Case: 1:16-cv-00539-MRB Doc #: 60 Filed: 08/12/16 Page: 1 of 23 PAGEID #: 2122

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Planned Parenthood of
Greater Ohio, et al.,
Plaintiffs,

Case No. 1:16cv539

v.

Judge Michael R. Barrett

Richard Hodges, et al.,
Defendants.
OPINION & ORDER
This matter is before the Court upon Plaintiffs’ Motion for Preliminary Injunction
(Doc. 7); and Motions for Judgment on the Merits and a Permanent Injunction (Docs.
38, 47). These motions have been fully briefed (Docs. 49, 53, 55); and on August 2,
2016, the Court held a hearing on the motions (Doc. 57).
For the reasons stated herein, Plaintiffs’ Motion for Preliminary Injunction (Doc.
7); and Motions for Judgment on the Merits and a Permanent Injunction (Docs. 38, 47)
are GRANTED.
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
claiming that Ohio Revised Code § 3701.034 violates the First Amendment, as well as
the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment.
On May 23, 2016, this Court temporarily restrained the enforcement of Section
3701.034. (Doc. 19). Plaintiffs now seek judgment on the merits and to permanently

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enjoin Defendant Richard Hodges, in his official capacity as the Director of the Ohio
Department of Health (“ODH”), from enforcing Section 3701.034.
Section 3701.034 requires ODH to ensure that the federal funds and materials
which ODH receives and distributes under six specific programs are either “not used to
do any of the following” or “not distributed to entities that 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).
Plaintiffs operate twenty-eight health centers in Ohio. (Doc. 40-1, Iris E. Harvey
1st Decl. ¶ 9; Doc. 40-2, Jerry Lawson 1st Decl. ¶ 8). At three of the health centers,
Plaintiffs provide abortion services. (Harvey 1st Decl. ¶ 13; Lawson 1st Decl. ¶ 12).
Plaintiffs also advocate for a woman’s right to abortion. (Harvey 1st Decl. ¶ 15; Lawson
1st Decl. ¶ 14). In addition, Plaintiffs are affiliates of Planned Parenthood Federation of
America, Inc., which advocates for a woman’s access to comprehensive reproductive
health care, including abortion. (Harvey 1st Decl. ¶ 16; Lawson 1st Decl. ¶ 15). There
is no dispute that Section 3701.034 applies to Plaintiffs.
For a number of years, Plaintiffs have received federal funds and materials
distributed by ODH and Ohio county health departments under the six health and

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education programs which are covered by Section 3701.034: (1) STD Prevention
Program (federal program which subsidizes diagnostic tests and treatments for certain
sexually transmitted diseases); (2) Minority HIV/AIDS Initiative (federal program
designed

to

provide

HIV

testing

and

education

for

communities

that

are

disproportionately affected by HIV); (3) Personal Responsibility Education Program
(federal program designed to educate young people about abstinence and
contraception, with the goal of reducing teen pregnancy and STD rates); (4) Breast and
Cervical Cancer Prevention Program (federal program which subsidizes cancer
screening and follow-up services for low-income and minority women); (5) Ohio Infant
Mortality Reduction Initiative (federally-funded neighborhood outreach and care
coordination program which assists pregnant, at-risk African-American women and their
families); (6) Violence Against Women Act Sexual Violence Prevention Program
(federally-funded program which aims to reduce sexual violence through primary
prevention and education). (Harvey 1st Decl. ¶¶ 12, 28, 32, 47; Lawson 1st Decl. ¶¶
11, 26, 35, 40).
In many instances, Plaintiffs were chosen over other entities to receive these
funds and materials as part of a competitive grant process. (Harvey 1st Decl. ¶ 12;
Lawson 1st Decl. ¶ 11).

Plaintiffs have also passed all state and local audits and

program reviews. (Harvey 1st Decl. ¶ 12; Lawson 1st Decl. ¶ 11). However, after the
passage of Section 3701.034, Plaintiffs received letters from ODH and local health
departments which stated that their current contracts under the impacted programs
would be terminated. (Harvey 1st Decl., Exs. A-J; Lawson 1st Decl. Exs. A-G).
In their Complaint, Plaintiffs claim that Section 3701.034 is unconstitutional

