Tuesday, February 23, 2016
This weekend, Ohio joined the group of states that have “defunded” Planned Parenthood. Ohio’s bill follows the model used by other states, and bans certain funding to go to any organization or affiliate that performs or promotes elective abortions. (Before the bill, there was no government funding of elective abortions.) “Affiliate” means any organization that shares common ownership or control, has a franchise agreement, or shares a trademark or brand name. Under this bill, an independently incorporated organization that, for example, licenses the Planned Parenthood logo would be precluded from participating in funding, even if it does not perform or promote elective abortions. Ohio’s restrictions apply to several specific programs, including the Violence Against Women Act and the Breast and Cervical Cancer Mortality Prevention Act.
Against my better judgment, I’m wading into these treacherous waters because these bills pose interesting legal and theoretical issues about the ability of government condition the receipt of funding to nonprofits based on disagreement with the organizations’ ideology.
First Amendment Claim
May the government prohibit funded nonprofits from “affiliating” with “promoters” of disfavored causes? The federal court cases have reached inconsistent decisions on whether such an affiliate can claim that such a restriction violates the First Amendment. Under the unconstitutional conditions doctrine, government may restrict speech of a funded organization within the contours of the program, but may not leverage government funding to restrict speech outside of the funded program.
The perpetual trouble with this rule is with defining the contours of the funded program. Supporters of Planned Parenthood will likely argue that, since no government funding goes towards elective abortions, the restrictions on affiliate and promotion are too broad. In contrast, opponents of Planned Parenthood are likely to argue that funding of non-abortion services provided by Planned Parenthood cross-subsidize the provision of abortion services through the payment of overhead and facilities, and/or indicate government support of the range of services that Planned Parenthood provides.
The ideological and political context of the disputes has prevented the articulation of consistent legal rules, and both sides have some precedent to support their arguments. In its 1991 Rust v. Sullivan decision, the Supreme Court held that it was constitutional to prohibit funding to abortion providers under a federal program because the providers could create an affiliate to receive the funding.
Some courts extended this reasoning to say that the ability to create an affiliate was constitutionally required. E.g., Planned Parenthood of Mid-Missouri and Eastern Kansas, Inc. v. Dempsey, 167 F.3d 458, 463 (8th Cir. 1999). In 2012, however, the Fifth Circuit concluded that Texas did not violate the First Amendment by refusing to fund organizations that use the Planned Parenthood trademark because the communicative effect of the logo gave the State a legitimate interest in withholding funds, even if the particular corporation being funded did not provide or promote elective abortions. Planned Parenthood Ass'n of Hidalgo County Texas, Inc. v. Suehs, 692 F.3d 343 (5th Cir. 2012). The Fifth Circuit declined to weigh in on the constitutionality of other aspects of the “affiliation” restrictions. Whether this will be extended outside of the Fifth Circuit to other circuits remain to be seen.
Beyond constitutional requirements are statutory restrictions. Given that federal dollars are often involved in these programs, federal law frequently preempts state restrictions on funding. Thus, the question becomes which level of government has been given the power to determine how funding should be allocated. And that depends on two questions: 1) what does the federal law say, and 2) can private plaintiffs enforce whatever federal terms may exist?
Note that Ohio’s bill does not restrict Medicaid recipients from receiving Medicaid covered services from Planned Parenthood. This is something that some states (Arizona, Indiana, Louisiana) have tried, unsuccessfully. (Full disclosure: I represented the United States in several of these cases.) This is because Medicaid has a provision saying that Medicaid recipients have the freedom to choose to receive covered services from any provider “qualified to perform the service or services.” 42 U.S.C. 1396a(a)(23). Thus, when it comes to Medicaid dollars, states don’t have the ability to cut off funding to Planned Parenthood when that is the provider chosen by the recipients.
Other federal programs contain less explicit guarantees of free choice of providers. In the past, courts would parse the language of the federal law to determine whether it preempted state restrictions on who could participate. However, the Supreme Court has recently limited the ability of private plaintiffs to sue states to enforce restrictions on federal funding. In other words, even if states do not comply with the terms of federal funding, it is up to the federal government, not individual plaintiffs (including the nonprofits who lose their funding), to enforce those terms.
However the Planned Parenthood cases turn out, they could set important precedents to govern government-nonprofit relationships for years to come. Lost in the ideological and political clamor is a difficult legal and theoretical question of how to balance the valid interests of government in ensuring that funds are properly spent, with the benefits of having a pluralist, independent nonprofit sector.