PLANNED PARENTHOOD OF GREATER OHIO; PLANNED PARENTHOOD OF SOUTHWEST OHIO REGION v. RICHARD HODGES, in his official capacity as Director of the Ohio Department of Health
No. 16-4027
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
March 12, 2019
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 19a0042p.06. Argued: October 3, 2018.
Before: COLE, Chief Judge; SILER, BATCHELDER, MOORE, CLAY, GIBBONS, SUTTON, COOK, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, and NALBANDIAN, Circuit Judges.
COUNSEL
REARGUED EN BANC: Stephen P. Carney, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Alan E. Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, for Appellees. Hashim M. Mooppan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Amicus Curiae. ON SUPPLEMENTAL BRIEF: Stephen P. Carney, Eric E. Murphy, Hannah C. Wilson, Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Alan E. Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Jennifer L. Branch, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Helene T. Krasnoff, Carrie Y. Flaxman, PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, D.C., Paul R.Q. Wolfson, Kimberly A. Parker, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Appellees. Hashim M. Mooppan, Matthew M. Collette, Lewis S. Yelin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Aaron D. Lindstrom, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
SUTTON, J., delivered the opinion of the court in which SILER, BATCHELDER, GIBBONS, COOK, GRIFFIN, KETHLEDGE, THAPAR, BUSH, LARSEN, and NALBANDIAN, JJ., joined. WHITE, J. (pp. 13-35), delivered a separate dissenting opinion in which COLE, C.J., and MOORE, CLAY, STRANCH, and DONALD, JJ., joined.
OPINION
SUTTON, Circuit Judge. Ohio, like many governments, often partners with nonprofit organizations to promote policies of the State. Through one such partnership, the State distributes government funds to several organizations to address a wide range of public health issues. For many years, Planned Parenthood participated in these programs. In 2016, Ohio passed a law that bars its health department from funding organizations that “[p]erform nontherapeutic abortions.”
I.
Ohio distributes funds to organizations that participate in six government-sponsored health and education programs. The programs target sexually transmitted diseases, breast cancer and cervical cancer, teen pregnancy, infant mortality, and sexual violence. Planned Parenthood of Greater Ohio and Planned Parenthood of Southwest Ohio manage twenty-seven health centers across the State. They have participated in these programs for several years. Both entities provide abortions at surgical centers in Bedford Heights, Columbus, and Cincinnati.
For several decades, both federal and state laws have prohibited recipients of public funds from using the money to provide abortions. The Planned Parenthood affiliates comply with these requirements.
In 2016, the Ohio legislature enacted, and Governor Kasich signed into law, House Bill 294 to “Prohibit[] [the] use of certain funds concerning nontherapeutic abortions.” It requires the Ohio Department of Health to “ensure” that all of the funds it receives for the six programs “are not used to do any of the following: (1) Perform nontherapeutic abortions; (2) Promote nontherapeutic abortions; (3) Contract with any entity that performs or promotes nontherapeutic abortions; (4) Become or continue to be an affiliate of any entity that performs or promotes nontherapeutic abortions.”
Both of the affiliates, from now on referred to as Planned Parenthood in the singular, sued, claiming that the law violates the First and Fourteenth Amendments by conditioning government funding on giving up their rights to provide abortions and to advocate for them. The district court agreed and permanently enjoined the State from enforcing the law.
After a panel of this court affirmed the district court, 888 F.3d 224 (2018), the full court decided to review the appeal, 892 F.3d 1283 (2018) (mem.).
II.
As the district court saw it, the Ohio law imposes two unconstitutional conditions on Planned Parenthood. It denies the organization funding if it continues to perform abortions—what the court perceived to be a due process violation. And the law denies the organization funding if it continues to promote abortion—what the court perceived to be a free speech violation. To prevail, Planned Parenthood must show that both limitations—the conduct and speech requirements—violate the U.S. Constitution. Ohio may deny funding to Planned Parenthood in other words if either limitation satisfies the Constitution. Because the conduct component of the Ohio law does not impose an unconstitutional condition in violation of due process, we need not reach the free speech claim.
