917 F.3d 908
6th Cir.2019Background
- Ohio enacted § 3701.034 (House Bill 294, 2016) requiring the Ohio Dept. of Health to ensure that funds for six federal health programs are not used by entities that perform, promote, contract with, or affiliate with entities that perform or promote nontherapeutic abortions.
- Two Planned Parenthood affiliates (Greater Ohio and Southwest Ohio) that participate in those programs and also provide abortions sued, seeking declaratory and injunctive relief under § 1983; the district court permanently enjoined enforcement.
- The district court and a divided Sixth Circuit panel found the statute imposed unconstitutional conditions on funding—violating the Due Process Clause (by conditioning funds on refraining from providing abortions) and the First Amendment (by restricting advocacy and affiliation).
- The en banc majority (Sutton, J.) reversed as to the due-process/unconstitutional-conditions claim: held providers lack an independent Fourteenth Amendment right to perform abortions, so conditioning funding on cessation of providers’ abortion activity is not an unconstitutional condition as applied to the providers themselves; the court did not reach the speech/affiliation claims.
- A lengthy dissent (Judge Helene N. White) argued the majority misapplied the unconstitutional-conditions test from Agency for Int’l Dev. v. Alliance for Open Soc’y: the statute would be unconstitutional if enacted as a direct regulation and it reaches beyond the scope of the funded programs, and providers may vindicate the underlying women’s rights and challenge the funding condition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3701.034’s conduct provision (bar on funding recipients that perform nontherapeutic abortions) imposes an unconstitutional condition under the Due Process Clause | Planned Parenthood: conditioning unrelated program funds on refraining from performing abortions coerces providers and indirectly undermines women’s abortion rights; unconstitutional under the AOSI/Rust line | Ohio: State may choose not to subsidize abortion-related activity; providers have no independent Fourteenth Amendment right to perform abortions, so conditioning funding does not violate providers’ constitutional rights | Majority: Reversed — providers lack a freestanding due-process right to perform abortions; the funding condition is permissible as applied to providers, so no unconstitutional-condition violation was shown |
| Whether a facial or pre-enforcement challenge is justiciable when providers state they will continue to perform abortions despite the statute | Planned Parenthood: pre-enforcement relief proper because the condition itself is coercive and would be unconstitutional if imposed directly; risk of chilling and indirect burdens on access | Ohio: Plaintiffs’ sworn intent to continue providing abortions makes undue-burden claims speculative and prevents an Article III injury | Majority: Plaintiffs’ vow to continue abortions makes undue-burden relief speculative; no cognizable pre-enforcement injury on due-process ground |
| Whether the unconstitutional-conditions doctrine requires the funding condition to target the party who holds the constitutional right (i.e., the woman) | Planned Parenthood/Dissent: doctrine prevents government from achieving indirectly what it cannot do directly; providers can challenge conditions that would be unconstitutional if enacted directly because providers are indispensable to women’s access | Ohio/Majority: doctrine protects the rights-holder; because providers lack an independent right to perform abortions, the doctrine does not apply to them here | Majority: Doctrine does not extend to confer a provider right to perform abortions; therefore condition upheld as to due-process claim |
| Whether the court should resolve First Amendment speech and association challenges to the statute | Plaintiffs/Dissent: statute conditions unrelated funding on silencing advocacy and forbids affiliations — AOSI prohibits conditioning funds to regulate protected speech and association outside program scope | Ohio/Majority: majority did not reach First Amendment claims because conduct provision sufficed to uphold denial of funds if valid | Not reached by majority; dissent concluded speech and affiliation provisions also unconstitutional and would sustain the injunction |
Key Cases Cited
- Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (plurality) (establishes undue-burden standard and explains providers’ rights are derivative of women’s abortion right)
- Rust v. Sullivan, 500 U.S. 173 (1991) (upholding funding conditions that define the scope of the funded program and distinguishing conditions that regulate recipients’ outside activities)
- Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013) (AOSI) (articulates test for unconstitutional-conditions claims: whether condition, if enacted directly, would violate the Constitution and whether it reaches outside program scope)
- Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595 (2013) (unconstitutional-conditions doctrine bars withholding benefits to coerce surrender of constitutional rights)
- Maher v. Roe, 432 U.S. 464 (1977) (government not obligated to subsidize abortions; distinguishes funding choices from direct prohibitions)
- Harris v. McRae, 448 U.S. 297 (1980) (upholding Hyde Amendment principle that Congress need not fund abortions)
- Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47 (2006) (funding condition constitutional where Congress could directly impose the same requirement)
- Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (undue-burden analysis requires consideration of evidence about burdens and benefits)
- Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962 (7th Cir. 2012) (upheld an Indiana funding ban as not violating unconstitutional-conditions doctrine where it did not unduly burden women’s access)
- Teixeira v. Cty. of Alameda, 873 F.3d 670 (9th Cir. en banc 2017) (discusses derivative standing of providers for third-party rights and limits of provider-based claims)