Not long after a federal district court judge in Indiana temporarily enjoined a law excluding Planned Parenthood from participation in a federally funded program, a federal court in Kansas did the same. In both instances, the state law effectively singled out Planned Parenthood for exclusion because of its association with abortion. And in both cases, the court issued a preliminary injunction and held that the law would likely be found unconstitutional because it imposed additional eligibility criteria that were inconsistent with the federal law.
The Kansas case is significant because it went even further. It held that by targeting Planned Parenthood for exclusion because of its association with abortion, the state law created an "unconstitutional condition" on public funding that violated the First and Fourteenth Amendments. In this way, the court highlighted the real problem with state defunding attempts: it isn't simply about states getting carried away legislatively in ways the conflict with federal law; rather it is about states deliberately using their administrative power to punish not only providers that perform abortions, but those who actively seek to promote women's access to this kind of health care.
State Law Exclusion of Planned Parenthood
Kansas recently enacted legislation that effectively precluded Planned Parenthood from applying for Title X funds administered through the state. Title X is a federal program that has funded low-cost family planning services for low-income and uninsured women and families since 1970. The Kansas Department of Health and Environment (KDHE), the state agency that was awarded the federal grant in this case, is responsible for doling out Title X funds to providers of family planning services. KDHE has relied on Planned Parenthood as a Title X grantee for over 25 years. In fact, just last year, KDHE submitted an application requesting Title X funds as part of a 5-year grant, and in its grant application it represented that Planned Parenthood's Wichita and Hays health centers would be two of its subgrantees and that they received that largest amount of Title X funding distributed (about 13%). Notably, KDHE also touted Planned Parenthood's special Family Planning Male Involvement Information and Education Project to more fully involve males in reproductive health and pregnancy planning - a Title X program priority.
Despite these representations and KDHE's recognition of Planned Parenthood's important family planning services, the Kansas law, which took effect July 1, 2011, makes Planned Parenthood ineligible for Title X funds. Specifically, the law prioritizes funding to "government entities" (like state, county or local health clinics or departments) and to "hospitals or federally qualified health centers" that "provide comprehensive primary and preventative care in addition to family planning services." Under this law, Planned Parenthood is effectively precluded from even applying for Title X funds.
Violation of the Supremacy Clause
This case is very similar to the recent Indiana case, as well as to prior cases in which Title X exclusions have been found invalid under the Supremacy Clause in Article VI of the U.S. Constitution. The Supremacy Clause provides that all laws and treaties made by the federal government shall be the supreme law of the land; in other words, federal law trumps conflicting state law. There has not yet been a full hearing on the merits, but the court found that plaintiffs will likely succeed in proving a violation because requiring that a provider of family services be a government entity, hospital, or FQHC, added eligibility criteria for federal funding that conflicted with federal law. Title X specifically provides that "any entity" may apply for a Title X grant, and a number of courts have already held that a state law which excludes providers who would otherwise be eligible under federal law "is inconsistent with Title X's broad application" and "would seriously undermine and obstruct Congress' intent."
Unconstitutional Condition in Violation of the First & Fourteenth Amendments
Unlike the Indiana case, the Kansas court did not stop there. It also agreed with Planned Parenthood's claim that the state exclusion was an unconstitutional attempt to punish it for its support of abortion rights and its association with abortion services providers in violation of the First and Fourteenth Amendments. One of the state's defenses to this claim was that the law does not target Planned Parenthood on its face nor does it mention abortion; the law appears to simply exclude a certain category of provider - nonpublic entities that are not hospitals or FQHCs - from eligibility. The court quickly dismissed this, however, based on the legislative statements and activity surrounding the exclusion. It was clear from this evidence that the purpose of the law was to deprive Planned Parenthood of funding because of its association (or perceived association with abortion services). State Representative Lance Kinzer, who offered the amendment containing the exclusion, made this purpose clear to other legislators before the vote, and then in a press release and announcement on his facebook page immediately after the vote: "Delighted to announce that the KS House just approved my floor amendment to deny Title X funding to Planned Parenthood for the balance of FY 2011. The vote was 91-26, a great victory on the first pro-life floor vote of the season."
