In the wake of video disclosures earlier this year that Planned Parenthood employees appeared to be engaging in the sale of body parts obtained through abortions, Utah governor Gary Herbert ordered state agencies to end the practice of funneling federal grants to Planned Parenthood’s Utah affiliate. This required the state to end or not renew four contracts with Planned Parenthood — contracts involving sex education and testing for sexually transmitted diseases. Other states made similar decisions.
But Planned Parenthood of Utah immediately sued, asking for a temporary injunction. Their argument was that the decision to end the contracts was motivated by the governor’s opposition to abortion and had the effect of infringing the Utah affiliate’s constitutional rights to associate with other affiliates and to promote abortion.
As far-fetched as the argument for a constitutional obligation to fund Planned Parenthood and to maintain contracts with them would seem, the group had an initial legal victory at the end of September. A federal district court issued a terse opinion relying heavily on the idea that accusations stemming from the conduct disclosed in the videos had not been proven. The court assumed that the governor’s motivation for ending the state’s contracts with Planned Parenthood must have been motivated by unconstitutional reasons, and the judge ordered Herbert “to state in writing a legitimate basis” for defunding, declining to renew, or not issuing a contract to the organization.
Of course, this sounded ominously like a federal judge announcing a constitutional right of a vendor to the government’s business. It would have required the state to implicitly approve of activities the governor — and probably the overwhelming majority of citizens of the Utah — find shocking and reprehensible.
Supporters of the Herbert’s decision recognized a simple reality: Sending a check to Planned Parenthood in the wake of the video disclosures would be understood as either approval of the behavior of the employees in the videos or at least belief that it was not bad enough to justify distancing themselves from it. Similarly, any announcement that an individual would no longer donate to Planned Parenthood because of the videos would be understood as an expression of disapproval. The district court’s decision had the effect of denying the state of Utah, uniquely, the opportunity to express this kind of disapproval.
#share#Thankfully, however, yesterday a federal judge ruled in favor of Utah’s ability to do just that. The court said that Utah’s Planned Parenthood affiliate could not show the defunding decision violated any “independent constitutional right.”
The court said the affiliate’s right of association was unaffected since it could “continue its affiliation with Planned Parenthood” and had “provided no case law to supports its position that a contract cannot be terminated when a party associated with entities allegedly engaged in illegal conduct.” The court also said terminating the contracts had no effect on the affiliate’s “right to advocate for or perform abortions.”
#related#By contrast, the court recognized that if the state was not allowed to terminate the contracts “their authority to manage their affairs would be curtailed.” The opinion notes that the Utah affiliate “derives benefit from its affiliation with the national organization” and thus the “‘good will’ that inheres in the Planned Parenthood brand also extends to the ‘bad will’ that attaches because of the allegations of wrongful conduct.” Allowing the governor to determine whether or not to continue the contracts, the judge recognized, protects “the right of the elected Governor of this State to make decisions about what is in the best interests of the State” a decision “that should be left to elected officials and not managed by the courts.”
Governor Herbert has decided — as have other states — that Utah will no longer do business with an organization tainted by these practices. A traffic in body parts of unborn children is fundamentally at odds with basic standards of human decency. The governor is right to try to keep the state untainted by association with a group implicated in such a practice. That is a decision consistent with the constitution and with basic moral sanity. It’s a good sign that this federal court agreed.