First a word or two about unconstitutional conditions. The United States Constitution does not contain an Unconstitutional Conditions Clause. What it does contain is a series of individual rights guarantees, most prominently those in the first eight provisions of the Bill of Rights and those in the
What is the enumerated right at issue here? The guarantee of due process established by the
By contrast, the State may not condition a benefit by requiring the recipients to sacrifice their constitutional rights. Regan v. Taxation With Representation of Wash., 461 U.S. 540, 545 (1983). Just as the State may not directly order someone to stop exercising his rights, it may not coerce him into “giving them up” by denying the benefits if he exercises those rights. Koontz, 570 U.S. at 604, 612.
The Ohio law falls on the permissible side of this line. Today‘s plaintiffs do not have a
Any doubt about the point is confirmed by the debate at hand in Casey. The abortion providers claimed that a Pennsylvania law, requiring them to inform their patients of the abortion procedure‘s details and alternatives at least 24 hours beforehand, violated their patients’ due process rights and their own due process rights that arose from their relationship with the patients. The plurality rejected both claims. Abortion rights do not arise from the provider-patient relationship “[o]n its own,” the Court reasoned. Id. After explaining that the law did not unduly burden women‘s rights, the plurality concluded that the law had no more constitutional import as to the providers than if its requirements dealt with “a kidney transplant.” Id. at 883. In the absence of a constitutional right to perform abortions, the plaintiffs have no basis to bring an unconstitutional-conditions claim.
At the same time, the Ohio law does not violate a woman‘s right to obtain an abortion. It does not condition a woman‘s access to any of these public health programs on refusing to obtain an abortion. It makes these programs available to every woman, whether she seeks an abortion or not. Nor, on this record, has there been any showing that the Ohio law will limit the number of clinics that offer abortions in the State. Cf. Whole Woman‘s Health v. Hellerstedt, 136 S. Ct. 2292, 2309-18 (2016).
A review of the Supreme Court‘s decisions in the area fails to reveal a single one in which the plaintiff obtained relief based on a restriction of unprotected activity.
The only other circuit in the country to squarely address this issue reached the same conclusion. “The first step in any unconstitutional-conditions claim is to identify the nature and scope of the constitutional right arguably imperiled,” it reasoned, and abortion clinics lack a freestanding constitutional right to practice their trade. Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep‘t of Health, 699 F.3d 962, 986-88 (7th Cir. 2012). Accordingly, “[a]s 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” than other entities. Id. at 988. In that case, the Seventh Circuit rejected an unconstitutional-conditions challenge to an Indiana law with a conduct component identical in every material way to this Ohio law. In dicta, the Ninth Circuit reached a similar conclusion. “Never has it been suggested,” the court explained, “that if there were no burden on a woman‘s right to obtain an abortion, medical providers could nonetheless assert an independent right to provide the service for pay.” Teixeira v. Cty. of Alameda, 873 F.3d 670, 689 (9th Cir. 2017) (en banc).
Planned Parenthood nonetheless maintains that a bevy of cases establishes that clinics do have a due process right to perform abortions. But a review of the cases leaves the reader empty handed. Webster v. Reproductive Health Services, 492 U.S. 490 (1989), held that physicians have no right to use public facilities to provide abortions, all consistent with the no-required-funding-of-abortions principle on which Ohio‘s policy decision rests. After explaining that holding, Webster speculated that it might “be different if the State barred doctors who performed abortions in private facilities from the use of public facilities for any purpose.” Id. at 510 n.8. Three years after Webster, however, Casey ended any speculation over whether providers have a constitutional right to offer abortion services. It indicated they do not.
Planned Parenthood of Central & Northern Arizona v. Arizona, 718 F.2d 938, 946 (9th Cir. 1983), another pre-Casey case, fares no better. It never held that providers have a constitutional right to perform abortions and indeed had no occasion to do so because it analyzed a broad, speech-centric claim about restrictions on a combination of abortion-related activities. Planned Parenthood of Mid-Missouri & East Kansas, Inc. v. Dempsey, 167 F.3d 458, 461-64 (8th Cir. 1999), is to like effect.
The Tenth Circuit, it is true, accepted the existence of a
Even if the
Consistent with this explanation, all of the cases cited by Planned Parenthood with respect to this direct-indirect point involved individuals or entities who held the constitutional right and were discouraged from exercising it. See, e.g., Elrod v. Burns, 427 U.S. 347, 360-61 (1976) (employees claimed that county fired them due to their political affiliation); Perry v. Sindermann, 408 U.S. 593, 597-98 (1972) (professor claimed that state college refused to renew his contract due to his protected speech); Lane v. City of LaFollette, 490 F.3d 410, 419 (6th Cir. 2007) (employee claimed that city fired him for his political beliefs); Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307, 321 (6th Cir. 1998) (public-employee unions claimed that prohibition on payroll deductions for political causes discouraged their political expression).
