Cert Granted on Whether Medicaid Beneficiary Can Challenge Cutoff of Funds to Planned Parenthood

The U.S. Supreme Court yesterday granted review in Kerr v. Planned Parenthood, (Docket No. 23-1275, certiorari granted 12/18/2024) on the question of whether individual Medicaid beneficiaries have a private right of action to enforce the Medicaid Act’s any-qualified provider provision. The case arises from a challenge to South Carolina's termination of Medicaid funding to Planned Parenthood. This was Question 1 presented by the petition for certiorari, the issue on which the Supreme Court granted review. Here is the SCOTUSblog case page with links to pleadings and briefs in the case.

Sign Ordinance Restricting Anti-Abortion Protester Does Not Violate 1st Amendment

In Roswell v. Mayor and City Council of Baltimore, (D MD, Jan.19, 2024), a Maryland federal district court dismissed a suit by an anti-abortion sidewalk counselor who communicates with women entering and exiting a Planned Parenthood Clinic. A city ordinance prevented plaintiff from using A-frame signs in front of the clinic to communicate his religious convictions about abortions as well as information about alternatives to abortion. A permit to erect such signs can be obtained only by the owner of the property or an agent of the owner. Finding that the city ordinance did not violate plaintiff's free speech rights, the court said in part:

Plaintiff asks this Court to find that zoning ordinances cannot distinguish between the owners and tenants of adjacent properties utilizing A-frame signs for non-residential uses and those with no such property interest without running afoul of First Amendment principles. Fatal to Roswell’s position is the simple fact that the regulations do not “target speech based on its communicative content.” ...

The court also rejected plaintiff's free exercise of religion challenge, saying in part: 

Here, the challenged ordinances are unconcerned with religious exercise. They neither prohibit nor compel religious conduct. And even if the ordinances did burden religious exercise, a law that “incidentally burden[s] religion” does not violate the Free Exercise Clause if it is “neutral and generally applicable.”

4th Circuit Hears Oral Arguments on Planned Parenthood Funding Cutoff

The U.S. 4th Circuit Court of Appeals last Friday heard oral arguments (audio of full oral arguments) in Planned Parenthood South Atlantic v. Kerr.  The case, which is on remand from the Supreme Court, involves South Carolina's appeal of an injunction that bars it from terminating Medicaid funding to Planned Parenthood. (See prior posting.) ADF has further background on the case.

Supreme Court GVR's South Carolina Planned Parenthood Defunding Case

In Kerr v. Planned Parenthood, (Sup. Ct., Docket No. 21-1431, June 20, 2023) (Order List), the Supreme Court remanded for further consideration South Carolina's appeal of a 4th Circuit decision that barred South Carolina from terminating Medicaid funding to Planned Parenthood. The Court's action today granted certiorari, vacated the judgment below and remanded the case in light of the Court's June 8, decision in Health and Hospital Corporation of Marion Cty. v. Talevski. That case held that 42 USC §1983 may be used to enforce rights created by statutes enacted under Congress' spending power, a holding consistent with the 4th Circuit's decision below in Kerr. Here is the SCOTUSblog's case page for the Kerr case, with links to all the pleadings and briefs in the case. Reuters reports on today's Supreme Court ruling.

Anti-Abortion Sidewalk Counselor Challenges Sign Permit Requirement

Suit was filed this week in a Maryland federal district court alleging that Baltimore's sign permit ordinance violates plaintiff's free speech and free exercise rights. The complaint (full text) in Roswell v. City of Baltimore, (D MD, filed 10/10/2022), seeks a preliminary injunction to prevent the city from requiring plaintiff to obtain permits in order to use A-frame signs when engaging in religiously-motivated sidewalk anti-abortion counseling at a Planned Parenthood facility. Thomas More Society issued a press release announcing the filing of the lawsuit.

