PLANNED PARENTHOOD OF INDIANA, INC., et al.,
No. 11-2464
United States Court of Appeals For the Seventh Circuit
ARGUED OCTOBER 20, 2011—DECIDED OCTOBER 23, 2012
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:11-cv-00630-TWP-TAB—Tanya Walton Pratt, Judge.
Before CUDAHY, KANNE, and SYKES, Circuit Judges.
SYKES, Circuit Judge. In 2011 Indiana adopted a law prohibiting state agencies from providing state or federal funds to “any entity that performs abortions or maintains or operates a facility where abortions are performed.”
Immediately after the defunding law was enacted, Planned Parenthood of Indiana and several individual plaintiffs filed this lawsuit seeking to block its implementation.1
The district court held that the first two claims were likely to succeed and enjoined Indiana from enforcing the defunding law with respect to Planned Parenthood‘s Medicaid and
We affirm in part and reverse in part. A threshold question on the two statutory claims is whether the plaintiffs have a right of action. To create private rights actionable under
Planned Parenthood is likely to succeed on this claim. Although Indiana has broad authority to exclude unqualified providers from its Medicaid program, the State does not have plenary authority to exclude a class of providers for any reason—more particularly, for a reason unrelated to provider qualifications. In this context, “qualified” means fit to provide the necessary medical services—that is, capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner. The defunding law excludes Planned Parenthood from Medicaid for a reason unrelated to its fitness to provide medical services, violating its patients’ statutory right to obtain medical care from the qualified provider of their choice.
The remaining claims are not likely to succeed, however, so the scope of the injunction must be modified. First, the block-grant statute does not create private rights actionable under
I. Background
Medicaid “is a cooperative federal-state program through which the Federal Government provides financial assistance to States so that they may furnish medical care to needy individuals.” Wilder v. Va. Hosp. Ass‘n, 496 U.S. 498, 502 (1990). Indiana participates in Medicaid, and as a condition of receiving federal funds, its Medicaid program must comply with federal requirements. See
To ensure compliance with federal rules, participating states must submit proposed Medicaid plans and any subsequent amendments to the Centers for Medicare and Medicaid Services (“CMS“) for approval.2 Douglas v. Indep. Living Ctr. of S. Cal., Inc., 132 S. Ct. 1204, 1208 (2012). The HHS Secretary may withhold Medicaid funding—either in whole or in part—from any state whose plan does not comply with federal requirements. See
At issue here is the Medicaid Act‘s requirement that state Medicaid plans “must . . . provide that . . . any individual eligible for medical assistance . . . may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required.”
A. Indiana House Enrolled Act 1210, the Abortion-Provider Defunding Law
In the spring of 2011, the Indiana General Assembly adopted a law prohibiting abortion providers from receiving any state contracts and grants, including those involving state-administered federal funds. More specifically, the defunding law provides
Act 1210 fills a gap in Indiana law regarding public funding of abortion. The Hyde Amendment prohibits the use of federal funds to pay for nontherapeutic abortions except in the case of pregnancies resulting from rape or incest.3 Indiana law contains similar restrictions on the use of state funds. See id.
Governor Mitch Daniels signed Act 1210 into law on May 10, 2011. On May 13 Indiana notified CMS of the change in its law and sought approval for an amendment to its Medicaid plan to exclude any provider (not including hospitals and ambulatory surgical centers) that offers abortion services. After consulting with the HHS Secretary, see
Indiana petitioned for reconsideration of the Administrator‘s decision. See
B. Planned Parenthood‘s Legal Challenge to Act 1210
Planned Parenthood is a nonprofit healthcare provider offering reproductive healthcare and family-planning services in Indiana, including preventive primary-care services such as medical examinations, cancer screenings, testing for sexually transmitted diseases, and various birth-control services. The organization operates
Planned Parenthood also performs abortions. The organization uses private funding to support its abortion services and takes steps to ensure that public and private funds are not commingled. As an abortion provider, Planned Parenthood is barred by Act 1210 from receiving any state-administered funds, including Medicaid reimbursement and funding from state and federal grants for services unrelated to abortion. The organization estimates that full implementation of the defunding law would require it to close a quarter of its health clinics, lay off approximately 37 employees, and cease serving an unknown number of patients.