Indeed, proponents of the recent wave of state defunding attempts consistently claim that they are trying to prevent public funding from being used for abortion; however this justification was also rejected by the court because this is not what the state laws do. First, federal law (like Title X) and many states already prohibit public funding for abortion. Second, in this case, neither of the two Planned Parenthood facilities harmed by the exclusion even provided abortion services. Although one of their affiliates does, it is located in a different area of Kansas - financially and physically separate from the Planned Parenthood recipients of Title X. The affiliate that provides abortion services receives no Title X funds; it was entirely financed by private funds so no Title X funds can be used for abortions. Finally, current and prior laws that have excluded Planned Parenthood from public funding typically have exceptions for other kinds of providers (like hospitals and managed care plans) despite the fact that they may be providing abortions. No evidence has been offered to show a greater risk of commingling by Planned Parenthood than these other providers that would justify such differential treatment.
In fact, the Kansas law looks more like an attempt to punish Planned Parenthood by excluding it from any chance of receiving federal funding because of its association with abortion and promotion of abortion rights, and thus looks like an unconstitutional condition on the receipt of federal funds. The Supreme Court has made a critical distinction between government's refusal to fund a particular activity, which is constitutional, and its attempt to "penalize" someone for exercising a constitutional right, which is not. For example, in 1980 in Harris v. McRae, the Supreme Court upheld the Hyde Amendment, a federal law prohibiting funding for abortions except where life-threatening. In finding the funding limitation constitutional, the Court cautioned that "[a] substantial constitutional question would arise if Congress had attempted to withhold all Medicaid benefits from an otherwise eligible candidate simply because that candidate had exercised her constitutionally protected freedom to terminate her pregnancy by abortion." This kind of "broad disqualification from receipt of public benefits" looks more like an unconstitutional "penalty" for protected conduct.
Eleven years later, in Rust v. Sullivan, the Supreme Court made a similar distinction when it upheld regulations implementing Title X's prohibition on federal funds for abortion services. The regulations defined what kinds of activities were impermissible under Title X, and they required that recipients of Title X funding who performed abortions must create physical and financial separation between these prohibited activities and activities allowed under Title X. Essentially, the regulations created guidelines to prevent commingling of funds, guidelines with which the Planned Parenthood facilities under attack today have complied. Notably, though upholding these provisions, the Supreme Court drew a signficant distinction between this kind of legitimate restriction on the funding of certain activities and an unconstitutional penalty on those who otherwise engage in protected activity with private funds:
"[H]ere the Government is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purposes for which they were authorized. The Secretary's regulations do not force the Title X grantee to give up abortion-related speech; they merely require that the grantee keep such activities separate and distinct from Title X activities. Title X expressly distinguishes between a Title X grantee and a Title X project. The grantee, which normally is a health-care organization, may receive funds from a variety of sources for a variety of purposes. The regulations govern the scope of the Title X project's activities, and leave the grantee unfettered in its other activities. The Title X grantee can continue to perform abortions, provide abortion-related services, and engage in abortion advocacy; it simply is required to keep them separate and independent from the project that receives Title X funds."
The court expressly acknowledged that this freedom to engage in protected activities with non-Title X funding is what makes this different from the "unconstitutional conditions" cases "in which the "Government has placed a condition on the recipient of the subsidy rather than on a particular program or services, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program." The broad disqualification of Planned Parenthood from federal funding because of its association with abortion is one of the most compelling examples of such an unconstitutional condition.
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For more on the Indiana case and the Supremacy clause claim, click here for my recent blog post. For more on state legislative activity that is threatening reproductive health generally, go to the National Women's Law Center website on Health Care and Reproductive Rights.