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because as a condition of receiving government funds, recipients must abandon their
right to engage in free speech and association protected by the First Amendment and
their right to provide abortion services protected by the Due Process Clause. Plaintiffs
also claim that Section 3701.034 violates the Equal Protection Clause by discriminating
against entities, such as Plaintiffs, who engage in this constitutionally protected activity.
II. ANALYSIS
A. Standard of Review
Under Federal Rule of Civil Procedure 65: “Before or after beginning the hearing
on a motion for a preliminary injunction, the court may advance the trial on the merits
and consolidate it with the hearing.” Fed. R. Civ. P. 65(a)(2). At the hearing on August
2, 2016, the parties agreed that Plaintiffs’ request for preliminary injunctive relief should
be consolidated with a final resolution on the merits of Plaintiffs’ request for permanent
injunctive relief. The parties also agreed that the Court can determine the propriety of
Plaintiffs' requested permanent injunction solely on the basis of the record before the
Court and the evidence presented in conjunction with the preliminary injunction hearing.
“A party is entitled to a permanent injunction if it can establish that it suffered a
constitutional violation and will suffer continuing irreparable injury for which there is no
adequate remedy at law.” Lee v. City of Columbus, Ohio, 636 F.3d 245, 249 (6th Cir.
2011) (quoting Wedgewood Ltd. P'ship I v. Twp. of Liberty, Ohio, 610 F.3d 340, 349 (6th
Cir. 2010)). However, “[i]njunctive relief involving matters subject to state regulation
may be no broader than necessary to remedy the constitutional violation.” Kallstrom v.
City of Columbus, 136 F.3d 1055, 1069 (6th Cir. 1998) (citations omitted).

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B. First Amendment: Freedom of Speech and Association
Plaintiffs argue that under the unconstitutional conditions doctrine, Section
3701.034 violates Plaintiffs’ First Amendment rights of freedom of speech and
association.
The First Amendment, applicable to the States through the Due Process Clause
of the Fourteenth Amendment, provides that “Congress shall make no law . . . abridging
the freedom of speech . . . or the right of the people peaceably to assemble.” U.S.
Const. amend. I; Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925).
“The First Amendment extends beyond the right to speak to encompass the ‘right of
expressive association,’ i.e., the ‘right to associate for the purpose of speaking.’” Miller
v. City of Cincinnati, 622 F.3d 524, 537 (6th Cir. 2010) (quoting Rumsfeld v. Forum for
Academic & Institutional Rights, Inc., 547 U.S. 47, 68, 126 S.Ct. 1297, 164 L.Ed.2d 156
(2006)). 1
However, before any further discussion of the First Amendment or the
unconstitutional conditions doctrine, the Court must address Defendant’s two-part
argument that it is unnecessary for the Court to rule on Plaintiffs’ speech and
association claims.
First, Defendant argues that in enacting Section 3701.034, Ohio’s legislature
made a policy choice regarding public funding of nontherapeutic abortions, and that
policy choice should stand.

Defendant is correct that state legislatures have “wide

latitude in choosing among competing demands for limited public funds.” Maher v. Roe,

1

The parties have not questioned that the speech proscribed by Section 3701.034
(“Promot[ing] nontherapeutic abortions”) or the type of association proscribed by Section
3701.34 (“Becom[ing] or continu[ing] to be an affiliate of any entity that perfoms or promotes
nontherapeutic abortions”) falls within the protections of the First Amendment.
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432 U.S. 464, 479, 97 S.Ct. 2376, 2385, 53 L.Ed.2d 484 (1977). However, this wide
latitude to set spending priorities exists “[s]o long as legislation does not infringe on
other constitutionally protected rights.” National Endowment for the Arts v. Finley, 524
U.S. 569, 588, 118 S. Ct. 2168, 2179, 141 L. Ed. 2d 500 (1998) (citing Regan v.
Taxation With Representation of Washington, 461 U.S. 540, 549, 103 S. Ct. 1997,
2002, 76 L. Ed. 2d 129 (1983)); see also Planned Parenthood of Cent. & N. Ariz. v.
Arizona, 718 F.2d 938, 942-44 (9th Cir. 1983) (although the state need not fund
abortions, the state “may not unreasonably interfere with the right of Planned
Parenthood to engage in abortion or abortion-related speech activities”)).
Second, Defendant argues that because Plaintiffs cannot show that the
provisions of Section 3701.034 which regulate conduct are unconstitutional, the doctrine
of constitutional avoidance precludes this Court’s review of Plaintiffs’ speech and
association claims. This is a misapplication of the constitutional avoidance doctrine. As
the Supreme Court has explained, the constitutional avoidance doctrine “[i]s a tool for
choosing between competing plausible interpretations of a statutory text, resting on the
reasonable presumption that Congress did not intend the alternative which raises
serious constitutional doubts.” Clark v. Martinez, 543 U.S. 371, 381-82, 125 S. Ct. 716,
724-25, 160 L. Ed. 2d 734 (2005) (citing Rust v. Sullivan, 500 U.S. 173, 191, 111 S.Ct.
1759, 114 L.Ed.2d 233 (1991) and Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645
(1988)).

