In
Planned Parenthood of Greater Ohio, Inc. v. Himes, (6th Cir., April 18, 2018), the U.S. 6th Circuit Court of Appeals held unconstitutional a 2016 Ohio law aimed at Planned Parenthood. ORC §3701.34 prohibits the Ohio Department of Health from channeling funds it receives through six non-abortion-related federal health programs to any entity that performs or promotes nontherapeutic abortions, or which is affiliated with any entity that performs or promotes such abortions. The appeals court held that the district court correctly applied the unconstitutional conditions doctrine in enjoining enforcement of the law, saying that "the unconstitutional-conditions doctrine is not limited to First Amendment rights." According to the court, the question posed in this case is
whether Ohio may require a provider to surrender the right to provide safe and lawful abortions on its own “time and dime” as a condition of participating in government programs that have nothing to do with abortion.
The court concluded:
Although Ohio women do not have a right to the programs, they do have a right not to have their access to important health services curtailed because their major abortion providers opted to protect women’s abortion rights rather than yield to unconstitutional conditions.
The court also held that the law imposes unconstitutional conditions on speech by prohibiting funds from going to any entity that
promotes abortion:
§3701.034 affects programs that have nothing to do with abortion or family planning, and seeks to impose restrictions on recipients’ speech outside the six government programs the statute funds.
Columbus Dispatch, reporting on the decision, pointed out that two of the three judges handing down the ruling were Republican appointees. It also reports that the state Attorney General's office is reviewing the decision to determine whether it should seek
en banc review or appeal to the U.S. Supreme Court.
[Thanks to Tom Rutledge and Scott Mange for the lead.]
