Planned Parenthood of Kansas v. Brownback, No. 11–2357–JTM.

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Writing for the CourtJ. THOMAS MARTEN
Citation799 F.Supp.2d 1218
PartiesPLANNED PARENTHOOD OF KANSAS AND MID–MISSOURI, Plaintiff, v. Sam BROWNBACK, Governor of Kansas, and Robert Moser, M.D., Secretary, Kansas Department of Health and Environment, Defendants.
Decision Date17 August 2011
Docket NumberNo. 11–2357–JTM.

799 F.Supp.2d 1218

PLANNED PARENTHOOD OF KANSAS AND MID–MISSOURI, Plaintiff,
v.
Sam BROWNBACK, Governor of Kansas, and Robert Moser, M.D., Secretary, Kansas Department of Health and Environment, Defendants.

No. 11–2357–JTM.

United States District Court, D. Kansas.

Aug. 1, 2011.Order Denying Stay Aug. 17, 2011.


Held Unconstitutional

2011 KS H.B. 2014, § 107( l ).

[799 F.Supp.2d 1220]

Erin C. Thompson, Lee Thompson Thompson Law Firm, LLC, Wichita, KS, Elissa J. Preheim, Sarah E. Warlick, Arnold & Porter, LLP, Helene T. Krasnoff, Planned Parenthood Federation of America, Washington, DC, Grace Pickering, Arnold & Porter, LLP, Roger K. Evans, Planned Parenthood Federation of America, New York, NY, for Plaintiff.

James M. Armstrong, Gary L. Ayers, Foulston Siefkin LLP, Wichita, KS, Jeffrey A. Chanay, Steve R. Fabert Office of Attorney General, Topeka, KS, for Defendants.
MEMORANDUM AND ORDER
J. THOMAS MARTEN, Judge.

Plaintiff Planned Parenthood of Kansas and Mid–Missouri has filed the present action seeking to prevent the application and enforcement of recent Kansas legislation which has the effect of excluding Planned Parenthood from successfully applying with the state Kansas Department of Health and Environment (KDHE) for federal Title X family planning funding. The defendants in the action are Sam Brownback, Governor of Kansas, and Dr. Robert Moser, the Secretary of KDHE.

The provision in question, Section 107( l ) of H.B.2014, 84th Leg. (Kan.2011), provides that KDHE subgrants are exclusively prioritized to public entities, and second, to hospitals or federally-qualified health centers (FQHCs). As Planned Parenthood is a private entity which is neither a hospital nor a FQHC, it cannot successfully apply with KDHE to receive Title X funds. Planned Parenthood argues that the statute violates its rights under 42 U.S.C. § 1983 on two grounds. First, it argues that the provision is invalid under the Supremacy Clause, as it creates an additional eligibility requirement which is inconsistent with federal law. Second, it contends that the statute has the effect of violating its constitutional rights by discriminating against it based upon its participation in protected activity.

Findings of FactTitle X

Title X, 42 U.S.C. §§ 300 et seq., is a federal program that funds low-cost family planning services. Title X was enacted in 1970 as part of the Public Health Service Act with the specific intent of providing

[799 F.Supp.2d 1221]

access to family planning services to low-income or uninsured women and families, including those ineligible for Medicaid. Patients of Title X providers make payments on a sliding fee scale, based on their resources. Family planning projects are designed to provide “services necessary to aid individuals to determine freely the number and spacing of their children.” 42 C.F.R. § 59.1. Under 42 C.F.R. § 59.3, “[a]ny public or nonprofit entity in a State” is eligible to apply for Title X funds.

Title X funds are granted by the United States Department of Health and Human Services to “public or nonprofit entities.” 42 U.S.C. § 300(a). The grantee for the State of Kansas is the KDHE, which uses those funds for its Family Planning Services Program. KDHE does not provide the clinical services itself, but subgrants those funds to providers of family planning services, like Planned Parenthood.

Specifically, 42 U.S.C. § 300 provides:

(a) Authority of Secretary

The Secretary is authorized to make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents). To the extent practical, entities which receive grants or contracts under this subsection shall encourage familiy [sic] participation in projects assisted under this subsection.

(b) Factors determining awards; establishment and preservation of rights of local and regional entities.

