Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:16-cv-00539—Michael R. Barrett, District Judge.
Argued: August 3, 2017
Decided and Filed: April 18, 2018
Before: SILER, CLAY, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Enacted in 2016, Ohio Revised Code § 3701.034
requires the Ohio Department of Health (ODH) to ensure that all funds it receives through six
non-abortion-related federal health programs are not used to contract with any entity that
performs or promotes nontherapeutic abortions, or becomes or continues to be an affiliate of any
entity that performs or promotes nontherapeutic abortions.
Plaintiffs Planned Parenthood of Greater Ohio (PPGOH) and Planned Parenthood
Southwest Ohio Region (PPSWO) filed this action for declaratory and injunctive relief under
42 U.S.C. § 1983, alleging that § 3701.034 violates 1) their First Amendment rights “by denying
state and federal funds” to Plaintiffs “because of–and in retaliation for–their constitutionally
protected advocacy for abortion rights and affiliation with other organizations that also advocate
for abortion rights and/or provide abortion services”; 2) the Due Process Clause “by denying
state and federal funds” to Plaintiffs “because of––and in retaliation for––[Plaintiffs’] own
constitutionally protected right to provide abortions and their patients’ exercise of the
constitutional right to choose to have abortion”; and 3) the Equal Protection Clause “by singling
out abortion providers and those who ‘promote’ abortions, including Plaintiffs, for unfavorable
treatment without a constitutionally sufficient justification.” PID 1/Complaint; PID 27-28.
Plaintiffs sought to enjoin ODH from enforcing § 3701.034 or terminating Plaintiffs’ funding
under the six federal programs pursuant to that statute. PID 309.
The district court entered a temporary restraining order on the day § 3701.034 was to take
effect. PID 308/Dist. Ct. Op. 5/23/16. Following expedited discovery, Plaintiffs filed motions
for judgment on the merits and to permanently enjoin ODH from enforcing § 3701.034, Fed. R.
Civ. P. 65(a)(2). PID 2122-23/Dist. Ct. Op. 8/12/16. Applying the unconstitutional-conditions
doctrine, the district court determined that § 3701.034 impermissibly conditions funding under
programs that are unrelated to abortion based on a recipient’s foregoing exercise of its First
Amendment rights to free speech or association outside the contours of the six programs, and
foregoing provision of abortion services protected by the Due Process Clause. Planned
Parenthood of Greater Ohio v. Hodges, 201 F. Supp. 3d 898 (S.D. Ohio 2016). The district
court granted Plaintiffs’ motions for judgment on the merits and a permanent injunction.
ODH appeals, challenging Plaintiffs’ standing to assert the due process claims, and
arguing that we should not reach Plaintiffs’ First Amendment claim because the statute’s
“conduct provision,” which bars funding for entities that perform abortions, does not violate due
process. ODH challenges the district court’s ruling on the First Amendment claim as well.
Relying on Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Department
of Health, 699 F.3d 962 (7th Cir. 2012), cert. denied, 569 U.S. 1004 (2013), ODH also
challenges the district court’s application of the unconstitutional-conditions doctrine to Plaintiffs’
due process claim, asserting that in the abortion context, the unconstitutional-conditions doctrine
at most bars conditions that impose an undue burden on women’s access to abortion, which is
not present here. Because we conclude the district court properly applied the unconstitutionalconditions
doctrine and that § 3701.034 is unconstitutional under that doctrine, we AFFIRM.