School Lacks Standing To Sue For Students' and Parents' Distress From Anti-Abortion Pickets

In Nicdao v. Two Rivers Public Charter School, (DC Ct. App., June 9, 2022), the District of Columbia's local Court of Appeals held that a school's suit for intentional infliction of emotional distress should be dismissed for lack of standing.  At issue was intrusive protests by three individuals who were opposing the construction of a Planned Parenthood clinic next door to the school.  The court held that the school lacked third-party standing to sue on behalf of parents and students who were injured. Financial hurdles making it difficult for the injured parties to sue are insufficient here justify third-party standing. The court also dismissed plaintiff's private nuisance and conspiracy claims. Liberty Counsel issued a press release announcing the decision.

Supreme Court Dismisses Cert. Grants On Title X Rule As HHS Considers Repeal

As previously reported, in February the U.S. Supreme Court granted certiorari in three related cases challenging a Trump Administration rule promulgated by the Department of Health and Human Services in March 2019. Among other things, the rule imposes new restrictions on abortion referrals by health care providers receiving Title X family planning funds. It effect was to cut off millions of federal dollars to Planned Parenthood. In April, however, the Biden Administration issued a proposed rule that would reverse the Trump Administration change in policy. (See prior posting.) In light of that, and the Government's assurance that it will continue to enforce the Trump Administration rules until they are changed (except in Maryland where an injunction is in force), the Supreme Court yesterday, by a vote of 6-3, dismissed the certiorari petitions. (American Medical Association v. Becerra, Docket No. 20-429, Becerra v. Mayor and City Council of Baltimore, Docket No. 20-454, Oregon v. Becerra, Docket No. 20-539, cert. dismissed 5/17/2021) (Order List.) Justices Thomas, Alito and Gorsuch would not have dismissed the petitions. SCOTUSblog reports on the Court's action.

5th Circuit En Banc Holds Medicaid Patients Cannot Challenge Planned Parenthood Defunding

In a procedurally complex holding, the U.S. 5th Circuit Court of Appeals en banc in Planned Parenthood of Greater Texas Family Planning and Preventive Health Services, Inc. v. Kauffman, (5th Cir., Nov. 23, 2020), vacated a preliminary injunction that had prevented Texas from terminating its Medicaid contracts with Planned Parenthood. Eleven of the 16 judges joined the majority opinion in full.  Three others joined it in part. Two dissented. The termination was prompted by a controversial video from a pro-life organization involving procurement of fetal tissue for research. In vacating the injunction, the majority said in part:

[T]he district court grant[ed] the Providers and Individual Plaintiffs’ [who were Medicaid patients] motion for a preliminary injunction and prohibit[ed] the termination of the Providers’ Medicaid provider agreements. The district court held that § 1396a(a)(23) granted rights to the Individual Plaintiffs upon which a § 1983 action challenging the OIG’s termination decision could be based. The district court concluded ... [that] the OIG “did not have prima facie . . . evidence, or even a scintilla of evidence, to conclude the bases of termination set forth in the Final Notice merited finding the . . . Providers were not qualified.” This appeal ensued.

A three-judge panel of this court held ... that the Individual Plaintiffs [Medicaid patients] could maintain a § 1983 suit.... We granted en banc review.

The preliminary injunction issued by the district court was based solely on the claims of the Individual Plaintiffs. The district court did not consider whether the Providers were entitled to a preliminary injunction. The question before us is whether the Individual Plaintiffs may bring a § 1983 suit to contest the State’s determination that the Providers were not “qualified” providers.... We hold that they may not. We accordingly vacate the preliminary injunction.

Because the district court did consider the Providers’ claims, no aspect of those claims is before us in this interlocutory appeal. Accordingly, we do not reach an issue addressed by JUDGE HIGGINSON’s opinion concurring in part and dissenting in part, which is whether the Medicaid agreements of entities affiliated with PP Gulf Coast were properly terminated.

UPDATE: Law & Crime reports on the decision.

6th Circuit: Street Near Planned Parenthood Clinic Is Traditional Public Forum

In Brindley v. City of Memphis, (6th Cir., July 24, 2019), the U.S. 6th Circuit Court of Appeals held that a street adjacent to a Planned Parenthood clinic is a traditional public forum even though the street was originally privately owned.  The court said it is enough that the street looks and functions like a public street. Also the street was dedicated as a public right of way. Thus the court reversed and remanded a district court's denial of a preliminary injunction to a pro-life activist who wanted access to the street. [Thanks to Tom Rutledge for the lead.]

