Planned Parenthood Ass'n of Utah v. Herbert

• Decision Date: 12 July 2016
• Docket Number: No. 15–4189,15–4189
• Citation: 828 F.3d 1245
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: Planned Parenthood Association of Utah, Plaintiff–Appellant, v. Gary R. Herbert, in his official capacity as Governor of the State of Utah; Joseph K. Miner, M.D., in his official capacity as Executive Director of the Utah Department of Health, Defendants–Appellees.

828 F.3d 1245

Planned Parenthood Association of Utah, Plaintiff–Appellant

v.Gary R. Herbert, in his official capacity as Governor of the State of Utah; Joseph K. Miner, M.D., in his official capacity as Executive Director of the Utah Department of Health, Defendants–Appellees.

No. 15–4189

United States Court of Appeals, Tenth Circuit.

July 12, 2016

Peggy A. Tomsic, (Christine T. Greenwood and Jennifer Fraser Parrish, with her on the briefs) of Magleby, Cataxinos & Greenwood, Salt Lake City, Utah, for Plaintiff–Appellant.

Tyler R. Green, (Parker Douglas and Stanford E. Purser, with him on the brief), Office of the Attorney General for the State of Utah, Salt Lake City, Utah, for Defendants–Appellees.

Before BRISCOE, EBEL and BAC HARACH, Circuit Judges.

BRISCOE

, Circuit Judge.

Plaintiff Planned Parenthood Association of Utah (PPAU) filed this action pursuant to 42 U.S.C. § 1983

claiming that defendant Gary Herbert, the Governor of the State of Utah, violated PPAU's constitutional rights by directing defendant Joseph Miner, the Executive Director of the Utah Department of Health (UDOH), to stop UDOH from acting as an intermediary for so-called “pass-through” federal funds that PPAU uses to carry out certain programs in the State of Utah. Along with its complaint, PPAU filed a motion seeking a temporary restraining order (TRO) and a preliminary injunction. Although the district court initially issued a TRO, it ultimately withdrew the TRO and denied PPAU's request for a preliminary injunction. PPAU filed this interlocutory appeal challenging the denial of its motion for preliminary injunction. We granted a stay in favor of PPAU to prevent the cessation of funding during the pendency of this appeal, and we also expedited the briefing and oral argument schedule. Now, exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1)

, we reverse the decision of the district court and remand with instructions to grant PPAU's motion for preliminary injunction.

I

Factual background

a) Planned Parenthood Association of Utah and its activities

PPAU is a non-profit corporation organized under the laws of the State of Utah. PPAU is an affiliate of, but legally separate from, Planned Parenthood Federation of America, Inc. (Planned Parenthood).

For nearly fifty years, PPAU has provided reproductive health services to women, men, and teenagers in the State of Utah. PPAU delivers these services directly through its network of nine urban and rural clinics and indirectly through contracts with eleven rural and frontier providers who act on PPAU's behalf. PPAU is currently the only statewide organization that provides reproductive health services to anyone who requests them. More specifically, PPAU provides services without regard to a patient's health insurance status, socioeconomic status, race, or ethnicity.

In 2011, PPAU began offering abortion services. PPAU does not receive any funds from either the federal government or state government for abortion services. PPAU complies with all federal and state laws regarding the disposal of fetal tissue, and it does not allow its patients to donate fetal tissue after an abortion.

During its 2015 fiscal year, PPAU provided health care services to 46,082 patients, 46% of whom reported being uninsured. Nearly 45,000 of these total patients sought and received services unrelated to abortion, such as the provision of birth control, vasectomy

, pregnancy testing, screenings for sexually-transmitted diseases (STDs), cancer screenings, and cancer prevention. Over 17,000 of the total patients either asked to be tested for, or were identified as at risk for having contracted, chlamydia and/or gonorrhea. Of this group, approximately 72% reported being uninsured.

In addition to medical services, PPAU provides a variety of education services related to reproductive health, including abstinence education, contraceptive education, and STD education.

b) PPAU's relationship with the Utah Department of Health

UDOH is a department of the State of Utah created pursuant to Utah Code § 26-1-4

. UDOH is the health, health planning, and medical assistance authority of the State of Utah and, as such, is the sole agency that oversees the administration of federally-assisted state programs or plans for public health, health planning, maternal and child health, services for children with a disability, and medical assistance.

