Planned Parenthood of the Heartland, Inc., on behalf of itself and its patients v. Kim Reynolds, Iowa Department of Human Services, Iowa Department of Public Health, and Kelly Garcia in Her Official Capacity as Director of the Iowa Department of Human Services, and Interim Director of the Iowa Department of Public Health ( 2021 )

IN THE SUPREME COURT OF IOWA
No. 20–0804
Submitted March 23, 2021—Filed June 30, 2021
Amended September 14, 2021
PLANNED PARENTHOOD OF THE HEARTLAND, INC., on behalf of
itself and its patients,
Appellee,
vs.
KIM REYNOLDS, IOWA DEPARTMENT OF HUMAN SERVICES, IOWA
DEPARTMENT OF PUBLIC HEALTH, and KELLY GARCIA in her
Official Capacity as Director of the Iowa Department of Human Services
and Interim Director of the Iowa Department of Public Health,
Appellants.
Appeal from the Iowa District Court for Polk County, Paul Scott,
Judge.
State and state agencies appeal district court order declaring Act
placing conditions on participation in federally funded grant programs
unconstitutional. REVERSED AND REMANDED.
Oxley, J., delivered the opinion of the court, in which Christensen,
C.J., and Waterman, Mansfield, McDonald, and McDermott, JJ., joined.
Appel, J., filed a dissenting opinion.
Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor
General, Thomas J. Ogden (argued), Assistant Attorney General, for
appellants.
2
Julie A. Murray (argued) and Carrie Y. Flaxman of Planned
Parenthood Federation of America, Washington, D.C., and Rita Bettis
Austen of America Civil Liberties Union of Iowa Foundation, Des Moines,
for appellee.
Alan R. Ostergren, Des Moines, and Charles D. Hurley, Urbandale,
for amicus curiae the Family Leader Foundation.
3
OXLEY, Justice.
The Iowa General Assembly enacted sections 99 and 100 of House
File 766, which added funding conditions prohibiting abortion providers
from participating in two federally funded educational grant programs
directed at reducing teenage pregnancy and promoting abstinence. A
former grantee of both grants, now ineligible to receive funding,
immediately sought declaratory and injunctive relief on the basis that the
conditions violated its constitutional rights. The district court agreed and
enjoined enforcement of the legislative enactments. Upon careful analysis
of the challenged constitutional rights and the State’s interest in selecting
the messenger for its programs, we conclude the conditions are rationally
related to the classification selected by the general assembly. Because an
abortion provider lacks a freestanding constitutional right to provide
abortions, any conditions premised on providing abortions cannot be
considered unconstitutional. We reverse the district court’s order striking
down sections 99 and 100 of House File 766.
I. Background Facts and Proceedings.
Planned Parenthood of the Heartland (PPH) challenges an
amendment to Iowa law that prevents it from receiving federal grant
funding under two state-administered programs in which it has
historically participated: the Community Adolescent Pregnancy Prevention
Program (CAPP), administered by the Iowa Department of Human Services,
and the Personal Responsibility Education Program (PREP), administered
by the Iowa Department of Public Health. The state agencies award federal
grants to third parties through a competitive bidding process. Both
programs focus on educating Iowa’s youth about sexual education,
including pregnancy prevention. PREP is particularly focused on
providing programming to select counties in an effort to reduce teen
4
pregnancies and sexually transmitted infections (STIs) in high-risk areas
of the state.
As a condition of the grants, recipients must use state-selected
curricula in both programs. Neither curriculum allows discussion about
abortion, and the funds for the programs are strictly prohibited from being
used to support abortion-related services. The parties stipulate that PPH
has neither used grant funding for abortion-related services nor discussed
abortion as part of CAPP or PREP programming in the past.
PPH has been a grantee of CAPP and PREP funding since 2005 and
2012, respectively. In some cases, PPH has partnered with schools that
do not otherwise have similar programming or trained personnel to provide
CAPP and PREP programs. During the 2018–2019 contract period, PPH
received awards of $182,797 for CAPP and $85,000 for PREP
programming. PPH used that funding to provide CAPP or PREP services
in ten different counties. In five of those counties (Des Moines, Lee, Linn,
Pottawattamie, and Woodbury Counties), PPH was the only fiscal year
2020 CAPP or PREP applicant. If PPH does not receive funding for these
grants, those five counties will likely not receive any CAPP or PREP
programming.
On June 11, 2019, PPH signed four two-year CAPP contracts with
the Iowa Department of Human Services and was approved for $463,374
in grant funding for CAPP programming during the first two-year period.
On July 31, PPH signed a one-year PREP contract with the Iowa
Department of Public Health containing three one-year renewal options
and was awarded $85,076 in grant funding for the first year of PREP
programming. PPH estimates the loss of CAPP and PREP funding will
result in a 28% reduction in its education budget.
5
On April 27, 2019, the Iowa General Assembly passed sections 99
and 100 of House File 766 (the Act), which provide that any contract for
CAPP or PREP funding entered into on or after July 1, 2019, must exclude
from eligibility any applicant entity
that performs abortions, promotes abortions, maintains or
operates a facility where abortions are performed or promoted,
contracts or subcontracts with an entity that performs or
promotes abortions, becomes or continues to be an affiliate of
any entity that performs or promotes abortions, or regularly
makes referrals to an entity that provides or promotes
abortions or maintains or operates a facility where abortions
are performed.
2019 Iowa Acts ch. 85, §§ 99(1) (CAPP funding), 100(1) (PREP funding).
Although the Act is written in general terms, an exception exempts from
the exclusionary language any
nonpublic entity that is a distinct location of a nonprofit
health care delivery system, if the distinct location provides
[CAPP or PREP] services but does not perform abortions or
maintain or operate as a facility where abortions are
performed.
Id. at §§ 99(1), 100(2). PPH asserts the exception is intended to benefit at
least two existing CAPP and PREP grantees within the UnityPoint hospital
system. On May 3, Governor Kim Reynolds signed the Act into law.
By its terms, the Act clearly precludes PPH from participating in the
CAPP and PREP programs. In 2017, PPH performed approximately 95%
of all abortions in Iowa. Aside from PPH, only one other provider in Iowa
performs abortions that are generally available to the public. Upon patient
request, all PPH health centers refer patients for abortion care. PPH also
engages in advocacy that supports access to abortion services for patients
who decide to have an abortion. PPH is an ancillary organization of
Planned Parenthood North Central States, a Planned Parenthood affiliate.
6
Shortly after the Governor signed the bill, PPH brought a declaratory
judgment action arguing the Act violated PPH’s rights to equal protection,
due process, free speech, and free association under the Iowa
Constitution. On May 29, the District Court for Polk County issued a
temporary injunction enjoining enforcement of the Act, finding that PPH
was likely to prevail on its equal protection claim. Two days later, on May
31, the Iowa Department of Human Services and the Iowa Department of
Public Health, respectively, sent notices of intent to award PPH a three-
year contract for CAPP programming and a four-year contract for PREP
programming.
After cross motions for summary judgment, the district court
granted PPH’s motion for summary judgment. The district court
concluded that the Act’s “nonprofit health care delivery system” exception
made the Act so overinclusive and underinclusive that it failed a rational
basis review. The State appealed, and we retained the appeal.
II. Standard of Review.
“We review constitutional claims de novo.” AFSCME Iowa Council
61 v. State, 928 N.W.2d 21, 31 (Iowa 2019). In reviewing constitutional
challenges to statutes, “we must remember that statutes are cloaked with
a presumption of constitutionality. The challenger bears a heavy burden,
because it must prove the unconstitutionality beyond a reasonable doubt.”
Id. (quoting State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005),
superseded by statute on other grounds, 2009 Iowa Acts ch. 119, § 3
(codified at Iowa Code § 692A.103 (Supp. 2009)), as recognized in In re
T.H., 913 N.W.2d 578, 587–88 (Iowa 2018)).
III. Analysis.
PPH raises two primary challenges to the Act. PPH alleges the Act
violates its equal protection rights under the Iowa Constitution by
7
unconstitutionally distinguishing between those who provide and advocate
for abortion and those who do not. It also challenges the Act under the
unconstitutional conditions doctrine, arguing the Act conditions the
receipt of government funds on PPH giving up its rights to free speech, free
association, and a due process right to provide abortions.
A. Equal Protection Challenge. PPH claims that the Act violates
its right to equal protection under article I, sections 11 and 62 of the Iowa
Constitution. In support of that contention, PPH argues that the Act is
underinclusive, overinclusive, and not rationally related to a state interest.
Alternatively, PPH argues the Act burdens its fundamental rights such
that we should subject the Act to strict scrutiny review. We conclude
rational basis is the appropriate level of scrutiny, and the Act passes
rational basis review.
While federal precedent is instructive when interpreting Iowa’s
similar equal protection provisions, we are not bound to follow federal
analysis in construing Iowa’s constitutional provisions. See Varnum v.
Brien, 763 N.W.2d 862, 878 & n.6 (Iowa 2009). We zealously protect our
constitution’s equal protection mandate, but we must also respect the
legislative process, which means we start with a presumption that
legislative enactments are constitutional. AFSCME Iowa Council 61, 928
N.W.2d at 31–32.
Iowa’s tripartite system of government requires the legislature
to make difficult policy choices, including distributing benefits
and burdens amongst the citizens of Iowa. In this process,
1“Allmen and women are, by nature, free and equal, and have certain inalienable
rights--among which are those of enjoying and defending life and liberty, acquiring,
possessing and protecting property, and pursuing and obtaining safety and happiness.”
Iowa Const. art. I, § 1.
2“Alllaws of a general nature shall have a uniform operation; the general assembly
shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon
the same terms shall not equally belong to all citizens.” Iowa Const. art. I, § 6.
8
some classifications and barriers are inevitable. As a result,
[we] pay deference to legislative decisions when called upon to
determine whether the Iowa Constitution’s mandate of
equality has been violated by legislative action. More
specifically, when evaluating challenges based on the equal
protection clause, our deference to legislative policy-making is
primarily manifested in the level of scrutiny we apply to review
legislative action.
Id. (quoting Varnum, 763 N.W.2d at 879).
To begin the equal protection inquiry, “plaintiffs must allege that the
defendants are treating similarly situated persons differently.” State v.
Doe, 927 N.W.2d 656, 662 (Iowa 2019) (quoting King v. State, 818 N.W.2d
1, 24 (Iowa 2012)). “If the two groups are not similarly situated, we need
not scrutinize the legislature’s differing treatment of them.” In re Det. of
Hennings, 744 N.W.2d 333, 339 (Iowa 2008). We must make the similarly
situated determination “with respect to the purposes of the law.” Varnum,
763 N.W.2d at 883 (emphasis omitted).
The State argues that PPH fails this threshold test because
organizations that provide abortions are not similarly situated to those
that do not provide abortions in the context of a law seeking to exclude
proabortion messages from state-sponsored sexual education programs.
The State’s argument requires us to consider the purposes behind the
funding conditions contained in the Act. “Once the purposes of the law
are considered in determining whether persons in the differently treated
classes are similarly situated, the distinction between the threshold test
and the ultimate identification and examination of the purposes of the law
becomes blurred.” State v. Dudley, 766 N.W.2d 606, 616 (Iowa 2009).
