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From Health Law Daily, April 19, 2018

States cannot require surrender of protected rights for participation in unrelated programs

By Lindsey Firnbach, J.D.

An injunction preventing the Ohio Department of Health (ODH) from enforcing a law that prohibited federal funds to organizations that performed abortions was upheld by the Sixth Circuit Court of Appeals. Although the court noted that the government is neither required to fund abortive services nor treat the services equally, it cannot require organizations to forgo performing abortions as a condition for funding programs not related to the procedure. The court noted that the Ohio law, which prohibited funds from six federal programs to abortion providers, violated the due process clause and First Amendment (Planned Parenthood of Greater Ohio v. Himes, April 18, 2017, Barrett, M.).

Background. The law mandated that organizations which performed or promoted non-therapeutic abortions, or affiliated with entities that performed or promoted these abortions, could not receive funding from six governmental programs (see State cannot block abortion providers from receiving funds for non-abortive services, August 16, 2016). Two Planned Parenthood organizations in Ohio filed suit, alleging that this law violated the due process clause and First Amendment. The district court agreed, and enjoined the ODH from enforcing the law.

Standing and due process—a circuit split. On appeal, the Sixth Circuit easily rejected ODH’s argument that the providers lacked standing, and declared that an abortion provider could challenge a law concerning abortion on behalf of its patients. The argument that the conduct provision of the law did not violate due process was also unpersuasive to the court. The ODH had argued that the unconstitutional doctrine for cases involving abortions only bars laws that create an undue burden on abortion, and cited a decision by the Seventh Circuit. Rejecting the Seventh Circuit analysis, the Sixth Circuit declared that the unconstitutional doctrine does not only bar conditions when they impose a burden on abortion, but rather when the conditions impose on constitutionally protected activity that is outside the scope of the law. However, even if the court had accepted the undue burden argument, the ODH failed to demonstrate to the court that the law would not impose an undue burden, nor that it would advance the goals asserted by the ODH.

The providers had not presented an entitlement argument, but rather claimed that their activity—which fell outside the scope of the programs—was being penalized. A state cannot require that a provider surrender constitutionally protected endeavors in order to be part of a federal program that does not involve the activity in question. The providers demonstrated that the money from these federal programs was not used for abortive services, and the unconstitutional doctrine was applicable in this case because the law imposed unconstitutional conditions on the providers by requiring them to forgo their constitutionally protected rights that were outside the scope of the programs.

First Amendment. The court also found that the Ohio law violated the First Amendment. Although a state can make value judgments and require providers to meet qualifications in order to receive funds, in this case, the law placed speech based funding on activities that fell outside the conduct regulated by the federal health care programs. This law violated the unconstitutional conditions doctrine and therefore was a violation of the First Amendment rights of the providers.

The case is No. 16-4027.

Attorneys: Paul R.Q. Wolfson (Wilmer Cutler Pickering Hale and Dorr LLP) and Jennifer L. Branch (Gerhardstein & Branch Co. LPA) for Planned Parenthood of Greater Ohio and Planned Parenthood of Southwest Ohio Region. Eric E. Murphy, Ohio Attorney General's Office, for Lance Himes, Interim Director, Ohio Department of Health.

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

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