minority HIV/AIDS
initiative operated by the office of minority health in the United
States department of health and human services.
(6) “Personal responsibility education program” means the
program administered by the administration for children and
families in the United States department of health and human
services to educate adolescents on abstinence and contraception for
the prevention of pregnancy and sexually transmitted infections.
(7) “Nontherapeutic abortion” has the same meaning as in section
9.04 of the Revised Code.[3]
(8) “Promote” means to advocate for, assist with, encourage, or
popularize through advertising or publicity.[4]
(B) – (G)[5] The department of health shall ensure that all funds it receives
through [the Violence Against Women Act, Breast and Cervical Cancer Mortality
3
Ohio law defines “nontherapeutic abortion” as “an abortion that is performed or induced when
the life of the mother would not be endangered if the fetus were carried to term or when the pregnancy of
the mother was not the result of rape or incest reported to a law enforcement agency.” Ohio Rev. Code
§ 9.04(A)(1).
4
The prohibition on funding entities that “promote” nontherapeutic abortions is found in § 3701.034(B)(2),
(C)(2), (D)(2), (E)(2), (F)(2), and (G)(2).
5
Sections (B) through (G), which address each of the programs separately, share identical language in
subsections (1) through (4), and are condensed for brevity.
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 5
Prevention Act, Infertility prevention project, Minority HIV/AIDS initiative,
infant mortality reduction or infant vitality initiatives] are not used to do any of
the following:
(1) Perform nontherapeutic abortions;
(2) Promote nontherapeutic abortions;
(3) Contract with any entity that performs or promotes
nontherapeutic abortions;
(4) Become or continue to be an affiliate of any entity that
performs or promotes nontherapeutic abortions.
Ohio Rev. Code § 3701.034.
Plaintiffs
Plaintiffs PPGOH and PPSWO are not-for-profit corporations organized under Ohio law.
PID 84, 126; PPSWO President & CEO Jerry Lawson Decl., PPGOH President & CEO, Iris
Harvey Decl. PPGOH and PPSWO are independent entities; however, both are affiliates of
Planned Parenthood Federation of America, Inc. (PPFA), which advocates for women’s access to
comprehensive reproductive healthcare, including abortion. PID 86, Harvey Decl.; 2123/Dist.
Ct. Op. 8/12/16. Plaintiffs now operate twenty-seven6 health centers throughout Ohio, which are
staffed with physicians, nurse practitioners, and physician assistants, who provide well-woman
exams, testing and treatment for sexually transmitted diseases, screenings for breast and cervical
cancer and HIV, and contraception and contraceptive counseling. Three of the twenty-seven
health centers also provide abortion services. PID 86/Harvey Decl.; 126, 127/Lawson Decl.
Separate from their government-funded health services and education programs, PPGOH and
PPSWO advocate for a woman’s right to safe and lawful abortion through public awareness
campaigns and public education activities. PID 86, 127-28.
No government funds are used to pay for or subsidize Plaintiffs’ abortion services or
advocacy; Plaintiffs operate within the confines of federal and Ohio law, which for decades have
prohibited the use of public funds to pay for abortions. PID 87/Harvey Decl.; PID 128-
29/Lawson Decl; see also infra n.8. It is undisputed that Plaintiffs “maintain measures to ensure
6
During the pendency of this appeal, Plaintiffs’ counsel advised that one of the twenty-eight health centers
has closed for reasons unrelated to this case. The district court’s opinion states that Plaintiffs operate twenty-eight
health centers; that number was accurate at the time.
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 6
that none of the funds received from the state or federal government are used, directly or
indirectly, to subsidize the promotion of abortion or performance of abortion services.” PID
2136/Dist. Ct. Op. 8/12/16.
Largely through competitive grant processes, Plaintiffs have for years received funds
(and material assistance) distributed by ODH and county health departments under the six
federal programs impacted by § 3701.034: the Infertility prevention project, Breast and Cervical
Cancer Mortality Prevention Act, Violence Against Women Act, Minority HIV/AIDS initiative,
STD Prevention Program, and Personal Responsibility Education Program (PREP).7
Throughout those years, Plaintiffs passed all state and local audits and program reviews.
After § 3701.034 was enacted, however, ODH and local health departments notified Plaintiffs
that their contracts under the six federal programs would be terminated and they would not be
eligible for funding. PID 883-908/ODH letters to ODH subcontractors and Plaintiffs, and letters
from local agencies/subcontractors to Plaintiffs advising of termination of contracts; PID
2124/Dist. Ct. Op. 8/12/16.
Standard of Review
This court reviews a challenge to the constitutionality of a statute de novo. Entm’t
Prods., Inc. v. Shelby Cty., Tenn., 721 F.3d 729, 733 (6th Cir. 2013). The district court’s factual
findings are reviewed for clear error, its legal conclusions are reviewed de novo, and the scope of
injunctive relief is reviewed for abuse of discretion. Sec’y of Labor, U.S. Dep’t of Labor v.
3Re.com, Inc., 317 F.3d 534, 537 (6th Cir. 2003). “A party is entitled to a permanent injunction
if it can establish that it suffered a constitutional violation and will suffer continuing irreparable
injury for which there is no adequate remedy at law.” Lee v. City of Columbus, Ohio, 636 F.3d
245, 249 (6th Cir. 2011) (quoting Wedgewood Ltd. P’ship I v. Twp. of Liberty, Ohio, 610 F.3d
340, 349 (6th Cir. 2010)). “Injunctive relief involving matters subject to state regulation may be
7
Plaintiffs’ counsel advised the court by letter dated July 27, 2017, that PPGOH did not reapply for grant
funding under the PREP program when its contract expired on July 31, 2017, and that it appears that ODH will no
longer be responsible for allocating PREP funds as of August 1, 2017; thus “there is a question as to whether [this
court] need consider PREP in its analysis of Section 3701.034.”
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 7
no broader than necessary to remedy the constitutional violation.” Kallstrom v. City of
Columbus, 136 F.3d 1055, 1069 (6th Cir. 1998).
II.
We first address ODH’s standing argument. ODH asserts that the district court
erroneously transformed a woman’s abortion right into a provider’s right by treating Plaintiffs as
if they hold an independent due process abortion right. Challenging the district court’s reliance
on Singleton v. Wulff, 428 U.S. 106 (1976), ODH asserts that the doctrine of third-party standing
permits a party to assert the rights of another only if the party shows that the missing party’s
rights have been violated; and because abortion providers lack any abortion right of their own, no
burden on them could ever amount to an unconstitutional burden without a separate showing of
an unconstitutional effect on women. Appellant Br. 42–44. According to ODH, “That abortion
providers must rely on the rights of women confirms that they do not hold the constitutional
rights here.” Appellant Br. 44.
ODH does not grapple with precedent, which clearly holds that abortion providers have
standing to enforce their patients’ abortion rights. See PID 2138; Singleton v. Wulff, 428 U.S.
106, 118 (1976) (“[I]t generally is appropriate to allow a physician to assert the rights of women
patients as against governmental interference with the abortion decision.”); Planned Parenthood
of Cent. Mo. v. Danforth, 428 U.S. 52, 62 (1976) (physicians who supervised abortions at
Planned Parenthood had standing to challenge constitutionality of Missouri statute); Planned
Parenthood Ass’n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1396 (6th Cir. 1987)
(holding that Planned Parenthood and its Medical Director had standing to assert third-party
rights (of women) as well as their own rights); see also Planned Parenthood Ass’n of Utah v.
