Planned Parenthood of Greater Ohio v. Himes

888 F.3d 224

PLANNED PARENTHOOD OF GREATER OHIO; Planned Parenthood of Southwest Ohio Region, Plaintiffs-Appellees,

v.Lance HIMES, in his official capacity as Interim Director of the Ohio Department of Health, Defendant-Appellant.

No. 16-4027

United States Court of Appeals, Sixth Circuit.

Argued: August 3, 2017

Decided and Filed: April 18, 2018

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.

Before: SILER, CLAY, and WHITE, Circuit Judges.

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 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, 133 S.Ct. 2735, 186 L.Ed.2d 192 (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:

(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 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 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...