August 17, 2016
On Friday, the District Court for the Southern District of Ohio deemed unconstitutional an Ohio law designed to prevent state or federal funds from going to any organization that itself performs or promotes, or affiliates with another entity that performs or promotes, ‘nontherapeutic’ abortions. The case is Planned Parenthood of Greater Ohio v. Hodges, 2016 WL 4264341.
In February, Ohio’s legislature passed, and Governor Kasich signed, House Bill 294, which is codified at R.C. § 3701.034. ‘Nontherapeutic’ abortions are defined as those “performed or induced when the life of the mother would not be endangered if the fetus were carried to term or when the pregnancy of the mother was not the result of rape or incest reported to a law enforcement agency.”
Two Planned Parenthood affiliates filed suit in early May seeking injunctive and declaratory relief under 42 U.S.C.A. § 1983 for alleged violations of their rights under the First Amendment as well as the Due Process and Equal Protection clauses of the Fourteenth Amendment.
The law was to take effect May 23rd but the District Court, that same day, granted the plaintiffs’ motion for a temporary restraining order enjoining enforcement of the law. In their complaint, the plaintiffs noted that the law would prohibit them from receiving certain state and federal funds because they promote and perform ‘nontherapeutic’ abortions using separate funds, and because they are affiliates of Planned Parenthood Federation of America, Inc., which promotes ‘nontherapeutic’ abortions within the meaning of the statute.
This prohibition would collectively cause the plaintiffs to lose well over $1 million annually. The plaintiffs argued that the law amounts to punishment for their speech and association, in violation of the First Amendment and the Due Process Clause, and targets abortion providers and advocates without sufficient justification in violation of the Equal Protection Clause.
In its order issued Friday the court noted that the funding that would be diverted away from the plaintiffs under R.C. § 3701.034 is used to fund “tests and treatment for STDs, cancer screenings for women, HIV testing and education, measures to reduce infant mortality, education for teens regarding abstinence and contraception, and the prevention of sexual violence.” The court also remarked that the 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.”
The court held that under the unconstitutional conditions doctrine, a state may not condition funding for programs unrelated to abortion on the recipient declining to exercise its rights of free speech or association, thus the statute violates the First Amendment. The court likewise held that because the law doesn’t provide a means for organizations to receive funds for programs unrelated to abortion while using separate funds to perform or provide information regarding abortions, the law violates the Due Process Clause. The court declined to address the plaintiffs’ Equal Protection claim in light of finding the statute to violate the First Amendment and Due Process Clause.
The docket number for the case is 1:16-CV-00539. News articles regarding the decision are available at 2016 WLNR 24730263 (Columbus Dispatch), 2016 WLNR 24698778 (Toledo Blade), 2016 WLNR 24798303 (Cleveland Plain Dealer), and 8/12/16 Associated Press (AP) Newswires 17:13:58 (Associated Press).
Additionally, there is ongoing litigation between the same parties, also captioned Planned Parenthood of Greater Ohio v. Hodges, with the plaintiffs asserting that the interplay of OAC 3701-83-19(E), R.C. § 3727.60(B), and R.C. § 3702.309 violates the Due Process Clause. R.C. § 3727.60(B), enacted in 2013, bars public hospitals from entering into a written transfer agreement with facilities that perform abortions, while OAC 3701-83-19(E) requires ambulatory surgical facilities, including abortion providers, to have a “written transfer agreement with a hospital” unless they have been granted a variance. R.C. § 3702.309, enacted in 2015, requires the automatic suspension of an ambulatory surgical center’s license if its variance application is denied.
That case is being handled by the same judge and he has already granted a motion for a preliminary injunction barring enforcement of R.C. § 3702.309 pending the outcome of the case, finding that one of the plaintiff’s demonstrated “a likelihood of success on the merits of its procedural due process claim.” The docket number for that case is 1:15-CV-00568, the original complaint is available at 2015 WL 5139377, and the plaintiffs’ motion for a preliminary injunction and the defendant’s response are available via the Filings tab.
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