Planned Parenthood of Greater Ohio v. Hodges

Decision Date12 March 2019
Docket NumberNo. 16-4027,16-4027
Citation917 F.3d 908
Parties PLANNED PARENTHOOD OF GREATER OHIO; Planned Parenthood of Southwest Ohio Region, Plaintiffs-Appellees, v. Richard HODGES, in his official capacity as Director of the Ohio Department of Health, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

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

." Ohio Rev. Code § 3701.034(B)(1). Two Planned Parenthood affiliates challenged the statute, claiming that it imposes an unconstitutional condition on public funding in violation of the Due Process Clause. The affiliates are correct that the Ohio law imposes a condition on the continued receipt of state funds. But that condition does not violate the Constitution because the affiliates do not have a due process right to perform abortions. See

Planned Parenthood of Se. Pa. v. Casey , 505 U.S. 833, 884, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality). We reverse the district court’s contrary decision.


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." Ohio Rev. Code § 3701.034(B)(G). The point of the limitation, the State maintains, is to promote childbirth over abortion, to avoid "muddl[ing]" that message by using abortion providers as the face of state healthcare programs, and to avoid entangling program funding and abortion funding. Appellant’s Br. 39–41.

Ohio’s health department and its local counterparts notified Planned Parenthood of Greater Ohio and Planned Parenthood of Southwest Ohio that the new law would require the State to end their contracts under the programs. Both entities perform abortions, advocate for abortion, and affiliate with other entities that do the same.

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.).


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 Fourteenth Amendment. Governments generally may do what they wish with public funds, a principle that allows them to subsidize some organizations but not others and to condition receipt of public funds on compliance with certain obligations. See Rust v. Sullivan , 500 U.S. 173, 192–94, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). What makes a condition unconstitutional turns not on a freestanding prohibition against restricting public funds but on a pre-existing obligation not to violate constitutional rights. The government may not deny an individual a benefit, even one an individual has no entitlement to, on a basis that infringes his constitutional rights. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc. , 570 U.S. 205, 214, 133 S.Ct. 2321, 186 L.Ed.2d 398 (2013). Otherwise, the government could leverage its spending authority to limit, if not eliminate, the exercise of this or that constitutional right. In the words of the Supreme Court, the principle "forbids burdening the Constitution’s enumerated rights by coercively withholding benefits from those who exercise them." Koontz v. St. Johns River Water Mgmt. Dist. , 570 U.S. 595, 606, 133 S.Ct. 2586, 186 L.Ed.2d 697 (2013).

What is the enumerated right at issue here? The guarantee of due process established by the Fourteenth Amendment. That provision, as the United States Supreme Court has come to construe it, prohibits a State from imposing an "undue burden" on a woman’s access to an abortion before fetal viability. Casey , 505 U.S. at 877, 112 S.Ct. 2791 (plurality).

These principles establish the following line between what Ohio may do and what it may not do. It may choose not to fund a private organization’s health and education initiatives. Private organizations do not have a constitutional right to obtain governmental funding to support their activities. The State also may choose not to subsidize constitutionally protected activities. Just as it has no obligation to provide a platform for an individual’s free speech, say a Speaker’s Corner in downtown Columbus, it has no obligation to pay for a woman’s abortion. Case after case establishes that a government may refuse to subsidize abortion services. Rust , 500 U.S. at 201–02, 111 S.Ct. 1759 ; Harris v. McRae , 448 U.S. 297, 315–17, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) ; Maher v. Roe , 432 U.S. 464, 474, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977). Both the United States and Ohio have done exactly that, whether through the Hyde Amendment, see Pub. L. No. 115-31, §§ 613–14, 131 Stat. 135, 372 (2017), or through Ohio Revised Code § 9.04(B).

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, 103 S.Ct. 1997, 76 L.Ed.2d 129 (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, 133 S.Ct. 2586.

The Ohio law falls on the permissible side of this line. Today’s plaintiffs do not have a Fourteenth Amendment right to perform abortions. The Supreme Court has never identified a freestanding right to perform abortions. To the contrary, it has indicated that there is no such thing. "Whatever constitutional status the doctor-patient relation may have as a general matter," the Court has explained, "in the present context it is derivative of the woman’s position. The doctor-patient relation does not underlie or override the two more general rights under which the abortion right is justified: the right to make family decisions and the right to physical autonomy. On its own, the doctor-patient relation here is entitled to the same solicitude it receives in other contexts." Casey , 505 U.S. at 884, 112 S.Ct. 2791 (plurality) (emphasis added).

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, 112 S.Ct. 2791. 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...

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