The state of Ohio does not want women to have abortions. This much is clear from the state legislature’s recent support for bills that would effectively ban abortion at six weeks. In 2016, arguably as part of the state’s policy disapproving of abortion, Ohio enacted House Bill 294, which prohibits the Ohio Department of Health (ODH) from distributing its funds to entities that: perform or promote nontherapeutic abortions or contract or affiliate with any entity that performs or promotes nontherapeutic abortions. Recently in Planned Parenthood of Greater Ohio v. Hodges, the Sixth Circuit upheld H.B. 294 against an unconstitutional conditions challenge. In doing so, the court paved the way for similar decisions to follow, potentially threatening public funding for Planned Parenthood and other providers of family planning services nationwide.
The funds at issue in Hodges supported programs to prevent STDs and teen pregnancy, provide for HIV testing and education, screen for breast and cervical cancer, reduce infant mortality, and prevent sexual violence. When H.B. 294 was signed into law, Planned Parenthood was notified that its contracts with the state to carry out these programs would be terminated. The organization then challenged the law, claiming that it placed unconstitutional conditions on government benefits.
The unconstitutional conditions doctrine recognizes that even where there is no “right” to a government benefit, those benefits cannot be conditioned on a “relinquishment of constitutional rights.” Planned Parenthood—as well as the district court and a unanimous three-judge panel of the Sixth Circuit—argued that the law impermissibly demanded that the organization give up its First Amendment right to promote or affiliate with those who promote or perform abortions and its right, protected by the Due Process Clause, to perform abortions.
After a rehearing en banc, Judge Sutton, writing for the eleven-judge majority, disagreed. Declining to reach the First Amendment issues, the Sixth Circuit held that the law did not require Planned Parenthood to sacrifice its constitutional rights because the court found no due process right to provide abortions under Planned Parenthood of Southeastern Pennsylvania v. Casey. Though Planned Parenthood further argued that H.B. 294 would place an undue burden on women’s access to abortion, the court held that the unconstitutional conditions question turns on whether there is a violation of the regulated entity’s rights.
Judge White—joined by five members of the court—dissented, arguing that the majority ignored the Supreme Court’s unconstitutional conditions jurisprudence, articulated most recently in Agency for International Development v. Alliance for Open Society International (AOSI). The dissent interpreted AOSI as stating that the unconstitutional conditions question turns on whether the state could directly accomplish what it attempts to do indirectly through a coercive funding condition. Because the state could not, under the Due Process Clause, prohibit Planned Parenthood from providing abortions or, under the First Amendment, prohibit the organization from promoting or affiliating with those who promote or provide abortions, neither could the state attempt to accomplish these ends by denying Planned Parenthood government funding.
The majority and dissent disagree about what the unconstitutional conditions doctrine—and what the Constitution itself—is meant to protect. For the majority, the constitutional protections for abortion are narrow; only if the state places a measurable burden specifically on women seeking an abortion has it violated the Constitution. And the majority is skeptical about the entire unconstitutional conditions enterprise: “The United States Constitution does not contain an Unconstitutional Conditions Clause. What it does contain is a series of individual rights guarantees, most prominently those in the first eight provisions of the Bill of Rights and those in the Fourteenth Amendment.”
The dissent, on the other hand, not only finds an explicit constitutional protection for abortion providers but also argues that, even absent such a right, a legal environment in which the government can indirectly condition abortion providers out of existence offends the Constitution. The dissent’s Constitution cares about outcomes while the majority’s Constitution is concerned only with the government’s means.
Yet the Supreme Court has indicated in its abortion and unconstitutional conditions jurisprudence that the practical effect of regulation of abortion providers is relevant to the constitutional question. The Hodges majority relies extensively on Casey, which emphasizes the relevance of the burdens on the woman. However, the more recent Whole Woman’s Health v. Hellerstedt recognized that regulation of abortion providers can place an indirect burden on people seeking abortions. If the result of regulation is a dramatic decrease in the number of abortion providers, the state has created an undue burden. Moreover, Rust v. Sullivan, which upheld federal Title X regulations barring recipients from promoting or providing abortion within the scope of the funded programs, indicated that the regulations were permissible specifically because they did not prevent the funding recipients from engaging in abortion-related activities outside the scope of the funded programs. As the dissent points out, H.B. 294 looks a lot like the regulations that Rust described as likely impermissible.
The court’s arguments in Hodges will have consequences for more than just Ohio abortion providers. Hodges gives the government permission to curtail access to abortion so long as it does so by setting conditions on government funds. And this is exactly the route that states and the federal government are following. In February, the Trump Administration announced final regulations that prohibit recipients of Title X—federal family planning—funding from providing patients with information about abortion and require recipients to physically and financially separate Title X programs from abortion provision. So far, Planned Parenthood, the state of California, twenty other states, and the District of Columbia have filed suit to challenge the regulation.
Hodges provides a template or a signal for other courts to follow and, as a result, a threat to Title X funding for abortion providers nationwide.