Defendant concedes elsewhere, in a footnote, that the “promoting

nontherapeutic abortions” provision can be severed from the “providing nontherapeutic
abortions.” (Doc. 36, PAGEID # 550) (citing Free Enter. Fund v. Pub. Co. Accounting

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Oversight Bd., 561 U.S. 477, 508, 130 S. Ct. 3138, 3161, 177 L. Ed. 2d 706 (2010)
(“[W]hen confronting a constitutional flaw in a statute, we try to limit the solution to the
problem, severing any problematic portions while leaving the remainder intact.”
(quotations and citation omitted)). Therefore, the Court concludes that it is proper to
rule on Plaintiffs’ speech and association claims.
Plaintiffs argue that by categorically disqualifying entities that promote
nontherapeutic abortions or affiliate with entities that perform or promote nontherapeutic
abortions, Section 3701.034 imposes unconstitutional conditions on those entities’
speech and association rights.
Under the “modern ‘unconstitutional conditions’ doctrine . . . the government
‘may not deny a benefit to a person on a basis that infringes his constitutionally
protected . . . freedom of speech’ even if he has no entitlement to that benefit.” Bd. of
Cnty. Comm'rs v. Umbehr, 518 U.S. 668, 674, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996).
The Supreme Court has explained that:
For at least a quarter-century, this Court has made clear that even though
a person has no ‘right’ to a valuable governmental benefit and even
though the government may deny him the benefit for any number of
reasons, there are some reasons upon which the government may not
rely. It may not deny a benefit to a person on a basis that infringes his
constitutionally protected interests—especially, his interest in freedom of
speech. For if the government could deny a benefit to a person because
of his constitutionally protected speech or associations, his exercise of
those freedoms would in effect be penalized and inhibited. This would
allow the government to ‘produce a result which (it) could not command
directly.’ Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2
L.Ed.2d 1460.
Such interference with constitutional rights is
impermissible.
Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 2697, 33 L. Ed. 2d 570 (1972);
see also Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2598, 186 L. Ed.

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2d 697 (2013) (“A predicate for any unconstitutional conditions claim is that the
government could not have constitutionally ordered the person asserting the claim to do
what it attempted to pressure that person into doing.”) (citing Rumsfeld v. Forum for
Acad. & Institutional Rights, Inc., 547 U.S. 47, 59-60, 126 S. Ct. 1297, 1307, 164 L. Ed.
2d 156 (2006)).
There is no dispute that, in this instance, Ohio could not have constitutionally
legislated a direct ban on either promoting nontherapeutic abortions or affiliating with an
entity that performs or promotes nontherapeutic abortions. Such a ban on Plaintiffs’
speech or association would have been a violation of the First Amendment.

See

Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 829, 115 S. Ct.
2510, 2516, 132 L. Ed. 2d 700 (1995) (“When the government targets not subject
matter, but particular views taken by speakers on a subject, the violation of the First
Amendment is all the more blatant.”) (citing R.A.V. v. St. Paul, 505 U.S. 377, 391, 112
S.Ct. 2538, 120 L.Ed.2d 305 (1992)).
However, Defendant, citing Maher v. Roe, 432 U.S. 464, 97 S.Ct. 237, 653
L.Ed.2d 484 (1977), argues that Ohio could refuse to directly fund abortion services,
and therefore it necessarily follows that Ohio can refuse to provide funding to abortion
providers for separate services which are not related to abortion.
Defendant is correct that Maher made it clear that states are free to “make a
value judgment favoring childbirth over abortion, and . . . implement that judgment by
the allocation of public funds.” Maher, 432 U.S. at 474. As a result, for a long time,
Ohio has had legislation in place which bars the use of public funds to directly fund
abortion services.

See, e.g., Ohio Rev. Code § 5101.56 (providing that “[u]nless

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required by the United States Constitution or by federal statute, regulation, or decisions
of federal courts, state or local funds may not be used for payment or reimbursement for
abortion services” unless certain circumstances apply). Whether Ohio can refuse to
provide funding for non-abortion services to abortion providers is a different question,
and is one which requires the application of the unconstitutional conditions doctrine.
In Rust v. Sullivan, 500 U.S. 173, 197, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991),
the Supreme Court explained that “our ‘unconstitutional conditions' cases involve
situations in which the Government has placed a condition on the recipient of the
subsidy rather than on a particular program or service, thus effectively prohibiting the
recipient from engaging in the protected conduct outside the scope of the federally
funded program.”
Applying the unconstitutional conditions doctrine in Rust, the Supreme Court
upheld regulations promulgated under Title X of the Public Health Service Act, which
provides federal funding for family-planning services and authorizes the Secretary of
Health and Human Services 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.”

Id. at 178 (quoting 42 U.S.C. § 300(a)).

