The United States’ Court of Appeals for the 6th Circuit ruled 11-6 yesterday that the State of Ohio is within its constitutional rights to withhold state funding from abortion clinics and providers.
Back in 2016, Planned Parenthood of Great Ohio and Planned Parenthood Southwest Ohio Region filed motions for preliminary and permanent injunctions against a new Ohio state law, § 3701.034 of the Ohio Revised Code.
This new law stated no state funds received from the Violence Against Women Act, Breast and Cervical Cancer Mortality Prevention Act, infertility prevention project, minority HIV/AIDS initiative, personal responsibility education program, infant mortality reduction or infant vitality initiatives, or any other states funds were to be used for any of the following reasons: (to)
“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.”
For purposes of Ohio state law, a nontherapeutic abortion is defined as “an abortion that is performed or induced when the life of the mother would not be endangered if the fetus were carried to term or when the pregnancy of the mother was not the result of rape or incest reported to a law enforcement agency.”
The Planned Parenthoods filed for injunctions against the law with the United States District Court for the Southern District of Ohio at Cincinnati, stating the new law violated “the First Amendment, as well as the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment.” (page 1).
Specifically, they argued the law would make them “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” (page 4).
On May 23, 2016, the Planned Parenthoods won the preliminary injunction from the court, and in August the court granted the permanent injunction by agreeing with Planned Parenthood that the new law violated their right to free speech (by saying promotion of abortion was not allowed), and violated the due process clause and equal protection clause of the 14th Amendment (by saying performing abortion was not allowed).
However, the case was appealed to the 6th Circuit U.S. Court of Appeals, and the district court ruling was overturned in favor of the state of Ohio. As the 6th Circuit Court pointed out, in order for the appeal to stay in favor of the Planned Parenthoods, both the limitations — on promoting and performing nontherapeutic abortions — must be shown to be unconstitutional. If one of the two limits is constitutional, then the state of Ohio would win the case. The Court outlined in its decision why the limitation on performing abortions to get state funding was constitutional. Essentially, the Planned Parenthoods were trying to claim the right to perform abortions according to the 14th Amendment.
However, the Court explained, no provider has the right to perform abortions (pages 5-6). The right, as judges and lawmakers have interpreted thus far, only extends to the individual woman’s right to procure an abortion. Therefore, the Planned Parenthoods has no solid case with the due process argument.
This ruling, unless appealed even higher and overturned, means the state of Ohio can stop funding the few abortion clinics left in Ohio, and direct the money to other existing clinics to expand their services and patient reach, or to new clinics. This may put some abortion providers out of service or force them to stop providing abortions to keep getting funding for their other services. The ruling also solidifies the right of states to use their money as they each see fit, instead of being forced to pay for activities which are not protected in the United States Constitution.
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