The direct-indirect dynamic, put another way, is not by itself what triggers the doctrine. The doctrine applies when the government attempts to ban or undermine a benefit recipient‘s exercise of a right that the Constitution guarantees. That‘s why an unconstitutional-conditions claim won‘t get far if the government could have directly ordered the outcome it wishes to incentivize. In that case, there is no right at issue. See Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 58-60 (2006) (upholding funding condition that required universities to give military recruiters equal access to students, because the
Truth be told, general concerns about indirect efforts to accomplish what cannot be accomplished directly illustrate what is wrong with this claim. Medical centers do not have a constitutional right to offer abortions. Yet, if we granted Planned Parenthood relief today, we would be effectively saying that they do. That is not the role of the unconstitutional-conditions doctrine.
That this traditional application of the unconditional-conditions doctrine might apply in other settings, as the dissent points out, infra, at 26, counts as a plus, not a minus, in the constitutional equation. It shows that the principle is a neutral one. And it shows that our assessment of the case turns on the nature of the unconstitutional-conditions doctrine, not on individual preferences with respect to this constitutional right or that one. Any risk of unequal application would arise in this case only if we extend the unconstitutional-conditions doctrine for the first time to an entity (here an abortion provider) that does not have a constitutional right.
In the absence of such an extension, Planned Parenthood worries that the unconstitutional-conditions doctrine will lead to several problematic outcomes. “Imagine,” the dissent suggests, “that the government barred lawyers who represent indigent defendants from eligibility for loan forgiveness programs.” Id. Or imagine, we could add, that the government denied government construction contracts to companies that build for customers of a particular faith or race or burdened gun shops with punitive or irrational licensing requirements. Straw men, to be sure, but revealing all the same. None of these hypotheticals reveals a doctrinal (or policy) gap that an extension of the unconstitutional-conditions doctrine needs to fill.
The initial question in each instance is whether such a law would implicate the regulated entity‘s constitutional rights or some other prohibition. That seems likely in each setting. The first application would implicate a lawyer‘s free speech rights. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 544 (2001). The second application would implicate the prohibition on drawing racial and faith-based classifications in any law. Just as a State could not condition an abortion provider‘s subsidy on providing services only to individuals of a certain race or religion, so it could not condition a construction company‘s contracts on serving only non-Muslim clients or only white clients. See Emp‘t Div. v. Smith, 494 U.S. 872, 877 (1990); Brown v. Bd. of Educ., 347 U.S. 483, 488, 495 (1954). Even aside from the question whether gun stores have
This last point answers the dissent‘s next hypotheticals about polling-place funding and gun-shop tax breaks, infra, at
But it is premature to assess any such claim now. For one, it is not clear that the plaintiffs filed an undue-burden challenge on behalf of individual women, as opposed to an unconstitutional-conditions challenge on their own behalf. For another, the record contains more speculation than evidence about what would happen if these two Planned Parenthood affiliates stopped providing abortions. For still another, the only hard evidence on point is that Planned Parenthood does not plan to stop providing abortions, as representatives from each affiliate testified that they would sacrifice government funding to continue providing abortions. On this record, it would be unduly conjectural, and unripe to boot, to imagine what would happen if the plaintiffs changed their mind. Under our Article III authority to resolve “Cases” and “Controversies,” we must limit ourselves to the seen rather than the unseen. And all that the seen shows is that the law will not create an undue burden on a woman‘s right to an abortion.
Planned Parenthood insists that it has no obligation to establish an undue burden because the funding condition itself is unconstitutional, making it irrelevant whether the subject of the condition gives in. See Koontz, 570 U.S. at 607. That may be true if the subject of the funding incentive possesses the right. But that is not true in this instance because the subject—here providers, not women—does not possess the right. All of which takes us back to where we started. To have an unconstitutional condition, the State must impose the condition on the individual (or entity) with the constitutional right. If there‘s no right, there‘s no unconstitutional condition. And the providers have no such constitutional right. The point of the doctrine is to protect the underlying right: a woman‘s right of access to abortion services without an undue burden. It is not to leverage a constitutional condition into an unconstitutional one while freeing the provider from either asserting a valid right of its own or showing any undue burden on anyone.