Because of the effect of the defunding law on its statewide operations, Planned Parenthood did not wait for the outcome of the CMS administrative process. On May 10, 2011—the same day that Governor Daniels signed Act 1210 into law—Planned Parenthood went to court in the Southern District of Indiana seeking to block the new law. Its lawsuit challenges Act 1210 on several grounds. First, Planned Parenthood alleges that the law violates
The district court denied the motion for a TRO, but after full briefing granted Planned Parenthood‘s motion for a preliminary injunction. Planned Parenthood of Ind., Inc. v. Comm‘r of the Ind. State Dep‘t of Health, 794 F. Supp. 2d 892 (S.D. Ind. 2011). As relevant here, the court held that
II. Discussion
This case comes to us on Indiana‘s appeal from the district court‘s order granting a preliminary injunction. See
Here, the relevant facts are not in dispute. Planned Parenthood‘s motion raised legal questions about the existence of private statutory rights enforceable under
A. The Medicaid Act Claim
1. Is There a Private Right of Action Enforceable Under § 1983 ?
Section 1983 creates a federal remedy against anyone who, under color of state law, deprives “any citizen of the United States . . . of any rights, privileges, or immunities secured by the Constitution and laws.”
Three factors help determine whether a federal statute creates private rights enforceable under
In the context of legislation adopted under the spending power,5 this rigorous approach reflects concerns about federalism and reinforces the principle that Congress must clearly express its “intent to impose conditions on the grant of federal funds so that the States can knowingly decide whether or not to accept those funds.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 24 (1981); see also Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (requiring that spending statutes provide “clear notice” of state obligations). Pennhurst analogized cooperative Spending Clause legislation to a contract between the federal government and willing states: “[L]egislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions.” 451 U.S. at 17. As such, the legitimacy of spending-power legislation “rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.‘” Id. There cannot be knowing acceptance “if a State is unaware of the conditions or is unable to ascertain what is expected of it.” Id.; see also Arlington Cent. Sch. Dist., 548 U.S. at 296. The Supreme Court has repeatedly reaffirmed this understanding, most recently in National Federation of Independent Business v. Sebelius, 132 S. Ct. at 2601-02.
Accordingly, “where a statute by its terms grants no private rights to any identifiable class,” Gonzaga Univ., 536 U.S. at 284 (internal quotation marks omitted), it cannot be construed to confer an individual right enforceable under
“Once a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by
Applying these principles here, we agree with the district court that the free-choice-of-provider statute unambiguously gives Medicaid-eligible patients an individual right. Section 1396a(a)(23) mandates that all state Medicaid plans provide that “any individual eligible for medical assistance . . . may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required.” Medicaid patients are the obvious intended beneficiaries of the statute; it states that any Medicaid-eligible person may obtain medical assistance from any institution, agency, or person qualified to perform that service. In other words, Medicaid patients have the right to receive care from the qualified provider of their choice. This language does not simply set an aggregate plan requirement, but instead establishes a personal right to which all Medicaid patients are entitled. Gonzaga Univ., 536 U.S. at 288 (contrasting a statute with an “aggregate” focus with one that is focused on the needs of an identified class of persons). Section 1396a(a)(23) uses “individually focused terminology,” id. at 287, unmistakably “‘phrased in terms of the persons benefitted,‘” id. at 284 (quoting Cannon, 441 U.S. at 692 n.13).