There is an “inescapable relationship between the threshold test and the
ultimate scrutiny of the legislative basis for the classification.” Id.; see
also AFSCME Iowa Council 61, 928 N.W.2d at 32 (“[D]etermining whether
classifications involve similarly situated individuals is intertwined with
9
whether the identified classification has any rational basis.”). For this
reason, we generally reserve application of the threshold test to extreme
disparities in classifications. See Houck v. Iowa Bd. of Pharmacy Exam’rs,
752 N.W.2d 14, 21 (Iowa 2008) (finding pharmacists are not similarly
situated to nonpharmacists for purposes of a statute regulating certain
drugs); State v. Kout, 854 N.W.2d 706, 708 (Iowa Ct. App. 2014) (finding
that a defendant out on bail is not similarly situated to defendants
awaiting trial in jail for purposes of a rule awarding credit for time served
pretrial). Given this overlap, we will assume the two groups are similarly
situated and “focus instead on the grounds justifying the law.” Tyler v.
Iowa Dep’t of Revenue, 904 N.W.2d 162, 168 (Iowa 2017).
We next determine what level of scrutiny applies. “[T]he level of
scrutiny depends on the type of state statutory classification under
attack.” Sherman v. Pella Corp., 576 N.W.2d 312, 317 (Iowa 1998). “In
most cases,” we apply the “very deferential” rational basis test. Varnum,
763 N.W.2d at 879. Under rational basis review, a statute survives an
equal protection challenge
so long as there is a plausible policy reason for the
classification, the legislative facts on which the classification
is apparently based rationally may have been considered to be
true by the governmental decisionmaker, and the relationship
of the classification to its goal is not so attenuated as to render
the distinction arbitrary or irrational.
Id. (quoting Racing Ass’n of Cent. Iowa v. Fitzgerald (RACI II), 675 N.W.2d
1, 7 (Iowa 2004). While this level of scrutiny is “admittedly deferential” to
the legislative branch, “it is not a toothless one.” RACI II, 675 N.W.2d at 9(second quoting Mathews v. De Castro, 429 U.S. 181, 185, 97 S. Ct. 431,
434 (1976)). We must engage in a “meaningful review . . . mandated by
our constitutional obligation to safeguard constitutional values.” Id.10
PPH also argues that strict scrutiny applies because the Act targets
its fundamental rights. Cases that involve “[a] classification based on race
or national origin and classifications affecting fundamental rights” require
strict scrutiny. Sherman, 576 N.W.2d at 317. Fundamental rights are
commonly articulated as those “which are ‘deeply rooted in this Nation’s
history and tradition’ and ‘implicit in the concept of ordered liberty.’ ”
Seering, 701 N.W.2d at 664 (quoting Chavez v. Martinez, 538 U.S. 760,
775, 123 S. Ct. 1994, 2005 (2003)). Under strict scrutiny, a law is
presumptively invalid, and the burden is on the government to show that
the law is “narrowly tailored to serve a compelling state interest.” In re
S.A.J.B., 679 N.W.2d 645, 649 (Iowa 2004) (quoting Santi v. Santi, 633
N.W.2d 312, 318 (Iowa 2001)).
Because the district court held that the Act fails even rational basis
review, we start with the lower level of scrutiny. In conducting rational
basis review, we first “determine whether there was a valid, ‘realistically
conceivable’ purpose that served a legitimate government interest.”
AFSCME Iowa Council 61, 928 N.W.2d at 32 (quoting Residential & Agric.
Advisory Comm., LLC, 888 N.W.2d 24, 50 (Iowa 2016)). “Next, [we] must
evaluate whether the ‘reason has a basis in fact.’ ” Id. (quoting McQuistion
v. City of Clinton, 872 N.W.2d 817, 831 (Iowa 2015)). Here, “actual proof
of an asserted justification [is] not necessary, but [we will] not simply
accept it at face value and [will] examine it to determine whether it [is]
credible as opposed to specious.” Qwest Corp. v. Iowa State Bd. of Tax
Rev., 829 N.W.2d 550, 560 (Iowa 2013). “Finally, ‘we evaluate whether the
relationship between the classification and the purpose for the
classification “is so weak that the classification must be viewed as
arbitrary.” ’ ” AFSCME Iowa Council 61, 928 N.W.2d at 33 (quoting
Residential & Agric. Advisory Comm., LLC, 888 N.W.2d at 50).
11
The State presented three different purposes for the law: to express
its preference for childbirth over abortion, to ensure that its state-
sponsored sexual education message is not delivered by entities that derive
significant revenue from abortion-related activities, and to avoid indirectly
subsidizing abortion providers. Only one of these purposes must be
rational for the Act to pass constitutional muster.
“[T]he Constitution does not forbid a State or city, pursuant to
democratic processes, from expressing a preference for normal childbirth
. . . .” Poelker v. Doe, 432 U.S. 519, 521, 97 S. Ct. 2391, 2392 (1977); see
also Webster v. Reprod. Health Servs., 492 U.S. 490, 509, 109 S. Ct. 3040,
3052 (1989) (“[Missouri’s] decision here to use public facilities and staff to
encourage childbirth over abortion ‘places no governmental obstacle in the
path of a woman who chooses to terminate her pregnancy.’ ” (quoting
Harris v. McRae, 448 U.S. 297, 315 100 S. Ct. 2671, 2687 (1980)).
Additionally, “[w]hen the government disburses public funds to private
entities to convey a governmental message, it may take legitimate and
appropriate steps to ensure that its message is neither garbled nor
distorted by the grantee.” Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819, 833, 115 S. Ct. 2510, 2519 (1995). As a general matter, the
state is entitled to refuse to fund abortion efforts. See Maher v. Roe, 432
U.S. 464, 473–74, 97 S. Ct. 2376, 2382–83 (1977). Thus, all three
purposes advanced by the State are legitimate purposes under rational
basis review.
We next consider whether the classification made by the Act has a
basis in fact, giving deference to the general assembly. Under rational
basis review, we “uphold legislative classifications based on judgments the
legislature could have made, without requiring evidence or ‘proof’ in either
a traditional or a nontraditional sense.” King, 818 N.W.2d at 30.
12
It is clear from the record that PPH is a vocal advocate in support of
a woman’s right to obtain an abortion and in its provision of abortion-
related services. Advocating for abortion is an important component of its
platform. While the CAPP and PREP programs expressly preclude any
discussion about abortion within the context of the programs, and the
parties agree PPH has never overstepped the bounds of the programs, the
programs are aimed largely at preventing teenage pregnancies through
abstinence and contraception. The programs are presented to school-age
children, often related to a school setting. Even if the programs do not
include any discussions about abortion, the goals of promoting abstinence
and reducing teenage pregnancy could arguably still be undermined when
taught by the entity that performs nearly all abortions in Iowa. The State
could also be concerned that using abortion providers to deliver sex
education programs to teenage students would create relationships
between the abortion provider and the students the State does not wish to
foster in light of its policy preference for childbirth over abortion. The
government has considerable leeway in selecting who will deliver a
government message, whether the message is a diversity and inclusion
program, a drug prevention program, or, in this case, a sexual education
and teen pregnancy prevention program.
These considerations provide a factual basis to support the State’s
assertion that the general assembly could have passed the Act out of
concern that its message could be diluted if PPH, the primary abortion
provider in the state, delivered the state-sponsored sexual education
programs. See Planned Parenthood of Greater Ohio v. Hodges, 917 F.3d
908, 910 (6th Cir. 2019) (en banc) (holding that a similar funding condition
passed rational basis review based on state’s concern that it would
13
“muddl[e]” its message of preferring live birth over abortion “by using
abortion providers as the face of state healthcare programs”).
Finally, “a merely rational relationship between the classification
and the policy justification” satisfies rational basis review. AFSCME Iowa
Council 61, 928 N.W.2d at 32 (quoting Varnum, 763 N.W.2d at 879). This
final step includes evaluating the Act for overinclusiveness and
underinclusiveness. Varnum, 763 N.W.2d at 899–900. “As the degree to
which a statutory classification is shown to be over-inclusive or under-
inclusive increases, so does the difficulty in demonstrating the
classification substantially furthers the legislative goal.” Id. at 900. If a
statute is underinclusive, it does not address all possible aspects of the
state interest, and if the statute is overinclusive, it affects things that have
nothing to do with the state interest. Id. at 899–900. Yet, only when there
exist “extreme degrees of overinclusion and underinclusion in relation to
any particular goal” can a statute “be said to [not] reasonably further that
goal.” Bierkamp v. Rogers, 293 N.W.2d 577, 584 (Iowa 1980) (en banc)
(concluding statute barring recovery by guest in automobile against driver
was “so overinclusive and underinclusive” to defy rational basis review
where “[t]he certainty with which just claims are and would be barred and
the relative ease with which collusion can be accomplished despite the
statute is obvious”); see also AFSCME Iowa Council 61, 928 N.W.2d at 40
(holding limitation on mandatory collective bargaining topics for units
comprised of less than thirty percent public safety employees “is not so
extremely overinclusive or underinclusive as to flunk our deferential
rational basis review”); Ames Rental Prop. Ass’n v. City of Ames, 736
N.W.2d 255, 260–61 (Iowa 2007) (explaining, in assessing whether zoning
ordinance restricting area to single-family dwellings was so extremely over-
14
and underinclusive to fail rational basis, “[c]ity council members are
permitted to legislate based on their observations of real life”).
The district court held, and PPH argues, that the Act cannot survive
rational basis because the levels of overinclusion and underinclusion
demonstrate that the classification does not further the State’s goals. The
underinclusion in the Act stems from the carve out for any grantee that
operates at a “distinct location” but is affiliated with “a nonprofit health
care delivery system.” As PPH points out, this exception
would permit entities to participate in CAPP and PREP even if
they belong to a health care delivery system that routinely
provides abortion-related services, is well-known in the
community for that service, garners significant revenue from
abortion, and promotes and refers patients for abortions in
Iowa.
PPH argues that if the Act’s purpose is to prohibit entities that provide
abortion services from delivering the State’s sexual education messages,
then the law is underinclusive because the exception allows some entities
that engage in those same activities to participate in the programs. PPH
also contends that the Act is overinclusive because it bars “entities that do
not provide abortion in Iowa at all, but instead provide referrals for
abortion, engage in advocacy to protect and expand abortion access, or
associate with abortion providers or advocates.”
The carve out’s distinction between abortion providers and
“nonprofit health care delivery systems” provides a rational distinction
between the two UnityPoint entities included in the carve out and PPH.
The carve out is limited to a distinct location of a “nonprofit health care
delivery system” where no abortions are performed at the distinct location.
A “nonprofit health care delivery system” is expressly defined as a “regional
health care network consisting of hospital facilities . . . that provide a range
of primary, secondary, and tertiary inpatient, outpatient, and physician
15
services.” 2019 Iowa Acts ch. 85, §§ 99(3), 100(4). So the carve out allows
a distinct part of a broad-based healthcare entity, essentially a hospital,
to provide the CAPP and PREP programming—as long as the distinct
location does not perform abortions—even if the healthcare entity itself
does so. PPH’s services, on the other hand, are focused specifically on
“reproductive health services,” including “well-patient exams, cancer
screening, STI testing and treatment, a range of birth control options
including long-acting reversible contraceptives, and transgender
healthcare,” as well as medication and surgical abortions. The State
supports the carve out by arguing that a clinic associated with a hospital,
which happens to provide abortions at other locations, presents a different
type of messenger than an entity that focuses solely on reproductive
health. Given the deference owed to the general assembly under rational
basis review, this argument adequately explains the carve out. The general
assembly could make a rational decision that its abstinence and
pregnancy prevention messages will be less likely to be diluted when
presented by an entity providing a broad range of healthcare services than
one limited to reproductive health, with a focus on abortion.