Herbert, 828 F.3d 1245, 1260 (10th Cir. 2016) (“[B]ecause abortion is a medical procedure, . . .
the full vindication of the woman’s fundamental right necessarily requires that her” medical
provider be afforded the right to “‘make his best medical judgment,’” which includes
“implementing [the woman’s decision] should she choose to have an abortion.”) (quoting City of
Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 427 (1983), overruled in part on
other grounds in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 870 (1992)); Planned
Parenthood of Wis. v. Doyle, 162 F.3d 463, 465 (7th Cir. 1998) (“The standing of the physician
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 8
plaintiffs, and of Planned Parenthood as the owner of abortion clinics in Wisconsin, to maintain
this suit is not open to question.”). ODH cites no case holding that an abortion provider lacks
standing to challenge a law concerning abortion.
ODH’s remaining arguments go to the merits and are addressed below.
III.
ODH asserts that the “conduct provision” of § 3701.034 (precluding entities that perform
abortions from obtaining funding under six federal programs) comports with due process under
Maher v. Roe, 432 U.S. 464 (1977), Harris v. McRae, 448 U.S. 297 (1980), and Rust v. Sullivan,
500 U.S. 173 (1991), and argues that we should decide the case on this basis alone, without
reaching the First Amendment claim because any ruling on that claim would be an improper
advisory opinion in violation of the doctrine of constitutional avoidance.
We need not address ODH’s constitutional-avoidance argument because we conclude that
§ 3701.034 violates Plaintiffs’ due process rights by imposing unconstitutional conditions.
A.
The Supreme Court remarked decades ago that the unconstitutional-conditions doctrine is
well-established:
For at least a quarter-century, this Court has made clear that even though a person
has no ‘right’ to a valuable government benefit and even though the government
may deny him the benefit for any number of reasons, there are some reasons upon
which the government may not rely. It may not deny a benefit to a person on a
basis that infringes his constitutionally protected interests––especially, his
interest in freedom of speech. For if the government could deny a benefit to a
person because of his constitutionally protected speech or associations, his
exercise of those freedoms would in effect be penalized and inhibited. This
would allow the government to ‘produce a result which (it) could not command
directly.’ Speiser v. Randall, 357 U.S. 513, 526 [(1958)]. Such interference with
constitutional rights is impermissible.
Perry v. Sindermann, 408 U.S. 593, 597 (1972) (emphasis added); see also Koontz v. St. Johns
River Water Mgmt. Dist., 570 U.S. 595, 612 (2013) (“A predicate for any unconstitutional
conditions claim is that the government could not have constitutionally ordered the person
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 9
asserting the claim to do what it attempted to pressure that person into doing.”) (citing Rumsfeld
v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 59–60 (2006)).
More recently, in Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, 570 U.S. 205
(2013) (hereafter AOSI), the Supreme Court invalidated a statutory provision requiring
organizations receiving program funds to have a policy explicitly opposing prostitution and sex
trafficking, finding the provision imposed an unconstitutional condition by requiring that a
recipient affirm “a belief that by its nature cannot be confined within the scope of the
Government program.” AOSI, 570 U.S. at 221. Chief Justice Roberts wrote for the Court:
The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act
of 2003 . . . outlined a comprehensive strategy to combat the spread of HIV/AIDS
around the world. As part of that strategy, Congress authorized the appropriation
of billions of dollars to fund efforts by nongovernmental organizations to assist in
the fight. The Act imposes two related conditions on that funding: First, no funds
made available by the Act “may be used to promote or advocate the legalization
or practice of prostitution or sex trafficking.” [28 U.S.C.] § 7631(e). And second,
no funds may be used by an organization “that does not have a policy explicitly
opposing prostitution and sex trafficking.” 7631(f). This case concerns the
second of these conditions, referred to as the Policy Requirement. The question is
whether that funding condition violates a recipient’s First Amendment rights.
....
By demanding that funding recipients adopt—as their own—the Government’s
view on an issue of public concern, the condition by its very nature affects
“protected conduct outside the scope of the federally funded program.” Rust, 500
U.S., at 197. A recipient cannot avow the belief dictated by the Policy
Requirement when spending Leadership Act funds, and then turn around and
assert a contrary belief, or claim neutrality, when participating in activities on its
own time and dime. By requiring recipients to profess a specific belief, the Policy
Requirement goes beyond defining the limits of the federally funded program to
defining the recipient. See ibid. (“our ‘unconstitutional conditions’ cases involve
situations in which the Government has placed a condition on the recipient of the
subsidy rather than on a particular program or service, thus effectively prohibiting
the recipient from engaging in the protected conduct outside the scope of the
federally funded program”).
AOSI, 570 U.S. at 208, 218–19. AOSI thus reiterated that the government may not require the
surrender of constitutional rights as a condition of participating in an unrelated government
program. Id. at 214; see also Rust, 500 U.S. at 197.
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 10
The unconstitutional-conditions doctrine is not limited to First Amendment rights, but
rather, applies in a number of contexts, Koontz, 570 U.S. at 604 (“We have said in a variety of
contexts that ‘the government may not deny a benefit to a person because he exercises a
constitutional right.’”) (citation omitted), including, as this court has recognized, to vindicate
“due process rights,” R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 434 (6th Cir. 2005)
(“Under the unconstitutional conditions doctrine, ‘a state actor cannot constitutionally condition
the receipt of a benefit, such as a liquor license or an entertainment permit, on an agreement to
refrain from exercising one’s constitutional rights.’”) (quoting G&V Lounge, Inc. v. Mich. Liquor
Control Comm’n, 23 F.3d 1071, 1077 (6th Cir. 1994)).
B.
ODH characterizes Plaintiffs’ claims as resting on an asserted entitlement to government
funding. See Appellant Br. 2, 5 (“Ohio decided to favor childbirth over abortion when it
distributes public funds for six health and education programs. Unhappy with Ohio’s choice,
Planned Parenthood seeks a different allocation . . . . It seeks a constitutional guarantee to public
funding—a guarantee that forces Ohio, against its own judgment, to give public money to large
abortion providers. The Constitution contains no such guarantee.”)
ODH mischaracterizes Plaintiffs’ argument. Plaintiffs do not claim an entitlement to
government funds. They acknowledge the government’s right to define the parameters of its
own programs, and have complied with all program requirements. What they do claim is a right
not to be penalized in the administration of government programs based on protected activity
outside the programs. As the district court noted, § 3701.034 is unnecessary to accomplish
Ohio’s choices to favor childbirth and refrain from subsidizing abortions; the program funds here
have nothing to do with abortion and for decades both federal and Ohio law8 have prohibited the
use of government funds to pay for abortions. PID 2139-42.
8
See McRae, 448 U.S. at 302 (“Since September 1976, Congress has prohibited—either by an amendment
to the annual appropriations bill for the Department of Health, Education, and Welfare or by a joint resolution—the
use of any federal funds to reimburse the cost of abortions under the Medicaid program except under certain
specified circumstances. This funding restriction is commonly known as the ‘Hyde Amendment,’ after its original
congressional sponsor, Representative Hyde.”) (footnote omitted); Ohio Rev.Code § 9.04, titled “State funding for
nontherapeutic abortion coverage prohibited.”
