CINCINNATI, Ohio — The full Sixth Circuit Court of Appeals has overturned a prior ruling from three of its judges and has determined that the State of Ohio may lawfully exclude the abortion and contraception giant Planned Parenthood from receiving funding for federal health programs.
The court ruled that while mothers have a so-called “right” to an abortion, no entity has a right to perform them.
“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,” wrote Judge Jeffrey Sutton, nominated to the bench by then-President George W. Bush, on behalf of the 11-6 majority. “That is not the role of the unconstitutional conditions doctrine.”
“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,” he explained.
He also noted 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,” and therefore, the law most likely “will not create an undue burden on a woman’s right to an abortion.”
As previously reported, in 2016, then-Gov. John Kasich signed H.B. 294 into law, which directs the Ohio Department of Health to ensure that funds received for the federal Violence Against Women Act, Breast and Cervical Cancer Mortality Prevention Act, the infertility prevention project, the minority HIV/AIDS initiative, and the infant mortality reduction and vitality initiatives do not go to organizations that perform “non-therapeutic” abortions.
The move was expected to result in the redistribution of $1.3 million for the programs, which upset Planned Parenthood. The organization claimed that Kasich was leaving women without any help.
However, a statement by Kasich’s office said that the law does not diminish women’s choices for health care as there are 150 other organizations in the state that could possibly receive funding.
“The Ohio Department of Health (ODH) has at least 150 other sub-grantees and contractors for the affected grants and projects addressing such issues as newborn babies, infant mortality, expectant mothers, violence against women, and minority HIV/AIDS,” it said.
“ODH will reallocate funding from ineligible providers under the new law to other currently eligible providers, ranging from local health departments and community organizations to hospitals and universities,” the statement outlined.
Planned Parenthood sued to challenge the reallocation of funds, and was granted an injunction by U.S. District Court Judge Michael Barrett.
“There is nothing within the scope of these programs related to performing abortions, promoting abortions or affiliating with an entity that performs or promotes abortions,” he wrote. “Therefore, under the unconstitutional conditions doctrine, [Ohio law] cannot condition funding for these programs based on a recipient’s exercise of the right to free speech or association outside of these programs.”
The State appealed, and last April, a mostly Republican-appointed panel of the Sixth Circuit Court of Appeals sided with Planned Parenthood.
“Ohio’s important interests in preferring childbirth to abortion, promoting life, and not subsidizing abortions have only the most tenuous relationship to [the new law]. Precluding Plaintiffs from funding under the six federal preventive-health programs that have nothing to do with abortion does little to promote these interests,” wrote Judge Helene White, nominated to the bench by then-President George H.W. Bush.
“Although Ohio women do not have a right to the programs, they do have a right not to have their access to important health services curtailed because their major abortion providers opted to protect women’s abortion rights rather than yield to unconstitutional conditions,” she said.
However, upon hearing the case en banc, 11 of the 17 justices on the Sixth Circuit Court of Appeals ruled that Planned Parenthood does not have a constitutional right to perform abortions, and even so, the organization has stated that regardless of whether or not it receives funding, it will still offer and refer for terminations. Planned Parenthood has three locations in the state and one performs abortions.
Therefore, Planned Parenthood’s argument that the law will “deprive Ohio women of their constitutional right of access to abortion services” is unconvincing.
“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 abortions sinks any pre-enforcement action, and any speculation about what would happen if it changed its mind is just that,” Sutton wrote.
“We’ve always felt the state had the right to set policy on who is funded and who is not funded,” new governor, Mike DeWine, who had previously served as attorney general and had filed the appeal with the court, told The Columbus Dispatch. “I’m pleased with the decision.”