Health Reform WK-EDGE Ban on funding non-therapeutic abortion clinics did not violate due process clause
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Monday, March 25, 2019

Ban on funding non-therapeutic abortion clinics did not violate due process clause

By Jeffrey H. Brochin, J.D.

Ohio law imposed a condition on the continued receipt of state funds, but that condition did not violate the Constitution because the affiliates did not have a due process right to perform abortions.

The U.S. Court of Appeals for the Sixth Circuit has reversed a lower court ruling that permanently enjoined the state of Ohio from enforcing a 2016 the law that prohibited the use of certain funds concerning non-therapeutic abortions. The state could choose not to fund a private organization’s health and education initiatives because private organizations do not have a Constitutional right to obtain governmental funding to support their activities. Specifically, Planned Parenthood of Greater Ohio and Planned Parenthood of Southwest Ohio Region (Planned Parenthood) did not have a Fourteenth Amendment right to perform abortions, being that the Supreme Court has never identified a freestanding right to perform abortions. To the contrary, it has indicated that there is no such thing (Planned Parenthood of Greater Ohio v. HodgesMarch 12, 2019, Sutton, J.).

Government-sponsored health and education. Ohio distributes funds to organizations that participate in six government-sponsored health and education programs targeting sexually transmitted diseases, breast cancer and cervical cancer, teen pregnancy, infant mortality, and sexual violence. In 2016, Ohio passed a law that bars its health department from funding organizations that perform non-therapeutic abortions. Ohio’s health department and its local counterparts notified Planned Parenthood that the new law would require the state to end their contracts under the programs. Both entities perform abortions, advocate for abortion, and affiliate with other entities that do the same. The organizations sued claiming that the law violated the First and Fourteenth Amendments by conditioning government funding on giving up their rights to provide abortions and to advocate for them. The district court agreed and permanently enjoined the state from enforcing the law (see State cannot block abortion providers from receiving funding for non-abortive servicesAugust 16, 2016). After a panel of the appeals court affirmed the district court, the full court decided to review the appeal.

No Due Process right to perform abortions. Planned Parenthood argued that several cases establish that clinics do have a due process right to perform abortions. However, the appeals court determined that a review of the cases cited "leaves the reader empty handed." The court noted that one case cited, Webster v. Reproductive Health Services, 492 U.S. 490 (1989), held that physicians have no right to use public facilities to provide abortions, all consistent with the no-required-funding-of-abortions principle on which Ohio’s policy decision rests. Three years after WebsterPlanned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992) ended any speculation over whether providers have a constitutional right to offer abortion services—indicating that they do not.

Unconstitutional-conditions doctrine. Planned Parenthood also maintained that the unconstitutional-conditions doctrine defeats the Ohio law, pointing out that Ohio may not directly ban access to abortion services in the state, and that the unconstitutional-conditions doctrine bars a state from achieving that same goal indirectly, by financially incentivizing abortion providers to cease offering this service. The court agreed that the doctrine would prohibit the state from requiring women to forfeit benefits if they chose to obtain an abortion and if that limitation unduly burdened their access to abortion services, because such a state law would try to achieve indirectly what the state cannot achieve directly with respect to the underlying constitutional right.

However, the court rejected the notion that the doctrine applies in the instant case because the principle does not apply when the state regulates entities with no such constitutional right, such as abortion providers. In that setting, the clinic is like anyone else in the state, subject to all manner of regulatory incentives and disincentives, whether in the tax code, economic development plans, or any other part of state or local law.

Direct-indirect dynamic. The court also pointed out that the direct-indirect dynamic is not by itself what triggers the doctrine. The doctrine applies when the government attempts to ban or undermine a benefit recipient’s exercise of a right that the Constitution guarantees. An unconstitutional-conditions claim will not proceed if the government could have directly ordered the outcome it wishes to incentivize. In that case, there is no right at issue. But, as noted above, because Planned Parenthood has no constitutional right to perform abortions, the doctrine does not apply to Ohio’s incentives to refrain from performing them.

For the foregoing reasons, the appeals court reversed the district court’s contrary decision and remanded for proceedings consistent with their opinion.

The case is No. 16-4027.

Attorneys: Paul R.Q. Wolfson (Wilmer Cutler Pickering Hale and Dorr LLP) and Jennifer L. Branch (Gerhardstein & Branch) for Planned Parenthood of Greater Ohio and Planned Parenthood of Southwest Ohio Region. Benjamin Michael Flowers, Office of the Attorney General, for Richard Hodges.

Companies: Planned Parenthood of Greater Ohio; Planned Parenthood of Southwest Ohio Region

Cases: CaseDecisions AccessNews KentuckyNews MichiganNews OhioNews TennesseeNews NewsFeed

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