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 11
Maher, McRae, and Rust hold that the government may constitutionally make policy and
value judgments in allocating public funds under government programs, and is not required to
subsidize abortion by including coverage for abortion in public-benefits programs. Maher,
432 U.S. at 470–71, 474 (rejecting challenge to Connecticut Welfare Department regulation
limiting state Medicaid benefits for first-trimester abortions to those that are medically
necessary); McRae, 448 U.S. at 322–23 (rejecting challenge to Medicaid Act’s Hyde
Amendment’s limitation of funding to those abortions necessary to save life of mother, while
permitting funding of costs associated with childbirth.); Rust, 500 U.S. at 192–94 (rejecting
challenge to regulations providing funding for family-planning services but prohibiting funds for
abortion counseling and referral). The Constitution does not require that the government fund all
family-planning activities equally. See Rust, 500 U.S. at 194. Further, the failure to subsidize
the exercise of a constitutional right does not abridge the right. See Maher, 432 U.S. at 474;
McRae, 448 U.S. at 316–17; Rust, 500 U.S. at 193.
None of these principles are implicated here. The issue in the instant challenge is
different: whether Ohio may require a provider to surrender the right to provide safe and lawful
abortions on its own “time and dime” as a condition of participating in government programs
that have nothing to do with abortion.
McRae and Maher do not suggest that such a requirement is constitutional. In fact,
McRae acknowledged that a “substantial constitutional question would arise if Congress had
attempted to withhold all Medicaid benefits from an otherwise eligible candidate simply because
that candidate had exercised her constitutionally protected freedom to terminate her pregnancy
by abortion.” 448 U.S. at 317 n.19.
And Rust makes clear that the Maher line of cases is inapposite here. In Rust, the
Supreme Court addressed regulations implementing Title X of the Public Health Services Act,
42 U.S.C. §§ 300–300a-6, which “provides federal funding for family-planning services,” and
authorizes the Secretary of the Department of Health and Human Services to “make grants and
enter into contracts with public or nonprofit private entities to assist in the establishment and
operation of voluntary family planning projects which shall offer a broad range of acceptable and
effective family planning methods and services.” 500 U.S. at 178 (quoting 42 U.S.C. § 300(a)).
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 12
The challenged regulations prohibited use of Title X funds “in programs where abortion is a
method of family planning.” Id. The plaintiffs, Title X grantees and doctors who supervise Title
X funds, attacked the facial validity of the regulations and sought declaratory and injunctive
relief on behalf of themselves and their patients. The Second Circuit “upheld the regulations,
finding them to be a permissible construction of the statute as well as consistent with the First
and Fifth Amendments to the Constitution.” Id.
In addressing the petitioners’ First Amendment challenge to the regulations on the basis
that they impermissibly discriminated based on viewpoint by prohibiting “all discussion about
abortion as a lawful option––including counseling, referral, and the provision of neutral and
accurate information about ending a pregnancy––while compelling the clinic or counselor to
provide information that promotes continuing a pregnancy to term,” the Rust Court observed:
There is no question but that the statutory prohibition contained in § 1008 is
constitutional. In Maher v. Roe, 432 U.S. 464 [] (1977), we upheld a state welfare
regulation under which Medicaid recipients received payments for services
related to childbirth, but not for nontherapeutic abortions. The Court rejected the
claim that this unequal subsidization worked a violation of the Constitution. We
held that the government may “make a value judgment favoring childbirth over
abortion, and . . . implement that judgment by the allocation of public funds.” Id.,
432 U.S., at 474 []. Here the Government is exercising the authority it possesses
under Maher and Harris v. McRae, 448 U.S. 297 [] (1980), to subsidize family
planning services which will lead to conception and childbirth, and declining to
“promote or encourage abortion.” The Government can, without violating the
Constitution, selectively fund a program to encourage certain activities it believes
to be in the public interest, without at the same time funding an alternative
program which seeks to deal with the problem in another way. In so doing, the
Government has not discriminated on the basis of viewpoint; it has merely chosen
to fund one activity to the exclusion of the other. “[A] legislature’s decision not
to subsidize the exercise of a fundamental right does not infringe the right.”
Regan [v. Taxation with Representation of Wash.,] 461 U.S. [540], 549 [1983]
. . . . “There is a basic difference between direct state interference with a protected
activity and state encouragement of an alternative activity consonant with
legislative policy.” Maher, supra, 432 U.S., at 475 [].
....
Petitioners’ assertions ultimately boil down to the position that if the government
chooses to subsidize one protected right, it must subsidize analogous counterpart
rights. But the Court has soundly rejected that proposition. Regan v. Taxation
with Representation of Wash., supra; Maher v. Roe, supra; Harris v. McRae,
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 13
supra. Within far broader limits than petitioners are willing to concede, when the
Government appropriates public funds to establish a program it is entitled to
define the limits of that program.
Rust, 500 U.S. at 192–94. Rust thus simply reiterated that the government is not required to
subsidize the provision or promotion of abortion, even when it chooses to fund other family-
planning programs and services. Critically, the regulations at issue in Rust, unlike § 3701.034,
were directly related to the use of the program funds: Title X family-planning funds could not be
used to fund family-planning programs where abortion is a method of family planning. 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.
Rust itself observed, “our ‘unconstitutional conditions’ cases involve situations in which
the Government has placed a condition on the recipient of the subsidy rather than on a particular
program or service, thus effectively prohibiting the recipient from engaging in the protected
conduct outside the scope of the federally funded program.” Id. at 197 (emphasis in original).
Unlike in Rust, that is precisely what § 3701.034 does.
Further, in rejecting the petitioners’ reliance on the unconstitutional-conditions doctrine,
the Rust Court distinguished the Rust petitioners’ situation from alternative scenarios similar to
the one presented here:
Petitioners also contend that the restrictions on the subsidization of abortion-
related speech contained in the regulations are impermissible because they
condition the receipt of a benefit, in these cases Title X funding, on the
relinquishment of a constitutional right, the right to engage in abortion advocacy
and counseling. Relying on Perry v. Sindermann, 408 U.S. 593, 597 [] (1972),
and FCC v. League of Women Voters of Cal., 468 U.S. 364 [] (1984), petitioners
argue that “even though the government may deny [a] . . . benefit for any number
of reasons, there are some reasons upon which the government may not rely.
It may not deny a benefit to a person on a basis that infringes his constitutionally
protected interests—especially, his interest in freedom of speech.” Perry, supra,
408 U.S., at 597 [].
Petitioners’ reliance on these cases is unavailing, however, because here the
Government is not denying a benefit to anyone, but instead simply insisting that
public funds be spent for the purposes for which they were authorized. The
Secretary’s regulations do not force the Title X grantee to give up abortion-related
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 14
speech; they merely require that the grantee keep such activities separate and
distinct from Title X activities. Title X expressly distinguishes between a Title X
grantee and a Title X project. The grantee, which normally is a health-care
organization, may receive funds from a variety of sources for a variety of
purposes. The grantee receives Title X funds, however, for the specific and
limited purpose of establishing and operating a Title X project. 42 U.S.C
§ 300(a). The regulations govern the scope of the Title X project’s activities, and
leave the grantee unfettered in its other activities. The Title X grantee can
continue to perform abortions, provide abortion-related services, and engage in
abortion advocacy; it simply is required to conduct those activities through
programs that are separate and independent from the project that receives Title X
funds. 42 CFR § 59.9 (1989).
