Many lawmakers in the Republican majorities at the Statehouse have wanted to punish Planned Parenthood. On Tuesday, the federal appeals court in Cincinnati advanced their cause. The court upheld an Ohio law that denies state funds to Planned Parenthood because the organization provides and supports abortion services. In doing so, the 11-6 court majority reversed an earlier federal district court ruling and the unanimous ruling of a three-judge panel from the appeals court.
It is worth stressing that the state money does not go to abortion services. Rather, the funding flows to women’s health programs, including testing for HIV/AIDS, cancer screenings and infant mortality prevention. This is money Planned Parenthood has received for years, mostly through a competitive grant process conducted by the state.
In 2016, as part of its broader effort to narrow abortion rights, the legislature moved to disqualify Planned Parenthood by enacting a law prohibiting the state from contracting for health services with an organization that performs or promotes non-therapeutic abortions. Planned Parenthood would face a choice — abandon abortion services or lose access to state money for its health programs.
Without question, the legislature has the authority to decide which entities receive state money. Yet this matter isn’t so simple. Planned Parenthood and its allies rightly see the legislative action for the punitive effort it is. As the dissenting opinion in the appeals court ruling explains, lawmakers are attempting to accomplish indirectly what they are not permitted to do in a direct fashion. In other words, they couldn’t get away with barring Planned Parenthood from performing or promoting abortions. So they have applied pressure in another way.
For the appeals court majority, the approach isn’t a legal, or constitutional, problem. The majority finds no violation of a woman’s right to an abortion. It concludes that the state law “does not condition a woman’s access to any of these public health programs on refusing to obtain an abortion.” It adds there is no indication the state will see a reduction in abortion clinics.
True enough, Planned Parenthood has pledged to keep performing and supporting abortions. Yet, as the dissenting opinion points out, the majority moves too fast to declare that abortion clinics lack an independent right to perform abortions, or that the law does not result in an “undue burden” on a woman’s choice. After all, that right is tightly bound to the ability of providers to offer the procedure.
If anything, the legislature knows well the link. That gets to what lawmakers intended: Construct a dilemma that amounts to expanding the capacity of the state to restrict abortion rights. If Planned Parenthood won’t be bullied, what about next time, the appeals court having paved the way to exploring other such schemes? Already, one harmful result is that state money will not go to highly rated health programs, operated by Planned Parenthood and unrelated to abortion, the beneficiaries of the programs often disadvantaged women.
The past eight years, especially, the Republican majorities at the Statehouse have taken ever more extreme steps to curb abortion rights. On Wednesday, the Ohio Senate approved the latest version of a bill banning abortions following the detection of a fetal heartbeat, or before many women know they are pregnant. The House has put the bill on a fast track. Now the majorities have a governor who will sign it, Mike DeWine ready in this instance to put aside his pledge to be the governor of all Ohioans, with lawsuits to follow.
Consider the ruling of the appeals court less extreme but still giving lawmakers leverage to apply an “undue burden” the law does not permit.