Second, the right is administrable and falls comfortably within the judiciary‘s core interpretive competence. Planned Parenthood argues that a state infringes the free-choice-of-provider right when it excludes a provider from its Medicaid program for a reason other than the provider‘s fitness to render the medical services required. Whether this is the proper interpretation of
Finally,
Nothing in the Medicaid Act suggests, explicitly or implicitly, that “Congress specifically foreclosed a remedy under
It would be a different matter if Congress had provided an administrative remedy for individual patients. “The provision of an express, private means of redress in the statute itself is ordinarily an indication that Congress did not intend to leave open a more expansive remedy under
Our conclusion finds support in decisions from other circuits. In Harris v. Olszewski, 442 F.3d 456, 459 (6th Cir. 2006), the Sixth Circuit squarely addressed this issue and held that
there may be legitimate debates about the medical care covered by or exempted from the freedom-of-choice provision, the mandate itself does not contain the kind of vagueness that would push the limits of judicial enforcement. Whether a state
plan provides an individual with the choice specified in the provision is likely to be readily apparent . . . .
Id. at 462. Finally, the court observed that the Medicaid Act does not “explicitly or implicitly foreclose the private enforcement of this statute through
Other circuits have reached the same conclusion in cases involving individual suits for violation of
Against this authority, Indiana insists that legislation adopted under Congress‘s spending power cannot create individual rights enforceable under
funding rather than from the law itself. This categorical argument cannot be correct; if it were, then the elaborate doctrine worked out in Gonzaga University and its predecessors was completely unnecessary. Not too long ago we made this very point, observing that the Supreme Court’s recent statutory-right-of-action cases “do not stand for a broad rule that spending power statutes can never be enforced by private actions” under
Taking a slightly different tack, Indiana argues that the free-choice-of-provider statute does not create privately enforceable rights because the conditions listed in
Finally, Indiana argues that allowing private enforcement of the free-choice-of-provider requirement would conflict with O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980), and Kelly Kare, Ltd. v. O’Rourke, 930 F.2d 170 (2d Cir. 1991). We disagree. In O’Bannon the Supreme Court held that a state need not provide a pre-termination hearing to Medicaid beneficiaries when state officials terminate a medical provider (in that case, a nursing home) as unfit to participate in Medicaid. 447 U.S. at 785. The Court explained its holding as follows:
[T]he Medicaid provisions relied upon by the Court of Appeals do not confer a right to continued residence in a home of one’s choice. Title
42 U.S.C. § 1396a(a)(23) . . . gives [Medicaid] recipients the right to choose among a range of qualified providers, without government interference. By implication, it also confers an absolute right to be free from government interference with the choice to remain in a home that continues to be qualified. But it clearly does not confer a right on a recipient to enter an unqualified home and demand a hearing to certify it, nor does it confer a right on a recipient to continue to receive benefits for care in a home that has been decertified.
Similarly, in Kelly Kare the free-choice-of-provider statute was raised in the context of a due-process claim. A home-healthcare provider and its patients alleged that they were deprived of due process when the State cancelled the provider’s contract based on allegations of unfitness without providing a pre-termination hearing. Relying on O’Bannon, the Second Circuit rejected the claim:
We read O’Bannon as holding that a Medicaid recipient’s freedom of choice rights are necessarily dependent on a provider’s ability to render services. No cognizable property interest can arise in the Medicaid recipient unless the provider is both qualified and participating in the Medicaid program.
Neither O’Bannon nor Kelly Kare supports Indiana’s argument. This is not a due-process case. Planned Parenthood and its patients are not suing for violation of their procedural rights; they are making a substantive claim that Indiana’s defunding law violates
2. Does the Defunding Law Violate § 1396a(a)(23) ?
Indiana argues that even if
To repeat,
Read in context, the term “qualified” as used in
Indiana argues that the term is more elastic and includes the authority to establish provider-eligibility criteria based on any legitimate state interest. That interpretation of
Indiana attempts to articulate a limiting principle, but its effort is unpersuasive. It suggests that “a [s]tate may not use a qualification to target patient choice as such—for example by eliminating all choice in the market—but it may reduce patient choice incident to a qualification targeting some legitimate government objective, such as the desire not to subsidize abortion even indirectly.” This argument
Looking for support elsewhere in the Medicaid Act, Indiana focuses on
In addition to any other authority, a State may exclude any individual or entity for purposes of participating under the State plan under this subchapter for any reason for which the Secretary could exclude the individual or entity from participation in a program under subchapter XVIII of this chapter under section 1320a-7, 1320a-7a, or 1395cc(b)(2) of this title.