Id. at 196–97 (emphasis in original). In contrast, the statute here does not distinguish between
the grantee and the project; 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].” Rust,
500 U.S. at 197.
Thus, we do not agree with ODH that § 3701.034 “comports with due process” under
Maher, McRae, and Rust.
C.
We turn to ODH’s argument, rejected by the district court, that the unconstitutional-
conditions doctrine, at most, bars unconstitutional conditions only when they actually operate to
impose an undue burden. ODH relies on the Seventh Circuit’s divided decision in Planned
Parenthood of Indiana, Inc. v. Commissioner of Indiana State Department of Health, 699 F.3d
962 (7th Cir. 2012), cert. denied, 569 U.S. 1004 (2013) (hereafter PPI).9 Appellant Br. 36–37,
47-48; Reply Br. 4, 14. There, PPI, a Medicaid provider that performs abortions, and two low-
9
The State of Indiana petitioned for certiorari, arguing that the Court should address the important national
issue whether states may preclude abortion providers from receiving Medicaid subsidies. No. 11-2464, 2011 WL
3274237. Planned Parenthood then filed a conditional cross-petition for certiorari, requesting that if the Court grants
Indiana’s petition, it also grant review of the Seventh Circuit’s unconstitutional-conditions holding. Conditional
Cross-Petition for Certiorari filed in No. 12-1559, 2013 WL 1191187. The Supreme Court denied certiorari.
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 15
income patients who used its services, brought suit under 42 U.S.C. § 1983, challenging the
constitutionality of an Indiana law that prohibited state agencies from contracting with or making
grants to any entity that performs abortions. The district court did not rule on PPI’s
unconstitutional-conditions claim, but the Seventh Circuit panel majority addressed it, observing
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 first step in any unconstitutional-conditions claim is to identify the nature and
scope of the constitutional right arguably imperiled by the denial of a public
benefit. . . . Here, Planned Parenthood’s unconstitutional-conditions claim
necessarily derives from a woman’s constitutional right to obtain an abortion. See
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 [] (1992)
(“Constitutional protection of the woman’s decision to terminate her pregnancy
derives from the Due Process Clause of the Fourteenth Amendment.” (emphasis
added)). Under existing precedent any protection for Planned Parenthood as an
abortion provider is “derivative of the woman’s position.” Id. at 884 [] (plurality
opinion).
Two aspects of the Supreme Court’s abortion jurisprudence are important here.
First, the Court has explained that the constitutional right to obtain an abortion is
a right against coercive governmental burdens; the government may not “prohibit
any woman from making the ultimate decision to terminate her pregnancy” before
fetal viability or impose an “undue burden on a woman’s ability to make this
decision.” Id. at 874, 879 []; see also Gonzales v. Carhart, 550 U.S. 124, 146 []
(2007). An “undue burden” exists if the challenged law has the “purpose or
effect” of placing “a substantial obstacle in the path of a woman seeking an
abortion before the fetus attains viability.” Casey, 505 U.S. at 878 [] (plurality
opinion); see also Gonzales, 550 U.S. at 146 [].
Accordingly, the Court has conceptualized the right as “a constitutionally
protected interest ‘in making certain kinds of important decisions’ free from
governmental compulsion.” Maher v. Roe, 432 U.S. 464, 473 (1977) (quoting
Whalen v. Roe, 429 U.S. 589, 599–600 & nn. 24 & 26 [] (1977)).
This brings up the second important point. The Court has explicitly rejected a
neutrality-based view of abortion rights. Thus, the Court has held that although
the abortion right recognized in Roe v. Wade “protects the woman from unduly
burdensome interference with her freedom to decide whether to terminate her
pregnancy[,] [i]t implies no limitation on the authority of a State to make a value
judgment favoring childbirth over abortion, and to implement that judgment by
the allocation of public funds.” Id. at 473–74 []. In Maher the Court upheld
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 16
Connecticut’s ban on public funding for non-therapeutic abortions because it
“places no obstacles—absolute or otherwise—in the pregnant woman’s path to an
abortion.” Id. at 474 []. The Court reaffirmed Maher in Harris v. McRae,
448 U.S. 297, 314–17 [] (1980), upholding the Hyde Amendment. And in
Webster v. Reproductive Health Services, 492 U.S. 490, 508–11 [] (1989), the
Court upheld Missouri’s statutory ban on the use of public employees and
facilities to perform or assist in the performance of an abortion.
Finally, in Rust v. Sullivan, 500 U.S. 173 [] (1991), the Court rejected a challenge
to federal regulations prohibiting recipients of Title X family-planning grants
from advocating abortion as a method of family planning or referring patients for
abortion. Under the regulations, grant recipients with abortion-related practices
could continue to receive Title X money only if they segregated their abortion-
related activities in a separate affiliate. Id. at 179–81 []. Rust held that the
regulations did not place an unconstitutional condition on Title X grant recipients.
Id. at 203. This was so whether the claim was premised on the speech rights
of the providers, id. at 196–99 [], or the abortion rights of their patients, id. at
201–03 []. As relevant here, the Court reaffirmed the holdings of Webster,
Harris, and Maher that “[t]he Government has no constitutional duty to subsidize
an activity merely because the activity is constitutionally protected and may
validly choose to fund childbirth over abortion.” Id. at 201. Because the Title X
regulations did not place an undue burden on a woman’s right to obtain an
abortion or otherwise impose an unconstitutional condition on grant recipients,
the Court upheld the regulatory scheme. Id. at 203 [].
As these cases make clear, the government need not be neutral between abortion
providers and other medical providers, and this principle is particularly well-
established in the context of governmental decisions regarding the use of public
funds. 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.
Applying these principles here, the unconstitutional-conditions claim is not likely
to succeed. 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.
PPI, 699 F.3d at 986–88 (emphasis in original).10
10
Judge Cudahy dissented in part, concluding that the record was insufficiently developed to permit
consideration of the state’s restrictions on block-grant funding (Medicaid funding was also at issue) and that “the
issue of unconstitutional conditions should be remanded to the district court for development of the record with
respect to any possible imposition of a burden on access to abortions.” 699 F.3d at 988–89.
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 17
We are not persuaded by the Seventh Circuit’s reasoning or ODH’s arguments. The
Seventh Circuit did not directly address the unconstitutional-conditions argument. It identified
the right at issue as a woman’s right to obtain an abortion free of the government’s imposition of
an undue burden; noted that the cases make clear that the government is not required to remain
neutral on abortion and has no obligation to fund abortion or abortion advocacy, even when
funding other family-planning activity; noted that there was no claim or showing that the loss of
the block-grant money imposed an undue burden on a woman’s right to obtain an abortion; and
concluded without further explanation that if “the government’s refusal to subsidize abortion
does not unduly burden a woman’s right to 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.” PPI, 699 F.3d at 988 (emphasis in original). This analysis completely
elides the unconstitutional-conditions argument by concluding, in effect, that because Ohio has
the right to refuse to fund abortion, it necessarily has the right to refuse to provide any funds to
abortion providers, regardless of how the funds are to be used; and this right is subject only to
the requirement that it not unduly burden a woman’s right to obtain an abortion, which the
challenged provision did not.