The

regulations prohibited these Title X funds from being used “in programs where abortion
is a method of family planning.” Id. at 178.
The Supreme Court explained this restriction on the subsidization of abortionrelated speech contained in the regulations was permissible:
Title X expressly distinguishes between a Title X grantee and a Title X
project. The grantee, which normally is a health care organization, may
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receive funds from a variety of sources for a variety of purposes. The
grantee receives Title X funds, however, for the specific and limited
purpose of establishing and operating a Title X project. The regulations
govern the scope of the Title X project's activities and leave the grantee
unfettered in its other activities. The Title X grantee can continue to
provide abortion related services, and engage in abortion advocacy; it
simply is required to conduct those activities through programs that are
separate and independent from the project that receives Title X funds.
Id. at 196 (emphasis in original). The Supreme Court concluded:
By requiring that the Title X grantee engage in abortion-related activity
separately from activity receiving federal funding, Congress has . . . not
denied it the right to engage in abortion-related activities. Congress has
merely refused to fund such activities out of the public fisc, and the
Secretary has simply required a certain degree of separation from the Title
X project in order to ensure the integrity of the federally funded program.
Id. at 198.
In support of its position that Section 3701.034 does not create an
unconstitutional condition, Defendant relies on Planned Parenthood Association of
Hidalgo County Texas, Inc. v. Suehs, 692 F.3d 343 (5th Cir. 2012). At issue in Suehs
was a program created by the Texas Legislature, the Women’s Health Program
(“WHP”), which was designed to “expand access to preventative health and family
planning services for women.” Id. at 346. The WHP denied funding to entities that
performed or promoted elective abortions. Id. at 347.
Defendant points out that even though Texas’s funding condition applied to
program participants, rather than just program activities, the Fifth Circuit found the
funding restriction was proper. However, there are key differences between Section
3701.034 and the WHP, as the Fifth’s Circuit explanation of its holding illustrates:
Texas's restriction on promoting elective abortions directly regulates the
content of the WHP as a state program. The policy expressed in the WHP
is for public funds to subsidize non-abortion family planning speech to the
exclusion of abortion speech. § 1.19(b), 2011 Tex. Gen. Laws at 335.
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Texas's authority to promote that policy would be meaningless if it were
forced to enlist organizations as health care providers and messagebearers that were also abortion advocates. The authority of Texas to
disfavor abortion within its own subsidized program is not violative of the
First Amendment right, as interpreted by Rust v. Sullivan. Consequently,
Texas's choice to disfavor abortion does not unconstitutionally penalize
the appellees' speech.
Id. at 350. In contrast, Section 3701.034 is not a direct regulation of the content of a
state program. Instead, Section 3701.034 places the speech-based funding condition
on the recipient of the funds for activities conducted outside the six programs impacted
by Section 3701.034.

As a result, Section 3701.034 does not “leave the grantee

unfettered in its other activities.” Rust, 500 U.S. at 196. Moreover, Section 3701.034
lacks the policy which was specifically expressed in the WHP.

Stated differently,

Section 3701.034 is silent regarding the use of public funds to subsidize non-abortion
family planning speech to the exclusion of abortion speech.

As such, there is “no

programmatic message of the kind recognized in Rust and which sufficed there to allow
the Government to specify the advice deemed necessary for its legitimate objectives.”
Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 548, 121 S. Ct. 1043, 1052, 149 L. Ed.
2d 63 (2001).
Next, Defendant argues that Section 3701.034 does not result in an
unconstitutional burden on Plaintiffs’ First Amendment rights because it does not
compel any speech. However, that is not the relevant distinction. The Supreme Court
has explained that an unconstitutional condition is not limited to those situations where
the condition is not relevant to the objectives of the program, or “when the condition is
actually coercive, in the sense of an offer that cannot be refused.” Agency for Int'l Dev.
v. Alliance for Open Soc'y Int'l, 133 S.Ct. 2321, 2328, 186 L.Ed.2d 398 (2013). Instead,

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“the relevant distinction . . . is between conditions that define the limits of the
government spending program—those that specify the activities [the legislature] wants
to subsidize—and conditions that seek to leverage funding to regulate speech outside
the contours of the program itself.” Id.
Here, the conditions imposed by Section 3701.034 seek to leverage funding to
regulate speech outside the contours of the six programs impacted by Section
3701.034. There is no dispute that these six programs subsidize tests and treatment for
STDs, cancer screenings for women, HIV testing and education, measures to reduce
infant mortality, education for teens regarding abstinence and contraception, and the
prevention of sexual violence. There is nothing within the scope of these programs
related to performing abortions, promoting abortions or affiliating with an entity that
performs or promotes abortions.

Therefore, under the unconstitutional conditions

doctrine, Section 3701.034 cannot condition funding for these programs based on a
recipient’s exercise of the right to free speech or association outside of these programs.
Accord Planned Parenthood of Mid–Mo. & E. Kan., Inc. v. Dempsey, 167 F.3d 458, 462
(8th Cir. 1999) (“Legislation that simply dictates the proper scope of government-funded
programs is constitutional, while legislation that restricts protected grantee activities
outside government programs is unconstitutional”); Hill v. Kemp, 645 F. Supp. 2d 992,
1002 (N.D. Okla. 2009) (“The State is free to fund adoption services to exclusion of any
abortion-related services, but it may not deny [the plaintiff] funding conditioned upon
[the plaintiff’s] waiver of its right to engage in protected speech activity with its private
funds.”).
Finally, taking somewhat of a different tact, Defendant calls attention to the fact

