Planned Parenthood of Greater Ohio v. Hodges

• Decision Date: 12 August 2016
• Docket Number: Case No. 1:16cv539
• Citation: 201 F.Supp.3d 898
• Parties: PLANNED PARENTHOOD OF GREATER OHIO, et al., Plaintiffs, v. Richard HODGES, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

201 F.Supp.3d 898

PLANNED PARENTHOOD OF GREATER OHIO, et al., Plaintiffs,

v.Richard HODGES, et al., Defendants.

Case No. 1:16cv539

United States District Court, S.D. Ohio, Western Division.

Filed August 12, 2016

Alan E. Schoenfeld, Michelle Nicole Diamond, Stephanie N. Simon, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, Alphonse Adam Gerhardstein, Jennifer Lynn Branch, Gerhardstein & Branch Co. LPA, Cincinnati, OH, Carrie Y. Flaxman, Planned Parenthood Federation of America, John Barrow Sprangers, Kimberly A. Parker, Paul R. Q. Wolfson, Wilmer Cutler Pickering Hale and Dorr LLP, Helene T. Krasnoff, Washington, DC, for Plaintiffs.

Ryan L. Richardson, Steven T. Voigt, Tiffany L. Carwile, Ohio Attorney General's Office, Columbus, OH, for Defendants.

OPINION & ORDER

MICHAEL R. BARRETT, JUDGE

This matter is before the Court upon Plaintiffs' Motion for Preliminary Injunction (Doc. 7); and Motions for Judgment on the Merits and a Permanent Injunction (Docs. 38, 47). These motions have been fully briefed (Docs. 49, 53, 55); and on August 2, 2016, the Court held a hearing on the motions (Doc. 57).

For the reasons stated herein, Plaintiffs' Motion for Preliminary Injunction (Doc. 7); and Motions for Judgment on the Merits and a Permanent Injunction (Docs. 38, 47) are GRANTED.

I. BACKGROUND

Plaintiffs Planned Parenthood of Greater Ohio ("PPGOH") and Planned Parenthood Southwest Ohio Region ("PPSWO") filed this action under 42 U.S.C. § 1983 claiming that Ohio Revised Code § 3701.034 violates the First Amendment, as well as the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment. On May 23, 2016, this Court temporarily restrained the enforcement of Section 3701.034. (Doc. 19). Plaintiffs now seek judgment on the merits and to permanently enjoin Defendant Richard Hodges, in his official capacity as the Director of the Ohio Department of Health ("ODH"), from enforcing Section 3701.034.

Section 3701.034 requires ODH to ensure that the federal funds and materials which ODH receives and distributes under six specific programs are either "not used to do any of the following" or "not distributed to entities that 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). Under the statute, "promote" means "to advocate for, assist with, encourage, or popularize through advertising or publicity." Ohio Rev. Code § 3701.034(A)(8).

Plaintiffs operate twenty-eight health centers in Ohio. (Doc. 40-1, Iris E. Harvey 1st Decl. ¶ 9; Doc. 40-2, Jerry Lawson 1st Decl. ¶ 8). At three of the health centers, Plaintiffs provide abortion services. (Harvey 1st Decl. ¶ 13; Lawson 1st Decl. ¶ 12). Plaintiffs also advocate for a woman's right to abortion. (Harvey 1st Decl. ¶ 15; Lawson 1st Decl. ¶ 14). In addition, Plaintiffs are affiliates of Planned Parenthood Federation of America, Inc., which advocates for a woman's access to comprehensive reproductive health care, including abortion. (Harvey 1st Decl. ¶ 16; Lawson 1st Decl. ¶ 15). There is no dispute that Section 3701.034 applies to Plaintiffs.

For a number of years, Plaintiffs have received federal funds and materials distributed by ODH and Ohio county health departments under the six health and education programs which are covered by Section 3701.034 : (1) STD Prevention Program (federal program which subsidizes diagnostic tests and treatments for certain sexually transmitted diseases ); (2) Minority HIV/AIDS Initiative (federal program designed to provide HIV testing and education for communities that are disproportionately affected by HIV); (3) Personal Responsibility Education Program (federal program designed to educate young people about abstinence and contraception, with the goal of reducing teen pregnancy and STD rates); (4) Breast and Cervical Cancer Prevention Program (federal program which subsidizes cancer screening and follow-up services for low-income and minority women); (5) Ohio Infant Mortality Reduction Initiative (federally-funded neighborhood outreach and care coordination program which assists pregnant, at-risk African-American women and their families); (6) Violence Against Women Act Sexual Violence Prevention Program (federally-funded program which aims to reduce sexual violence through primary prevention and education). (Harvey 1st Decl. ¶¶ 12, 28, 32, 47; Lawson 1st Decl. ¶¶ 11, 26, 35, 40).