To bolster its implied-authority argument, Indiana relies on a Senate Finance Committee Report explaining that
Indiana also points to
Finally, the cases Indiana cites do not support its position. In First Medical Health Plan, Inc. v. Vega-Ramos, 479 F.3d 46 (1st Cir. 2007), for instance, the First Circuit simply recognized the point we have just made—that states may exclude providers from participating in Medicaid for reasons not listed in
Nor does Guzman v. Shewry, 552 F.3d 941 (9th Cir. 2009), help Indiana’s case. There, a provider was suspended from California’s Medicaid program based on a pending criminal investigation. He claimed that federal law occupies the entire field of regulation pertaining to Medicaid and therefore preempted the state’s disciplinary measure. The Ninth Circuit rejected this argument, relying in part on
No one disputes that the states retain considerable authority to establish licensing standards and other related practice qualifications for providers—this residual power is inherent in the cooperative-federalism model of the Medicaid program and expressly recognized in the Medicaid regulations. See
Before concluding our discussion of the Medicaid Act claim, a few words about agency deference, which the district court applied and the parties briefed on appeal. As an additional reason to affirm the district court’s decision, Planned Parenthood argues, and the United States agrees, that we should defer to the CMS Administrator’s interpretation of
Because Indiana’s defunding law excludes a class of providers from Medicaid for reasons unrelated to provider qualifications, we agree with the district court that Planned Parenthood is likely to succeed on its claim that Indiana’s defunding law violates
3. Balance of Harms and the Public Interest
The court below held that the loss of Medicaid funding would cause Planned Parenthood immediate irreparable harm. Indiana does not seriously challenge this conclusion. Planned Parenthood would have to lay off dozens of workers, close multiple clinics, and stop serving a significant number of its patients. Planned Parenthood of Ind., 794 F. Supp. 2d at 912. Absent a preliminary injunction, its Medicaid
Without endorsing the political commentary, we see no reason to disturb the district court’s assessment of the balance of harms and the public interest. Indiana maintains that any harm to Planned Parenthood’s Medicaid patients is superficial because they have many other qualified Medicaid providers to choose from in every part of the state. This argument misses the mark. That a range of qualified providers remains available is beside the point. Section
Indiana also argues that the district court’s preliminary injunction “completely undermines” the public’s interest in the established administrative process. We cannot see how. Indiana’s appeal of the CMS Administrator’s decision has proceeded in the ordinary course. It is true that the federal government’s position as an amicus curiae in this litigation makes it unlikely that the HHS Secretary will overrule the CMS Administrator’s decision and approve Indiana’s request to amend its Medicaid plan. But that has no real effect on the balance of harms. And if the Secretary approves the plan amendment, Indiana may ask for relief from the preliminary injunction.
In the end, our review of this aspect of the district court’s decision is deferential. The judge appropriately weighed the relative harm to the parties and the public interest and reasonably concluded that it warranted preliminary injunctive relief on the Medicaid Act claim. That decision was not an abuse of discretion.
B. Block-Grant Preemption Claim
The district court also enjoined Indiana from enforcing Act 1210 to halt the payment of money Planned Parenthood receives from the State under a federal block-grant program for the diagnosis and monitoring of sexually transmitted diseases. The statutory authority for the program is as follows:
§ 247c. Sexually transmitted diseases; prevention and control projects and programs
. . . .
(c) Project grants to States
The Secretary is also authorized to make project grants to States and, in consultation with the State health authority, to political subdivisions of States, for—
(1) sexually transmitted diseases surveillance activities, including the reporting, screening, and followup of diagnostic tests for, and diagnosed cases of, sexually transmitted diseases . . . .