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that some of the grants impacted by Section 3701.034 require recipients of the grant to
use ODH’s curriculum for their training programs. Defendant explains that because
Ohio has developed a particular message which it has approved as a part of these
programs, Section 3701.034 avoids confusing this message by eliminating the potential
that someone offering a contrary message will be among Ohio’s messengers.
Defendant relies on the Supreme Court’s decision in Rosenberger v. Rector &
Visitors of Univ. of Virginia, which held: “When the government disburses public funds to
private entities to convey a governmental message, it may take legitimate and
appropriate steps to ensure that its message is neither garbled nor distorted by the
grantee.” 515 U.S. 819, 833, 115 S. Ct. 2510, 2519, 132 L. Ed. 2d 700 (1995) (citing
Rust, 500 U.S. at 196-200). This principle has its origins in Rust v. Sullivan, which is
considered to have been one of the first cases recognizing the government speech
doctrine. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541, 121 S.Ct. 1043, 149
L.Ed.2d 63 (2001) (“The Court in Rust did not place explicit reliance on the rationale that
the counseling activities of the doctors under Title X amounted to governmental speech;
when interpreting the holding in later cases, however, we have explained Rust on this
understanding.”). However, this principle is not applicable here because as explained
above, the programs impacted by Section 3701.034 do not convey any message related
to abortion. Therefore, there is no potential that Ohio’s message of favoring childbirth
over abortion will be garbled or distorted.

Moreover, the record is devoid of any

evidence showing that in implementing these programs in the past, Plaintiffs have
actually conveyed a message related to abortion. 2
2

Defendant only argues as a hypothetical that it is possible for pregnant patients who go
to Planned Parenthood to receive services under one of the programs impacted by Section
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Defendant makes a somewhat related argument that the funding provided by the
programs impacted by Section 3701.034 frees up other general funds for Plaintiffs to
use for other purposes, such as promoting abortions. Citing Holder v. Humanitarian
Law Project, 561 U.S. 1, 31, 130 S. Ct. 2705, 2725, 177 L. Ed. 2d 355 (2010),
Defendant explains “[m]oney is fungible” and therefore Plaintiffs’ education programs
are inextricably intertwined with its abortion business. Defendant explains further that
this confuses Ohio’s message of favoring childbirth over abortion.
To begin, the Supreme Court has rejected “the assumption as a general matter”
that government funding “will simply supplant private funding, rather than pay for new
programs or expand existing ones.” Agency for Int'l Dev., 133 S. Ct. at 2331; see also
Planned Parenthood of Cent. & N. Arizona v. State of Ariz., 718 F.2d 938, 945 (9th Cir.
1983) (holding as a matter of law, “the freeing-up theory cannot justify withdrawing all
state funds from otherwise eligible entities merely because they engage in abortionrelated activities disfavored by the state.”).
Moreover, Holder v. Humanitarian Law Project “concerned the quite different
context of a ban on providing material support to terrorist organizations, where the
record indicated that support for those organizations’ nonviolent operations was
funneled to support their violent activities.” Agency for Int'l Dev., 133 S. Ct. at 2331
(citing Holder, 561 U.S. at 29-30). There is no support in this record that the funds
previously provided to Plaintiffs under the programs impacted by Section 3701.034 were
3701.034 could receive “options counseling,” which could include discussing abortion as an
option. However, as Plaintiffs point out, all providers who receive Title X funding are required to
provide “options counseling.” This counseling must be “neutral, factual information and
nondirective counseling on each of the options” available to pregnant woman. 42 U.S.C. §
59.5(a)(5)(ii). Plaintiffs also point out that Defendant has identified the Cuyahoga County Board
of Health and Belmont County General Health as eligible providers under Section 3701.034, yet
those two entities also receive Title X funds and are required to provide “options counseling.”
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funneled to support Plaintiffs in the promotion of abortion or performance of abortion
services. To the contrary, the record shows that Plaintiffs maintain measures to ensure
that none of the funds received from the state or federal government are used, directly
or indirectly, to subsidize the promotion of abortion or performance of abortion services.
Testifying on behalf of PPGOH as a witness under Federal Rule of Civil
Procedure 30(b)(6), Barbara Singhaus, PPGOH’s chief operating officer and chief
financial officer, was asked, “[h]ow do you know that none of the funds received from
the programs identified in the law that's challenged here contribute directly or indirectly
to the performance or promotion or abortion?” (Doc. 40-15, PAGEID #1500). Singhaus
responded:
We have a very sophisticated cost allocation methodology that is audited
and reviewed by our independent auditors and by the Title 10 reviewers.
We allocate every single one of our costs to between our health centers
and isolating the surgical centers, including all of our administrative costs
and our medical director's costs, so those funds and the costs associated
with those are allocated very carefully.
(Id., PAGEID # 1500-1501). When asked whether it is “fair to say then that none of the
funds that have been provided to PPGOH through these programs are relied on by
PPGOH to provide abortion services,” Singhuas responded, “Yes.”