That this is a pre-enforcement action, last of all, changes nothing. Even in that setting, Planned Parenthood must show that the Ohio law, if implemented, would impose an undue burden on a woman‘s right to an abortion. Its vow to keep performing
For these reasons, we reverse the district court‘s contrary decision and remand for proceedings consistent with this opinion.
DISSENT
HELENE N. WHITE, Circuit Judge, dissenting. The majority makes short work of Plaintiffs’ arguments with three simple assertions. Because Plaintiff clinics have no independent constitutional right to perform abortions, it is impossible for Ohio to violate their due process rights by withholding benefits or imposing burdens based on their abortion activities; a woman has a due process right to obtain certain nontherapeutic abortions, but no condition violates that right unless it imposes an undue burden on that right; because Plaintiff providers have made clear that they will not accede to Ohio‘s funding conditions, there is no undue burden on a woman‘s abortion right.
The majority does not mention, much less apply, the test the Supreme Court has recently articulated governing the unconstitutional-conditions doctrine. That doctrine prohibits the government from conditioning the grant of funds under a government program if: (1) the challenged conditions would violate the Constitution if they were instead enacted as a direct regulation; and (2) the conditions affect protected conduct outside the scope of the government program. See Agency for Int‘l Dev. v. Alliance for Open Soc’y Int‘l, Inc., 570 U.S. 205, 213-15 (2013) (hereafter AOSI). Because (1) the funding conditions in this case would result in an undue burden on a woman‘s right to obtain nontherapeutic abortions if imposed directly, and (2) the six federal programs have nothing to do with Plaintiffs’ performing abortions, advocating for abortion rights, or affiliating with organizations that engage in such activity, all on their own “time and dime,” I respectfully dissent.
Enacted in 2016,
And, even if the abortion right belongs only to women, it has long been understood that “the right is inextricably bound up with” a provider‘s ability to offer these services. Singleton v. Wulff, 428 U.S. 106, 114 (1976) (plurality opinion). Further, the Supreme Court has never suggested that a party that could prevail in challenging a direct regulation is nevertheless powerless to challenge a law that attempts to achieve the same result by imposing a condition on unrelated funding. The majority‘s novel rule gives the government the authority to impose almost any condition it wants on abortion providers so long as the providers continue to perform abortions. The government acknowledged as much at oral argument. This type of assault on a constitutional right is precisely the type of harm the unconstitutional-conditions doctrine is meant to protect against.
I. BACKGROUND
Ohio Revised Code § 3701.034
(A) As used in this section:
(1) “Affiliate” means an entity that has with another entity a legal relationship created or governed by at least one written instrument that demonstrates any of the following:
(a) Common ownership, management, or control;
(b) A franchise agreement;
(c) The granting or extension of a license or other agreement that authorizes an entity to use the other entity‘s brand name, trademark, service mark, or other registered identification mark.
(2) “Violence Against Women Act” means section 1910A of section 40151 of the “Violent Crime Control and Law Enforcement Act of 1994,” part A of Title XIX of the “Public Health and Human Services Act,” 108 Stat. 1920 (1994), former
42 U.S.C. 300w ,42 U.S.C. 280b-1b , as amended.(3) “Breast and Cervical Cancer Mortality Prevention Act” means the “Breast and Cervical Cancer Mortality Prevention Act of 1990,” 104 Stat. 409 (1990),
42 U.S.C. 300k , as amended.(4) “Infertility prevention project” means the infertility prevention project operated by the United States centers for disease control and prevention.
(5) “Minority HIV/AIDS initiative” means the minority HIV/AIDS initiative operated by the office of minority health in the United States department of health and human services.
(6) “Personal responsibility education program” means the program administered
by the administration for children and families in the United States department of health and human services to educate adolescents on abstinence and contraception for the prevention of pregnancy and sexually transmitted infections. (7) “Nontherapeutic abortion” has the same meaning as in section 9.04 of the Revised Code.1
(8) “Promote” means to advocate for, assist with, encourage, or popularize through advertising or publicity.
(B) – (G)2 The department of health shall ensure that all funds it receives [through the Violence Against Women Act, Breast and Cervical Cancer Mortality Prevention Act, Infertility prevention project, Minority HIV/AIDS initiative, infant mortality reduction or infant vitality initiatives] are not used to do any of the following:
(1) Perform nontherapeutic abortions;
(2) Promote nontherapeutic abortions;
(3) Contract with any entity that performs or promotes nontherapeutic abortions;
(4) Become or continue to be an affiliate of any entity that performs or promotes nontherapeutic abortions.
