201 F. Supp. 3d 898
S.D. Ohio2016Background
- Plaintiffs Planned Parenthood of Greater Ohio and Planned Parenthood Southwest Ohio operate 28 Ohio health centers (three provide abortions) and received state-distributed federal grants under six public‑health programs now covered by Ohio Rev. Code § 3701.034.
- Section 3701.034 bars ODH from distributing funds/materials under those programs to entities that perform or "promote" nontherapeutic abortions or affiliate with entities that do so; "promote" is defined to include advocacy and publicity.
- After the statute passed, ODH and local health departments notified Plaintiffs that affected contracts/grants would be terminated; Plaintiffs sued under 42 U.S.C. § 1983 asserting First Amendment (speech and association), Fourteenth Amendment (due process and equal protection) claims and sought injunctive relief.
- The court consolidated the preliminary-injunction hearing with a merits decision and considered whether the statute impermissibly conditions funding on constitutionally protected activity outside the scope of the covered programs.
- The court found the covered programs (STD prevention, Minority HIV/AIDS Initiative, PREP, breast/cervical cancer screening, infant‑mortality initiative, VAWA sexual‑violence prevention) are unrelated to abortion services or advocacy and that Plaintiffs maintain accounting safeguards to separate funds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3701.034 unconstitutionally conditions funding on protected speech/association | § 3701.034 conditions receipt of funds on abandoning speech and affiliational rights (unconstitutional conditions) | Ohio can choose not to subsidize abortion-related activity and may exclude abortion promoters from state programs | Held unconstitutional — statute conditions funding for unrelated programs on protected speech/association outside program scope |
| Whether Rust-style programmatic restriction justifies § 3701.034 | Rust allows regulating the scope of funded programs but not conditioning unrelated activities; § 3701.034 reaches outside program scope | Defendant invokes Rust and Rosenberger: government may ensure its program message is not garbled and may favor childbirth over abortion | Court: Rust does not apply because § 3701.034 does not limit only the funded program’s content and lacks a programmatic message; statute unlawfully leverages funding to regulate outside activity |
| Whether the Due Process right to choose abortion prohibits conditioning unrelated funding on providing abortions | Plaintiffs: statute forces providers to abandon performance of nontherapeutic abortions as a condition of unrelated funding — forbidden under unconstitutional‑conditions doctrine | Defendant: no affirmative right to subsidies; refusal to subsidize does not infringe due process; cites precedents upholding funding choices | Held unconstitutional under Due Process — statute conditions unrelated subsidies on exercise of abortion rights |
| Whether statute causes irreparable harm and warrants permanent injunction | Plaintiffs: loss of funding will reduce free preventive services, deter patients, and cannot be remedied by money; First Amendment injury is irreparable | Defendant: disputes extent of harm and contends state may set funding priorities | Court: constitutional violations established; loss of First Amendment and related program harms are irreparable; permanent injunction entered |
Key Cases Cited
- Maher v. Roe, 432 U.S. 464 (1977) (states may favor childbirth over abortion in allocating public funds)
- Rust v. Sullivan, 500 U.S. 173 (1991) (upheld restrictions on speech within a federally funded program where grantee may continue advocacy outside the funded project if adequately separated)
- Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819 (1995) (government may ensure program message is not garbled when disbursing funds for that governmental message)
- R.A.V. v. St. Paul, 505 U.S. 377 (1992) (First Amendment prohibits viewpoint discrimination)
- Perry v. Sindermann, 408 U.S. 593 (1972) (unconstitutional to deny a benefit on a basis that infringes protected speech)
- Speiser v. Randall, 357 U.S. 513 (1958) (government may not penalize exercise of constitutional rights through denial of benefits)
- Board of County Comm’rs v. Umbehr, 518 U.S. 668 (1996) (unconstitutional‑conditions doctrine: government may not deny benefits for protected speech)
- Agency for Int’l Dev. v. All. for Open Soc’y Int’l, 570 U.S. 205 (2013) (distinction between defining program content and leveraging funding to regulate outside speech)
- Planned Parenthood Ass’n of Cincinnati v. City of Cincinnati, 822 F.2d 1390 (6th Cir. 1987) (abortion providers have standing to assert women’s abortion rights)
- Planned Parenthood of Indiana v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962 (7th Cir. 2012) (upheld a statute banning state contracts/grants to abortion providers; discussed undue‑burden framework in funding context)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (context for fungibility argument; distinguishes material‑support regime from typical funding conditions)