(Id., PAGEID

#1501).
Similarly, testifying on behalf of PPSWO as a Rule 30(b)(6) witness, Jerry
Lawson, PPSWO’s president and chief executive officer, explained:
We have very scrupulous financial accounting methods to make sure that
revenue and expenses are properly coded to the service that's being
provided, whether it's surgery or whether it's something else. We have
different managers, so the surgery manager does not manage elsewhere.
(Doc. 40-16, PAGEID # 1729).

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Defendant points out that until April 2016, PPSWO offered free STD testing
under the STD Prevention Program at the surgical center for patients receiving
abortions. (See Doc. 40-16, PAGEID # 1724-1725). However, Defendant does not
explain how offering this test at the surgical center garbles or distorts Ohio’s message.
The STD testing is not related to the abortion services, nor is it a precursor to a
discussion about abortion services. Instead, it is a medically separate service, which
Plaintiffs code and allocate to ensure the funding is also separate from Plaintiffs’
abortion services. In addressing the same argument in support of similar legislation,
one district court explained:
To be sure, Rust upheld a requirement for adequate separation of abortion
and non-abortion-related services. But that makes no difference here.
The defunding provision does not impose a requirement for adequate
separation. Instead, the provision flatly defunds abortion providers, no
matter how thoroughly they separate abortion and non-abortion-related
services. And while, without adequate separation, one might reasonably
fear that money paid for a recipient's non-abortion-related services could
indirectly support the provision of abortions—money, after all, is fungible—
the contention that this defeats the plaintiffs' claim here fails both on the
facts and on the law.
Planned Parenthood of Sw. & Cent. Florida v. Philip, No. 4:16CV321-RH/CAS, 2016 WL
3556568, at *5 (N.D. Fla. June 30, 2016). This Court’s conclusion is the same.
Therefore, the Court concludes that Section 3701.034 violates the First
Amendment.
C. Fourteenth Amendment: Due Process
Plaintiffs argue that Section 3701.034 violates the Due Process Clause of the
Fourteenth Amendment because Ohio cannot require Plaintiffs to cease performing
nontherapeutic abortions as a condition of funding.
“The fundamental right to privacy contained in the Due Process Clause of the
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Fourteenth Amendment includes the right to choose to have an abortion, subject to
certain limitations.” Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir.
2006) (citing Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973);
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 869, 112 S.Ct. 2791,
120 L.Ed.2d 674 (1992)). Abortion providers have standing to enforce their patients’
right to choose to have an abortion under the Due Process Clause. See Singleton v.
Wulff, 428 U.S. 106, 117 (1976) (concluding that “it generally is appropriate to allow a
physician to assert the rights of women patients as against governmental interference
with the abortion decision”); Planned Parenthood Ass’n of Cincinnati, Inc. v. City of
Cincinnati, 822 F.2d 1390, 1396 (6th Cir. 1987) (concluding that Planned Parenthood
has standing to assert the due process rights of women seeking right to have an
abortion).
Plaintiffs argue that Ohio could not pass a law directing otherwise qualified
abortion providers not to perform “nontherapeutic” abortions, and therefore under the
unconstitutional conditions doctrine, Ohio cannot require abortion providers to abandon
a constitutionally protected activity as a condition of receiving public funds unrelated to
abortion.
“[W]hile the unconstitutional conditions doctrine has been most consistently
applied to protect First Amendment rights, it has also been applied by the Supreme
Court to other constitutional provisions.” R.S.W.W., Inc. v. City of Keego Harbor, 397
F.3d 427, 434 (6th Cir. 2005); see Koontz v. St. Johns River Water Mgmt. Dist., 133 S.
Ct. 2586, 2594, 186 L. Ed. 2d 697 (2013) (“We have said in a variety of contexts that
‘the government may not deny a benefit to a person because he exercises a

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constitutional right.’”) (quoting Regan v. Taxation With Representation of Wash., 461
U.S. 540, 545, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983)). Accordingly, the Sixth Circuit
has held that “[t]he doctrine should equally apply to prohibit the government from
conditioning benefits on a citizen's agreement to surrender due process rights.”
R.S.W.W, 397 F.3d at 434 (citing Vance v. Barrett, 345 F.3d 1083, 1089 (9th Cir.
2003)).
Citing Rust v. Sullivan, Defendant argues that there is no due process right to
government subsidies: “‘the Due Process Clauses generally confer no affirmative right
to governmental aid, even where such aid may be necessary to secure life, liberty, or
property interests of which the government itself may not deprive the individual.’” Rust,
500 U.S. at 201 (quoting Webster v. Reprod. Health Servs., 492 U.S. 490, 507 (1989));
see also Rust, 500 U.S. at 193 (“A legislature's decision not to subsidize the exercise of
a fundamental right does not infringe the right.” (quoting Regan, 461 U.S. at 549)).
However, this is not in dispute.

