States have been allowed to refuse to subsidize abortions for years. But the problem with refusing to give preventive health funds to Planned Parenthood on those grounds, the court ruled, is that those services are completely unrelated to abortions. Therefore, the court found, Ohio has unfairly punished Planned Parenthood compared to other grant recipients simply because the health provider advocates for abortion rights “on its own time and dime.”
The panel ruled unanimously that this is a violation of Planned Parenthood’s freedom of speech and creates an “unconstitutional condition.” Judge Helene N. White, a George W. Bush appointee, wrote that the government “may not require the surrender of constitutional rights as a condition of participating in an unrelated government program.”
Joining her were Judge Eugene E. Siler Jr., a George H.W. Bush appointee, and Judge Eric L. Clay, a Bill Clinton appointee.
“Ohio’s important interests in preferring childbirth to abortion, promoting life, and not subsidizing abortions have only the most tenuous relationship to” the 2016 law, White wrote. “Precluding Plaintiffs from funding under the six federal preventive-health programs that have nothing to do with abortion does little to promote these interests.”
The law was passed in 2016 after three “sting” videos created by antiabortion activists went viral the previous summer. The videos purported to show Texas Planned Parenthood employees discussing the illegal sale of fetal tissue, which the organization staunchly denied. The two activists had gained entry to Planned Parenthood Gulf Coast by feigning interest in a research partnership involving donated fetal tissue, which is legal in Texas.
The videos, which were later found by various government agencies and judges to be manipulated, enraged conservatives and antiabortion advocates, spurring legislation across the country seeking to defund Planned Parenthood in retaliation.
“The bill is not about women’s health care,” Ohio’s Republican Senate president, Keith Faber, said on the day the bill passed the Senate, according to the Cleveland Plain Dealer. “It’s about whether we’re going to fund an organization that has its senior leadership nationally, who by the way gets money from Ohio, who believe it’s good public policy to chop up babies in a way that makes their parts more valuable so they can buy a Lamborghini.”
Gov. John Kasich (R) signed the bill into law in February 2016, despite the fact that multiple federal and state investigations, including in Ohio, found no evidence of the sale of fetal tissue at Planned Parenthood. In fact, the two antiabortion activists were indicted by a Houston grand jury for infiltrating Planned Parenthood with fake IDs and soliciting the sale of fetal tissue, charges that were later dropped on technicalities.
Planned Parenthood of Greater Ohio and Planned Parenthood of Southwest Ohio sued the state’s health department months after the law was passed. They succeeded in obtaining an injunction from a U.S. District Court in September 2016. Had the law not been blocked, it would have cut more than $1.3 million in funding from Planned Parenthood, preventing it from providing various free health services to low-income patients.
According to the 6th Circuit ruling, the Ohio Planned Parenthood plaintiffs together administered more than half of all sexually transmitted disease tests in Ohio under the federally funded STD Prevention Program. Roughly 75 percent of Planned Parenthood of Southwest Ohio’s patients and 40 percent of Planned Parenthood of Greater Ohio’s patients are low-income. Many of them live in “medically underserved areas,” where alternative health care providers would be difficult to find in the event that the patients were unable to receive services at Planned Parenthood because of the funding cut, the 6th Circuit said.
The Ohio Attorney General’s Office said in an email to The Washington Post that it is reviewing the ruling and will determine whether to ask for an en banc review or to appeal to the U.S. Supreme Court.
In its legal arguments, the attorney general’s office asserted that Planned Parenthood “seeks a constitutional guarantee to public funding — a guarantee that forces Ohio, against its own judgment, to give public money to large abortion providers. The Constitution contains no such guarantee.”
The 6th Circuit said it was “unpersuaded” by the state, that the state “mischaracterized” Planned Parenthood’s argument and presented no evidence that the law served a legitimate interest in preventing taxpayer-funded abortions.
“We are thrilled that today’s decision will safeguard our patients’ access to care,” Jerry Lawson, CEO of Planned Parenthood of Southwest Ohio, said in a statement. “This victory is critically important for tens of thousands of Ohioans across our state that rely on Planned Parenthood for care and education each year. Our patients deserve to have their health care come before political agendas. This isn’t about politics; it’s about access to health care.”
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