The Disease Intervention Services agency (“DIS“) administers the grants at the
The district court accepted Planned Parenthood’s argument that
1. Does the Supremacy Clause Supply a Preemption Right of Action?
By its terms,
It is well-established that the Supremacy Clause is “not a source of any federal rights.” Chapman v. Hous. Welfare Rights Org., 441 U.S. 600, 613 (1979); see also Ill. Ass’n of Mortg. Brokers v. Office of Banks & Real Estate, 308 F.3d 762, 765 (7th Cir. 2002) (recognizing that the Supremacy Clause “does not of its own force create rights“). The Supremacy Clause “‘secure[s] federal rights by according them priority whenever they come in conflict with state law.‘” Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107 (1989) (alteration in original) (quoting Chapman, 441 U.S. at 613) (internal quotation marks omitted).
Just this past Term, the Supreme Court was set to decide a case raising the question whether Medicaid providers and recipients could bring a claim that the Medicaid Act preempts state statutes reducing Medicaid payments to providers. See Douglas, 132 S. Ct. at 1207. In Douglas, as here, the providers and recipients had no statutory right of action under the Medicaid Act, but the Ninth Circuit said they could bring the suit directly under the Supremacy Clause. Id. at 1209. The Supreme Court granted certiorari to decide whether the court of appeals was correct. Id. While the case was pending, however, CMS approved California’s statutory scheme. Id. The Court held that this development did not moot the case, id. at 1209-10, but remanded to the Ninth Circuit to permit that court to
Chief Justice Roberts dissented, joined by Justices Scalia, Thomas, and Alito. In their view, the Court should have kept the case and decided the legal question presented: whether the Supremacy Clause provides a cause of action to enforce the requirements of a Spending Clause statute when Congress has not provided a right of action in the statute itself. Id. at 1212 (Roberts, C.J., dissenting). That is the precise question here, and although the Court ultimately left it for another day, we can take some cues from the Chief Justice’s analysis.
The Chief Justice began by reiterating the principle that the Supremacy Clause does not create federal rights, but instead “simply ensures that the rule established by Congress controls.” Id. at 1213. In other words, the role of the Supremacy Clause is simply to “ensure that, in a conflict with state law, whatever Congress says goes.” Id. at 1212. So “if Congress does not intend for a statute to supply a cause of action for its enforcement, it makes no sense to claim that the Supremacy Clause itself must provide one.” Id. In this situation, implying a direct right of action under the Supremacy Clause “would effect a complete end-run around [the Court’s] implied right of action and
Other than the Ninth Circuit’s decision in Douglas, few appellate opinions have recognized a freestanding right to bring a preemption action under the Supremacy Clause, though we acknowledge that there are some. See, e.g., Wilderness Soc’y v. Kane County, Utah, 581 F.3d 1198, 1216 (10th Cir. 2009), vacated on other grounds, 632 F.3d 1162 (10th Cir. 2011) (en banc); Planned Parenthood of Hous. & Se. Tex. v. Sanchez, 403 F.3d 324, 331-35 (5th Cir. 2005). This approach is controversial (as the grant of certiorari in Douglas implies), and we think highly doubtful, for the reasons articulated by the Douglas dissenters.
This is not, moreover, a circumstance covered by the doctrine of Ex parte Young, 209 U.S. 123 (1908). The preemption claim here, as in Douglas, does not involve the “pre-emptive assertion in equity of a defense that would otherwise have been available in the State’s enforcement proceedings at law.” Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1642 (2011) (Kennedy, J., concurring); see also Douglas, 132 S. Ct. at 1213 (Roberts, C. J., dissenting). In other words, Indiana is not threatening Planned Parenthood with an enforcement action or otherwise trying to regulate its behavior through an action at law; the State has simply turned off the funding spigot.