9th Circuit: New Title X Limits Remain In Effect For Now

Earlier this month, the U.S. 9th Circuit Court of Appeals voted to vacate the 3-judge panel's decision in State of California v. Azar, and to grant en banc review of whether the Trump Administration's new regulations on family planning grants may go into effect. The new rules bar recipients of family planning grants under Title X from referring clients for abortions. They also ban clinics that receive Title X funds from sharing office space with abortion providers. Three district courts had enjoined implementation of the new rules, but a 3-judge panel of the 9th Circuit had granted a stay of the injunctions, allowing the new rules to go into effect. (See prior posting.) While it was widely reported that the court's action earlier this month granting en banc review had reinstated the district court injunctions, apparently that was not so because a week later in State of  California v. Azar, (9th Cir., July 11, 2019), the en banc court, in a 7-4 opinion, said:

Pursuant to prior order of the Court upon granting reconsideration en banc, the three-judge panel Order on Motions for Stay Pending Appeal in these cases was ordered not be cited as precedent by or to any court of the Ninth Circuit. However, the order granting reconsideration en banc did not vacate the stay order itself, so it remains in effect. Thus, the motions for administrative stay remain pending and were not mooted by the grant of reconsideration en banc.

After due consideration of the emergency motions, the motions for administrative stay of the three-judge panel order are DENIED.

Liberty Counsel, reporting on the decision, says that the new Title X rules will block $50 to $60 million in grants to Planned Parenthood that would have been used for birth control, testing for sexually transmitted diseases, and cancer screenings.

6th Circuit En Banc Upholds Planned Parenthood Funding Cut-Off

In Planned Parenthood of Greater Ohio v. Hodges, (6th Cir., March 12, 2019), the U.S. 6th Circuit Court of Appeals, sitting en banc, by a vote of 11-6 upheld an Ohio law which cuts off state funding for Planned Parenthood. At issue was the cut-off of funding for two Planned Parenthood health centers because they are affiliated with an "entity that performs or promotes nontherapeutic abortions." The majority explained, in part:

As the district court saw it, the Ohio law imposes two unconstitutional conditions on Planned Parenthood. It denies the organization funding if it continues to perform abortions— what the court perceived to be a due process violation. And the law denies the organization funding if it continues to promote abortion—what the court perceived to be a free speech violation. To prevail, Planned Parenthood must show that both limitations—the conduct and speech requirements—violate the U.S. Constitution. Ohio may deny funding to Planned Parenthood in other words if either limitation satisfies the Constitution. Because the conduct component of the Ohio law does not impose an unconstitutional condition in violation of due process, we need not reach the free speech claim.

Judge White's dissent (joined by 5 others) argued:

The majority avoids this straightforward application of the unconstitutional-conditions doctrine primarily by adopting an unprecedented rule that abortion providers—entities that are necessary to ensure a woman’s right to safe abortions—cannot prevail in challenging the Statute. An abortion provider’s constitutional right may be derivative of the patient’s right—but it is a right nonetheless.

Politico reports on the decision. [Thanks to Tom Rutledge for the lead.]

HHS Issues Final Rule Changes For Title X Family Planning Programs

In a 312-page release (full text) issued on Friday, the Department of Health and Human Services issued final rules revising regulation of its Title X family planning program. The new rules are scheduled to take effect 60 days after their publication in the Federal Register.  According to the release:

This rule ... will ensure compliance with, and enhance implementation of, the statutory requirement that none of the funds appropriated for Title X may be used in programs where abortion is a method of family planning, as well as related statutory requirements.....  The rule also clarifies that provision of family planning services under Title X may be available under the good reason exception at the discretion of the project director for women denied coverage for contraceptives if the sponsor of their health plan exercises a religious or moral exemption recognized by the Department.

The new rules, according to Politico:

could effectively cut off tens of millions of federal family planning dollars to Planned Parenthood and steer some of that funding towards anti-abortion, faith-based care providers....

It would ... bar Planned Parenthood and other health care providers that accept the funding from making any abortion referrals or performing abortions — regardless of the funding source — at the same facilities where they provide Title X services like birth control, mammograms and cancer screenings.