In any event, any underinclusion caused by the carve out is not
extreme, which is required before the legislation would fail rational basis
review. PPH performs 95% of the abortions in the State of Iowa. If the
Act’s purpose is to prohibit abortion providers from delivering Iowa’s
sexual education message to youth, then a statute barring the
organization responsible for 95% of abortions from providing the
educational programs is not extremely underinclusive. See AFSCME Iowa
Council 61, 928 N.W.2d at 39 (“[D]efining the class of persons subject to a
regulatory requirement . . . requires that some persons who have an almost
equally strong claim to favored treatment be placed on different sides of
16
the line . . . [and this] is a matter for legislative, rather than judicial,
consideration.” (omissions and second alteration in original) (quoting Wis.
Educ. Ass’n Council v. Walker, 705 F.3d 640, 655 (7th Cir. 2013))).
PPH also argues the Act is overinclusive and could be more targeted
to the State’s goals. PPH notes that if it is ineligible to participate in the
CAPP and PREP programs, a number of youth will be deprived of the
benefits of the educational programs, pointing to the five counties in which
PPH is the only applicant to seek funding and provide the programming.
This is not an example of overinclusiveness but an expression of PPH’s
disagreement with the legislation. “Overinclusiveness” would mean that
the legislation denies participation to entities that do not provide
abortions. PPH gives no example of where that has occurred. But in any
event, “under the rational basis test, we do not require the [statute] to be
narrowly tailored.” Ames Rental Prop. Ass’n, 736 N.W.2d at 260. Nor does
the ineffectiveness of the conditions make the Act “violative of the Iowa
Constitution under the rational basis test, [unless] the classification [is
shown to] involve ‘extreme degrees of overinclusion and underinclusion in
relation to any particular goal.’ ” Id. (quoting RACI II, 675 N.W.2d at 10).
The fit of a statute does not have to be perfect to satisfy a rational
basis review. See LSCP, LLLP v. Kay–Decker, 861 N.W.2d 846, 859 (Iowa
2015) (“[T]he fit between the means chosen by the legislature and its
objective need only be rational, not perfect.”).3 The CAPP and PREP
programs involve sexual education for teenagers aimed at preventing
teenage pregnancy. Abortion is a potential response to an unintended
pregnancy, providing a logical connection to the pregnancies the CAPP and
3PPH’s reliance on the First Amendment case of Ward v. Rock Against Racism, 491
U.S. 781, 109 S. Ct. 2746 (1989), has no bearing on our equal protection rational basis
review. The narrowly tailored standard for a direct First Amendment challenge is
inapposite to a rational basis analysis.
17
PREP programs are designed to prevent. The educational programs are
not so unrelated to abortion as to make irrational the State’s judgment
that its educational message may be distorted if delivered by an abortion
provider. See Hodges, 917 F.3d at 911–14 (Ohio funding restrictions for
government-sponsored health and educational programs targeting
sexually transmitted diseases, breast and cervical cancer, teen pregnancy,
infant mortality, and sexual violence were sufficiently related to abortion
to support restrictions on program recipients who perform or promote
nontherapeutic abortions); cf. U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528,
533–35, 93 S. Ct. 2821, 2825–26 (1973) (requirement for household
members to be related not rationally related to limit on receipt of food
stamps under justification of limiting subsidy to “one economic unit”
sharing cooking facilities, where congressional history revealed intent to
exclude hippies from program). Having concluded the Act’s distinction
between abortion providers and nonabortion providers is rationally related
to the State’s purpose of choosing the speaker for its educational
messages, we need not address the State’s other purposes supporting the
Act.
While we disagree with the district court’s conclusion that the Act
fails rational basis review, we may affirm its holding that the Act violates
PPH’s equal protection rights on any basis supported by the record. See
Gartner v. Iowa Dep’t of Pub. Health, 830 N.W.2d 335, 350 (Iowa 2013).
Thus, we consider whether the Act is subject to strict scrutiny. PPH
contends that strict scrutiny applies because the Act affects its
fundamental right to provide abortions, a woman’s fundamental right to
obtain an abortion, and its rights to freedom of speech and freedom of
association.
18
The core problem with PPH’s position is that it rests on an internal
contradiction. On the one hand, PPH argues that its abortion services “are
wholly separate from and do not use or rely on CAPP or PREP funding.”
On the other hand, PPH argues that the challenged legislation denying it
CAPP and PREP funding “burdens the fundamental right to abortion.”
PPH argues that a restriction on abortion providers obtaining grant
money for sexual education programming affects a woman’s ability to
obtain an abortion. The facts, and PPH’s own arguments, do not support
such a conclusion. PPH concedes that no matter the outcome of this
litigation, its abortion services will not be affected. Logically so, since PPH
is prohibited from using any of the grant funds for abortion-related
services. If PPH receives the funds, they will be used only to provide the
educational programming. If PPH does not receive the funds, it will not
provide the programming. Whether PPH receives the funds and provides
the programming or does not receive the funds and does not provide the
programming, a woman’s ability to obtain an abortion from PPH is
unaffected. PPH’s argument itself admits the Act will have no effect on a
woman’s fundamental right to obtain an abortion.
In arguing that the Act fails rational basis review, PPH maintained
that the CAPP and PREP programs have “nothing to do with abortion.” Its
contradictory line of reasoning selectively weaves its way through the facts
to assert that the CAPP and PREP programs simultaneously have nothing
to do with abortion yet still burden a woman’s ability to obtain an abortion.
PPH cannot have it both ways.
Since the right to obtain an abortion is unaffected, it follows that the
Act does not affect any right PPH may have to provide abortions, regardless
of whether that right is fundamental for purposes of triggering strict
scrutiny under an equal protection challenge. PPH has failed to identify a
19
fundamental right burdened by the Act’s exclusion of abortion providers
from its grant funding, and the Act is therefore not subject to strict
scrutiny. The Act does not violate PPH’s equal protection rights.
B. Unconstitutional Conditions. PPH also seeks to uphold the
district court’s ruling that the Act is unconstitutional by arguing the Act
violates the unconstitutional conditions doctrine premised on PPH’s rights
to free speech, association, and due process. We have never before
recognized the unconstitutional conditions doctrine as a limit on state
funding decisions. As a general matter, the unconstitutional conditions
doctrine provides that the government may not require a recipient of
government funds to forego certain constitutional rights as a condition to
receiving the funds. See, e.g., Agency for Int’l Dev. v. All. for Open Soc’y
Int’l, Inc. (Agency I), 570 U.S. 205, 213–14, 133 S. Ct. 2321, 2327–28
(2013). The doctrine has long existed in United States Supreme Court
jurisprudence, though the exact contours of the doctrine are not always
clear.
We first dispense with procedural issues raised by the parties. The
State argues we should not consider this argument on appeal because it
was not fully argued below due to the district court’s resolution of the case
on equal protection grounds. “Although the district court did not decide
the case on constitutional grounds, we can consider these grounds on
appeal to affirm the trial court’s judgment, because the [plaintiff] made the
constitutional challenges below.” Gartner, 830 N.W.2d at 350. We proceed
to consider PPH’s unconstitutional conditions challenge.
We start with the premise that the government is not required to
remain viewpoint neutral. By its very nature, the general assembly
legislates based on policy decisions favoring one view over another all the
time: “competition over cartels, solar energy over coal, weapon
20
development over disarmament, and so forth.” Agency I, 570 U.S. at 221,
133 S. Ct. at 2332 (Scalia, J., dissenting). In the context of abortion, the
legislature may make the policy decision to favor childbirth over abortion,
which means it can also choose to fund childbirth but withhold funding
for abortion. See Maher, 432 U.S. at 473–74, 97 S. Ct. at 2382 (explaining
that a woman’s constitutional right to be free “from unduly burdensome
interference with her freedom to decide whether to terminate her
pregnancy . . . implies no limitation on the authority of a State to make a
value judgment favoring childbirth over abortion, and to implement that
judgment by the allocation of public funds”). “[V]iewpoint-based funding
decisions can [also] be sustained in instances in which the government is
itself the speaker, or in instances, like Rust [v. Sullivan, 500 U.S. 173, 111
S. Ct. 1759 (1991)], in which the government ‘used private speakers to
transmit specific information pertaining to its own program.’ ” Legal Servs.
Corp. v. Velazquez, 531 U.S. 533, 541, 121 S. Ct. 1043, 1048 (2001)
(citation omitted) (quoting Rosenberger, 515 U.S. at 833, 115 S. Ct. at
2519).
Given this premise, it is noncontroversial that the legislature has
“the authority to impose limits on the use of [grant] funds to ensure they
are used in the manner [the legislature] intends.” Agency I, 570 U.S. at
213, 133 S. Ct. at 2328. Notwithstanding, the unconstitutional conditions
doctrine prevents the government from making funding decisions that
“deny a benefit to a person on a basis that infringes his constitutionally
protected . . . [rights] even if he has no entitlement to that benefit.” Id. at
214, 221 133 S. Ct. at 2328, 2332 (omission in original) (quoting Rumsfeld
v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 59, 126 S. Ct. 1297,
1307 (2006)) (holding requirement for organizations receiving funding
under United States Leadership Against HIV/AIDS, Tuberculosis, and
21
Malaria Act to affirmatively express opposition to prostitution violated First
Amendment free speech protections by compelling, as a condition of
federal funding, the affirmation of a belief that by its nature could not be
confined within the scope of the government program). In other words,
“even though a person has no ‘right’ to a valuable governmental benefit
and even though the government may deny him the benefit for any number
of reasons, there are some reasons upon which the government may not
rely.” Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 2697
(1972). This is so because
if the government could deny a benefit to a person because of
his constitutionally protected speech or associations, his
exercise of those freedoms would in effect be penalized and
inhibited. This would allow the government to “produce a
result which [it] could not command directly.” Such
interference with constitutional rights is impermissible.
Id. (alteration in original) (citation omitted) (quoting Speiser v. Randall, 357
U.S. 513, 526, 78 S. Ct. 1332, 1342 (1958)).
The Supreme Court has characterized the unconstitutional
conditions doctrine as “vindicat[ing] the Constitution’s enumerated rights
by preventing the government from coercing people into giving them up.”
Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604, 133 S. Ct.
2586, 2594 (2013). While the doctrine has particular application in
protecting First Amendment rights, see Perry, 408 U.S. at 597, 92 S. Ct.
at 2697 (“[The government] may not deny a benefit to a person on a basis
that infringes his constitutionally protected interests—especially, his
interest in freedom of speech.”); see also Rust, 500 U.S. at 197–99, 111
S. Ct. at 1774–75 (holding the Department of Health and Human Services
could condition participation in family planning projects under Title X of
the Public Health Service Act on agreement not to counsel, refer, or provide
information about abortions as a method of family planning without
22
violating recipients’ free speech rights as long as condition applied only
within the program), it has also been applied to the Fifth Amendment right
to just compensation, see Koontz, 570 U.S. at 599, 604, 133 S. Ct. at 2591,
2594 (holding water district imposed improper restrictions on application
for land-use permits), the fundamental right to travel, see Mem’l Hosp. v.