Plaintiffs
Plaintiffs Planned Parenthood of Greater Ohio (PPGOH) and Planned Parenthood Southwest Ohio Region (PPSWO) are not-for-profit corporations organized under Ohio law. PPGOH and PPSWO are also affiliates of Planned Parenthood Federation of America, Inc. (PPFA), which advocates for women‘s access to comprehensive reproductive healthcare, including abortion. Plaintiffs operate twenty-seven3 health centers throughout Ohio, which are staffed with physicians, nurse practitioners, and physician assistants, who provide well-woman exams, testing and treatment for sexually transmitted diseases, screenings for breast and cervical cancer and HIV, and contraception and contraceptive counseling. Three of the twenty-seven health centers also provide abortion services. Separate from their government-funded health services and education programs, PPGOH and PPSWO advocate for a woman‘s right to safe and lawful abortion through public awareness campaigns and public education activities.
Consistent with federal and Ohio law, no government funds are used to pay for or subsidize Plaintiffs’ abortion services or advocacy. It is undisputed that Plaintiffs “maintain measures to ensure that none of the funds received from the state or federal government are used, directly or indirectly, to subsidize the promotion of abortion or performance of abortion services.” (R. 60, PID 2136.)
Largely through competitive grant processes, Plaintiffs have for years received funds and material assistance distributed by ODH and county health departments under the six federal programs impacted by
After
Procedural History
Plaintiffs filed this action for declaratory and injunctive relief under
The district court entered a temporary restraining order on the day
II. STANDARD OF REVIEW
This court reviews a challenge to the constitutionality of a statute de novo. Entm‘t Prods., Inc. v. Shelby County, 721 F.3d 729, 733 (6th Cir. 2013). In reviewing the district
court‘s grant of injunctive relief, the district court‘s factual findings are reviewed for clear error, its legal conclusions are reviewed de novo, and the scope of injunctive relief is reviewed for abuse of discretion. Sec‘y of Labor, U.S. Dep‘t of Labor v. 3Re.com, Inc., 317 F.3d 534, 537 (6th Cir. 2003). “A party is entitled to a permanent injunction if it can establish that it suffered a constitutional violation and will suffer continuing irreparable injury for which there is no adequate remedy at law.” Lee v. City of Columbus, 636 F.3d 245, 249 (6th Cir. 2011) (quoting Wedgewood L.P. I v. Twp. of Liberty, 610 F.3d 340, 349 (6th Cir. 2010)).
III. DISCUSSION
The majority concludes that the “conduct provision” of
A. Due Process Claim
1.
I begin with the unconstitutional-conditions doctrine. The Supreme Court recognized this doctrine many decades ago to ensure that the government cannot leverage its allocation of benefits to “manipulate[]” constitutional rights “out of existence.” Frost v. R.R. Comm‘n, 271 U.S. 583, 594 (1926). Generally speaking, “the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose.” Id. at 593. The state‘s power, however, “in that respect is not unlimited; and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights.” Id. at 593-94. “Broadly stated, the rule is that the right to continue the exercise of a privilege granted by the state cannot be made to depend upon the grantee‘s submission to a condition prescribed by the state which is hostile to the provisions of
“A predicate for any unconstitutional conditions claim is that the government could not have constitutionally ordered the person asserting the claim to do what it attempted to pressure that person into doing.” Koontz, 570 U.S. at 612. And, critically for this case, even when a party “refuses to cede a constitutional right in the face of coercive pressure, the impermissible denial of a governmental benefit is a constitutionally cognizable injury.” Id. at 607; see also AOSI, 570 U.S. at 214 (explaining that a condition need not be “actually coercive” to violate the Constitution).