What is at issue is whether Section 3701.034

suppresses the exercise of due process rights “outside the contours” of the six impacted
programs. As one Florida district court has recently explained in addressing a provision
similar to Section 3701.034:
If, as the Court said in Rust, Congress can prohibit the use of federal
funds for abortion services but cannot restrict a recipient of federal funds
from separately providing abortion services, then the Florida legislature
likewise can prohibit the use of state funds for abortion services but
cannot prohibit a recipient of state funds from separately providing
abortion services. Rust is fatal to the defunding provision, which was
enacted precisely and only for a prohibited purpose: to reach other,
unrelated activities that are separate from the recipient's abortion services.
That this was the only purpose of the defunding provision is clear because
Florida law already prohibited the use of state funds for abortions.
Planned Parenthood of Sw. & Cent. Florida v. Philip, No. 4:16CV321-RH/CAS, 2016 WL
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3556568, at *4 (N.D. Fla. June 30, 2016). 3
Section 3701.034 fares no better under Rust because Section 3701.034 prohibits
funding for programs which are not related to abortion services based on a recipient’s
exercise of due process rights to perform abortion services. Accord Harris v. McRae,
448 U.S. 297, 317, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980) (“A substantial
constitutional question would arise if Congress had attempted to withhold all Medicaid
benefits from an otherwise eligible candidate simply because that candidate had
exercised her constitutionally protected freedom to terminate her pregnancy by
abortion.”). This Court has already concluded that Section 3701.034 conditions funding
under the six impacted programs based on a recipient’s exercise of the right to free
speech or association outside the contours of these six programs. This conclusion is no
different when it comes to a recipient’s exercise of due process rights.

The six

programs impacted by Section 3701.034 subsidize tests and treatment, screenings and
education programs which are not related to performing abortions. Section 3701.034
does not provide any way for an entity to limit its use of the funding distributed under
Section 3701.034 to those six programs, while using private funds to perform abortions.
Defendant maintains that this does not end the analysis. Defendant relies on
Planned Parenthood of Indiana v. Commissioner of Indiana State Department of Health,
699 F.3d 962 (7th Cir. 2012), in which the Seventh Circuit upheld an Indiana law which
3

The provision challenged in Planned Parenthood of Sw. & Cent. Florida v. Philip
provides that a state agency, local government entity, or Medicaid managed-care plan “may not
expend funds for the benefit of, pay funds to, or initiate or renew a contract with an organization
that owns, operates, or is affiliated with one or more clinics that are licensed under this chapter
and perform abortions.” Florida Statutes § 390.0111(15). This “defunding provision” was
subject to certain exceptions “for contracts entered into before the provision's effective date,
funds payable on a fee-for-service basis under the Medicaid statute, and funds paid to clinics
that perform abortions only in limited circumstances—circumstances much narrower than
encompassed by a woman's constitutional right to an abortion.” 2016 WL 3556568, at *1.
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prohibited abortion providers from receiving any state contracts and grants, including
those involving state-administered federal funds. Id. at 969. As part of its analysis, the
Seventh Circuit explained that under Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 846, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), the government may not impose an
“undue burden” on a woman’s right to have an abortion, which exists “if the challenged
law has the ‘purpose or effect’ of placing ‘a substantial obstacle in the path of a woman
seeking an abortion before the fetus attains viability.’” Id. at 987 (quoting Casey, 505
U.S. at 878, 112 S.Ct. 2791 (plurality opinion)). The court then explained that under
Rust, a state funding condition can violate the constitutional right to abortion only if the
effect of the funding condition itself is to place an undue burden on women’s ability to
choose to have an abortion. Id. at 988 (explaining that if “the government's refusal to
subsidize abortion does not unduly burden a woman's right to obtain an abortion, then
Indiana's ban on public funding of abortion providers—even for unrelated services—
cannot indirectly burden a woman's right to obtain an abortion.”).
This Court has serious doubts as to whether it is proper to import the undue
burden analysis from Casey, 4 into the analysis here, which Defendant has
acknowledged is “a case about money.” (Doc. 53, PAGEID #2049). Alliance for Open
Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 651 F.3d 218 (2d Cir. 2011), which was
later affirmed by the Supreme Court, contains an explanation of the distinction:
For constitutional purposes, a federal subsidy program is fundamentally
different from “direct state interference” with a particular activity. See
Maher v. Roe, 432 U.S. 464, 475, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977).
“Constitutional concerns are greatest when the State attempts to impose
4