Maricopa Cnty., 415 U.S. 250, 269 94 S. Ct. 1076, 1088 (1974) (holding
county’s requirement that indigent be resident of county for one year
before extending healthcare benefits burdened the right to travel), and the
right to due process under the Fourteenth Amendment, see R.S.W.W., Inc.
v. City of Keego Harbor, 397 F.3d 427, 434–35 (6th Cir. 2005) (considering
whether owners of microbrewery had constitutionally protected property
interest under Fourteenth Amendment to liquor license in challenging
administrative condition placed on licensee), among others.
“[T]he government may not require a person to give up a
constitutional right . . . in exchange for a discretionary benefit conferred
by the government where the benefit sought has little or no relationship
to” the constitutional right given up. Dolan v. City of Tigard, 512 U.S. 374,
385, 114 S. Ct. 2309, 2317 (1994). Government action that pressures
someone into forfeiting their constitutional rights by withholding benefits
violates the unconstitutional conditions doctrine regardless of whether the
government is ultimately successful in its coercive efforts. See Koontz, 570
U.S. at 606, 133 S. Ct. at 2595. The relevant distinction “is between
conditions that define the limits of the government spending program,”
which are allowed, “and conditions that seek to leverage funding to
regulate speech [or other protected conduct] outside the contours of the
program itself,” which are not. Agency I, 570 U.S. at 214–15, 133 S. Ct.
at 2328.
23
But if a condition does not implicate the recipient’s constitutional
rights, it cannot be considered unconstitutional. See Agency for Int’l Dev.
v. All. for Open Soc’y Int’l, Inc. (Agency II), 591 U.S. ___, ___, 140 S. Ct.
2082, 2087–88 (2020) (rejecting challenge by plaintiffs’ foreign
organizations, who had no constitutional rights when acting in foreign
countries, to same funding condition found unconstitutional in Agency I
when applied to plaintiffs’ American organizations, explaining “plaintiffs
cannot export their own First Amendment rights to shield foreign
organizations from Congress’s funding conditions”).4 At bottom, the
doctrine comes into play when the government uses funding or other
benefits in an effort to coerce the recipient into giving up their own
constitutional rights. “This doctrine, sometimes murky, requires close
attention to the potentially implicated right.” Planned Parenthood of Ind.,
Inc. v. Comm’r of Ind. State Dep’t Health, 699 F.3d 962, 969 (7th Cir. 2012).
With this understanding of the doctrine, we examine the
constitutional rights PPH claims are burdened by the Act’s conditions. See
Hodges, 917 F.3d at 915 (“The unconstitutional-conditions doctrine no
more elevates non-constitutional claims into constitutional ones than it
insulates protected rights from protection.”). The Act precludes
disbursement of CAPP and PREP funds to any applicant that engages in
specific activity, including: providing abortions, promoting abortions, or
affiliating with those who perform or promote abortions. See 2019 Iowa
Acts ch. 85, §§ 99(1), 100(1). PPH asserts these conditions violate its rights
to due process, free speech, and free association, respectively. PPH
admittedly engages in all three of these activities. Therefore, if any of these
4We note that the Supreme Court has never found a condition unconstitutional
where the plaintiff challenged conditions that impacted anything other than their own
constitutional rights. See Hodges, 917 F.3d at 926 n.8 (White, J., dissenting). We
therefore tread carefully in this nuanced area of the law.
24
conditions passes constitutional muster, PPH is properly excluded from
the funding and its unconstitutional conditions claim must fail. See
Hodges, 917 F.3d at 911.
We begin with the limitation that denies funding to grantees who
provide abortions. PPH argues this funding condition violates its due
process rights. PPH must first establish it has a constitutional due process
right to provide abortions before this condition can be considered
unconstitutional. See Planned Parenthood of Ind., Inc., 699 F.3d at 986
(“The first step in any unconstitutional-conditions claim is to identify the
nature and scope of the constitutional right arguably imperiled by the
denial of a public benefit.”). This is consistent with the approach taken in
Rust, where the Court identified the bases of the recipients’
unconstitutional condition challenge as violating their First Amendment
“right[s] to engage in abortion advocacy and counseling.” 500 U.S. at 196,
111 S. Ct. at 1774. PPH argues abortion providers have a freestanding
right to provide abortions and that right is coextensive with the right of
women to receive abortions. The few courts that have considered this
claimed right have generally rejected it.
In Planned Parenthood of Greater Ohio v. Hodges, an Ohio Planned
Parenthood affiliate made the same argument in its challenge to an Ohio
statute similar to Iowa’s Act. 917 F.3d at 911–12. The United States Court
of Appeals for the Sixth Circuit relied on Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 884, 112 S. Ct. 2791,
2824 (1992) (plurality opinion), to conclude abortion providers do not have
a freestanding right to perform abortions. Id. at 912. Specifically, the
court relied on Casey’s statement that
[w]hatever constitutional status the doctor-patient relation
may have as a general matter, . . . in the present context it is
derivative of the woman’s position. The doctor-patient relation
25
does not underlie or override the two more general rights
under which the abortion right is justified: the right to make
family decisions and the right to physical autonomy. On its
own, the doctor-patient relation here is entitled to the same
solicitude it receives in other contexts.
Id. (quoting Casey, 505 U.S. at 884, 112 S. Ct. at 2824). In Planned
Parenthood of the Heartland v. Reynolds, we stated a woman’s
fundamental due process rights to obtain an abortion under the Iowa
Constitution are similarly premised on rights of autonomy that are
personal to her, including her right to shape her “own identity, destiny,
and place in the world” without unwarranted intrusion from the state. 915
N.W.2d 206, 237 (Iowa 2018).
PPH offers no authority to support a provider’s freestanding due
process right to provide an abortion. We agree with the Sixth Circuit that
“[i]n the absence of a constitutional right to perform abortions, the
plaintiffs have no basis to bring an unconstitutional-conditions claim.”
Hodges, 917 F.3d at 912; see also Teixeira v. Cnty. of Alameda, 873 F.3d
670, 690 (9th Cir. 2017) (“Never has it been suggested, for example, that
if there were no burden on a woman’s right to obtain an abortion, medical
providers could nonetheless assert an independent right to provide the
service for pay.”); Planned Parenthood of Ind., Inc., 699 F.3d at 986
(“Planned Parenthood’s unconstitutional-conditions claim necessarily
derives from a woman’s constitutional right to obtain an abortion.” (citing
Casey, 505 U.S. at 846, 112 S. Ct. at 2804)). Given the “deeply personal
nature” of the rights we have recognized related to obtaining an abortion,
Planned Parenthood of the Heartland, 915 N.W.2d at 234, any possible
right a provider may have by way of performing the procedure is no more
than derivative of a woman’s personal rights.
The dissent attempts to import third-party standing into the
unconstitutional conditions analysis by arguing the State is attempting to
26
do indirectly what it cannot do directly: banning abortion providers from
performing abortions. But “[t]he direct-indirect dynamic . . . is not by itself
what triggers the doctrine.” Hodges, 917 F.3d at 914. The direct-indirect
formulation makes sense when a condition is used to leverage the
recipient’s own constitutional rights. If the government cannot mandate a
recipient to give up its constitutional rights, it should not be able to reach
the same result by conditioning a government benefit on the
relinquishment of those same constitutional rights. See Perry, 408 U.S.
at 597, 92 S. Ct. at 2697 (“[I]f the government could deny a benefit to a
person because of his constitutionally protected speech or associations,
his exercise of those freedoms would in effect be penalized and inhibited.”).
But using the direct-indirect framework does not work when the
recipient relies on the derivative rights of others to challenge a funding
condition. The Supreme Court has cautioned that “[l]ike any general rule,”
allowing an abortion provider to claim standing to vindicate the
constitutional rights of a third party “should not be applied where its
underlying justifications are absent.” Singleton v. Wulff, 428 U.S. 106,
114, 96 S. Ct. 2868, 2874 (1976). Inserting the derivative right into the
direct-indirect formula would improperly superimpose the derivative rights
analysis onto the unconstitutional conditions doctrine, essentially using a
tail-wagging-the-dog logic to turn the derivative right into a direct right.
“Medical centers do not have a constitutional right to offer abortions. Yet,
if we granted [PPH] relief today, we would be effectively saying that they
do. That is not the role of the unconstitutional-conditions doctrine.”
Hodges, 917 F.3d at 915.
Our holding under the unconstitutional conditions doctrine does not
implicate PPH’s ability to bring a derivative constitutional challenge
27
asserting a woman’s rights, a claim PPH did not make. That claim would
need to be analyzed under the proper constitutional framework. The
dissent attempts to usurp the unconstitutional conditions doctrine and
use that analysis instead. To assert a derivative claim, the plaintiff must
first show that a state’s regulation of the plaintiff’s activities adversely
affects the rights of another. See, e.g., Whole Woman’s Health v.
Hellerstedt, 579 U.S. ___, ___, 136 S. Ct. 2292, 2312 (2016) (“[T]he
admitting-privileges requirement places a ‘substantial obstacle in the path
of a woman’s choice.’ ” (quoting Casey, 505 U.S. at 877, 112 S. Ct. at
2820)); Singleton, 428 U.S. at 117, 96 S. Ct. at 2875 (“[A]n impecunious
woman cannot easily secure an abortion without the physician’s being
paid by the State. The woman’s exercise of her right to an abortion . . . is
therefore necessarily at stake here.”). As a threshold matter, third-party
standing requires the right—here, a woman’s right to an abortion—to be
“inextricably bound up with the activity the litigant wishes to pursue.”
Singleton, 428 U.S. at 114, 96 S. Ct. at 2874. The activity PPH wishes to
pursue is participation in the CAPP and PREP programs. Thus, the
question in the derivative right context would be the effect of the
challenged State action—here, precluding PPH from participating in the
CAPP or PREP programs—on a woman’s right to obtain an abortion.5 And
as we explained in our equal protection analysis, precluding abortion
5PPH’s concession that it will give up participation in the CAPP and PREP
programs rather than stop performing abortions would likely defeat the derivative claim
had it been made. See Whole Woman’s Health, 579 U.S. at ___, 136 S. Ct. at 2316
(affirming district court’s conclusion that requirements for abortion facilities to meet
surgical-center standards placed “a substantial obstacle in the path of women seeking
an abortion” based on evidence it would reduce the number of available abortion facilities
in Texas below the number needed to meet the demand). As already noted, the awards
that PPH has received for CAPP and PREP services do not, and cannot, contribute to
PPH’s overhead for abortion-related services. So discontinuing the CAPP and PREP
funding has no adverse impact on PPH’s ability to keep providing abortions.
28
providers from receiving funding for the educational CAPP and PREP
programs has no effect on a woman’s ability to obtain an abortion. In the
words of Singleton, a woman’s constitutional rights related to abortion are
not “inextricably bound up” with the CAPP and PREP funding. Id. A
woman’s derivative rights are simply not implicated here.