If Planned Parenthood’s preemption claim is to proceed, we would have to agree with its position that the Supremacy Clause supplies a right of action of its own force. We are not inclined to agree, but we do not need to commit ourselves here. Planned Parenthood’s preemption claim cannot succeed on the merits. Because our jurisdiction is not at issue, we can assume without deciding the right-of-action question and proceed directly to the merits. See Nw. Airlines, Inc. v. County of Kent, Mich., 510 U.S. 355, 365 (1994) (“The question whether a federal statute creates a claim for relief is not jurisdictional.“); see also Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452, 457-58 (7th Cir. 2007) (assuming a right of action exists and deciding the case on the merits because “[a] private right of action is not a component of subject-matter jurisdiction“); Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 911 (7th Cir. 2003) (same).
2. Likelihood of Success on the § 247c(c) Preemption Claim
By its terms,
Nonetheless, the district court concluded that Indiana is not free to decide how to distribute its
Because
The district court stood this principle on its head. The question is not whether
Nothing in
The district court relied on a series of cases regarding block-grant family-planning funding under Title X. See, e.g., Sanchez, 403 F.3d at 336-37; Planned Parenthood Fed’n of Am., Inc. v. Heckler, 712 F.2d 650, 663-64 (D.C. Cir. 1983); Valley Family Planning v. North Dakota, 661 F.2d 99, 100-02 (8th Cir. 1981). Indiana pointed out that Title X’s implementing regulations contain an explicit open-eligibility requirement—“[a]ny public or nonprofit private entity in a State may apply for a grant,”
Simply put, Indiana’s defunding law does not conflict with
Having decided to order preliminary injunctive relief on the statutory claims, the district court had no need to address Planned Parenthood’s unconstitutional-conditions claim. Our decision on the merits of the preemption claim brings this alternative theory into play. If viable and likely to succeed, Planned Parenthood’s unconstitu-tional-conditions claim may serve as an independent basis to affirm the judge’s order prohibiting the termination of its DIS funding. The issue was preserved in the district court, the parties have briefed it on appeal, and because it raises a purely legal question, it makes sense for us to address it here. See Bennett v. Spear, 520 U.S. 154, 166-67 (1997) (“The asserted grounds were raised below, and have been fully briefed and argued here; we deem it an appropriate exercise of our discretion to consider them now rather than leave them for disposition on remand.“); see also Alvarez, 679 F.3d at 590.
“The ‘unconstitutional conditions’ doctrine is premised on the notion that what a government cannot compel, it should not be able to coerce.” Libertarian Party of Ind. v. Packard, 741 F.2d 981, 988 (7th Cir. 1984). Understood at its most basic level, the doctrine aims to prevent the government from achieving indirectly what the Constitution prevents it from achieving directly. Thus, “[t]he denial of a public benefit may not be used by the government for the purpose of creating an incentive enabling it to achieve what it may not command directly.” Elrod v. Burns, 427 U.S. 347, 361 (1976) (plurality opinion). This does not mean that the myriad public benefits dispensed at all levels of government have the status of constitutional rights; rather, the doctrine prevents the government from awarding or withholding a public benefit for the purpose of coercing the beneficiary to give up a constitutional right or to penalize his exercise of a constitutional right. As the Supreme Court explained the doctrine in Perry v. Sindermann, even though a person has no “right” to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests . . . . 408 U.S. 593, 597 (1972).
The first step in any unconstitutional-conditions claim is to identify the nature and scope of the constitutional right arguably imperiled by the denial of a public benefit. See Michael W. McConnell, The Selective Funding Problem: Abortions and Religious Schools, 104 HARV. L. REV. 989, 992 (1991) (observing that a claim that a selective-funding decision is an unconstitutional condition requires “careful consideration of the nature of the constitutional right implicated by the funding decision, including the nature of the countervailing interests of the government“); Cass R. Sunstein, Is There an Unconstitutional Conditions Doctrine?, 26 SAN DIEGO L. REV. 337, 338 (1989) (“Whether a condition is permissible is a function of the particular constitutional provision at issue . . . .“). Here, Planned Parenthood’s unconstitutional-conditions claim necessarily derives from a woman’s constitutional right to obtain an abortion. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992) (“Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process
Two aspects of the Supreme Court’s abortion jurisprudence are important here. First, the Court has explained that the constitutional right to obtain an abortion is a right against coercive governmental burdens; the government may not “prohibit any woman from making the ultimate decision to terminate her pregnancy” before fetal viability or impose an “undue burden on a woman’s ability to make this decision.” Id. at 874, 879; see also Gonzales v. Carhart, 550 U.S. 124, 146 (2007). An “undue burden” exists if the challenged law has the “purpose or effect” of placing “a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Casey, 505 U.S. at 878 (plurality opinion); see also Gonzales, 550 U.S. at 146.