PPAU has received federal funding to support its reproductive health services and education since approximately 1973. Since 1993, PPAU has received federal funds through programs administered by the State of Utah.¹ At issue in this case are two grants, one contract, and one letter of understanding, pursuant to which UDOH dispenses federal funds, either directly or indirectly, to PPAU. PPAU in turn uses that funding for four specific types of programs. The details of this funding are outlined in detail below.

c) Targeted STD testing

Since the early 1990s, PPAU has worked in collaboration with UDOH to carry out the Communicable Disease Prevention Program for STD Testing in the State of Utah. Federal funds are used to pay the Utah Public Health Laboratory for specimens to be tested for STDs. As part of this program, UDOH has provided PPAU, at no charge, with prescription medications needed to treat chlamydia and gonorrhea

. This has enabled PPAU, in turn, to provide treatment free of charge to all patients who test positive, as well as to their partners.

The most recent manifestation of this collaboration is a letter of understanding entered into between UDOH and PPAU in early 2015. Pursuant to that letter of understanding, UDOH agreed to “pay the Utah Public Health Laboratory on [PPAU's] behalf ... for 4,400 specimens from January 1, 2015, through December 31, 2015 for STD testing for” the following classes of Utah residents: (1) “[f]emales 15 to 24 years of age”; (2) “[t]he partners of females 15 to 24 years of age, regardless of the partner's age”; and (3) “[m]en who have sex with men.” App. at 149.

d) STD Surveillance Network

In 2013, UDOH asked PPAU to participate in a five-year project called the STD Surveillance Network. The purpose of the project was to update the surveillance systems at UDOH to improve data gathering and STD prevention outcomes across the State of Utah. Funding for the Network was provided by the Centers for Disease Control (CDC).

The parties' agreement was formalized by contract on March 3, 2014. The contract period was to run from March 3, 2014, until September 30, 2018. Under the terms of the contract, UDOH agreed to pay PPAU $30,000 in federal funds in exchange for PPAU's work on the project. In early February 2015, the contract was amended to increase the amount of federal funds provided by UDOH to PPAU from $30,000 to $109,960.

e) Utah Abstinence Education Program

On or about April 1, 2011, UDOH issued a grant to PPAU so that PPAU could carry out the Utah Abstinence Education Program (UAEP). The original amount of the grant was for $221,546.20, and was intended to cover the period from April 1, 2011, to September 30, 2014. The grant was subsequently amended to provide total funding in the amount of $338,386.55, and to extend the grant period until September 30, 2016.

In carrying out the UAEP, PPAU provides after-school abstinence education to teenagers in the State of Utah. The program requires parental permission to enroll. In PPAU's fiscal year 2015, 98 teenagers signed up for the program and 44 teenagers graduated from the program.

f) The Personal Responsibility Education Program

In 2013, UDOH sought competitive bids from entities in the state interested in carrying out the State's Personal Responsibility Education Program (PREP). Funding for the PREP program came from the United States Department of Health and Human Services, Administration on Children, Youth and Families. The purpose of PREP “is to educate adolescents on both abstinence and contraception to prevent pregnancy and [STDs], including HIV/AIDS.” Id. at 275. In addition, PREP is intended to educate adolescents on “the following three adulthood preparation subjects”: (1) “[h]ealthy relationships, such as positive self-esteem and relationship dynamics”; (2) “[e]ducational and career success, such as developing skills for employment preparation, job seeking, independent living, financial self-sufficiency, and work-place productivity”; and (3) “[h]ealthy life skills, such as goal-setting, decision making, negotiation, communication and interpersonal skills, and stress management.” Id. “The target population for [PREP] is Utah youth ages 14-19 with a specific focus on youth in the Utah Juvenile Justice System, youth of Hispanic origin and/or non-white race, current teen moms, and youth residing in areas with birth rates higher than Utah's state rate.” Id.

PPAU was the winning bidder on the project. According to PPAU, it was awarded a three-year grant from UDOH, good through 2016, with the possibility of signing new contracts for additional years.

g) The release of the CMP videos

In the summer of 2015, an entity known as the Center for Medical Progress (CMP) released “selectively edited videos of Planned Parenthood staff members discussing the health care provider's fetal tissue donation program.” Id. at 398. The videos resulted in “[a]nti-abortion advocates ... accusing Planned Parenthood of profiting off the sale of fetal tissue, which would be illegal.” Id. In turn, “[m]ultiple investigations were launched in Congress and in the states.”² Id.

h) Defendant Herbert's response to the CMP videos—the Directive

Defendant Gary Herbert is the Governor of the State of Utah and, in that capacity, serves as the Chief Executive Officer for the State of Utah. On August 14, 2015, Herbert, in response to the CMP videos, issued a written statement (Directive) that stated:

The allegations against Planned Parenthood are deeply troubling. Current Utah state law prohibits the use of state funds to provide abortions by Planned Parenthood or any other

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