Where abortion providers have no constitutional right to perform
abortions, we conclude the unconstitutional conditions doctrine does not
prohibit the State from barring abortion providers from receiving CAPP and
PREP funding. In light of this conclusion, we need not consider PPH’s free
speech and free association challenges. PPH concedes it performs
abortions, and it is precluded by the Act from receiving funds under that
condition. Therefore, we need not decide whether the other conditions
involving advocating for abortion or affiliating with abortion providers
would also prevent it from receiving the grant funds. See Hodges, 917
F.3d at 911 (“Because the conduct component of the Ohio law does not
impose an unconstitutional condition in violation of due process, we need
not reach the free speech claim.”). Any discussion of PPH’s first
amendment or free association challenges would therefore be advisory, an
opinion we have “neither . . . a duty nor the authority to render.” Hartford–
Carlisle Sav. Bank v. Shivers, 566 N.W.2d 877, 884 (Iowa 1997).
IV. Conclusion.
For these reasons, the decision of the district court is reversed, and
the case is remanded for further proceedings.
REVERSED AND REMANDED.
Christensen, C.J., and Waterman, Mansfield, McDonald, and
McDermott, JJ., join this opinion. Appel, J., files a dissenting opinion.
29
#20–0804, Planned Parenthood v. Reynolds
APPEL, Justice (dissenting).
In this case, the district court resolved the controversy by
determining that the exception in the statutes, 2019 Iowa Acts ch. 85,
§§ 99, 100, for certain health care facilities rendered the statutes so
overbroad and under inclusive that the statutes violated equal protection
under the Iowa Constitution.
I, however, take a different approach. I conclude that the statutes
impose unconstitutional conditions on Planned Parenthood of the
Heartland (PPH) by attempting to restrict abortion activities done on “their
own time and dime.” The legislature through unconstitutional conditions
in these statutes is trying to accomplish indirectly what it cannot do
directly: namely, attack abortion rights. This cannot be permitted. For
the reasons expressed below, I would affirm the lower court’s grant of
PPH’s motion for summary judgment on other grounds.
I. Background.
A. Overview of Legislative Regulation of Abortion.
1. Federal restrictions. In 1973, the United States Supreme Court
decided Roe v. Wade. 410 U.S. 113, 93 S. Ct. 705 (1973). Since the Roe
decision, opponents of the decision have sought ways to limit its scope
through federal and state legislative and executive action.
On the federal level, the first successful effort to limit the impact of
Roe was the Helms Amendment to the Foreign Assistance Act. Foreign
Assistance Act of 1973, Pub. L. No. 93-189, § 2, 87 Stat. 714, 716 (codified
as amended at 22 U.S.C. § 2151b(f)(1)). Passed in 1973, the Helms
Amendment declared that “[n]one of the [Foreign Assistance Act] funds . . .
may be used to pay for the performance of abortions as a method of family
planning or to motivate or coerce any person to practice abortions.” Id.
30
The Helms Amendment, however, did not prevent private funds from being
used for abortion purposes, on an entity’s own time and dime, but only
limited the use of foreign aid dollars for that specific purpose. It regulated
solely how government money was spent.
In 1976, Congress passed the Hyde Amendment. Departments of
Labor and Health, Education, and Welfare Appropriation Act of 1977,
Pub. L. No. 94-439, § 209, 90 Stat. 1418, 1434 (1976). The Hyde
Amendment provides, in relevant part, “[n]one of the funds contained in
this Act [Medicaid] shall be used to perform abortions except where the life
of the mother would be endangered if the fetus were carried to term.” Id.In Harris v. McRae, the United States Supreme Court, over a dissent by
Justice Brennan, upheld the Hyde Amendment from constitutional attack.
448 U.S. 297, 326–27, 100 S. Ct. 2671, 2693 (1980). In Maher v. Roe, the
Supreme Court held that the right to choose an abortion did not impose
an affirmative burden on the government to remove obstacles to the
exercise of the right if the government did not create the obstacle. 432
U.S. 464, 474, 97 S. Ct. 2376, 2382–83 (1977). Neither of these cases
purported to control abortion related activities that private entities did on
their own time and dime.
In 1984, President Reagan’s Administration announced what has
been called “the Mexico City Policy,” an abortion restriction named after
the location of a conference where the administration announced its new
policy. See Samantha Lalisan, Policing the Wombs of the World’s Women:
The Mexico City Policy, 95 Ind. L.J. 977, 985 (2020) [hereinafter Lalisan].
Under the Mexico City Policy, the United States would no longer contribute
foreign aid “to separate nongovernmental organizations which perform or
actively promote abortion as a method of family planning in other nations.”
Id. (quoting The White House Office of Policy and Development, US Policy
31
Statement for the International Conference on Population, 10 Population &
Dev. Rev. 574, 578 (1984)).
The Mexico City Policy was unsuccessfully challenged on free
speech, association, and privacy grounds in DKT Mem’l Fund Ltd. v.
Agency for Int’l Dev., 887 F.2d 275, 282–99 (D.C. Cir. 1989), and Planned
Parenthood Fed’n of Am., Inc. v. Agency for Int’l Dev., 915 F.2d 59, 60–61
(2d Cir. 1990). In the ensuing years, the Mexico City Policy was on again
and off again depending upon the viewpoint of the administration in power.
See Lalisan, 95 Ind. L.J. at 988–89. Under the Trump administration, the
Mexico City Policy was expanded to include all global health assistance
funds. Id. at 990–92.
Finally, the executive branch engaged in additional regulation of
abortion when the Department of Health and Human Services
promulgated rules prohibiting the use of Title X funds for programs in
which abortion counseling, referrals, or promotions were included. See
Rust v. Sullivan, 500 U.S. 173, 177–81, 111 S. Ct. 1759, 1764–66 (1991).
The Supreme Court in Rust v. Sullivan upheld the regulations on the
ground that the federal government had the power to control the manner
in which its own funds were spent. Id. at 201–02, 111 S. Ct. at 1776–77.
The rules in Rust were thus not time-and-dime-type regulations. Even so,
the approach of the Supreme Court in Rust has been criticized as being
insufficiently protective of free speech. See, e.g., Roberta J. Sharp, Holding
Abortion Speech Hostage: Conditions on Federal Funding of Private
Population Planning Activities, 59 Geo. Wash. L. Rev. 1218, 1230–32
(1991); Christina E. Wells, Abortion Counseling as Vice Activity: The Free
Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey,
95 Colum. L. Rev. 1724, 1725–26 (1995).
32
2. State regulation. State legislatures have also been active in the
area of regulation of abortion. Physicians and abortion providers
challenged direct state restriction on abortion in a series of cases including
Doe v. Bolton, 410 U.S. 179, 193–201, 93 S. Ct. 739, 748–52 (1973)
(finding statute requiring abortions be conducted at hospitals or
accredited hospitals, requiring the interposition of a hospital abortion
committee, requiring confirmation by other physicians, and limiting
abortion to Georgia residents unconstitutional), Planned Parenthood of
Central Missouri v. Danforth, 428 U.S. 52, 67–79, 96 S. Ct. 2831, 2840–45
(1976) (striking down spousal and blanket parental consent requirements
and limitations on certain procedures), City of Akron v. Akron Center for
Reproductive Health, Inc., 462 U.S. 416, 439–52, 103 S. Ct. 2481, 2497–
2504 (1983) (striking down parts of provisions of a statute related to
parental consent, informed consent, twenty-four-hour waiting period, and
disposal of fetal remains for second trimester abortions), Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 881–
901, 112 S. Ct. 2791, 2822–33 (1992) (invalidating spousal consent
provision but upholding informed consent requirements, twenty-four-hour
waiting period, parental consent provisions, reporting and recordkeeping
requirement of statute), Whole Woman’s Health v. Hellerstedt, 579 U.S.
___, ___, 136 S. Ct. 2292, 2310–18 (2016) (invalidating requirements that
abortion providers have admitting privileges at local hospitals and that
abortion facilities meet standards for ambulatory surgical centers), and
June Medical Services L.L.C. v. Russo, 591 U.S. ___, ___, 140 S. Ct. 2103,
2112–13 (2020) (plurality opinion) (same).
Most recently, a number of states have sought to “defund” abortion
provider and advocate Planned Parenthood. For example, the State of
Indiana passed a statute barring Planned Parenthood from receiving any
33
Medicaid reimbursement, a provision that was upheld in Planned
Parenthood of Indiana, Inc. v. Commissioner of Indiana State Department of
Health. 699 F.3d 962, 985 (7th Cir. 2012). On the other hand, in Planned
Parenthood of Central North Carolina v. Cansler, the district court entered
a preliminary injunction preventing enforcement of a defunding statute.
804 F. Supp. 2d 482, 483–84 (M.D.N.C. 2011). Cases discussing the
defunding controversy are discussed in greater detail below. These
indirect regulations seek to prohibit funding based upon what Planned
Parenthood does on its own time and dime.
II. Third-Party Standing to Assert Abortion Rights.
Of all the major abortion rights cases, Roe is the only one to have
been brought directly by a pregnant woman. Since Roe, in case after case,
abortion providers or doctors have brought cases asserting claims based
upon the abortion rights of women. See, e.g., Casey, 505 U.S. at 845, 112
S. Ct. at 2803.
The fountainhead case in the abortion context is Singleton v. Wulff.
428 U.S. 106, 96 S. Ct. 2868 (1976). In Singleton, the Supreme Court
found that physicians had standing to challenge a Missouri statute that
excluded from Medicaid coverage abortions that were not “medically
indicated.” Id. at 108, 96 S. Ct. at 2871. The plurality emphasized that
“the most effective advocates” should be permitted to defend third-party
rights where there is a close relationship between the litigant and where
there is hindrance to the third-party’s ability to litigate. Id. at 114–16, 96
S. Ct. at 2874–75. After Singleton, the Supreme Court has considered
abortion cases brought by providers or doctors in a long line of cases. See,
e.g., June Med. Servs., 591 U.S. at ___, 140 S. Ct. at 2118; Whole Woman’s
Health, 579 U.S. at ___, ___, 136 S. Ct. at 2301, 2314; Gonzales v. Carhart,
550 U.S. 124, 133, 127 S. Ct. 1610, 1619–20 (2007), Ayotte v. Planned
34
Parenthood of N. New England, 546 U.S. 320, 324–25, 126 S. Ct. 961, 965
(2006); Stenberg v. Carhart, 530 U.S. 914, 922, 120 S. Ct. 2597, 2605
(2000); Mazurek v. Armstrong, 520 U.S. 968, 969–70, 117 S. Ct. 1865,
1866 (1997) (per curiam); Casey, 505 U.S. at 845, 112 S. Ct. at 2803; City
of Akron, 462 U.S. at 440 n.30, 103 S. Ct. at 2498 n.30; Danforth, 428
U.S. at 62, 96 S. Ct. at 2837–38; Bolton, 410 U.S. at 188–89, 93 S. Ct. at
745–46.
The Supreme Court has found third-party standing in other contexts
after Singleton. For instance, in Craig v. Boren, the Supreme Court allowed
a beer vendor to assert the rights of men aged 18 to 20 under a statute
that prohibited men in that age group from consuming 3.2% beer while
women of the same age were permitted to consume. 429 U.S. 190, 192–
93, 97 S. Ct. 451, 454 (1976). Because men were impacted by the statute
for only two years, any litigation they might bring would likely be moot
before it could be authoritatively decided. See id. at 192–94, 97 S. Ct. at
454–55.