To be sure, the unconstitutional-conditions doctrine does not render any funding condition that may affect the exercise of constitutional rights unconstitutional. See AOSI, 570 U.S. at 214 (citing United States v. Am. Library Ass‘n., Inc., 539 U.S. 194 (2003) (plurality opinion), and Regan v. Taxation With Representation of Wash., 461 U.S. 540, 546 (1983)). Rather, “the relevant distinction” is whether the conditions “define the limits of the government spending program” or are “outside the contours of the program itself.” Id. at 214-15. In determining on which side of the line a condition falls, the Supreme Court distinguishes between conditions that regulate the government-funded project and conditions that regulate the recipient of government funds. See Rust v. Sullivan, 500 U.S. 173, 197 (1991) (“[O]ur ‘unconstitutional conditions’ cases involve situations in which the Government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus
effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program.”).In AOSI, the Supreme Court invalidated a statutory provision requiring organizations receiving funds under a program designed to combat AIDS and HIV to have a policy explicitly opposing prostitution and sex trafficking. 570 U.S. at 210, 221. The Court first noted that “[w]ere [the Policy Requirement] enacted as a direct regulation of speech, [it] would plainly violate the
A straightforward application of these principles establishes the Statute‘s unconstitutionality. First, ODH could not impose the conduct provision as a direct regulation, because to do so would mean passing a law prohibiting the performance of nontherapeutic abortions. There is no dispute that outlawing abortions in Ohio would be an undue burden on women‘s ability to access the procedure in that state. Even if the direct regulation were limited to Plaintiffs—a constitutionally dubious maneuver as well, see Planned Parenthood of Cent. N.C. v. Cansler, 877 F. Supp. 2d 310, 327 (M.D.N.C. 2012)—ODH never contested Plaintiffs’ argument that a ban on their providing nontherapeutic abortions would impose an undue burden on women seeking abortions in Ohio.7
Second, the Supreme Court explained that permissible “conditions that define the limits of the government spending program” are “those that specify the activities Congress wants to subsidize.” AOSI, 570 U.S. at 214. The condition contained in the conduct provision of
ODH disputes this conclusion, arguing that the conduct provision of
Rust, in fact, teaches why
Further, in rejecting the plaintiffs’ unconstitutional-conditions challenge to the regulations, the Rust Court explained that the Supreme Court‘s “‘unconstitutional conditions’ cases involve situations in which the Government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program.” Id. at 197. That is precisely what
Finally, it was critical in Rust that the regulations did not deny “the right to engage in abortion-related activities” as a condition of receiving funding. Id. at 198. The regulations were constitutional because they “govern[ed] the scope of the Title X project‘s activities,” while “leav[ing] the grantee unfettered in its other activities. The Title X grantee can continue to perform abortions, provide abortion-related services, and engage in abortion advocacy; it simply is required to conduct those activities through programs that are separate and independent from the project that receives Title X funds.” Id. at 196. In contrast,
In sum, none of the numerous reasons that the regulations in Rust were upheld is present here:
For all of these reasons,
2.
The majority avoids more than a cursory discussion of the principles underlying the unconstitutional-conditions doctrine by finding that Plaintiffs’ purported lack of an independent constitutional right to perform abortions is dispositive. As discussed above, the Supreme Court label of the provider‘s constitutional right as “derivative of the woman‘s position,” 505 U.S. at 884, is a statement about the source of an abortion provider‘s constitutional right—not a denial that the provider has a constitutionally protected interest.
However, even accepting that Plaintiffs have no wholly independent constitutional right to perform abortions, but see, e.g., Planned Parenthood Ass‘n of Utah v. Herbert, 828 F.3d 1245, 1258-60 (10th Cir. 2016) (noting that Planned Parenthood Association of Utah alleged, “without serious challenge from defendants, a
First, it is worth noting that the Supreme Court has not always couched the unconstitutional conditions doctrine in rights-based language, referring instead to “protected conduct,” Rust, 500 U.S. at 197, or “constitutionally protected interests,” Perry, 408 U.S. at 597. Even if providers have no right of their own to provide abortions, surely providing women with abortions free from undue governmental interference falls into the category of constitutionally protected conduct.
Second, as discussed above, and as the majority acknowledges (see Maj. Op. at 8), one of the purposes of the unconstitutional-conditions doctrine is to prevent the government from achieving indirectly—by conditioning unrelated funds on forgoing constitutionally protected activity—what the government cannot achieve directly.
