888 F.3d 224
6th Cir.2018Background
- Ohio enacted Ohio Rev. Code § 3701.034 (2016), barring the Ohio Department of Health (ODH) from using six non‑abortion federal program funds to contract with, fund, or affiliate with entities that perform or “promote” nontherapeutic abortions.
- Plaintiffs Planned Parenthood of Greater Ohio (PPGOH) and Planned Parenthood Southwest Ohio (PPSWO) receive grants under those six federal programs (e.g., STD prevention, breast and cervical cancer screening) and operate 27 health centers; only a subset of centers provide abortion services and no government funds pay for abortions or advocacy.
- After the statute was enacted ODH and local agencies notified Plaintiffs they would be terminated from those grant programs.
- Plaintiffs sued under 42 U.S.C. § 1983 seeking declaratory and injunctive relief, alleging violations of the First Amendment (speech/association), the Fourteenth Amendment Due Process (abortion right, via unconstitutional conditions), and Equal Protection; the district court enjoined enforcement, finding § 3701.034 unconstitutional under the unconstitutional‑conditions doctrine.
- On appeal, ODH defended the statute under precedent permitting governments to favor childbirth over abortion in funding decisions (Maher, McRae, Rust) and argued Plaintiffs lacked standing for due process claims and that, in the abortion context, unconstitutional‑conditions claims must show an undue burden on women.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for due process claim | Plaintiffs (Planned Parenthood) may assert patients’ abortion rights and their derivative provider rights (third‑party standing). | ODH: providers lack an independent abortion right; only patients have the right, so providers cannot bring due process claims absent proof of burden on women. | Court: Plaintiffs have standing; precedent (Singleton, Danforth, etc.) supports provider standing to vindicate patients’ abortion rights. |
| Applicability of unconstitutional‑conditions doctrine | § 3701.034 conditions unrelated program funds on surrendering speech/advocacy and abortion provision outside the programs, invoking unconstitutional‑conditions protection. | ODH: government may refuse to fund abortion or abortion providers; Maher/McRae/Rust permit differing funding choices; unconstitutional‑conditions only matters if an undue burden on women results. | Court: Unconstitutional‑conditions doctrine applies; the statute impermissibly leverages unrelated funding to regulate protected conduct outside the programs. |
| First Amendment (speech/association) | The statute penalizes speech and association outside funded programs (advocacy, affiliation) and therefore is an unconstitutional condition. | ODH: funding condition is a permissible definition of program content (cites Rust, Suehs) and states may ensure their message is not undermined by contractors. | Court: The speech provision is unconstitutional because it regulates recipients’ external speech/associations rather than defining the content of the funded programs. |
| Undue‑burden analysis / adequacy of government interests | Plaintiffs: even under undue‑burden review, Ohio’s asserted interests (promoting life, avoiding entanglement, administrative ease) are not sufficiently related or necessary to justify excluding providers from unrelated programs. | ODH: interests in favoring childbirth, avoiding subsidy/entanglement, administrative simplicity, and messaging justify the exclusion; no undue burden shown on women. | Court: Even under undue‑burden standards, the statute is unnecessary to advance the asserted interests; exclusion of Plaintiffs from unrelated programs is not justified. |
Key Cases Cited
- Perry v. Sindermann, 408 U.S. 593 (1972) (unconstitutional‑conditions principle: government may not condition benefits on surrender of constitutional rights)
- Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, 570 U.S. 205 (2013) (invalidated funding condition that required adopting a government viewpoint on matters beyond the program)
- Rust v. Sullivan, 500 U.S. 173 (1991) (upheld funding restrictions on speech within the funded Title X program but distinguished restrictions that regulate recipients’ outside activities)
- Maher v. Roe, 432 U.S. 464 (1977) (government may favor childbirth over abortion in allocating public funds)
- Harris v. McRae, 448 U.S. 297 (1980) (upheld Hyde Amendment’s restriction on federal funding for abortions)
- Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (established undue‑burden standard for assessing abortion regulations)
- Singleton v. Wulff, 428 U.S. 106 (1976) (physicians/providers have standing to assert patients’ abortion rights)