In discussing Rust, the PPI court appeared to recognize that the undue burden and
unconstitutional-conditions doctrines are different––“[b]ecause the Title X regulations did not
place an undue burden on a woman’s right to obtain an abortion or otherwise impose an
unconstitutional condition on grant recipients, the Court upheld the regulatory scheme,” id. at
988 (emphasis added)––but then went on to ignore the latter. Its analysis 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. PPI fails to acknowledge that if the
government cannot directly prohibit Plaintiffs from providing and advocating for abortion on
their own time and dime, it may not do so by excluding them from government programs for
which they otherwise qualify and which have nothing to do with the government’s choice to
disfavor abortion.
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 18
We note that PPI was decided before AOSI, which may account for the failure to give
due consideration to the unconstitutional-conditions doctrine. Other courts have applied the
unconstitutional-conditions doctrine in similar circumstances without engaging in an undue-
burden analysis. In Planned Parenthood Ass’n of Utah v. Herbert , 828 F.3d 1245 (10th Cir.
2016) (hereafter PPAU), Utah’s governor, one of the defendants, issued a directive instructing
state agencies to cease acting as intermediaries for pass-through federal funds to Planned
Parenthood for four federal programs unrelated to abortion. 828 F.3d at 1250. The directive was
issued in response to videos released by an organization purportedly showing Planned
Parenthood staff discussing its fetal-tissue donation program. PPAU sought declaratory and
injunctive relief under 42 U.S.C. § 1983, alleging violations of its Equal Protection, First
Amendment, and Due Process rights, the latter two under the unconstitutional-conditions
doctrine. Id. at 1258. PPAU’s motion for preliminary injunction argued that its “association
with other Planned Parenthood providers who participate in lawful programs that allow abortion
patients to donate fetal tissue for scientific research . . . is protected under the First Amendment,”
and that the governor’s directive violated its rights and its patients’ due process rights “to
provide and access abortion services by imposing a penalty on PPAU for the provision of and/or
association with abortion services without adequate justification.” Id. at 1251. The district court
denied the motion for temporary restraining order and PPAU sought interlocutory review.
The Tenth Circuit reversed on the First Amendment and Due Process claims and
remanded for entry of a temporary restraining order in PPAU’s favor, observing:
PPAU’s unconstitutional conditions claims . . . . alleged . . . that Herbert took a
discretionary executive action, i.e., issuing the Directive, that terminated PPAU’s
contractual relationships with [the Executive Director of the Utah Department of
Health] and was motivated by PPAU’s engagement in the following activities:
“associat[ing] with other Planned Parenthood providers who participate in lawful
programs that allow abortion patients to donate fetal tissue for scientific
research,” Dist. Ct. Docket No. 3 at 3; advocating for legal abortions, App. at 475;
associating with organizations for political, social and education reasons, id. at
476; and providing abortion services to its patients.
....
PPAU has also alleged in Count 3, without serious challenge from defendants, a
Fourteenth Amendment right. The Supreme Court has recognized that “the
Fourteenth Amendment’s concept of personal liberty and restrictions upon state
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 19
action . . . encompass[es] a woman’s decision whether or not to terminate her
pregnancy.” Roe v. Wade, 410 U.S. 113, 153 (1973). The Court has also
recognized that, “because abortion is a medical procedure, . . . the full vindication
of the woman’s fundamental right necessarily requires that her” medical provider
be afforded the right to “‘make his best medical judgment,’” which includes
“implementing [the woman’s decision] should she choose to have an abortion.”
City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 427 [] (1983)
(quoting Doe v. Bolton, 410 U.S. 179, 192 [] (1973)), overruled on other grounds
by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 [] (1992). . . .
Having determined that PPAU has identified valid First and Fourteenth
Amendment rights, that leaves the question of whether PPAU can establish that
Herbert issued the Directive in retaliation for PPAU’s exercise of those rights.
The district court concluded that PPAU failed to establish a likelihood of success
on this point . . . .
. . . . [disagreeing with district court’s determination that PPAU did not establish
that the governor’s opposition to abortion was a substantial or motivating factor
for the directive/termination of contracts]
....
Considering all of th[e] evidence together, we conclude that a reasonable finder of
fact is more likely than not to find that Herbert issued the Directive to punish
PPAU for the First and Fourteenth Amendment rights it has identified in this
litigation . . . .
....
In summary, we conclude that PPAU has established a substantial likelihood of
success on the merits of its unconstitutional conditions claims and that the district
court erred in concluding otherwise.
PPAU, 828 F.3d at 1259–63. The PPAU court did not find it necessary to ask whether the
Governor’s directive would unduly burden the availability of abortion services in Utah. It was
enough that the directive likely11 amounted to an unconstitutional penalty for PPAU’s abortion-
related conduct and association.
In Planned Parenthood of Southwest & Central Florida v. Philip, 194 F. Supp. 3d 1213
(N.D. Fla. 2016) (hereafter PPSCF), the district court rejected the argument of the defendants,
Florida’s State Surgeon General and Secretary of Health Care Administration, that the only
restriction the Constitution places on abortion legislation is that the state cannot impose an undue
11
Because the court was reviewing the denial of a preliminary injunction, it evaluated the likelihood of
success on the merits.
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 20
burden on a woman’s right to an abortion. 194 F. Supp. 3d at 1220. PPSCF and other affiliates
challenged a newly enacted “defunding provision,” Fla. Stat. § 390.0111(15), which provided, as
pertinent here, that a state agency or local government entity “may not expend funds for the
benefit of, pay funds to, or initiate or renew a contract with an organization that owns, operates,
or is affiliated with one or more clinics that are licensed under this chapter and perform
abortions.” 194 F. Supp. 3d at 1215. The district court granted the plaintiffs’ motion for
preliminary injunction, observing:
Under the defunding provision, as a condition of receiving state or local funds for
unrelated services, the plaintiffs must stop providing abortions that women are
constitutionally entitled to obtain. But as the defendants acknowledged at oral
argument, the state could not constitutionally prohibit the plaintiffs from
providing these abortions. The Supreme Court has repeatedly said that a
government cannot prohibit indirectly—by withholding otherwise-available
public funds—conduct that the government could not constitutionally prohibit
directly.
....
Here . . . the constitutional right at issue—or, at least, the primary constitutional
right at issue—belongs to the plaintiffs’ patients. A patient has a right to
an abortion, within limits. See, e.g., Whole Woman’s Health v. Hellerstedt,
No. 15–274, ––– U.S. –––, 136 S. Ct. 2292, 195 L. Ed. 2d 665 (U.S. June 27,
2016); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833
[] (1982); Roe v. Wade, 410 U.S. 113 [] (1973). The plaintiffs have a right to
provide abortions, but the right is derivative of the patients’ rights.
....
If, as the Court said in Rust, Congress can prohibit the use of federal funds for
abortion services but cannot restrict a recipient of federal funds from separately
providing abortion services, then the Florida legislature likewise can prohibit the
use of state funds for abortion services but cannot prohibit a recipient of state
funds from separately providing abortion services. Rust is fatal to the defunding
provision, which was enacted precisely and only for a prohibited purpose: to
reach other, unrelated activities that are separate from the recipient’s abortion
services. That this was the only purpose of the defunding provision is clear
because Florida law already prohibited the use of state funds for abortions.