In making grants and contracts under this section the Secretary shall take into account the number of patients to be served, the extent to which family planning services are needed locally, the relative need of the applicant, and its capacity to make rapid and effective use of such assistance. Local and regional entities shall be assured the right to apply for direct grants and contracts under this section, and the Secretary shall by regulation fully provide for and protect such right.

Under 42 C.F.R. § 59.3, in response to the question “Who is eligible to apply for a family planning services grant?,” HHS regulations answer: “Any public or nonprofit private entity in a State may apply for a grant under this subpart.” Further, HHS has developed Program Guidelines Title X projects which provides that services “may be offered by grantees directly and/or by delegate/contract agencies operating under the umbrella of the grantee.” Dept. of HHS, Office of Publ. Health & Sci., Program Guidelines for Project Grants for Family Planning Services (2001), ¶ 6.1, p. 6 (2001). These Program Guidelines also set forth broad eligibility standards similar to those in the Public Health Service Act and HHS regulations, providing that “[a]ny public or nonprofit private entity located in a state ... is eligible to apply for a Title X family planning services project grant.” Id. at ¶ 3.1, p. 2.

Neither the Title X statute nor any federal regulation imposes any additional service requirements on entities that receive Title X funds, including mandating the type of provider that they must be, or the services that they provide outside of those offered as part of the Title X program. 42 U.S.C. § 300(b) sets forth the factors which are to be used by the Secretary of HHS in granting awards:

In making grants and contracts under this section the Secretary shall take into account the number of patients to be served, the extent to which family planning services are needed locally, the relative

[799 F.Supp.2d 1222]

need of the applicant, and its capacity to make rapid and effective use of such assistance. Local and regional entities shall be assured the right to apply for direct grants and contracts under this section, and the Secretary shall by regulation fully provide for and protect such right.

These factors do not include whether the grant or contract applicant performs a wide-variety of hospital-type services not related to family planning.

Similarly, 42 C.F.R. § 59.5 sets the minimum requirements for family planning projects under Title X, in particular, mandating that a project must “[p]rovide a broad range of acceptable and effective medically approved family planning methods (including natural family planning methods) and services (including infertility services and services for adolescents).” All of the standards set forth in § 59.5 focus on the nature of the family planning services to be provided; they give no indication that projects must or should also provide a range of other medical care such dental or emergency medical care services.

The Title X statute and regulations also make no mention of the ineligibility of entities that provide abortions to receive Title X funds or operate Title X projects. To the contrary, the Title X statute shows that Congress contemplated that abortion providers would operate Title X projects, and required only that abortion services not be a part of the Title X project. 42 U.S.C. § 300a–6 (no Title X funds “shall be used in programs where abortion is a method of family planning”). In addition, 42 C.F.R. § 59.5(a)(5) excludes funding for projects which use abortion as a method of family planning. Thus, under federal law, an entity may perform abortions with its own funds, outside of the Title X project, and remain eligible for a Title X grant.

In their Response, defendants emphasize that Planned Parenthood is not a direct grantee, as it has not directly applied with the Secretary of HHS for Title X funds. The defendants note that in nine states Planned Parenthood affiliates are direct grantees of Title X funds.

HHS guidelines authorize grantees to contract through a series of agreements, including (a) a Universal Contract, (b) a Contractual Provisions Attachment to the Universal Contract, (c) a Contract Attachment No. 5, and (d) a Notice of Grant Award Amount & Summary of Program Objectives. The defendants stress that by its own terms a Universal Contract may be non-renewed if “either of the parties notifies the other in writing of its intent not to renew.” Further, the Universal Contract and Contract Attachment No. 5 are terminable or modifiable if funding is not available. In addition, the Notice of Grant Award, only becomes an agreement after the grantee's first payment to the contractor. Accordingly, the defendants contend that the Universal Contract between KDHE and Planned Parenthood was comprehensively eliminated, as it “did not become an agreement under the Contractual Provisions Attachment; it was not renewed; it was cancelled pursuant to the June 14, 2011 letters.” (Dkt. 35, at 8).

