PLANNED PARENTHOOD ASSOCIATION OF HIDALGO COUNTY TEXAS, INCORPORATED; Planned Parenthood Association of Lubbock, Incorporated; Planned Parenthood of Cameron and Willacy Counties; Family Planning Associates of San Antonio; Planned Parenthood of Central Texas; Planned Parenthood of Gulf Coast, Incorporated; Planned Parenthood of North Texas, Incorporated; Planned Parenthood of West Texas, Incorporated; Planned Parenthood of Austin Family Planning, Incorporated, Plaintiffs-Appellees, v. Thomas M. SUEHS, Executive Commissioner, Texas Health and Human Services Commission, in his Official Capacity, Defendant-Appellant.
No. 12-50377.
United States Court of Appeals, Fifth Circuit.
Aug. 21, 2012.
692 F.3d 343
The ALJ found, with respect to Westmoreland‘s motive, that it “simply used the available legal means to attempt to protect and obtain justice for itself.” 2008 ALJ Ruling at 10. Accordingly, in the ALJ‘s view, “where a party‘s action is not prohibited by law it should not be precluded simply because the party is motivated by self interest.” Id.
In Sharpe I, we asked the ALJ to consider Westmoreland‘s motive, and once again, the ALJ faithfully carried out that responsibility. The majority‘s interpretation of Westmoreland‘s motive, discussed in more detail below, undermines the ALJ‘s discretion and substitutes its judgment for that of the ALJ. As an appellate court, we are not permitted to reverse the ALJ simply because we would have reached a different outcome on the same facts.
The majority opinion today rewrites the statute such that modification should only be granted where doing so would not disrupt a survivor‘s claim. This is a requirement not found in the text of the
Furthermore, there would seem to be no limit to the circumstances under which a “bad motive” could be ascribed to a party seeking modification. Even during the lifetime of a black lung benefit recipient, a modification request could be barred under the majority‘s logic if the factfinder concludes that the party seeking modification has an eye towards the long view, and wishes down the road to avoid a claim for survivor‘s benefits. Such an outcome is not consistent with “justice under the act.”
In addition, the majority incorrectly scolds Westmoreland for seeking to “thwart a claimant‘s good faith claim[.]” Ante at 329. In my view, the majority improperly conflates “good faith” with “meritorious.” In countless courtrooms and administrative proceedings every day, parties seek to “thwart” good faith claims by raising their own bona fide defenses. The law simply does not fault a party for taking a litigation position that is contra that of another party. The majority fails to recognize that Westmoreland could be (and there is no evidence to the contrary) proceeding in good faith as well. A party should not be faulted for “improper motive” where it raises a good faith defense (or, in this case, a good faith modification request), and that has the benefit of being meritorious.
IV.
For all the foregoing reasons, I would grant Westmoreland‘s petition for review, thereby reversing the BRB‘s order and affirming the 2008 order of the ALJ. I respectfully dissent.
Kristofer S. Monson (argued), Office of the Atty. Gen. for the State of Texas, Jonathan F. Mitchell, Solicitor, Office of the Sol. Gen. for the State of Texas, Mi-
Lawrence John Joseph, Washington, DC, for Eagle Forum Educ. and Legal Defense, and Texas Eagle Forum, Amici Curiae.
Jay A. Sekulow, American Center for Law & Justice, Washington, DC, for American Center for Law and Justice, Houston Coalition for Life, and Committee to Stop Taxpayer Funding of Abortion, Amici Curiae.
Before JOLLY, DeMOSS and STEWART, Circuit Judges.1
E. GRADY JOLLY, Circuit Judge:
The appellees, nine Planned Parenthood organizations that operate health clinics in Texas, obtained a preliminary injunction to block the enforcement of Texas Health and Human Services Commission regulations. The regulations state that health care providers participating in a Medicaid-like program must not perform or promote elective abortions or be affiliates of entities that perform or promote elective abortions. The district court preliminarily enjoined the enforcement of these regulations against the appellees, reasoning that the regulations likely violate the appellees’ rights to free speech and association, and deny the appellees the equal protection of the laws.
The district court issued the preliminary injunction based on a wholesale assessment of the regulations’ constitutionality, which gave insufficient attention to Texas‘s authority to subsidize speech of its choosing within its programs. Accordingly, the order of the district court granting a preliminary injunction is VACATED and the case is REMANDED.
I.