In many instances, Plaintiffs were chosen over other entities to receive these funds and materials as part of a competitive grant process. (Harvey 1st Decl. ¶ 12; Lawson 1st Decl. ¶ 11). Plaintiffs have also passed all state and local audits and program reviews. (Harvey 1st Decl. ¶ 12; Lawson 1st Decl. ¶ 11). However, after the passage of Section 3701.034, Plaintiffs received letters from ODH and local health departments which stated that their current contracts under the impacted programs would be terminated. (Harvey 1st Decl., Exs. A-J; Lawson 1st Decl. Exs. A-G).

In their Complaint, Plaintiffs claim that Section 3701.034 is unconstitutional because as a condition of receiving government funds, recipients must abandon their right to engage in free speech and association protected by the First Amendment and their right to provide abortion services protected by the Due Process Clause. Plaintiffs also claim that Section 3701.034 violates the Equal Protection Clause by discriminating against entities, such as Plaintiffs, who engage in this constitutionally protected activity.

II. ANALYSIS

A. Standard of Review

Under Federal Rule of Civil Procedure 65 : "Before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing." Fed. R. Civ. P. 65(a)(2). At the hearing on August 2, 2016, the parties agreed that Plaintiffs' request for preliminary injunctive relief should be consolidated with a final resolution on the merits of Plaintiffs' request for permanent injunctive relief. The parties also agreed that the Court can determine the propriety of Plaintiffs' requested permanent injunction solely on the basis of the record before the Court and the evidence presented in conjunction with the preliminary injunction hearing.

"A party is entitled to a permanent injunction if it can establish that it suffered a constitutional violation and will suffer continuing irreparable injury for which there is no adequate remedy at law." Lee v. City of Columbus, Ohio , 636 F.3d 245, 249 (6th Cir.2011) (quoting Wedgewood Ltd. P'ship I v. Twp. of Liberty, Ohio , 610 F.3d 340, 349 (6th Cir.2010) ). However, "[i]njunctive relief involving matters subject to state regulation may be no broader than necessary to remedy the constitutional violation." Kallstrom v. City of Columbus , 136 F.3d 1055, 1069 (6th Cir.1998) (citations omitted).

B. First Amendment: Freedom of Speech and Association

Plaintiffs argue that under the unconstitutional conditions doctrine, Section 3701.034 violates Plaintiffs' First Amendment rights of freedom of speech and association.

The First Amendment, applicable to the States through the Due Process Clause of the Fourteenth Amendment, provides that "Congress shall make no law...abridging the freedom of speech...or the right of the people peaceably to assemble." U.S. Const. Amend. I ; Gitlow v. New York , 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). "The First Amendment extends beyond the right to speak to encompass the ‘right of expressive association,’ i.e. , the ‘right to associate for the purpose of speaking.’ " Miller v. City of Cincinnati , 622 F.3d 524, 537 (6th Cir.2010) (quoting Rumsfeld v. Forum for Academic & Institutional Rights, Inc. , 547 U.S. 47, 68, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) ).¹

However, before any further discussion of the First Amendment or the unconstitutional conditions doctrine, the Court must address Defendant's two-part argument that it is unnecessary for the Court to rule on Plaintiffs' speech and association claims.

First, Defendant argues that in enacting Section 3701.034, Ohio's legislature made a policy choice regarding public funding of nontherapeutic abortions, and that policy choice should stand. Defendant is correct that state legislatures have "wide latitude in choosing among competing demands for limited public funds." Maher v. Roe , 432 U.S. 464, 479, 97 S.Ct. 2376, 2385, 53 L.Ed.2d 484 (1977). However, this wide latitude to set spending priorities exists "[s]o long as legislation does not infringe on other constitutionally protected rights." National Endowment for the Arts v. Finley , 524 U.S. 569, 588, 118 S.Ct. 2168, 2179, 141 L.Ed.2d 500 (1998) (citing Regan v. Taxation With Representation of Washington , 461 U.S. 540, 549, 103 S.Ct. 1997, 2002, 76 L.Ed.2d 129 (1983) ); see also Planned Parenthood of Cent. & N. Ariz. v. Arizona , 718 F.2d 938, 942–44 (9th Cir.1983) (although the state need not fund abortions, the state "may not unreasonably interfere with the right of Planned Parenthood to engage in abortion or abortion-related speech activities")).

Second, Defendant argues that because Plaintiffs cannot show that the provisions of Section 3701.034 which regulate conduct are unconstitutional, the doctrine of constitutional avoidance precludes this Court's review of Plaintiffs' speech and association claims. This is a misapplication of the constitutional avoidance doctrine. As the Supreme Court has explained, the constitutional avoidance doctrine "[i]s a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts." Clark v. Martinez , 543 U.S. 371, 381–82, 125 S.Ct. 716, 724–25, 160 L.Ed.2d 734 (2005) (citing Rust v....