Thus, there is no reason why Plaintiffs cannot prevail on an unconstitutional-conditions claim in this case. The Supreme Court has never suggested that the government can impose a condition on a third party to induce a result that would be unconstitutional if the condition were imposed directly on a party whose rights are affected.8 Nor has the Supreme Court suggested that an entity that could challenge a direct regulation could not prevail in challenging the government‘s attempt to reach the same result through a condition imposed on unrelated funding. Consider the examples of the constitutional rights to counsel, to vote, and to bear arms. These rights belong to the criminal defendant, the voter, and the gun owner, respectively. Imagine that the government barred lawyers who represent indigent defendants from eligibility for loan forgiveness programs, denied all government funding to private entities that volunteer to serve as polling places in low-income neighborhoods, or ceased providing all existing tax breaks, subsidies, and government benefits to any store that sells guns. By the majority‘s logic, as long as the beleaguered lawyers, polling places, and gun store owners continue to perform these services, no one could successfully challenge the constitutionality
The whole point of the unconstitutional-conditions doctrine is to prevent the government from achieving indirectly what it cannot constitutionally achieve directly. And because Plaintiffs could succeed on a due process challenge against the direct version of this law, they can likewise challenge the indirect version as an unconstitutional condition. The majority‘s position contravenes the purpose of the unconstitutional-conditions doctrine.10
ODH also asserts (and it appears the majority agrees) that the unconstitutional-conditions doctrine, at most, bars unconstitutional conditions only when they actually operate to impose an undue burden, and, the argument goes,
There, PPI, a Medicaid provider that performs abortions, one of its doctors, and two low-income patients who used its services, brought suit under
[T]he 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 . . . the government‘s refusal to subsidize abortion does not unduly burden a woman‘s
The Seventh Circuit‘s analysis avoids the unconstitutional-conditions argument by looking at the effect on a woman‘s right to obtain an abortion if the provider does not submit to the condition and continues providing abortions. That is not the appropriate analysis. In AOSI, for example, the Supreme Court did not hold that the organizations’
to obtain an abortion and if that limitation unduly burdened their access to abortion services.”).)13
The PPI majority also failed to recognize Rust‘s distinction between conditions placed on the government program and those imposed on the recipient. And although in summarizing Rust the PPI majority seems to recognize that Rust treated the unconstitutional-conditions argument as separate from the undue-burden analysis,14 the PPI majority engaged in no substantive
The unstated conclusion holding the PPI majority‘s opinion together is that because the government need not subsidize abortion and need not be neutral between abortion providers and other medical providers, particularly with respect to government funds, the government could directly prohibit providers from performing abortions. Of course, this is not the case. The cited cases15 establish that the government can prohibit PPI or other abortion providers from using program funds to perform or advocate for abortion. But nowhere does Rust or any other case
suggest that the government can condition the receipt of unrelated funds on a recipient‘s abandoning all activities that facilitate a woman‘s right to obtain an abortion, or that advocate for such a right, and any affiliation with any entity that does either. Courts considering similar issues post-AOSI have not followed the Seventh Circuit‘s (or the majority‘s) analysis. See, e.g., Planned Parenthood of Sw. & Cent. Fla. v. Philip, 194 F. Supp. 3d 1213, 1218-19 (N.D. Fla. 2016) (“If, as the Court said in Rust, Congress can prohibit the use of federal funds for abortion services but cannot restrict a recipient of federal funds from separately providing abortion services, then the Florida legislature likewise can prohibit the use of state funds for abortion services but cannot prohibit a recipient of state funds from separately providing abortion services.”); Cansler, 877 F. Supp. 2d at 320-21 (enjoining law that denied non-abortion-related funding based on Planned Parenthood‘s activity as an abortion-rights advocate and abortion provider under the unconstitutional-conditions doctrine).16
camouflages its unconstitutional condition in provider-focused verbiage. This strikes me as exactly the type of maneuver the doctrine seeks to prevent.
At bottom, ODH‘s position and the majority‘s opinion open the door for the government to impose almost any condition17 it wants on abortion providers so long as the abortion providers resist the coercion and continue to perform abortions. At oral argument, the United States, arguing in favor of ODH‘s position, acknowledged that ODH‘s position would authorize the government to pass a law prohibiting all doctors who perform abortions from providing any other medical services. (Oral Arg. at 33:10-35:30.) This is because as long as enough doctors continue to perform abortions, there would be no undue burden on a woman‘s right to obtain one. (Id.) And under the majority‘s reasoning, the doctors could not challenge the law as an unconstitutional condition because they have no due process right to provide abortions. Other hypotheticals are imaginable, which before today would have seemed absurd. Using this reasoning, the government can do almost anything it wants to penalize abortion providers so long as they resist the coercion and continue to perform abortions. (Id.)