In 2005 the Texas Legislature created the Women‘s Health Program (WHP) as a project to “expand access to preventative health and family planning services for women.” Act effective Sept. 1, 2005, ch. 816, § 1(a), 2005 Tex. Gen. Laws 2816, 2817. Under the WHP, Texas pays health care providers to provide various services, including counseling about contraceptives, to women who meet certain criteria. Id. § 1(a)-(b). The WHP is funded by both Texas and the federal government as a demonstration project under Medicaid, pursuant to a waiver issued by the United States Department of Health and Human Services.2 See
Since the WHP‘s inception, the Texas Legislature has prohibited the Texas Health and Human Services Commission (THHSC), which is charged with administering the WHP, from contracting with “entities that perform or promote elective abortions or are affiliates of entities that perform or promote elective abortions.” § 1(h), 2005 Tex. Gen. Laws at 2818. Until recently, however, THHSC had never
Recent developments unsettled the appellees’ understanding and gave rise to the instant controversy. In 2011 the Texas Legislature re-authorized the WHP, and again prohibited THHSC from contracting with “entities that perform or promote elective abortions or affiliate with entities that perform or promote elective abortions.” Act effective Sept. 1, 2011, ch. 1355, Rider 62, 2011 Tex. Gen. Laws 4025, 4228; Act effective Sept. 28, 2011, ch. 7, § 1.19(b), 2011 Tex. Gen. Laws 300, 335. After the WHP‘s re-authorization, THHSC promulgated regulations interpreting the WHP‘s restriction on abortion-related activity. The regulations, like the statute, deny WHP funding for entities that perform or promote elective abortions or are affiliates of entities that perform or promote elective abortions.
Unlike the statute, and importantly for this case, the regulations also define “promote” and “affiliate.” The regulations define “promote” as to “[a]dvocate[] or popularize[] by, for example, advertising or publicity.” Id.
(A) An individual or entity that has a legal relationship with another entity, which relationship is created or governed by at least one written instrument that demonstrates:
(i) common ownership, management, or control;
(ii) a franchise; or
(iii) the granting or extension of a license or other agreement that authorizes the affiliate to use the other entity‘s brand name, trademark, service mark, or other registered identification mark.
THHSC mandated that recipients of WHP funds, including the appellees, certify their compliance with the new regulations. Believing compliance to be impossible, the appellees instead filed a federal lawsuit against THHSC Commissioner Thomas Suehs in his official capacity (“Texas“) in the Western District of Texas, seeking declaratory and injunctive relief, including a preliminary injunction.
The appellees’ complaint alleges that the THHSC regulations violate their constitutional rights of free speech and association, and deny them the equal protection of the laws. Underlying this claim—for purposes of standing to attack these regulations—is the appellees’ implicit concession that, based on the new definitions furnished by the THHSC regulations, they promote elective abortions and are affiliates of enti-
On April 30, 2012, the district court granted the appellees’ requested preliminary injunction, blocking THHSC from enforcing the regulations. The court reasoned that the appellees had a substantial likelihood of succeeding on the merits of their lawsuit because the regulations impermissibly require the appellees to forego certain of their constitutional rights of free speech and association in order to receive WHP funds. The court also reasoned that the appellees had a substantial likelihood of succeeding on their equal protection claim because the regulations treat clinics and hospitals unequally. Texas appeals.
II.
To obtain a preliminary injunction, the appellees were required to demonstrate (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction were not granted, (3) that their substantial injury outweighed the threatened harm to the party whom they sought to enjoin, and (4) that granting the preliminary injunction would not disserve the public interest. Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012).
“[A] preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has clearly carried the burden of persuasion on all four requirements.” Id. (internal marks omitted). In reviewing the issuance of a preliminary injunction, we review the district court‘s findings of fact for clear error, its legal conclusions de novo, and the ultimate decision to issue the injunction for abuse of discretion. Bluefield Water Ass‘n, Inc. v. City of Starkville, Miss., 577 F.3d 250, 253 (5th Cir. 2009) (quoting Guy Carpenter & Co. v. Provenzale, 334 F.3d 459, 463 (5th Cir. 2003)).
III.
To focus our review of the district court‘s order, we will first identify the merits of the appellees’ lawsuit on which the preliminary injunction is based. The district court did not determine that the appellees are likely to prove that the regulations violate their right to perform abortions or to affiliate with entities that perform abortions. The right to obtain an abortion and any accompanying right to perform an abortion are not at issue in this appeal.
Instead, the district court held that the appellees are likely to prove that the regulations violate their right to promote abortion or to affiliate with entities that promote abortion. Put another way, the court held that the regulations likely abridge free speech. Specifically, the district court relied on a principle of constitutional law known as the “unconstitutional conditions doctrine,” which we will briefly describe before moving forward.
A.
We start with the given premise that the
Courts often struggle with when to apply the unconstitutional conditions doctrine, and the doctrine‘s contours remain unclear despite its long history. See Dolan v. City of Tigard, 512 U.S. 374, 407 n. 12 (1994) (Stevens, J., dissenting). Despite this unfortunate lack of clarity, the unconstitutional conditions doctrine does involve a clear threshold premise: “[A] funding condition cannot be unconstitutional if it could be constitutionally imposed directly.” Rumsfeld, 547 U.S. at 59-60 (citing Speiser, 357 U.S. at 526). Thus, if the government could directly achieve the result in question, then it is unnecessary to assess the result within the unclear framework of the unconstitutional conditions doctrine. Id. at 60.
B.