Most recently, the United States Supreme Court has considered two
abortion cases that tested the approach of the new majority on the
Supreme Court. The first case is Whole Woman’s Health, 579 U.S. ___,
136 S. Ct. 2292, and the second case is June Medical Services, 591 U.S.
___, 140 S. Ct. 2103.
In Whole Woman’s Health, the Court considered a challenge by
abortion providers, acting on behalf of themselves and their patients, to
challenge Texas law related to abortion. 579 U.S. at ___, 136 S. Ct. at
2301. The Texas law required that physicians performing abortions to
have admitting privileges at a hospital no further than thirty miles from
the abortion facility on the day of the procedure. Id. at ___, 136 S. Ct. at
35
2300. Further, the Texas statute required that the facility meet the
standards for an ambulatory surgical center. Id.
The majority of the Court concluded that the provisions imposed an
undue burden on the right to abortion under Casey. Id. at ___, ___, 136
S. Ct. at 2312, 2318. Notably, however, Justice Thomas dissented. Id. at
___, 136 S. Ct. at 2321–30 (Thomas, J., dissenting). Among other things,
he asserted that the Court should not strike down abortion regulations “at
the behest of abortion clinics and doctors.” Id. at ___, 136 S. Ct. at 2321.
Justice Thomas acknowledged that since Singleton, the Court had
“unquestioningly accepted doctors’ and clinics’ vicarious assertion of the
constitutional rights of hypothetical patients.” Id. at ___, 136 S. Ct. at
2323. But Justice Thomas asserted that the doctors and clinics should
not have third-party standing in abortion cases. Id.
In June Medical Services, the Supreme Court considered the
constitutionality of a Louisiana law that was strikingly similar to the Texas
law found unconstitutional in Whole Woman’s Health. 591 U.S. at ___,
140 S. Ct. at 2112. On the question of the standing of doctors and clinics
to litigate the issue, Justice Breyer for the plurality found that the state
had waived the issue. Id. at ___, 140 S. Ct. at 2117. Justice Breyer,
however, noted that the rule regarding standing of third parties is
“prudential” and cited a lengthy line of precedents where doctors and
clinics litigated abortion issues. Id. at ___, 140 S. Ct. at 2117–18.
Justice Thomas again dissented. Id. at ___, 140 S. Ct. at 2142–53
(Thomas, J., dissenting). He escalated the rhetoric by referring to doctors
as “abortionists.” Id. at ___, 140 S. Ct. at 2142. He concluded that the
third-party standing question was not waived, that the rule against third-
party standing was based on Article III rather than prudential concerns,
36
and that the doctors and clinics had no private rights of their own in the
action. Id. at ___, 140 S. Ct. at 2143–49.
Justice Alito agreed with Justice Thomas on the standing issue. Id.
at ___, 140 S. Ct. at 2153–54 (Alito, J., dissenting). Justice Alito suggested
that the providers may have a financial interest in avoiding burdensome
regulations that gives rise to a conflict of interests between the providers
and abortion patients. Id. at ___, 140 S. Ct. 2166–68. Aside from the
conflict of interest, Justice Alito concluded that abortion providers could
not establish requisite close relationship to the third party and hindrance
in the ability of the third party to bring the constitutional claims. Id. at
___, 140 S. Ct. at 2167–70.
Whole Woman’s Health and June Medical Services are, of course,
controversial on the merits of the “undue burden” test employed in the
cases and its application. The continued validity of the long line of
abortion cases where abortion providers were held to have standing to
litigate has been questioned by what has so far been an increasing vocal
minority of the Supreme Court as a tool to restrict abortion rights.
Whether the previously-thought-settled notion that abortion providers
have standing to litigate has also received attention in recent academic
commentary. See generally Elika Nassirinia, Note, Third-Party Standing
and Abortion Providers: The Hidden Dangers of June Medical Services, 16
Nw. J.L. & Soc. Pol’y 214 (2021) (discussing the different challenges to
abortion providers’ third-party standing in June Medical Services); Hannah
Tuschman, Challenging TRAP Laws: A Defense of Standing for Abortion
Providers, 34 Berkeley J. Gender L. & Just. 235 (2019) (discussing
Targeted Regulation of Abortion Providers (TRAP) laws and the history of
third-party standing in the abortion context); Brandon L. Winchel, Note,
The Double Standard for Third-Party Standing: June Medical and the
37
Continuation of Disparate Standing Doctrine, 96 Notre Dame L. Rev. 421(2020) (comparing the third-party standing doctrine in abortion cases and
other cases).
The case before us is at the intersection of third-party standing and
the unconstitutional conditions doctrine, which I turn to next.
III. Unconstitutional Conditions Doctrine.
A. Introduction. The question of whether the statute violates the
unconstitutional conditions doctrine is distinct from the equal protection
challenge. The unconstitutional conditions doctrine generally prevents the
state from leveraging its allocation of benefits to
“manipulate[ constitutional rights] out of existence.” Frost v. R.R. Comm’n,
271 U.S. 583, 594, 46 S. Ct. 605, 607 (1926).
In this case, the statutes impose three unconstitutional conditions:
(1) that grant recipients not engage in abortion activity (the conduct
prong), (2) that grant recipients not engage in abortion advocacy (the
advocacy prong), and (3) that grant recipients shall not affiliate with other
groups supporting abortion rights (the affiliation prong). The majority
asserts that because the conduct condition passes constitutional muster,
we need not address the unconstitutionality of the advocacy and affiliation
conditions.
The majority chooses to closely follow the approach presented in a
challenge to a statute similar to the one before us in Planned Parenthood
of Greater Ohio v. Hodges, 917 F.3d 908 (6th Cir. 2019) (en banc). The
majority also relies on Planned Parenthood of Indiana. 699 F.3d 962.
I rely on different authorities and come to a different conclusion. In
my view, the conduct, affiliate, and advocacy prongs all fail under the
unconstitutional conditions doctrine. My views generally align with the
six-judge dissent in Hodges. 917 F.3d at 917–33 (White, J., dissenting). I
38
reject the reasoning of Planned Parenthood of Indiana, 699 F.3d 962, and
instead find support in Planned Parenthood of Southwest & Central Florida
v. Philip, 194 F. Supp. 3d 1213 (N.D. Fla. 2016), and Planned Parenthood
of Central North Carolina v. Cansler, 877 F. Supp. 2d 310 (M.D.N.C. 2012).
B. The Distinction Between the Government’s Control of
Expenditures and Unconstitutional Conditions on Recipients. At the
beginning, it is important to distinguish between the power of government
to control its own expenditures and the power of government to control the
conduct of recipients of government funds that are conducted on their own
time and dime. In this case, state government has chosen to provide a sex
education program in which reference to abortion is prohibited. See 2019
Iowa Acts ch. 85, §§ 99, 100. As a general proposition, the Supreme Court
cases hold that the state can determine the type of services it chooses to
buy. Specifically, there is no government obligation to subsidize abortion
or abortion counseling by including coverage for abortion or abortion
counseling in public benefit programs. See Hodges, 917 F.3d at 912
(majority opinion). PPH accepts all the restrictions fashioned by the state
in its sex education programs at issue in this case. And, it is undisputed
that PPH has followed all such state-imposed restrictions in the many
years that it has participated in the state’s sex education programs.
The question under the unconstitutional conditions doctrine is quite
different. Here, we do not deal with conditions imposed on a government
program controlling what the government chooses to buy, but instead we
face government restrictions on the conduct of the recipient outside the
program itself. Id. at 928–29 (White, J., dissenting). While the state under
Supreme Court precedents may control the content of its sex education
program, the question raised by the unconstitutional conditions doctrine
is whether the state may prohibit grantees from engaging in conduct the
39
state disfavors outside the government-sponsored program on its own time
and dime. Rust, 500 U.S. at 197, 111 S. Ct. at 1774; see also Regan v.
Tax’n with Representation of Wash., 461 U.S. 540, 546, 103 S. Ct. 1997,
2001 (1983). In other words, the question is to what extent may the
government, as a condition of receiving a government grant, reach out to
regulate constitutional activity of a recipient outside the confines of the
program. See Hodges, 917 F.3d at 917 (disagreeing with the power of the
state to impose conditions on abortion provider for activity conducted on
its own time and dime).
C. Overview of Unconstitutional Conditions Doctrine. The
unconstitutional conditions doctrine has been around for a long time. The
early cases describe the doctrine in general terms. It has been said that
the government cannot leverage its allocation of benefit to “manipulate[
constitutional rights] out of existence” and cannot impose conditions
which require the relinquishment of constitutional rights. Frost, 271 U.S.
at 594, 46 S. Ct. at 607. Another case broadly declared “that the right to
continue the exercise of a privilege granted by the state cannot be made to
depend upon the grantee’s submission to a condition prescribed by the
state which is hostile to the provisions of the federal Constitution.” United
States v. Chi., M., St. P., & P.R. Co., 282 U.S. 311, 328–29, 51 S. Ct. 159,
164 (1931). And, it has been declared that the state “may not deny a
benefit to a person on a basis that infringes his constitutionally protected
interests.” Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 2697
(1972).
While these cases generally outline the unconstitutional conditions
doctrine, more recent cases have added at least some details. For example,
in Koontz v. St. Johns River Water Management District, the Supreme Court
emphasized that a violation of the unconstitutional conditions doctrine
40
produces “constitutionally cognizable injury” even when a party refuses to
cede to the coercive pressure. 570 U.S. 595, 607, 133 S. Ct. 2586, 2596
(2013). This is an important concept. Under Koontz, a party subjected to
an unconstitutional condition does not bear the burden of a fact specific
showing of the adverse impact on the exercise of the constitutional right
involved.
A recent case gives us further insight into the application of the
unconstitutional conditions limitation by the Supreme Court. In Agency
for International Development v. Alliance for Open Society International, Inc.,
the Supreme Court considered a statute that required organizations
receiving federal funds to fight AIDS to have a policy explicitly opposing
advocating for the legalization of prostitution and sex trafficking. 570 U.S.
205, 208, 133 S. Ct. 2321, 2324 (2013). The Agency for International
Development Court noted that if the government directly required
recipients to have such a policy, a violation of the First Amendment would
be present. Id. at 213, 133 S. Ct. at 2327. According to the Agency for
International Development Court, the question was whether the conditions
on the grant “define the federal program” or whether they “reach outside
it.” Id. at 217, 133 S. Ct. at 2330. The Supreme Court concluded that the
requirement that grant recipients explicitly oppose advocating for
legalization of prostitution and sex trafficking was an unconstitutional
condition. Id. at 221, 133 S. Ct. at 2332. A principle in Agency for
International Development is that the government cannot attempt to
achieve indirectly what it cannot achieve directly.
D. Application of Unconstitutional Conditions Doctrine in
Context of Abortion Rights.
1. Overview. There have been a couple dozen cases dealing with
the application of the unconstitutional conditions doctrine in the context
41
of abortion. The results are scattered. Some, like Planned Parenthood of
Indiana, seem to support the state. 699 F.3d at 986–88. Others, like
Philip, 194 F. Supp. 3d 1213, and Cansler, 877 F. Supp. 2d 310, seem to
support the positions of PPH.