One of the rule changes eliminates the requirement that Title X programs provide abortion referral if requested.  The release says that this requirement conflicted with statutes protecting conscience in health care. [Thanks to Scott Mange for the lead.]

Wisconsin Supreme Court Candidate Says Calls For Recusal Promise Are Attacks On His Religious Beliefs

Milwaukee Journal Sentinel reports on the controversy surrounding 2005- 2006 law school blog posts of a state appeals court judge Brian Hagedorn who is a candidate for the state Supreme Court in the upcoming April 2 election in Wisconsin.  As reported in an earlier Journal-Sentinel article, the posts sharply criticized the U.S. Supreme Court's ruling overturning anti-sodomy laws. saying they could lead to the legalization of bestiality. Hagedorn also attacked Planned Parenthood as an organization that was more devoted "to killing babies than to helping women." Critics have called for Hagedorn to promise to recuse himself in cases involving same-sex relationships and Planned Parenthood. In a radio interview, Hagedorn, an evangelical Christian, says that the criticism of his posts and calls for recusal are attacks on his religious beliefs.

Supreme Court Denies Review In Attempted Cutoff of Medicaid Funds To Planned Parenthood

Over the dissent of Justices Thomas, Alito and Gorsuch, the U.S. Supreme Court today denied certiorari in Gee v. Planned Parenthood of Gulf Coast, Inc., (cert. denied, 12/10/2018). (Order list with dissenting opinion by Thomas, J.)  In the case, the 5th Circuit in a 2-1 decision (full text) upheld the district court's preliminary injunction against the state of Louisiana's termination of Medicaid contracts with Planned Parenthood. At issue in the case is whether Medicaid recipients have a private right of action to challenge the state's action, (SCOTUSblog case page).

Challenge To HHS Family Planning Grant Criteria Fails

In Planned Parenthood of Wisconsin, Inc. v. Azar, (D DC, July 16, 2018), the D.C. federal district court dismissed a challenge to an Announcement by the Department of Health and Human Services brought by three Planned Parenthood affiliates and the National Family Planning and Reproductive Health Association.  Plaintiffs particularly object to new language in criteria for funding of voluntary family planning projects.  The new language includes "cooperation with faith based organizations" as one factor to be considered. The court first concluded that the Announcement is not yet subject to judicial review because it is not final agency action. The court went on to hold that even if it reached the merits of the challenge, the Announcement would be valid, saying in part:

such linkages [to faith-based groups] may benefit Title X providers by providing connections to communities in need of Title X services and strengthening enrollment and awareness programming, among other benefits.... The Announcement’s low-key encouragement to partner with community and faith-based organizations is not contrary to law, or arbitrary and capricious.

Courthouse News Service reports on the decision.

Settlement Reached In Suit Over Sale of Fetal Tissue

The Orange County, California District Attorney announced last week that it has obtained a settlement in an unlawful business practice lawsuit against two related companies that violated California and federal law provisions against sale for profit of fetal tissue.  The suit, California v. DV Biologics, LLC, was filed in California state court in October 2016. (Full text of complaint.) It asserts that the companies "obtained aborted fetus donations from Planned Parenthood and turned those donations into a profit-driven business." Under the settlement,  DV Biologics and DaVinci Biosciences will disgorge $7.78 million in profits which they will donate to  a non-profit academic and scientific teaching institution affiliated with a major U.S. medical school.  The companies also will pay civil penalties of $195,000 and will cease doing business in California.  Los Angeles Times reports on the settlement.

Senate Judiciary Chairman Refers Planned Parenthood Groups For Possible Prosecution

U.S. Senator Chuck Grassley, Chairman of the Senate Judiciary Committee announced last week that he is referring several Planned Parenthood affiliates and companies, as well as the Planned Parenthood Federation of America, to the FBI and the Department of Justice for investigation and possible prosecution for conspiracy to violate 42 USC §289g-2, the law that bans buying or selling of human fetal tissue. In a letter (full text) to the Attorney General and Director of the FBI, Grassley indicated he was attaching a lengthy report (full text) from the Committee's Majority Staff.