Planned Parenthood Ohio v. Hodges

• Decision Date: 23 May 2016
• Docket Number: Case No. 1:16cv539
• Citation: 188 F.Supp.3d 684
• Parties: Planned Parenthood of Greater Ohio, et al., Plaintiffs, v. Richard Hodges, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

188 F.Supp.3d 684

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.

Signed May 23, 2016

Alphonse Adam Gerhardstein, Jennifer Lynn Branch, Gerhardstein & Branch Co. LPA, Cincinnati, OH, for Plaintiffs.

OPINION & ORDER

MICHAEL R. BARRETT, District Judge

This matter is before the Court upon Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction. (Doc. 7). Defendant Timothy Ingram, Health Commissioner, Hamilton County General Health District, has filed a Memorandum in Opposition. (Doc. 16). Defendant Richard Hodges, Director of the Ohio Department of Health, has also filed a Memorandum in Opposition. (Doc. 17). Plaintiffs filed a Reply. (Doc. 18). The parties agreed to waive oral argument on Plaintiffs' Motion as to the temporary restraining order. (Doc. 14).

For the reasons stated herein, Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction is granted as to the temporary restraining order; and held in abeyance as to the preliminary injunction.

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 based on an alleged violation of Plaintiffs' First Amendment rights to associate and engage in constitutionally protected activities, as well as an alleged violation of Plaintiffs' rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment. Plaintiffs seek to enjoin Defendants Richard Hodges, in his official capacity as the Director of the Ohio Department of Health ("ODH"), and Timothy Ingram, in his official capacity as Health Commissioner, Hamilton County General Health District ("Hamilton County"), from enforcing Ohio Revised Code § 3701.034 or terminating Plaintiffs' funding pursuant to that provision.

A. PPGOH and PPSWO

Plaintiffs operate twenty-eight health centers throughout the State of Ohio. (Doc. 7-1, Iris E. Harvey Decl. ¶ 9; Doc. 7-2, Jerry H Lawson Decl. ¶ 8). At three of the health centers, Plaintiffs provide abortion services to women who want to terminate a pregnancy. (Harvey Decl. ¶ 13; Lawson Decl. ¶ 12). Plaintiffs also engage in advocacy for a woman's right to a safe and lawful abortion. (Harvey Decl. ¶ 15; Lawson Decl. ¶ 14). Although Plaintiffs are independent entities, they are affiliates of Planned Parenthood Federation of America, Inc., which advocates for a woman's access to comprehensive reproductive health care, including abortion. (Harvey Decl. ¶ 16; Lawson Decl. ¶ 15).

At all of their health centers, Plaintiffs provide educational and counseling services to thousands of women, men, and teens, along with a wide range of health care services, including reproductive health and family-planning services and accompanying health care services, breast and cervical cancer

examinations, testing and treatment for sexually transmitted diseases ("STDs"), and relationship, parenting, and sex education programs. (Harvey Decl. ¶ 9; Lawson Decl. ¶ 8).

For over twenty years, Plaintiffs have received federally-funded grants and contracts administered by the ODH to provide these non-abortion related services.¹ Relevant to the discussion here, Plaintiffs have received funds under the following programs: (1) The Infertility Prevention Project/STD Prevention Program, a federal program that subsidizes diagnostic tests and treatments for STDs. Through this program, PPGOH provides approximately 64,300 STD tests annually and PPSWO provides approximately 3,970 STD tests annually. (Harvey Decl. ¶¶ 23-26; Lawson Decl. ¶¶ 21-24); (2) The Breast and Cervical Cancer

