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From Health Law Daily, December 23, 2015

Court lets Utah abort Planned Parenthood contracts

By Bryant Storm, J.D.

A district court vacated a temporary restraining order and denied a preliminary injunction which would have prevented the state of Utah from terminating contracts with Planned Parenthood Association of Utah. The court held that the Utah Department of Health was permitted to terminate four contracts with the provider, despite Planned Parenthood Association of Utah’s assertion that the contracts were terminated as the result of the Governor’s opposition to and allegations of misconduct by other Planned Parenthood entities. The court rejected the organization’s claims that the terminations were discriminatory in violation of the equal protection clause of the Fourteenth Amendment and unconstitutionally infringed on the provider’s right to advocate and perform abortions (Planned Parenthood Association of Utah v. Herbert, December 22, 2015, Waddoups, C.).

Videos. In July, 2015, the Center for Medical Progress, an anti-abortion organization, released secretly recorded videos showing Planned Parenthood Federation of America, Inc. officials discussing abortions and fetal tissue. The Center for Medical Progress alleged that the videos portrayed Planned Parenthood selling fetal tissue and altering how abortions are performed to obtain more intact fetal tissue and organs. The court held that those views were contained in “public reports.” The court did not make a finding regarding the accuracy of those reports. Planned Parenthood argued that the videos were highly edited to contain false information. Additionally, Planned Parenthood asserted that it remained in compliance with federal and state laws and did not, at any time, sell fetal tissue. The videos resulted in nationwide media coverage and protests.

Utah. Planned Parenthood of Utah, unlike other Planned Parenthood organizations, never participated in any program allowing patients to donate fetal tissue. Thus, there were no allegations that Planned Parenthood of Utah engaged in any wrongdoing. The Utah Planned Parenthood has several contracts with the Utah department of health, including contracts to provide after-school abstinence programs, an agreement to administer a sexually transmitted disease (STD) surveillance network, and a letter of understanding related to STD testing. Each of the contracts at issue is federally funded. To administer those agreements, Utah acts as an intermediary to pass the funds through to the Utah Planned Parenthood.

Contracts. By the terms of the contracts, the Utah Department of Health can terminate the agreements at will upon 30-days notice. Additionally, the state has no obligation to renew an expiring contract. Following the release of the videos, Utah Governor Gary Herbert told the Department of Health to exercise those options. The Department of Health notified Planned Parenthood Association of Utah that it was terminating the contracts for the abstinence programs and the surveillance network. The Department of Health indicated that it would not renew a third contract. Subsequently, Governor Herbert made several statements about Planned Parenthood “forfeiting benefits” because it “colored outside the lines.” Herbert also joined Planned Parenthood protestors outside the state’s capital.

Discriminatory treatment. Planned Parenthood of Utah argued that the governor’s statements and protests made clear that its contracts were terminated because of his opposition to abortion. The organization asserted that because the right to an abortion is a constitutionally protected right, the order to terminate the contracts violated the constitution. Specifically, the organization argued that its equal protection rights were violated when it was singled out, without cause, for unfavorable treatment. Planned Parenthood of Utah also asserted that its right of association was infringed because the contracts were terminated merely as a result of the organization’s association with other Planned Parenthood entities.

Constitutional claims. The court held that Planned Parenthood Association of Utah was unlikely to prevail on its class-of-one equal protection claim because the organization had no legal right to the continuation of its contracts due to the at-will termination provisions. Additionally, the court asserted that no constitutional violation resulted from the termination because Planned Parenthood Association of Utah was still permitted to associate with other Planned Parenthood organizations and none of the terminated contracts infringed on any right to advocate for or perform abortions. Additionally, the court held that Planned Parenthood Association of Utah failed to identify a similarly situated comparator that received different treatment.

Harm. The court also rejected other arguments that the contracts were terminated as a result of the governor’s opposition to abortion, other Planned Parenthood organizations, and the video controversy. The court held that the evidence failed to show that the governor’s opposition was a substantial or motivating factor for terminating the contracts. The court also rejected arguments that Planned Parenthood Association of Utah would suffer irreparable harm because no constitutional deprivation was shown and because, in terms of reputational harm, public sentiment was split on the issue. The court explained that the potential injury to Planned Parenthood Association of Utah was minor because it was only related to the loss of four contracts. Additionally, the court placed emphasis on the restraint of Utah, pointing to the fact that the state could have taken more extreme measures and terminated Planned Parenthood’s participation in programs like Medicaid.

The case is No. 15-1736.

Attorneys: Peggy A. Tomsic (Magleby Cataxinos & Greenwood) for Planned Parenthood Association of Utah. Parker Douglas, Utah Attorney General's Office, for Gary R. Herbert.

Companies: Planned Parenthood Association of Utah

MainStory: TopStory CaseDecisions ProviderNews UtahNews

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