Accordingly, the Court has conceptualized the right as “a constitutionally protected interest ‘in making certain kinds of important decisions’ free from governmental compulsion.” Maher v. Roe, 432 U.S. 464, 473 (1977) (quoting Whalen v. Roe, 429 U.S. 589, 599-600 & nn.24 & 26 (1977)).
This brings up the second important point. The Court has explicitly rejected a neutrality-based view of abortion rights. Thus, the Court has held that although the abortion right recognized in Roe v. Wade12 “protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her preg-nancy[,] [i]t implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.” Id. at 473-74. In Maher the Court upheld Connecticut’s ban on public funding for nontherapeutic abortions because it “places no obstacles—absolute or otherwise—in the pregnant woman’s path to an abortion.” Id. at 474. The Court reaffirmed Maher in Harris v. McRae, 448 U.S. 297, 314-17 (1980), upholding the Hyde Amendment. And in Webster v. Reproductive Health Services, 492 U.S. 490, 508-11 (1989), the Court upheld Missouri’s statutory ban on the use of public employees and facilities to perform or assist in the performance of an abortion.
Finally, in Rust v. Sullivan, 500 U.S. 173 (1991), the Court rejected a challenge to federal regulations prohibiting recipients of Title X family-planning grants from advocating abortion as a method of family planning or referring patients for abortion. Under the regulations, grant recipients with abortion-related practices could continue to receive Title X money only if they segregated their abortion-related activities in a separate affiliate. Id. at 179-81. Rust held that the regulations did not place an unconstitutional condition on Title X grant recipients. Id. at 203. This was so whether the claim was premised on the speech rights of the providers, id. at 196-99, or the abortion rights of their patients, id. at 201-03. As relevant here, the Court reaffirmed the holdings of Webster, Harris, and Maher that “[t]he Government has no constitutional duty to subsidize an activity merely
As these cases make clear, the government need not be neutral between abortion providers and other medical providers, and this principle is particularly well-established in the context of governmental decisions regarding the use of public funds. As long as the difference in treatment does not unduly burden a woman’s right to obtain an abortion, the government is free to treat abortion providers differently.
Applying these principles here, the unconstitutional-conditions claim is not likely to succeed. Planned Parenthood does not argue that the loss of its block-grant funding imposes an undue burden—directly or indirectly—on a woman’s right to obtain an abortion. If, as the foregoing cases hold, the government’s refusal to subsidize abortion does not unduly burden a woman’s right to obtain an abortion, then Indiana’s ban on public funding of abortion providers—even for unrelated services—cannot indirectly burden a woman’s right to obtain an abortion.13 See Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 59-60 (2006) (“It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly.“). Planned Parenthood offers nothing else in support of its unconstitutional-conditions claim.14 Accordingly, this theory does not provide an alternative basis to affirm the district court’s order prohibiting Indiana from terminating Planned Parenthood’s DIS funding.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s order granting preliminary injunctive relief on Planned Parenthood’s Medicaid Act claim. We REVERSE the order as it relates to the State’s
CUDAHY, concurring in part and dissenting in part. I join Part IIA of the majority opinion in full. I also join Part IIB1 and IIB2 but do not join Part IIB3 or the reversal of the judgment requiring modification of the preliminary injunction insofar as it prohibits state restrictions on
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