U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

Utah Can't Withhold Federal Funds From Planned Parenthood

Utah Governor Gary Herbert can't withhold federal funds from the Planned Parenthood Association of Utah, the Tenth Circuit ruled last week. The governor had instructed Utah officials to withhold $272,000 in so-called "pass-through" federal funds designated for STD treatment and sex education.

The move came shortly after conservative activists released video of Planned Parenthood discussing the use of fetal tissue in medical research, leading to a national uproar and attempts in several states to deny funding to Planned Parenthood-affiliated programs.

Gov. Herbert Cuts off Federal Funds

The Planned Parenthood Association of Utah, an independent organization affiliated with the national Planned Parenthood group, treats more than 46,000 patients a year, with the vast majority of them, nearly 45,000, receiving services unrelated to abortion, the court noted. That includes 17,000 patients who received testing or treatment for sexually transmitted diseases.

For 43 years, PPAU has received funding from the federal government, through programs administered by Utah. But that relationship became a bit more complicated in the summer of 2015, when the Center for Medical Progress released videos that purported to show Planned Parenthood staff discussing the sale of fetal tissue.

Following the uproar over those videos, which the Tenth Circuit described as "selectively edited" and "false," Governor Herbert directed state officials to "cease acting as an intermediary for pass-through federal funds to Planned Parenthood." As a result, federal funding for the Planned Parenthood Association of Utah's STD and sex education programs would be cut off.

PPAU Likely to Show Constitutional Violations

PPAU sued under 42 U.S.C. Sec. 1983. The Group claimed that Utah had violated its equal protection rights through singling the group out "for unfavorable treatment without adequate justification," and its First Amendment rights "by imposing a penalty based on its speech," also without justification. Finally, PPAU alleged that Utah had violated both its rights and that of its patients by imposing a penalty on the association for its provision of and association with abortion, without adequate justification.

The district court declined to issue a preliminary injunction against Utah. But on appeal the Tenth reversed, finding the PPAU was likely to succeed on its claims of unconstitutional conditions, and ordering the court to issue an injunction blocking Utah's withholding of federal funds.

The Tenth rejected PPAU's equal protection claims, on the grounds that there was no evidence in record to establish that scope of discretion afforded to Utah in its contracts with PPAU, or the treatment of similarly-situated contractors. However, the Tenth agreed with Planned Parenthood that Utah's "penalties" imposed against PPAU likely violated both its First Amendment free speech rights and Fourteenth Amendment rights to abortion.

"In particular, we conclude that a reasonable finder of fact is more likely than not to find that Herbert, a politician and admitted opponent of abortion, viewed the situation that presented itself by the release of the CMP videos as an opportunity to take public action against PPAU," Judge Mary Beck Briscoe wrote for the court. "This seems especially true given Herbert's concession that the allegations made by CMP are unproven and in fact false, and in light of the current political climate."

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