PPSCF, 194 F. Supp. 3d at 1216–19. Similar to ODH’s argument here, the Florida defendants
argued that the unconstitutional-conditions doctrine does not apply in the abortion context and
that the statute was limited only by Casey’s requirement that the state cannot impose an undue
burden on women’s right to an abortion. The PPSCF court rejected that argument:
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 21
The defendants’ assertion that the unconstitutional-conditions doctrine does not
apply in this context is incorrect. Nothing in Whole Woman’s Health or Casey
suggests in any way that those decisions were intended to supplant the wholly
separate unconstitutional-conditions doctrine. And Rust’s analysis is squarely to
the contrary.
PPSCF, 194 F. Supp. 3d at 1220.12 We agree.
Finally, in Planned Parenthood of Central North Carolina v. Cansler, 877 F. Supp. 2d
310 (M.D. N.C. 2015) (hereafter PPCNC), PPCNC alleged that a North Carolina statute violated
its rights under the Due Process Clause by denying non-abortion related funding based on its
activity as an abortion-rights advocate and abortion provider. 877 F. Supp. 2d at 314–15. The
district court granted PPCNC’s motion for summary judgment and a permanent injunction,
concluding that the provision violated PPCNC’s due process (and First Amendment) rights
because only PPCNC and its affiliates were excluded and, since there was no evidence that it
would have used government funds for abortion-related services, the provision limited access to
government funding in a manner that impeded the organization’s constitutional rights and was
not necessary to serve a compelling government interest. Id. at 318–21. The PPCNC court
stated:
[I]t is undisputed that only Planned Parenthood and its affiliates are excluded
from DHHS-administered contracts and grants under Section 10.19. It is also
undisputed that Planned Parenthood is an entity that would be otherwise eligible
to receive funding, but for Section 10.19. Moreover, although Defendant
contends that Section 10.19 operates merely as an exercise of discretion with
regard to funding decisions, based on the State’s objective in favoring childbirth
over abortion, it is undisputed that the government funding at issue in this case
would not be used to fund abortion-related services or advocacy. In that regard,
the Court notes that Defendant has provided no evidence that the funding
prohibition in Section 10.19 is necessary to ensure that government funds are not
used for abortion-related services, as both federal and North Carolina legislation
already exist to bar government funds from being used for abortion-related
services. Furthermore, Defendant has presented no evidence or even allegation
that Plaintiff would use, or has ever used, government funds for abortion-related
services. Rather, “there is no dispute that Section 10.19 prohibits Planned
Parenthood and its affiliated organizations, including PPCNC, from receiving
funding for non-abortion-related projects based on their other activities for which
12
No appeal was taken in PPSCF.
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 22
they have not sought funding.” (Prelim. Inj. Order, 804 F. Supp. 2d at 493).
Therefore, based on the evidence before the Court, and the line of precedent
described herein, the Court finds that Section 10.19 limits access to government
funding for Plaintiff, as a recipient, in a manner that impedes Plaintiff’s
constitutional rights, and which is not necessary to serve a compelling
government interest. [Planned Parenthood of Mid-Mo. & E. Kan., Inc. v.]
Dempsey, 167 F.3d [458,] 461 [(8th Cir. 1999)] (“[F]unding classifications that
interfere with the exercise of constitutional rights must be necessary to promote a
compelling interest.” (internal quotations and citations omitted)).
PPCNC, 877 F. Supp. 2d at 320–21 (most internal citations to record omitted).13 The same is
true here.
We reject the Seventh Circuit’s analysis in PPI in favor of the reasoning in these cases,
which parallels our own.
In sum, as reaffirmed in AOSI, which was decided after PPI, although the government
has no obligation to subsidize constitutionally protected activity, it may not use its control over
funds to curtail the exercise of constitutionally protected rights outside the scope of a
government-funded program. In the instant case, § 3701.034 imposes conditions on funding
under the six non-abortion related federal programs and the unconstitutional-conditions doctrine
is thus applicable. We do not find PPI persuasive; as the district court determined, its
importation of Casey’s undue-burden analysis is questionable. See PPSCF, 194 F. Supp. 3d at
1213. Neither Casey, 505 U.S. 833, nor Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292
(2016), discussed infra, suggests that the undue-burden analysis was intended to replace the
unconstitutional-conditions doctrine.
IV.
Even accepting ODH’s assertion that in the “abortion” context we must engage in an
undue-burden analysis, Plaintiffs established that § 3701.034 is unnecessary to advance the
interests ODH asserts.
Several years after the Seventh Circuit issued PPI, the Supreme Court clarified the
undue-burden standard in Whole Woman’s Health, 136 S. Ct. 2292, as revised (June 27, 2016),
13
No appeal was taken in PPCNC.
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 23
explaining that “[t]he [undue-burden] rule announced in Casey . . . requires that courts consider
the burdens a law imposes on abortion access together with the benefits those laws confer.”
Whole Woman’s Health, 136 S. Ct. at 2309–1014 (citing Casey, 505 U.S. at 887–898) [] (opinion
of the Court) (performing this balancing with respect to a spousal notification provision); id., at
899–901 [] (joint opinion of O’Connor, Kennedy, and Souter, JJ.) (same balancing with respect
to a parental notification provision)).
A.
ODH asserts that the “conduct provision,” which bars funding for entities that perform
abortions, furthers the following important state interests: 1) the interest in promoting life,
2) “prevent[ing] entanglement between program services and abortion services–ensuring that
taxpayer dollars do not subsidize abortion,” 3) serving “administrative considerations” by
ensuring that taxpayer funds do not directly or indirectly subsidize abortion (“it is much easier
for the government simply to preclude abortion providers from participating in the programs than
to allow their participation subject to costly oversight and audits”), and 4) “help[ing] Ohio
convey its childbirth preference” “[b]y separating abortion providers from these programs, the
Conduct Provision clarifies Ohio’s message.” Appellant Br. 39–41.
However, Ohio’s important interests in preferring childbirth to abortion, promoting life,
and not subsidizing abortions have only the most tenuous relationship to § 3701.034. Precluding
Plaintiffs from funding under the six federal preventive-health programs that have nothing to do
with abortion does little to promote these interests. Separate and apart from § 3701.034, no
program funds are or can be used to perform, promote or support abortion. See McRae, 448 U.S.
at 303. Nor does ODH’s asserted interest in preventing entanglement between program services
and abortion services have any weight, since the six government programs have nothing to do
with abortion and there is no evidence of a history of entanglement. Regarding the
administrative burden of “costly oversight and audits,” ODH neither cites the record nor points
to evidence in support.
14
Citing Whole Woman’s Health and Casey, Plaintiffs correctly assert that Ohio indisputably could not ban
PPGOH and PPSWO from providing “nontherapeutic abortions.” Appellees Br. 35.
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 24
B.
ODH argues that § 3701.034’s “conduct provision” neither directly nor indirectly
imposes any burden on a woman’s right to an abortion. Appellant Br. 36–38.
ODH does not contest that if Plaintiffs acquiesce in the unconstitutional conditions by
ceasing all abortion activity and advocacy in favor of continuing to participate in the six federal
programs, women in Ohio will suffer an undue burden on their ability to obtain legal abortions.
