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Utah's Ban on Planned Parenthood Funding Deserved to Be Reversed

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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A federal appeals court has ordered Utah Governor Gary Herbert to reinstate contracts with the state's Planned Parenthood chapter. Herbert had unilaterally suspended the funds after the release last summer of misleading videos that purported to show unrelated Planned Parenthood officers discussing the sale of fetal tissue. The court said Herbert had likely violated the Utah chapter’s free association rights and the right to abortion itself.

The decision, reversing a federal district court judge based in Utah, is a useful reminder of why regional appeals courts are so valuable. And it also serves as a primer for the important judicial doctrine known as unconstitutional conditions, which prohibits the government from making the provision of a benefit conditional on that non-exercise of basic constitutional rights such as those found in the First and Fourteenth Amendments.

An account of the case should begin with the observation that Herbert’s initial act of suspension was indefensible. The doctored video produced in 2015 by the anti-abortion group Center for Medical Progress wasn’t a good basis for any action by any government official, much less the governor of Utah.

The video scandal led to the indictment of a CMP activist in Texas on the felony charge of altering government records, namely faking a driver’s license.

But more significant, the CMP videos had no relation to the Planned Parenthood Association of Utah, which is independent of national Planned Parenthood. In addition, the Utah chapter receives no federal funds to pay for abortions -- as required by federal law.

The Planned Parenthood contracts that Herbert suspended were intended for data gathering and sex education. This being Utah, the program is called the Utah Abstinence Education Program.

When Herbert suspended the state’s contracts, he made no effort to prove a logical connection between the videos and the state contract. He just said that “in light of ongoing concerns about the organization, I have instructed state agencies to cease acting as an intermediary for pass-through federal funds to Planned Parenthood.”

Obviously illegal, right? Well, not in Utah federal court. In December 2015, Judge Clark Waddoups ruled that the ban could go forward and refused to issue an injunction against Herbert, saying that Planned Parenthood failed to show that it was likely to succeed on the merits of its lawsuit. He reasoned that Planned Parenthood couldn’t prove that Herbert issued his directive to punish the group for the exercise of its constitutional rights.

Waddoups, a George W. Bush appointee, is a Utah insider and Brigham Young University graduate best known for an opinion striking down part of the state’s anti-polygamy statute as unconstitutional. I actually thought that was a pretty good decision, though the U.S. Court of Appeals for the Tenth Circuit reversed it.

But Waddoups missed the boat on the Planned Parenthood case.

Luckily, Planned Parenthood had the option of appealing the denial of a preliminary injunction to the Tenth Circuit, which sits in Denver, not Salt Lake City.

In a 2-1 decision, the Tenth Circuit panel reversed Waddoups’ decision and issued the injunction forcing others to reinstate the contracts.

Interestingly, the appeals court didn’t rely on Planned Parenthood’s claim that its equal protection rights had been violated when the governor singled it out for suspension. The court speculated that, for a government contractor, the equal protection claim might not be appropriate when it was a sole plaintiff claiming to have been treated wrongfully, rather than a member of a larger group claiming discrimination.

Instead, the court’s opinion focused on Planned Parenthood’s claim that the ban placed unconstitutional conditions on its exercise of its rights. Specifically, Planned Parenthood argued that its Utah chapter has the right to associate itself with entities that advocate for abortion, including the national organization. It added that abortion itself is a fundamental right for women, one that the courts have held to create a corresponding right for medical professionals to enable women to obtain it.

The Tenth Circuit held that Herbert had burdened those rights by effectively holding Planned Parenthood’s funding hostage on the basis of his dislike of the organization’s advocacy and its abortion activity.

The dissenting judge, Robert Bacharach, who was appointed by President Barack Obama, thought that Waddoups had acted within his discretion in concluding that Planned Parenthood wasn’t likely to be able to prove that Herbert acted out of animus towards abortion.

He said that Herbert could have acted simply because he believed the CMP video allegations.

But this position ignores the fact that the CMP videos had nothing to do with the Utah Planned Parenthood chapter. Even if Herbert had believed the videos, he would have been finding Utah Planned Parenthood guilty by association -- a violation of the organization’s associational rights, at a minimum.

The case demonstrates how the unconstitutional conditions doctrine can usefully fill a gap in other aspects of constitutional law. In suspending the contracts, Herbert didn’t directly prohibit Planned Parenthood from doing anything that it has a constitutional right to do. Rather, his targeting of the chapter stemmed from a generalized political desire to show solidarity with the antiabortion movement.

Under these conditions, the unconstitutional conditions doctrine was the right tool for the courts to use. Otherwise, government officials could unilaterally target organizations they don’t like on flimsy or nonexistent evidence -- and the organizations would have no legal recourse.

This was a good result. It's a shame it took so long for the courts to reach it.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Max Berley at mberley@bloomberg.net