The Supreme Court recently reiterated this undue burden analysis in Whole Woman's
Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016), as revised (June 27, 2016) (explaining that
the rule announced in Casey, “requires that courts consider the burdens a law imposes on
abortion access together with the benefits those laws confer.”).
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its will by force of law; the State's power to encourage actions deemed to
be in the public interest is necessarily far broader.” Id. at 476, 97 S.Ct.
2376. As a result, “the Government may allocate competitive funding
according to criteria that would be impermissible were direct regulation of
speech or a criminal penalty at stake.” Nat'l Endowment for the Arts v.
Finley, 524 U.S. 569, 587-88, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998).
Subsidy conditions, absent special circumstances, “cannot be subject to
the least- or less-restrictive means mode of analysis—which, like the
undue burden test ..., is more appropriate for assessing the government's
direct regulation of a fundamental right—when the government creates a
federal spending program.” Brooklyn Legal Servs. v. Legal Servs. Corp.,
462 F.3d 219, 229 (2d Cir. 2006), cert. denied, 552 U.S. 810, 128 S.Ct.
44, 169 L.Ed.2d 11 (2007).
Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 651 F.3d 218, 243 (2d
Cir. 2011) (Straub, J. dissenting), aff'd sub nom. Agency for Int'l Dev. v. All. for Open
Soc'y Int'l, Inc., 133 S. Ct. 2321, 186 L. Ed. 2d 398 (2013). 5 Because Section 3701.034
creates a subsidy condition, the undue burden test from Casey is not applicable.
Accord Planned Parenthood of Sw. & Cent. Florida v. Philip, No. 4:16CV321-RH/CAS,
2016 WL 3556568, at *6 (N.D. Fla. June 30, 2016) (“Nothing in Whole Woman's Health
or Casey suggests in any way that those decisions were intended to supplant the wholly
separate unconstitutional-conditions doctrine.”).
Therefore, the Court concludes that Section 3701.034 violates the Due Process
Clause of the Fourteenth Amendment.
D. Equal protection
Plaintiffs argue that Section 3701.034 violates the Equal Protection Clause by
singling out entities that perform or promote abortions and those who affiliate with those
entities.

However, because the Court has concluded that the “performing

5

The Seventh Circuit, at the time it issued its opinion in Planned Parenthood of Indiana v.
Commissioner of Indiana State Department of Health, did not have the benefit of the Supreme
Court’s opinion in Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc. because it was decided
almost a year later.
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nontherapeutic” and “promoting nontherapeutic abortions” provisions of Section
3701.034 are unconstitutional under the First Amendment and the Due Process Clause
of the Fourteenth Amendment, the Court need not address Plaintiffs’ claim under the
Equal Protection Clause.
E. Irreparable injury and lack of adequate remedy at law
“Where the plaintiff establishes a constitutional violation after a trial on the merits,
the plaintiff will be entitled to permanent injunctive relief upon showing 1) a continuing
irreparable injury if the court fails to issue the injunction, and 2) the lack of an adequate
remedy at law.” Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998)
(citing cases).
“The loss of First Amendment freedoms, even for minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96
S.Ct. 2673, 49 L.Ed.2d 547 (1976); see also Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th
Cir. 2001) (citing Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th
Cir. 1981) (holding that if the constitutional right of privacy is either threatened or in fact
being impaired, this mandates a finding of irreparable injury).
Plaintiffs maintain that if Section 3701.034 were to go into effect, they would no
longer be unable to offer free of charge some of the services under the programs
impacted by Section 3701.034. (Doc. 40-5, Iris Harvey 3d Decl., ¶ 6, PAGEID # 952)
(“Without funding from those programs, PPGOH will be constrained in its ability to offer
free services, such as screening for sexually transmitted diseases, HIV, and breast and
cervical cancer”). Plaintiffs maintain that the requirement to pay even a reduced fee will
deter patients from seeking these potentially life-saving services. (Harvey 3d Decl., ¶ 8,

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PAGEID # 953). Plaintiffs would also no longer have access to the juvenile justice and
foster care systems to teach teenagers about healthy relationships as part of the PREP
program. (Harvey 3d Decl., ¶ 7, PAGEID # 953; Doc. 40-6, Jerry Lawson 3d Decl., ¶ 9,
PAGEID # 959). Based on this evidence in the record, the Court finds the irreparable
injury is continuing and there is a lack of an adequate remedy at law because monetary
damages could not compensate Plaintiffs for this injury.
Accordingly, the Court concludes that Plaintiffs have established that if the
enforcement of Section 3701.034 is not permanently enjoined, Plaintiffs will suffer a
continuing irreparable injury for which there is no adequate remedy at law.
III. CONCLUSION
Based on the on the foregoing, Plaintiffs are entitled to judgment on the merits of
their First Amendment claim and Fourteenth Amendment Due Process claim.
Accordingly, Plaintiffs’ Motion for Preliminary Injunction (Doc. 7); and Motions for
Judgment on the Merits and a Permanent Injunction (Docs. 38, 47) are GRANTED. It is
hereby ORDERED that:
1. Defendant Richard Hodges, Director of the Ohio Department of Health, and
his agents, employees, appointees, and successors are PERMANENTLY
RESTRAINED AND ENJOINED from enforcing any provision of Ohio Revised
Code § 3701.034 against Plaintiffs and any others similarly situated;
2. This Order is effective upon its entry; and
3. The Clerk is DIRECTED to enter judgment in favor of Plaintiffs.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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