Many of the cases like Planned Parenthood of Indiana predate the
very important unconstitutional conditions cases of Koontz, 570 U.S. at
607, 133 S. Ct. at 2596 (holding that there is no need to show
acquiescence to unconstitutional demand), and Agency for International
Development, 570 U.S. at 213, 221, 133 S. Ct. at 2327, 2332 (prohibiting
indirect regulation when direct regulation would be unconstitutional), and
are therefore of limited value. But the more recent Hodges case
incorporates recent Supreme Court cases and has spirited majority and
dissenting opinions. Both opinions are written with clarity and confidence.
They come to opposite results. Hodges is thus an excellent vehicle to
examine the application of the unconstitutional conditions doctrine in the
context of abortion restrictions from two very different perspectives.
2. Authorities prior to Planned Parenthood of Greater Ohio v.
Hodges. There are a number of cases that address the question of
unconstitutional conditions in the abortion context prior to Hodges. A
brief survey shows considerable variability in the approaches and
outcomes but illustrates the tapestry of the relevant caselaw.
Some of the cases deal with the question of whether a Planned
Parenthood affiliate may obtain state funds to support its program,
including abortion services. For example in Planned Parenthood Ass’n–
Chicago Area v. Kempiners, the district court ruled that the Planned
Parenthood affiliate could not compel the state to adopt a provision of
neutrality with respect to providing funds for abortion services. 531
F. Supp. 320, 325 (N.D. Ill. 1981), vacated and remanded on other
42
grounds, 700 F.2d 1115 (7th Cir. 1983) (per curiam). As a result,
according to the district court, the state “is free to express its preference
for childbirth, by subsidizing it and not abortion.” Id.But then, in Planned Parenthood of Central & Northern Arizona v.
State of Arizona, the United States Court of Appeals for the Ninth Circuit
considered the legality of a footnote in Arizona legislation that forbade state
social welfare funds from being expended in support of “nongovernmental
organizations that perform[ed] abortions and engage[d] in abortion-related
activities.” 718 F.2d 938, 941 (9th Cir. 1983). The district court granted
summary judgment for Planned Parenthood of Central and Northern
Arizona (PPCNA) and enjoined enforcement of the footnote. Id. On appeal,
the Ninth Circuit held that the State of Arizona “may not unreasonably
interfere with the right of Planned Parenthood to engage in abortion or
abortion-related speech activities, but the State need not support,
monetarily or otherwise, those activities.” Id. at 944. The question was
who interfered with whom: did PPCNA interfere with the state’s right to
spend its money as it pleases, or did the state interfere with PPCNA’s right
to engage in protected freedoms. Id. The Ninth Circuit remanded the case
for further fact-finding on the question of whether a total withdrawal of
state funds was the only way to prevent PPCNA from using state funds for
abortion-related services. Id. at 946. On remand, however, the district
court was instructed that it could not use the “freeing up” theory to
withdraw state funds merely because an eligible entity was engaged in
abortion activities disfavored by the state. Id. at 945.
Another district court case considering the unconstitutional
conditions doctrine was Planned Parenthood of Central Texas v. Sanchez.
280 F. Supp. 2d 590 (W.D. Tex. 2003). Planned Parenthood of Central
Texas challenged a statute that prevented disbursement of Medicaid
43
dollars to any entity that performed abortions even if the abortions were
paid for by private funds. Id. at 593. The district court enjoined
enforcement of the statute under the unconstitutional conditions doctrine.
Id. at 609, 612. Although the district court believed the specific
constitutional rights were far from clear, it concluded that:
abortion providers have some constitutionally-protected right,
derived from their patients’ rights, to perform the services that
are necessary to enable women to exercise their own
constitutional rights. This derivative right stems from the fact
that, as abortion providers who help women to realize their
constitutional rights safely, the Plaintiffs are in a unique
position to assert their patients’ constitutional rights.
Id. at 608.
The United States District Court for the District of Kansas
considered the unconstitutional conditions doctrine in Planned
Parenthood of Kansas, Inc. v. City of Wichita. 729 F. Supp. 1282 (D. Kan.
1990). In this case, the district court held that a local government decision
not to provide funding for family planning programs to Planned
Parenthood of Kansas was unconstitutional “viewpoint-based
discrimination” that singled out Planned Parenthood of Kansas on the
basis of advocacy of unpopular ideas in violation of the First Amendment.
Id. at 1287–88.
A few years later, in Planned Parenthood of Mid-Missouri & Eastern
Kansas, Inc. v. Dempsey, the Eighth Circuit considered a state statute
excluding abortion providers from receiving state family planning funds.
167 F.3d 458, 460 (8th Cir. 1999). In Dempsey, the court held that the
restriction would be an unconstitutional condition unless the grantees
were allowed to create independent affiliates that could perform abortions.
Id. at 463–64.
44
In 2012, another federal district court considered an
unconstitutional conditions claim in Cansler. 877 F. Supp. 2d 310. In
Cansler, a state statute barred Planned Parenthood of Central North
Carolina (PPCNC) from receiving state funds for contracts or grants with
the state. Id. at 313. The district court noted that the defendant had
produced no evidence that PPCNC would use or ever had used state funds
to support abortion-related services. Id. at 320. Further, the state
produced no evidence that the restriction was necessary to ensure that the
state funds were not used for abortion services. Id.
As a result, the district court found that the statute imposed an
unconstitutional condition on the plaintiff. Id. at 321. The district court
specifically rejected the claim that the unconstitutional conditions
doctrine did not extend to a provider of services to others. Id. In support
of its conclusion, the district court cited O’Hare Truck Service, Inc. v. City
of Northlake, 518 U.S. 712, 725–26, 116 S. Ct. 2353, 2360–61 (1996), and
Board of County Commissioners v. Umbehr, 518 U.S. 668, 686, 116 S. Ct.
2342, 2352 (1996). Further, the district court noted that in Rust, 500 U.S.
173, 111 S. Ct. 1759, the service providers sought to continue to provide
services to others. Cansler, 877 F. Supp. 2d at 321.
A few months later, however, the Fifth Circuit decided an
unconstitutional conditions case that did not go the plaintiff’s way in
Planned Parenthood Ass ’n of Hidalgo County Texas, Inc. v. Suehs. 692
F.3d 343 (5th Cir. 2012). In Suehs, the Fifth Circuit vacated a district
court preliminary injunction related to provisions of Texas regulations
prohibiting Medicaid providers from performing or promoting elective
abortions. Id. at 346. The scope of the ruling is not entirely clear. The
Suehs court, however, found that Texas could deny funds to organizations
that perform elective programs, characterizing the regulation as “a direct
45
regulation of the definitional content of a state program.” Id. at 350. With
respect to restrictions on affiliates, the Suehs court indicated the
regulation was problematic because it did not amount to a direct
regulation of the content of a government program. Id. at 351. The
preliminary injunction was vacated and the matter remanded for further
proceedings. Id.
Shortly after Suehs was decided, the Seventh Circuit handed down
Planned Parenthood of Indiana. 699 F.3d 962. In Planned Parenthood of
Indiana, the Planned Parenthood affiliate challenged an Indiana statute
that “prohibit[ed] state agencies from providing state or federal funds to
‘any entity that performs abortions or maintains or operates a facility
where abortions are performed.’ ” Id. at 967 (quoting Ind. Code § 5–22–
17–5.5(b) (2011)). The Seventh Circuit noted that under applicable law,
the state was not required to be neutral on the abortion issue. Id. at 987.
The court noted that there was no viable claim that the denial of block
grant funds would impose an undue burden on a woman’s right to obtain
an abortion. Id. at 988.
In 2016, the Tenth Circuit considered the unconstitutional
conditions doctrine in Planned Parenthood Ass’n of Utah v. Herbert, 828
F.3d 1245 (10th Cir. 2016). In Herbert, the Governor of Utah directed state
officials to stop providing Planned Parenthood Association of Utah (PPAU)
with federal pass-through funds to carry out various state programs. Id.
at 1247. The action was taken after the release of edited videos which
suggested that PPAU was engaged in the illegal sale of fetal tissue. Id. at
1250. The state made no claim that PPAU misused funds or that it was
unqualified to provide contracted services. Id. at 1251. It was also
undisputed that PPAU had no direct connection to any of the activities
allegedly depicted in the videos. Id. The Herbert court reversed the district
46
court denial of a preliminary injunction and remanded the case for its
entry. Id. at 1266.
The Herbert court found that there was substantial likelihood that
the state action violated the unconstitutional conditions doctrine. Id. at
1263. The Herbert court noted that the Governor’s action was motivated
by the lawful activity of PPAU associating with other providers. Id. at 1259.
The Herbert court also noted that the Planned Parenthood affiliate
alleged, “without serious challenge from defendants,” a Fourteenth
Amendment right. Id. at 1260. The Herbert court quoted City of Akron for
the proposition that “ ‘because abortion is a medical procedure, . . . the
full vindication of the woman’s fundamental right necessarily requires that
her’ medical provider be afforded the right to ‘make his best medical
judgment,’ which includes ‘implementing [the woman’s decision] should
she choose to have an abortion.’ ” Id. (alteration and omission in original)
(quoting City of Akron, 462 U.S. at 427, 103 S. Ct. at 2491 (1983)).
Finally, in 2016, the Northern District of Florida considered the
unconstitutional conditions issue in Philip, 194 F. Supp. 3d 1213. The
case involved a statute enacted by the Florida legislature blocking abortion
providers from receiving funds from state and local governments. Id. at
1215. In considering whether the legislation amounted to an
unconstitutional condition, the court asked the question whether “the
legislature could directly require the recipient to engage in (or abstain
from) that unrelated activity.” Id. at 1217. The court concluded that “the
state could not directly prohibit the plaintiffs from providing abortions.”
Id.
The court further asserted that it was irrelevant whether any right
belonging to Planned Parenthood of Southwest and Central Florida
(PPSCF) related to abortions was derivative of the right of women. Id. at
47
1218. It noted that in Rust, the Supreme Court considered a restriction
on the use of federal funds for abortions without making any distinction
between the recipients’ own rights and those derived from their patients.
Id. The district court granted PPSCF a preliminary injunction. Id. at 1224.
3. Planned Parenthood of Greater Ohio v. Hodges. The recent
Hodges case bears marked similarity to this case. A review of the majority
and dissenting opinions provides a good overview of the issue presented in
this case.
In 2016, Ohio enacted a statute that:
require[d] the Ohio Department of Health to “ensure” that all
of the funds it receives for the six programs “are not used to
do any of the following: (1) Perform nontherapeutic abortions;
(2) Promote nontherapeutic abortions; (3) Contract with any
entity that performs or promotes nontherapeutic abortions; (4)
Become or continue to be an affiliate of any entity that
performs or promotes nontherapeutic abortions.”
Hodges, 917 F.3d at 910 (majority opinion) (quoting Ohio Rev. Code
§ 3701.034(B)–(G) (2016)). The programs impacted by the statute targeted
“sexually transmitted diseases, breast cancer and cervical cancer, teen
pregnancy, infant mortality, and sexual violence.” Id. The Ohio
Department of Health determined that the statute required the end of
contracts with the Planned Parenthood affiliates because the “entities
perform abortions, advocate for abortion, and affiliate with other entities
that do the same.” Id. at 911. The district court enjoined the state from
enforcing the law and a panel of the Sixth Circuit agreed. Id. The Sixth
Circuit, however, decided to review the matter en banc. Id.