This result is especially striking in juxtaposition with the Supreme Court‘s abortion jurisprudence over the last three decades, which reveals that virtually every attempt to ban or undermine a woman‘s abortion right since Roe v. Wade has operated by targeting providers, not women. See, e.g., Whole Woman‘s Health, 136 S. Ct. 2292 (imposing admitting-privileges and surgical-center requirements on providers); Stenberg v. Carhart, 530 U.S. 914 (2000) (criminalizing providers’ performance of particular abortion procedures); Casey, 505 U.S. 833 (imposing civil penalties on providers who perform abortions without receiving signed statement of spousal consent); Hodgson v. Minnesota, 497 U.S. 417 (1990) (criminalizing providers’ performance of abortions on minors without both parents’ consent). Those laws, each of which was struck down as unconstitutional, reflect a basic reality that legislatures seeking to undermine abortion rights have long understood: when a constitutional right requires a third party to vindicate it, a restriction imposed on that indispensable third party effectively restricts the rightholder. That is why the Constitution prohibits unduly burdening a woman‘s abortion right, even in the form of laws that directly target only the gatekeeper to a woman‘s abortion right—
her provider. The impact of the condition is the same, because the provider is the target in name only. In practice, the provider is merely a
Because the unconstitutional-conditions doctrine does not allow the government to penalize a party indispensable to the exercise of a constitutional right so long as the party refuses to cry uncle and submit to the condition, the conduct provision is unconstitutional.
B. First Amendment Claims
The majority does not reach Plaintiffs’ patently meritorious
Plaintiffs assert two claims under the
Plaintiffs’
Instead, relying on Planned Parenthood Ass‘n of Hidalgo County Texas, Inc. v. Suehs, 692 F.3d 343 (5th Cir. 2012), ODH argues that the Statute‘s speech provision does no more than is constitutionally permissible by seeking “to ensure that contractors who convey Ohio‘s messages do so efficiently and effectively.” (Appellant‘s Br. at 52-53 (citation and internal quotation marks omitted).) This argument is unpersuasive.
In Suehs, the Texas legislature had created the “Women‘s Health Program (WHP),” designed to “expand access to preventative health and family planning services for women.” 692 F.3d. at 346 (internal quotation marks and citation omitted). The Texas legislature prohibited the Texas Health and Human Services Commission (THHSC), which administers the WHP, from contracting with “entities that perform or promote elective abortions or are affiliates of entities that perform or promote elective abortions.” Id. (internal quotation marks and citation omitted). The
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. § 1.19(b), 2011 Tex. Gen. Laws at 335. Texas‘s authority to promote that policy would be meaningless if it were forced to enlist organizations as health care providers and message-bearers that were also abortion advocates. The authority of Texas to disfavor abortion within its own subsidized program is not violative of the
First Amendment right, as interpreted by Rust v. Sullivan. Consequently, Texas‘s choice to disfavor abortion does not unconstitutionally penalize the appellees’ speech.
I agree with the district court that this out-of-circuit precedent is distinguishable and inapposite. Suehs is virtually indistinguishable from Rust because, as the Fifth Circuit observed, Texas‘s restriction “directly regulates the content of the WHP as a state program.” Id. Here, however,
Further, although Ohio, like Texas, may, consistent with the
As the Supreme Court made clear in AOSI, the government may not prevent a recipient of government funding from expressing its own views “when participating in activities on its own time and dime.” 570 U.S. at 218. Because “the conditions imposed by Section 3701.034 seek to leverage funding to regulate speech outside the contours of the six programs impacted by Section 3701.034,” the unconstitutional-conditions doctrine applies. Planned Parenthood of Greater Ohio, 201 F. Supp. 3d at 906. Therefore, the district court correctly determined that
Finally, by conditioning participation in the six federal programs on refraining from being an affiliate of any entity that promotes or performs nontherapeutic abortions, the Statute effects a separate
IV. ENTRY OF PERMANENT INJUNCTION
ODH conceded that it “agrees that if this Court finds the Conduct and Speech Provisions both unconstitutional,” the permanent injunction factors are met. (Reply Br. at 29.)
V. CONCLUSION
For the reasons stated, the district court correctly granted Plaintiffs’ motions for judgment on the merits and for a permanent injunction. Its decision should be affirmed.