Tenth Circuit Requires Funding of Planned Parenthood—Part 1

by Ed Whelan

Last August, in the aftermath of the Center for Medical Progress’s release of videos depicting various Planned Parenthood affiliates’ ugly involvement in harvesting body parts, Utah governor Gary Herbert directed state agencies “to cease acting as an intermediary for pass-through federal funds” to Planned Parenthood Association of Utah (Planned Parenthood’s Utah affiliate).

In a 2-1 decision on Tuesday, a Tenth Circuit panel in Planned Parenthood Association of Utah v. Herbert ruled that PPAU is entitled to a preliminary injunction preventing the state of Utah from implementing Herbert’s directive. The panel reversed the district court’s denial of preliminary injunctive relief.

I’ll address the legal defects in Judge Mary Beck Briscoe’s majority opinion in my Part 2 post. I’d like to highlight here that the “Factual background” part of her opinion reads in places like a Planned Parenthood press release. Briscoe states, for example, that CMP “released ‘selectively edited videos of Planned Parenthood staff members discussing the health care provider’s fetal tissue donation program.’ [App.] at 398.” (Emphasis added.) She likewise states:

According to the limited information available in the record, to date none of these investigations have “turned up . . . evidence that Planned Parenthood was doing anything other than receiving legal reimbursements for the cost of processing the donations” of fetal tissue. App. at 398. (Emphasis added.)

As Mollie Hemingway has tirelessly explained, “All news, whether broadcast or print, is ‘highly’ and ‘selectively’ edited” and “Both the full footage and the edited cuts were released at the same time and all the videos are publicly accessible.” Further, in haggling over the prices of the body parts that its abortions—oops, “health care” services—generate, Planned Parenthood hardly seems to be engaged in a “donation program.” And the videos themselves provide at least prima facie evidence (as Hemingway discusses here and elsewhere) that Planned Parenthood wasn’t looking simply to be reimbursed for “the cost of processing” these “donations.”

But what also struck me about these passages is Briscoe’s mysterious citation of “App. at 398.” What possible document in PPAU’s appendix to its brief might Briscoe be citing as authoritative on these matters? And why does she give the reader (who has no access to PPAU’s appendix) no clue what that document is? Why would Briscoe, a Clinton appointee who has been on the Tenth Circuit for more than two decades, be so strangely sloppy?

Well, it turns out that what Briscoe is obscurely citing as authoritative is this article from—believe it or not—the Huffington Post. (Here’s the four-page version from PPAU’s appendix that I’ve managed to obtain. You’ll see “App.398” in the lower right on the first page.) No wonder she didn’t identify the source.

These statements of Briscoe’s, I’ll acknowledge, appear to be extraneous to her legal analysis. But that simply presents the puzzle why she went out of her way to provide political cover for Planned Parenthood.

Bench Memos

NRO’s home for judicial news and analysis.