The district court relied on the unconstitutional conditions doctrine without questioning whether any aspects of the THHSC regulations achieve a direct result permitted by the First Amendment. Particularly, the district court analyzed the regulations as a whole, instead of separately parsing the restriction on promoting elective abortions, and then the restriction on affiliating with entities that promote elective abortions. Because the legal principles applicable to promotion and affiliation differ, it is important to assess these restrictions separately. This separate assessment results in both a clear consideration of the threshold premise of the unconstitutional conditions doctrine and restraint, which should always accompany a remedy as extraordinary as a preliminary injunction. Lakey, 667 F.3d at 574.
1.
We begin with the restriction on promoting elective abortions. The THHSC regulations exclude health care providers from the WHP who “promote[] elective abortions as ... abortion facilit[ies] licensed under [the] Health and Safety Code.”
Although this restriction functions as a speech-based funding condition, it also functions as a direct regulation of the content of a state program, and is therefore constitutional under the reasoning of Rust v. Sullivan, 500 U.S. 173 (1991). In Rust v. Sullivan, the Supreme Court considered federal regulations limiting the abortion-related speech of clinics receiving funds under Title X of the Public Health Service Act. 500 U.S. at 178. The disputed regulations broadly prohibited a Title X project from promoting or advocating abortion as a method of family planning, including advocating abortion in the political arena. Id. at 180. The Court upheld the regulations, reasoning that the government could disfavor abortion within its own subsidized program,
Texas‘s restriction on promoting elective abortions directly regulates the content of the WHP as a state program. The policy expressed in the WHP is for public funds to subsidize non-abortion family planning speech to the exclusion of abortion speech.
We hold that Texas may deny WHP funds from organizations that promote elective abortions.4 This specific restric-
2.
We now briefly turn to the restriction on affiliating with entities that promote elective abortions. The THHSC regulations exclude health care providers from the WHP who are “affiliate[s] of ... corporate entit[ies] that ... promote[] elective abortions.”
We will only address one prong of the definition of affiliate: the authorization to use identifying marks. We address this prong because it implicates the same conduct as the restriction on promoting elective abortions, which we have already addressed. Using a pro-abortion mark is, after all, a way of promoting abortion.5
Texas‘s authority to directly regulate the content of its own program necessarily includes the power to limit the identifying marks that program grantees are authorized to use. Identifying marks represent messages, and authorization to use a particular mark is authorization to promote that mark‘s message. If the organizations participating in the WHP are authorized to
Whether an identifying mark communicates a pro-abortion message as clearly as other speech is not a controlling factor for the purposes of this analysis. “When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.” Rosenberger, 515 U.S. at 833. It takes no expansion of the mind to understand how Texas‘s message disfavoring abortion would be garbled if health care providers participating in the WHP could identify and poster their clinics with abortion-related identifying marks.
We therefore hold that Texas may deny WHP funds from organizations that promote elective abortions through identifying marks. The restriction on identifying marks is really a limit on promoting elective abortions, and it is therefore valid as a direct regulation of the content of a state program. Again, because this restriction is lawful as a direct regulation of speech, we have no reason to examine it within the framework of the unconstitutional conditions doctrine. The district court erred in enjoining this provision of the regulations.
The other prongs of the THHSC regulations’ definition of affiliate—read in conjunction with the regulations’ restriction on affiliating with entities that promote elective abortions—do more than limit the promotion of abortion. They limit affiliation in a more conventional sense.
For now, however, we decline to examine the restriction on affiliation and its potential constitutional infirmities. As stated above, the district court assessed the regulations as a whole, making no distinction between promoting and affiliating, and its assessment resulted in an erroneous application of the unconstitutional conditions doctrine. It is not clear whether the district court would have preliminarily enjoined select provisions of the regulations or not, and we think it better simply to vacate the injunction in its entirety in this respect and, on remand, allow the district court to decide that question for itself.
C.
Before concluding, we must briefly address the district court‘s holding that the THHSC regulations likely deny the appellees the equal protection of the laws. The
Within its equal protection analysis, the district court assumed that the regulations abridge free speech, and that because the
Because the free speech holding was in error for the reasons explained above, we cannot assume that strict scrutiny should apply to the classifications contained within the regulations. Nor can we assume that the district court would reach the same conclusion on equal protection applying some lesser tier of constitutional scrutiny.
IV.
The appellees administer a Texas program under the authority of a Texas statute and its regulations, and they receive public funds in return. Texas may limit what the appellees communicate in this capacity. The appellees have not made a clear showing that they are likely to succeed in demonstrating that the THHSC regulations’ restriction on promoting elective abortions violates their First Amendment rights. Because we have determined that the appellees failed to demonstrate a substantial likelihood of success on the merits, we do not need to address the remaining elements necessary for preliminary injunctive relief. La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency, 608 F.3d 217, 225 (5th Cir. 2010).
On remand, the district court is to reconsider the constitutionality of the restriction on affiliating with entities that perform elective abortions, specifically the prongs defining affiliation based on franchise and common ownership, management, or control, and to rule accordingly.
We VACATE the preliminary injunction and REMAND for further consideration not inconsistent with this opinion.
VACATED and REMANDED.
E. GRADY JOLLY
UNITED STATES CIRCUIT JUDGE