Relying on deposition testimony regarding funding for Plaintiffs’ various activities, ODH argues
that Plaintiffs will not abandon their abortion activities, and thus women’s abortion rights will
not be unduly burdened. ODH cites no case in support of its argument that a plaintiff who
establishes an unconstitutional condition must also show that it would yield to the
unconstitutional coercion. ODH’s argument sidesteps that the Supreme Court has recognized
that the unconstitutional-conditions doctrine prohibits the imposition of the condition itself. See
AOSI, 570 U.S. at 214 (government action need not be “actually coercive” to constitute an
unconstitutional condition).
ODH further argues that abortion rights are different because the right belongs to women,
not their health-care providers, and although Plaintiffs might be disadvantaged, § 3701.034 does
not unduly burden women’s right to access abortion because Plaintiffs will continue to operate as
usual. It has been recognized repeatedly that because the abortion right depends on providers to
offer the service, conditions on abortion providers inherently affect women seeking abortions.
See Singleton v. Wulff, 428 U.S. 106, 117 (1976) (observing that since a woman “cannot safely
secure an abortion without the aid of a physician,” “the constitutionally protected abortion
decision is one in which the physician is intimately involved,” and “[a]side from the woman
herself, therefore, the physician is uniquely qualified to litigate the constitutionality of the State’s
interference with, or discrimination against, that decision.”); Planned Parenthood of Mid-Mo. &
E. Kan., 167 F.3d at 464 (addressing the effect of the challenged Missouri law on “Planned
Parenthood’s constitutional right[]” to “provide abortion services”); Planned Parenthood of
Cent. & N. Ariz., 718 F.2d at 944 (determining “whether the State unduly interfered with Planned
Parenthood’s exercise of its right to perform abortion and abortion-related services”).
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 25
Further, there is no complete separation between the Plaintiff providers and their patients
that ODH would have us accept. Although Plaintiffs’ choice to resist ODH’s unconstitutional
attempt to coerce them to abandon all abortion activity and advocacy means that women in Ohio
will not suffer the drastic reduction in abortion services that would have occurred if Plaintiffs
had made a different choice, § 3701.034 still has a substantial effect on women, in addition to
providers. It is undisputed that Plaintiffs are among the largest providers of health services in the
areas their twenty-seven clinics serve under the federal programs at issue,15 and provide many of
those services free of charge to low-income and underserved communities.16 If Plaintiffs are
excluded from the federal programs, they will no longer be able to provide the services for
free.17 Thus, as a condition of retaining access to abortion free of undue governmental
interference, Ohio women must forego the extensive and subsidized access to health services
under federal programs that they previously enjoyed. Although Ohio women do not have a right
to the programs, they do have a right not to have their access to important health services
curtailed because their major abortion providers opted to protect women’s abortion rights rather
than yield to unconstitutional conditions.
15
Plaintiffs provide more than half of all STD tests administered in Ohio under the STD Prevention
Program. PID 1858/Wolfson Decl. exhibit 26; PID 302/Lawson 2d Decl. ¶ 2. In the fiscal year that ended in June
2015, PPGOH provided approximately 64,300 STD tests and treatment for patients who tested positive and required
treatment. PID 89/Harvey Decl. ¶ 10. Of the 90,000 STD tests that PPGOH administers annually, approximately
64,300 are funded through the STD Prevention Program. PID 89/Harvey Decl. ¶ 24. PPSWO provides
approximately 7,943 STD tests and 1,150 treatments annually. PID 130/Lawson Decl. ¶ 22.
PPGOH is the largest provider of HIV testing and treatment in Cleveland, Akron, and Canton. PID 92/Harvey Decl.
¶ 38. PPSWO provides approximately 1,600 anonymous and confidential HIV tests annually. PID 132/Lawson
Decl. ¶ 31.
PPGOH also provided 4,400 pap smears and 3,700 breast exams. PID 85/Harvey Decl. ¶ 10.
ODH failed to identify alternative providers to fill most of the gaps in service that would result from excluding
Plaintiffs from funding under the six federal programs. PID 1858/Wolfson Decl. exh. 26.
16
Approximately 75% of PPSWO’s patients and 40% of PPGOH’s patients fall within the low-income
classification. PID 127/Lawson Decl. ¶ 10; PID 87/Harvey Decl. ¶ 19. Many live in medically underserved areas––
communities classified by the U.S. Department of Health and Human Services as having too few primary-care
providers, high infant mortality and poverty rates, or large elderly populations. See PID 85/Harvey Decl. ¶ 11; PID
127/Lawson Decl. ¶ 10.
17
PID 952/Harvey 3d Decl. ¶ 6 (“Without funding from those programs [§ 3701.034 reaches], PPGOH will
be constrained in its ability to offer free services, such as screening for sexually transmitted diseases, HIV, and
breast and cervical cancer, and end the affected education programs.”)
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 26
V. FIRST AMENDMENT CLAIM
We turn to ODH’s argument that § 3701.034’s speech provision, which prohibits the
allocation of program funds to any entity that promotes abortions, does not violate the First
Amendment. Appellant Br. 49–55.
In some cases, a funding condition can result in an unconstitutional burden on First
Amendment rights. See AOSI, 570 U.S. at 218 (“By requiring recipients to profess a specific
belief, the Policy Requirement goes beyond defining the limits of the federally funded program
to defining the recipient.”); Rumsfeld, 547 U.S. at 59 (the First Amendment supplies “a limit on
Congress’ ability to place conditions on the receipt of funds”).
A.
As discussed, ODH is correct that states are free to “make a value judgment favoring
childbirth over abortion, and . . . implement that judgment by the allocation of public funds.”
PID 2129, citing Maher, 432 U.S. at 474; see also McRae, 448 U.S. at 302. For decades Ohio
legislation has been in place that bars the use of public funds to pay for abortion services. PID
2129, citing Ohio Rev. Code § 5101.56 (providing that “[u]nless required by the United States
Constitution or by federal statute, or decisions of federal courts, state or local funds may not be
used for payment or reimbursement for abortion services” unless certain circumstances apply,
none applicable here). Plaintiffs accept this as a given.
Relying on Planned Parenthood Ass’n of Hidalgo County Texas, Inc. v. Suehs, 692 F.3d
343 (5th Cir. 2012), ODH argues that § 3701.034’s speech provision does no more than is
constitutionally permissible by seeking “to ensure that contractors who convey Ohio’s messages
do so efficiently and effectively,” Appellant Br. 52–53. In Suehs, the Texas legislature created
the “Women’s Health Program (WHP),” 2005 Tex. Gen. Laws 2817, 2871, in 2005, which was
designed to “expand access to preventative health and family planning services for women.”