Project, a federal program designed to provide cancer screening and follow-up services for low-income and minority women. Through this program, Plaintiffs provide pap tests, breast exams, colposcopies, and cervical biopsies to low-income women over the age of 40 who are at risk for cancer but are not yet Medicare-eligible. (Harvey Decl. ¶¶ 27-31; Lawson Decl. ¶¶ 25-28); (3) The Minority HIV/AIDS Initiative, a federal program designed to promote HIV testing and education for racial and ethnic groups that are disproportionately impacted by the disease; and the HIV Prevention Program, a federal prevention program intended to reduce new infections, increase access to care, improve health outcomes for people living with HIV, and promote health equity. (Harvey Decl. ¶¶ 32-39; Lawson Decl. ¶¶ 29-34); (4) The Infant Mortality Initiative, a federally-funded program which provides community-based outreach and care coordination services in targeted communities to at-risk, low-income, African-American pregnant women and their families. PPGOH uses this funding for its "Healthy Moms Healthy Babies" program, which provides case management work for women before pregnancy, during pregnancy, and up to two years after the birth, including education and assistance in the areas of health, housing, nutrition, and employment. (Harvey Decl. ¶¶ 40-45); (5) The Personal Responsibility Education Program, a federal grant program designed to educate young people regarding abstinence and contraception, with the goal of reducing teen pregnancy and STD rates. Plaintiffs use this funding to provide training to staff who work with the targeted populations. (Harvey Decl. ¶¶ 46-53; Lawson Decl. ¶¶ 35-39); and (6) The Violence Against Women Act Sexual Violence Prevention Program, which aims to reduce the incidence of sexual violence through primary prevention and education. Under this program, PPSWO educates approximately 700 students in middle and high schools in Montgomery, Clark, Greene, and Preble Counties each year about healthy relationships, sexual assault recognition, and bystander intervention skills. (Lawson Decl. ¶¶ 40-45).

It is undisputed that in providing service to Ohio residents under these six programs, Plaintiffs have routinely passed audits and program reviews. (Doc. 1, ¶ 2). There is also no dispute that Plaintiffs have not used the funding they received through these programs to provide abortions.

B. Section 3701.034

Ohio Revised Code § 3701.034 was signed into law on February 21, 2016 and takes effect on May 23, 2016. Section 3701.034 will impact the funding Plaintiffs receive under the six programs listed above. Section 3701.034 identifies these programs by name and requires ODH to ensure the funds and materials that ODH receives and distributes through the 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). Under the statute, "promote" means "to advocate for, assist with, encourage, or popularize through advertising or publicity." Ohio Rev. Code § 3701.034 (A)(8).

After the passage of Section 3701.034, Plaintiffs received letters from ODH and local health departments that their current contracts under the impacted programs would be terminated. (Harvey Decl. Exs. A-J; Lawson Decl. Exs. A-G). On an annual basis, PPGOH will lose $640,000 in grant funds as well as $420,000 worth of diagnostic testing and treatment under these programs. (Harvey Decl., ¶ 5). PPSWO will lose $469,460 in grant funds annually as well as $49,500 worth of diagnostic testing and treatment. (Lawson Decl. ¶ 5).

Plaintiffs argue that Section 3701.034 violates the First Amendment by conditioning eligibility for government funds on recipients agreeing to forgo constitutionally protected speech and activities. Plaintiffs also argue that Section 3701.034 violates the Due Process Clause of the Fourteenth Amendment by placing an unconstitutional condition on a woman's right to an abortion. Finally, Plaintiffs argue that Section 3701.034 violates the Equal Protection Clause by discriminating against entities, such as Plaintiffs, who perform or "promote" abortion.

II. ANALYSIS

A. Standard of Review

Under Federal Rule of Civil Procedure 65, the purpose of a temporary restraining order "is to preserve the status quo so that a reasoned resolution of a dispute may be had." Procter & Gamble Co. v. Bankers Trust Co. , 78 F.3d 219, 227 (6th Cir.1996).

The Sixth Circuit has held that the standard for obtaining a temporary restraining order and the standard for obtaining a preliminary injunction are the same. Workman v. Bredesen , 486 F.3d 896 (6th Cir.2007). In determining whether to grant or deny a temporary restraining order, this Court must consider four factors: "(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction." City of Pontiac Retired Emps. Ass'n v. Schimmel , 751 F.3d 427, 430 (6th Cir.2014) (per curiam) (en banc) (internal quotation marks omitted).

"These factors are not prerequisites which must be met, but are interrelated considerations that must be balanced together." Northeast Ohio Coalition for Homeless and Service Employees , 467 F.3d 999, 1009 (6th Cir.2006) (quoting Radioactive Material Users, Inc. v. Griepentrog , 945 F.2d 150, 153 (6th Cir.1991) ). "For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer." Id.

B. Delay in seeking injunctive relief

Defendants argue that Plaintiffs could be denied relief based upon their delay in seeking injunctive relief alone. Plaintiffs respond that there was uncertainty as to whether ODH would interpret the statute to require the termination of all existing contracts on May 23, 2016, or whether after the effective date, the statute...