A federal appeals court has reinstated a Kansas law that will effectively prevent Planned Parenthood from receiving federal Title X (family planning) funds administered by the state. Taxpayer support of the nation’s largest abortion provider remains hotly debated, especially in light of the fact that the billion-dollar profits of Planned Parenthood were supplemented by $542 million in taxpayer support in 2012. However, this issue in Kansas is likely far from settled, given the narrowness of the decision reached by a divided panel.
Federal law prohibits the use of Title X funds “in programs where abortion is a method of family planning.” However, abortion providers are often the recipients of Title X and other federal funds, which effectively subsidize their abortion businesses.
The Kansas law provides that only public entities, nonpublic hospitals, and federally qualified health centers (FQHCs) that provide comprehensive primary and preventive care to women may receive Title X funds administered by the state. Two Planned Parenthood clinics challenged the law because it disqualified them from competing for the funds.
A lower court held that Planned Parenthood was likely to prevail on two grounds — the law violates Title X and is, therefore, unconstitutional under the Supremacy Clause of the U.S. Constitution, and it violates Planned Parenthood’s First Amendment rights by penalizing it for associating with providers of abortion and for its advocacy of abortion.
The Tenth Circuit reversed the lower court’s decision on Tuesday, remanding the case to the district court for further proceedings. The court did not reach the question of whether the Kansas law violates Title X regulations. Rather, the court held that Planned Parenthood could not assert its claim for injunctive relief under the Supremacy Clause.
In ruling on the applicability of the Supremacy Clause, the court reasoned: (1) The Title X statute does not provide a “private cause of action” (meaning individuals cannot sue for its enforcement) or “clearly notify” States that they are subject to such suits; (2) the Department of Health and Human Services (HHS) has “ample power” to enforce the law’s requirements; (3) private suits for injunctive relief “can undermine uniformity and expertise provided by HHS supervision;” (4) implementation of the law does not prevent Planned Parenthood from acting as they wish; and (5) private suits for injunctions are not traditionally implied in statutes enacted under the Spending Clause of the U.S. Constitution.
The court also rejected Planned Parenthood’s First Amendment claim that the law placed an “unconstitutional condition” on eligibility for Title X funds. Planned Parenthood had argued that the intent of the law was to prevent Planned Parenthood from receiving Title X funds because of their constitutionally protected association with the provision of abortion (even though these particular Planned Parenthood clinics do not perform abortions). Their argument was based on references by members of the Kansas legislature to the law as the “Planned Parenthood provision,” and statements by legislators that a purpose of the law was to defund Planned Parenthood.
However, the Tenth Circuit found that the “unconstitutional condition” doctrine was not applicable. Specifically, the court held that “what motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it.”
In a scathing dissent, Judge Carlos Lucero argued that Planned Parenthood did have standing to sue under the Supremacy Clause, and should prevail on the merits. Notably, Judge Lucero argued that this decision creates a “circuit split.” In 2005, the Fifth Circuit considered whether states could apply additional requirements (that adversely impact abortion providers) for receiving Title X funds administered by the state. In Planned Parenthood v. Sanchez, that court held that Planned Parenthood could bring a challenge to a Texas law under the Supremacy Clause.
Three circuit courts have recently issued decisions addressing laws that defund abortion providers. However, the challenges to laws in Arizona (Ninth Circuit), Indiana (Seventh Circuit), and Texas (Fifth Circuit) focused on Medicaid funding, not Title X funding.
— Mary Harned is a staff attorney with Americans United for Life.