By a vote of 11–6, a majority of the Sixth Circuit reversed the district
court. Id. at 917. Writing for the majority, Judge Sutton noted that
“[p]rivate organizations do not have a constitutional right to obtain
governmental funding.” Id. at 911–12. While “the State may not condition
48
a benefit by requiring the recipients to sacrifice their constitutional rights,”
Judge Sutton reasoned that “[t]he Supreme Court has never identified a
freestanding right to perform abortions.” Id. at 912.
Citing language in Casey, 505 U.S. at 883, 112 S. Ct. at 2823(plurality opinion), Judge Sutton stated that the physicians had no more
constitutional rights in the abortion context than they did performing a
kidney transplant. Hodges, 917 F.3d at 912. Judge Sutton asserted that
the only other circuit court to address the issue—the Seventh Circuit in
Planned Parenthood of Ind., 699 F.3d at 962—came to the same
conclusion. Id. at 913.
Judge Sutton maintained that the third-party standing doctrine did
not fill the gap created by the lack of a provider’s constitutional right
related to abortion. Id. at 914. According to Judge Sutton, finding third-
party standing in Hodges would “move the law perilously close to requiring
States to subsidize abortions.” Id.
Judge Sutton recognized that a claim might at some point be made
that Ohio’s statute posed such a burden on Planned Parenthood of Greater
Ohio (PPGO) that it placed an undue burden on the right to an abortion.
Id. at 916. But such a challenge, according to Judge Sutton, was
premature as no hard evidence was developed in the record to support
such a claim. Id.
Judge White dissented from the majority view in the case. Id. at 917
(White, J., dissenting). According to Judge White, under Agency for
International Development, PPGO needed to show “(1) the challenged
conditions would violate the Constitution if they were instead enacted as
a direct regulation” (namely, regulations prohibiting PPGO from engaging
in abortions), “and (2) the conditions affect protected conduct outside the
scope of the government program.” Id. A direct prohibition on PPGO from
49
performing abortions, according to Judge White, would clearly impose an
undue burden on Ohio’s women, thereby satisfying the first Agency for
International Development prong. Id. at 921–23. Further, Judge White
observed that the activities prohibited by the statute, performing
abortions, advocating for abortion rights, or affiliating with organizations
that engage in such actively, all are on Planned Parenthood’s own “time
and dime.” Id. at 923 (quoting Agency for Int’l Dev., 570 U.S. at 218, 133
S. Ct. at 2330). This “straightforward” application of the unconstitutional
conditions doctrine, according to Judge White, should resolve the case. Id.
Judge White rejected the view that PPGO had to establish an
independent constitutional right to abortion to invoke the unconstitutional
conditions doctrine. Id. at 925–31. Among other things, Judge White
emphasized that the right to an abortion has long been understood to be
“ ‘inextricably bound up with’ a provider’s ability to offer [abortion]
services.” Id. at 918 (quoting Singleton, 428 U.S. at 114, 96 S. Ct. at 2874).
Judge White recognized that the majority’s argument was that
because PPGO had no constitutionally protected right as an abortion
provider, it could not resort to the unconstitutional conditions doctrine.
Id. at 925. Judge White responded by noting that the unconstitutional
conduct caselaw merely required that the doctrine could be invoked to
protect “constitutionally protected” conduct and that a woman’s right to
seek an abortion was certainly that. Id. Further, Judge White asserted
that one of the core purposes of the unconstitutional conditions doctrine,
namely, to prevent government from achieving indirectly what it could not
achieve directly, was fully present in the case. Id. at 926. Ohio, according
to Judge White, could not directly prohibit abortion providers from
performing abortions without placing an undue burden on women seeking
abortions in the area. Id. Indeed, as pointed out by Judge White, providers
50
established a challenge to burdensome law on due process grounds in
Whole Woman’s Health, 579 U.S. at ___, 136 S. Ct. at 2300. Hodges, 917
F.3d at 926.
Judge White directly challenged the Seventh Circuit’s approach in
Planned Parenthood of Indiana, 699 F.3d 962. Hodges, 917 F.3d at 927–
29. She attacked the notion that a restriction was not actionable if it does
not actually operate to impose an undue burden on women seeking
abortions or upon the abortion providers. Id. at 928. According to Judge
White, in Agency for International Development, the harm was caused by
mere imposition of the condition. Id. at 928. And, Judge White cited
Koontz for the proposition that “[a]s in other unconstitutional conditions
cases in which someone refuses to cede a constitutional right in the face
of coercive pressure, the impermissible denial of a governmental benefit is
a constitutionally cognizable injury.” Id. (quoting Koontz, 570 U.S. at 607,
133 S. Ct. at 2596).
Judge White noted that Planned Parenthood of Indiana failed to
recognize the critically important difference “between conditions placed on
the government program and those imposed on the recipient.” Id. at 928.
She noted that the entire discussion “rested on the undisputed
propositions that the government can” fashion the nature of its program
to favor childbirth. Id. at 929.
But for Judge White, the critical question is whether the state may
indirectly impose a condition on recipients of state funds that it could not
directly impose through regulation. Id. at 930. And, of course, Judge
White emphasized that the state could not directly prohibit providers from
providing abortions. Id. Yet, according to Judge White, the majority
developed what amounted to a work around:
51
[T]he majority creates a loophole that enables states to
circumvent the unconstitutional-conditions doctrine: the
government cannot leverage its funding to carve away at
constitutional rights by passing laws that target the individual
who holds the right, but it can leverage funding to achieve that
same result so long as it manages to find a proxy to target
instead.
Id. (emphasis omitted). Further, Judge White observed:
[T]o permit the State to leverage its funding to launch a thinly
veiled attack on women’s rights so long as it camouflages its
unconstitutional condition in provider-focused verbiage . . .
strikes me as exactly the type of maneuver the doctrine seeks
to prevent.
Id.
According to Judge White, the consequences of the majority’s
approach were breathtaking. See id. Indeed, the United States argued in
the case that Ohio’s “position would authorize the government to pass a
law prohibiting all doctors who perform abortions from providing any other
medical services.” Id.
Judge White noted the potential power of undermining the ability of
providers to provide abortions. Id. Just about all of the efforts to attack
abortion rights before the Supreme Court have been state actions targeting
abortion “providers, not women.” Id.; see also, e.g., Whole Woman’s
Health, 579 U.S. ___, 136 S. Ct. 2292; Stenberg, 530 U.S. 914, 120 S. Ct.
2597; Casey, 505 U.S. 833, 112 S. Ct. 2791; Hodgson v. Minnesota, 497
U.S. 417, 110 S. Ct. 2926 (1990). According to Judge White, legislatures
seeking to restrict “abortion rights have long understood: when a
constitutional right requires a third party to vindicate it, a restriction
imposed on that indispensable third party effectively restricts the
rightholder.” Hodges, 917 F.3d at 930. Judge White concluded:
Because the unconstitutional-conditions doctrine does
not allow the government to penalize a party indispensable to
the exercise of a constitutional right so long as the party
52
refuses to cry uncle and submit to the condition, the conduct
provision is unconstitutional.
Id. at 931.
Having found the conduct provision unconstitutional, Judge White
proceeded to deal with the advocacy and affiliation provisions of the Ohio
law. Id. Such claims, according to Judge White, were “patently
meritorious.” Id. Judge White quickly recognized that the state could
regulate the content of the state program. Id. No problem there. Nor,
according to Judge White, does the message become “garbled” as the
underlying programs had nothing to do with abortion. Id. at 932. Judge
White reasoned that the regulations “seek[] to impose restrictions on
recipients’ speech outside” the scope of the programs. Id.
The limitations on affiliation fared no better in the hands of Judge
White. She found the restrictions plainly contrary to Runyon v. McCrary,
427 U.S. 160, 175, 96 S. Ct. 2586, 2597 (1976), and NAACP v. Alabama
ex rel. Patterson, 357 U.S. 449, 460, 78 S. Ct. 1163, 1171 (1958). Hodges,
917 F.3d at 932–33. These cases, according to Judge White, stand for the
proposition that affiliation advances beliefs and ideas and is conduct
protected by the First Amendment. Id.
IV. Application of Unconstitutional Conditions Doctrine in This
Case.
In my view, the statute in this case violates the unconstitutional
conditions doctrine. I find this conclusion is compelled for several reasons.
First, in my view, abortion providers like PPH may assert the rights
of women seeking abortions as they have for over forty years. Third-party
standing makes sense in the abortion context because of the short time
frame involved and the difficulties of individual parties asserting their
claims. Further, the ability to obtain an abortion is inextricably
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intertwined with the ability to find an abortion provider. Regulation of
providers thus has a direct impact on the ability of potential plaintiffs to
exercise their right. Further, because of their resources and expertise,
abortion providers are ordinarily in a better position to develop the
constitutional claims than are individual plaintiffs. The rights of persons
seeking abortions are inextricably intertwined with abortion providers as
abortions cannot be safely performed without them. The intertwined
relationship between those who seek abortions and abortion providers
cannot be pulled apart by declarations that the providers have no
constitutional rights themselves. The providers have standing to assert
the constitutional rights of others because the rights of third parties are
constitutionally welded to providers who are essential if the constitutional
right is to be effectuated.
Second, assuming PPH has third-party standing, may the state
simply ban PPH from providing abortions? As noted by the caselaw, a
central question in the unconstitutional conditions doctrine is whether the
state is attempting to achieve indirectly what it cannot do directly. In my
view, the state could not issue a ban on PPH from providing abortion
services. If the law were otherwise, the state could simply ban all providers
from engaging in abortion activity and thereby, from a practical point of
view, eviscerate a woman’s right to choose an abortion.
In this case, there is not the remotest suggestion that there is a
conflict of interest between PPH and its clients. In any event, I note that
the conflict-of-interest theory between abortion providers and their clients
has been rejected in a number of abortion cases. See, e.g., McCormack v.
Herzog, 788 F.3d 1017, 1028 (9th Cir. 2015); Planned Parenthood of
Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583, 589 n.9 (5th
Cir. 2014); Charles v. Carey, 627 F.2d 772, 779 n.10 (7th Cir. 1980). It is
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hard to imagine how there could be a conflict of interest under the facts
presented in this case.
The ability to effectively litigate claims is as important as the
underlying substantive law. A broadly framed constitutional right is of
little value, for example, if most aggrieved parties are not in a position to
prosecute claims. As a result, I regard this case as involving a very
important question regarding the ability of abortion clients and their
providers to challenge state law restrictions on the right of abortion.
Although the majority declares its ruling on third-party standing is limited
to indirect regulation, I fear that the majority opinion’s suggestion that
PPH is not asserting any rights of constitutional dimension lays the
groundwork for placing barriers and obstacles designed to make
challenges to stricter and stricter abortion regulation more and more
difficult.
In sum, I agree with the approach of Judge White in Hodges. The
State is attempting to impose a restriction on a provider of abortion
indirectly which it may not directly impose. Further, provisions of the
statutes that attempt to prohibit affiliation with other groups performing
abortion rights or advocating abortion rights offend freedom of association
rights under article I, section 7 of the Iowa Constitution. See City of
Maquoketa v. Russell, 484 N.W.2d 179, 184 (Iowa 1992) (en banc). I would
affirm the district court on the ground that the attempted regulation
amounts to unconstitutional restriction on the right to abortion.
For the above reasons, I respectfully dissent.