PLANNED PARENTHOOD OF GREATER OHIO and PLANNED PARENTHOOD OF SOUTHWEST OHIO REGION v. HIMES, Interim Director of the Ohio Department of Health, No. 16-4027  (6th Cir.) April 18, 2018.

A 2016 Ohio statute directed its Department of Health to ensure that no federal health care monies were provided to any entity or affiliate that offers elective abortion services. The entities who received notices that their grants would be terminated offered health care services for women exclusive of abortion.

This week the United States Court of Appeals for the Sixth Circuit permanently enjoined enforcement of the Ohio statute, having concluded that the statute imposed unconstitutional conditions on the rights and interests of the grantees.  As the government may not deny, directly or indirectly, rights secured by the constitution, neither may the government require forfeiture of a constitutional right in order to obtain a government benefit. The Ohio scheme burdened federal health care grantees not because of their own activity but because of the activity of affiliates.  This form of “contamination” causing the forfeiture of the grantees’ interests in federal funding is constitutionally impermissible, the Sixth Circuit opined. The court observed that the United States Supreme Court has found constitutionally impermissible a government mandate that funded entities adopt anti-prostitution and anti-sex trafficking policies. Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, 570 U.S. 205 (2013).  

The government is not forbidden from preferring some policies over others, and it has long been established that the government need not pay for elective abortions.  This has at times resulted in some accounting ingenuity involving the walling off some funds from others so that a truce, however uneasy, might be struck between the competing interests of the government and the recipients of its funding.   No such practice would be permitted under Ohio’s scheme, however, which would hobble grantees’ activities globally, precluding participation in activity unrelated to their funded missions because of the statutory strictures.

In the course of declaring the statute fatally defective, the federal appellate court rejected the state’s challenge to plaintiffs’ standing, noting the state offered no case that would contradict longstanding holdings that providers may advocate on behalf of their clients.  Perceiving that it is the imposition of the unconstitutional condition on the recipient that offends, and not its antecedents, the court declined the state’s invitation to narrow the unconstitutional conditions doctrine to apply only where an entitlement is in issue or only where the condition might be said to impose an undue burden on access to abortion services.  

Planned Parenthood Ohio v. Himes (6th Cir., 2018)