692 F.3d. at 346 (citation omitted). Since the WHP’s inception, the Texas Legislature prohibited
the Texas Health and Human Services Commission (THHSC), which administers the WHP, from
contracting with “entities that perform or promote elective abortions or are affiliates that perform
or promote elective abortions.” Id. at 346 (citation omitted). However, THHSC did not exclude
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 27
Planned Parenthood from receiving WHP funds until 2011, when the Texas Legislature re-
authorized the WHP and promulgated regulations. The plaintiff health-clinic operators alleged
that the regulations violated their First Amendment rights of free-speech and association, and the
guarantee of Equal Protection. Applying the unconstitutional-conditions doctrine, the district
court determined the regulations likely violated these constitutionally guaranteed rights and
issued a preliminary injunction. The Fifth Circuit vacated the district court’s order granting a
preliminary injunction and remanded, explaining:
We begin with the restriction on promoting elective abortions. The THHSC
regulations exclude health care providers from the WHP who “promote [ ]
elective abortions as . . . abortion facilit[ies] licensed under [the] Health and
Safety Code.” 1 Tex. Admin. Code § 354.1363(a)(2)(A). This restriction, in a
sense, imposes a speech-based condition on organizations receiving the benefit of
WHP funding. If an organization wishes to receive WHP funding, it may not
“[a]dvocate[ ] or popularize[ ] [elective abortions] by, for example, advertising or
publicity” as a licensed abortion facility. Id. § 354.1362(6). Although this
restriction functions as a speech-based funding condition, it also functions as a
direct regulation of the content of a state program, and is therefore constitutional
under the reasoning of Rust v. Sullivan, 500 U.S. 173 [] (1991). In Rust v.
Sullivan, the Supreme Court considered federal regulations limiting the abortion-
related speech of clinics receiving funds under Title X of the Public Health
Service Act. 500 U.S. at 178 []. The disputed regulations broadly prohibited a
Title X project from promoting or advocating abortion as a method of family
planning, including advocating abortion in the political arena. Id. at 180 []. The
Court upheld the regulations, reasoning that the government could disfavor
abortion within its own subsidized program, and that exclusively subsidizing non-
abortion family planning speech did not penalize abortion speech. Id. at 192–93
[]. Subsequent opinions have recognized Rust as affirming the government’s
authority to enact viewpoint-based restrictions on speech when the government is,
in effect, the speaker. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 540–41 []
(2001); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833 []
(1995). “[W]hen the government appropriates public funds to promote a
particular policy of its own it is entitled to say what it wishes.” Rosenberger,
515 U.S. at 833 [] (citing Rust, 500 U.S. at 194 []). . . .
. . . . We hold that Texas may deny WHP funds from organizations that promote
elective abortions. This specific restriction on the breadth of the program
functions as a direct regulation of the definitional content of a state program, and
it is therefore unnecessary to examine it within the framework of the
unconstitutional conditions doctrine. The district court erred in enjoining this
provision of the regulations.
Suehs, 692 F.3d 343, 349–50.
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 28
We agree with the district court that Suehs is distinguishable and inapposite:
Defendant points out that even though Texas’s funding condition applied to
program participants, rather than just program activities, the Fifth Circuit found
the funding restriction was proper. However, there are key differences between
Section 3701.034 and the WHP, as the [Fifth Circuit’s] explanation of its holding
illustrates:
Texas’s restriction on promoting elective abortions directly
regulates the content of the WHP as a state program. The policy
expressed in the WHP is for public funds to subsidize non-abortion
family planning speech to the exclusion of abortion speech.
§ 1.19(b), 2011 Tex. Gen. Laws at 335. Texas’s authority to
promote that policy would be meaningless if it were forced to
enlist organizations as health care providers and message-bearers
that were also abortion advocates. The authority of Texas to
disfavor abortion within its own subsidized program is not
violative of the First Amendment right, as interpreted by Rust v.
Sullivan. Consequently, Texas’s choice to disfavor abortion does
not unconstitutionally penalize the appellees’ speech.
[692 F.3d] at 350. In contrast, Section 3701.034 is not a direct regulation of the
content of a state program. Instead, Section 3701.034 places the speech-based
funding condition on the recipient of the funds [based on] activities conducted
outside the six programs impacted . . . As a result, Section 3701.034 does not
“leave the grantee unfettered in its other activities.” Rust, 500 U.S. at 196.
Planned Parenthood of Greater Ohio, 201 F. Supp. 3d at 905.
B.
We also reject ODH’s related argument that the State of Ohio may, consistent with the
First Amendment, ensure that its message favoring childbirth over abortion is not garbled. As
the district court found, this case involves no state “message” related to or regarding abortion;
§ 3701.034 affects programs that have nothing to do with abortion or family planning, and seeks
to impose restrictions on recipients’ speech outside the six government programs the statute
funds. PID 2132/Dist. Ct. Op.; see, e.g., AOSI, 570 U.S. at 218 (a recipient of government
funding is free under the First Amendment to express its own views “when participating in
activities on its own time and dime”).
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 29
C.
As the district court determined, because “the conditions imposed by Section 3701.034
seek to leverage funding to regulate speech outside the contours of the six programs impacted by
Section 3701.034,” the unconstitutional-conditions doctrine applies. Planned Parenthood of
Greater Ohio, 201 F. Supp. 3d at 906 (emphasis added). Nothing within the scope of these six
programs relates to performing or promoting abortion. Therefore, the district court correctly
determined that § 3701.034 cannot condition participation in funding for these programs on a
recipient’s foregoing the exercise of its rights of free speech or association outside these
programs. PID 2133. Accord Dempsey, 167 F.3d at 462 (“Legislation that simply dictates the
proper scope of government-funded programs is constitutional, while legislation that restricts
protected grantee activities outside government programs is unconstitutional[.]”); Planned
Parenthood of Cent. & N. Ariz. v. Ariz., 718 F.2d 938, 942–44 (9th Cir. 1983) (although the state
need not fund abortions, the state “may not unreasonably interfere with the right of Planned
Parenthood to engage in abortion or abortion-related speech activities”); Hill v. Kemp, 645 F.
Supp. 2d 992, 1002 (N.D. Okla. 2009) (“The State is free to fund adoption services to exclusion
of any abortion-related services, but it may not deny [the plaintiff motorists and non-profit pro-
choice association] funding [for specialty license plate fees] conditioned upon [the plaintiff’s]
waiver of its right to engage in protected speech activity with its private funds.”); see also In re
Tam, 808 F.3d 1321, 1348–50 (Fed. Cir. 2015), as corrected (Feb. 11, 2016), aff’d sub nom.
Matal v. Tam, 137 S. Ct. 1744 (2017) (“The government’s discretion to direct its spending, while
broad, is not unbounded, and the limits take account of the real-world effect on the speech of
those subject to the conditions. If a program arises under the Spending Clause, Congress is free
to attach ‘conditions that define the limits of the government spending program—those that
specify the activities Congress wants to subsidize.’ Agency for Int’l Dev. [AOSI], 133 S. Ct. at
2328. However, Congress does not have the authority to attach ‘conditions that seek to leverage
funding to regulate speech outside the contours of the program itself.’ Id.”).
The district court correctly determined that § 3701.034 violates Plaintiffs’ rights of free
speech and association.
No. 16-4027 Planned Parenthood of Greater Ohio, et al. v. Himes Page 30
VI. ENTRY OF PERMANENT INJUNCTION
In its Reply Brief ODH states simply that it “agrees that if this Court finds the Conduct
and Speech Provisions both unconstitutional,” the permanent injunction factors are met, Reply
Br. 29, thus we do not address the issue further.
VII.
For the reasons stated, we AFFIRM the district court’s grant of Plaintiffs’ motions for
judgment on the merits and for a permanent injunction.