Defendants stress that Planned Parenthood is only one part of the Title X universe in Kansas. For State Fiscal year 2011 (which ended June 30, 2011), KDHE contracted with 56 entities to provide family planning services. Of these, 53 are public entities in the form of local health departments. The remaining three are the two Planned Parenthood clinics in Wichita and Hays, and the Dodge City Family Planning Clinic. The defendants thus stress that the now-excluded providers are “only 5% of the entities” receiving Title X subgrants. ( Id. at 9).

But this gives a misleading impression of the state of Title X funding in Kansas, as it assumes each subgrantee receives a

[799 F.Supp.2d 1223]

similar amount of funding. In fact, Planned Parenthood was the second-largest subgrantee in Kansas,...

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12 practice notes
  • Planned Parenthood Kansas v. Moser, Nos. 11–3235
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 25, 2014
    ...further enforcement or reliance on Section 107( l ) of H.B. 2014....” [747 F.3d 853]Planned Parenthood of Kan. & Mid–Mo. v. Brownback, 799 F.Supp.2d 1218, 1236 (D.Kan.2011). Perhaps the majority believes that the Qwest Corp. district court's use of the word “action,” compared to the distric......
  • Planned Parenthood of Cent. North Carolina v. Cansler, No. 1:11CV531.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • August 19, 2011
    ...a claim is therefore not barred by the Eleventh Amendment. Cf. Planned Parenthood of Kansas and Mid–Missouri v. Brownback, No. 11–2357, 799 F.Supp.2d 1218, 1228, 2011 WL 3250720, at *9 (D.Kan. Aug. 1, 2011) (“The court finds that the injunctive relief sought by Planned Parenthood will not v......
  • Planned Parenthood of Cent. N.C. v. Cansler, No. 1:11CV531.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • June 28, 2012
    ...with Title X and was therefore invalid under the Supremacy Clause); Planned Parenthood of Kansas and Mid–Missouri v. Brownback, 799 F.Supp.2d 1218, 1232 (D.Kan.2011) (holding that a state statute that operated to exclude Planned Parenthood from receiving federal Title X funding administered......
  • Planned Parenthood Greater Memphis Region v. Dreyzehner, No. 3:12–0139.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • February 17, 2012
    ...and constitutionally-protected conduct.’ ” Cansler, 804 F.Supp.2d at 494 (quoting Planned Parenthood of Kan. & Mid–Mo. v. Brownback, 799 F.Supp.2d 1218, 1234 (D.Kan.2011) (granting an injunction against a Kansas law as an impermissible penalty on exercise of constitutional rights where “the......
  • Request a trial to view additional results
12 cases
  • Planned Parenthood Kansas v. Moser, Nos. 11–3235
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 25, 2014
    ...further enforcement or reliance on Section 107( l ) of H.B. 2014....” [747 F.3d 853]Planned Parenthood of Kan. & Mid–Mo. v. Brownback, 799 F.Supp.2d 1218, 1236 (D.Kan.2011). Perhaps the majority believes that the Qwest Corp. district court's use of the word “action,” compared to the distric......
  • Planned Parenthood of Cent. North Carolina v. Cansler, No. 1:11CV531.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • August 19, 2011
    ...a claim is therefore not barred by the Eleventh Amendment. Cf. Planned Parenthood of Kansas and Mid–Missouri v. Brownback, No. 11–2357, 799 F.Supp.2d 1218, 1228, 2011 WL 3250720, at *9 (D.Kan. Aug. 1, 2011) (“The court finds that the injunctive relief sought by Planned Parenthood will not v......
  • Planned Parenthood of Cent. N.C. v. Cansler, No. 1:11CV531.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • June 28, 2012
    ...with Title X and was therefore invalid under the Supremacy Clause); Planned Parenthood of Kansas and Mid–Missouri v. Brownback, 799 F.Supp.2d 1218, 1232 (D.Kan.2011) (holding that a state statute that operated to exclude Planned Parenthood from receiving federal Title X funding administered......
  • Planned Parenthood Greater Memphis Region v. Dreyzehner, No. 3:12–0139.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • February 17, 2012
    ...and constitutionally-protected conduct.’ ” Cansler, 804 F.Supp.2d at 494 (quoting Planned Parenthood of Kan. & Mid–Mo. v. Brownback, 799 F.Supp.2d 1218, 1234 (D.Kan.2011) (granting an injunction against a Kansas law as an impermissible penalty on exercise of constitutional rights where “the......
  • Request a trial to view additional results

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