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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

PLANNED PARENTHOOD OF GREATER OHIO, and PLANNED PARENTHOOD SOUTHWEST OHIO REGION,
Plaintiffs,
v.
RICHARD HODGES, in his official capacity as Director of the Ohio Department of Health, and TIMOTHY INGRAM, in his official capacity as Commissioner of Hamilton County Public Health,
Defendants.

Civil Action No. 1:16-cv-539

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Plaintiffs Planned Parenthood of Greater Ohio (“PPGOH”) and Planned Parenthood Southwest Ohio Region (“PPSWO”), by and through their attorneys, bring this Complaint against the above-named Defendants, their employees, agents, and successors in office, and in support thereof state the following:
NATURE OF THE ACTION 1. This civil action is brought pursuant to 42 U.S.C. § 1983 and the United States Constitution to vindicate rights secured by the First Amendment to the United States Constitution and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. 2. For decades, PPGOH and PPSWO have played an important role in the delivery

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of health care to tens of thousands of Ohio residents each year, especially low-income women and minority Ohio residents. Both PPGOH and PPSWO have received federal, state, and local funds to provide vital health services in the communities they serve, including pap smears and other cancer screenings, tests for HIV/AIDS and tests and treatment for other sexuallytransmitted diseases (“STDs”), infant mortality prevention programs, and sexual health education programs. PPGOH and PPSWO have provided excellent service to Ohio residents under those programs, and have routinely passed audits and program reviews and received praise from program administrators.
3. Nevertheless, the State of Ohio has decided to bar PPGOH and PPSWO from receiving government funding for non-abortion health care programs and health education programs. It has done so solely because PPGOH and PPSWO—separate and apart from the health and education services they provide with government funding—also provide abortion services (along with other reproductive health services) and advocate for safe and legal abortions, both of which are constitutionally protected activities. Almost all of the programs from which the State of Ohio is attempting to exclude PPGOH and PPSWO are paid for entirely by federal funds. The State disburses those federal funds to local agencies and to local service providers.
4. On February 21, 2016, Governor John Kasich signed into law Substitute House Bill Number 294. Ohio Rev. H.B. 294 (codified at Ohio Rev. Code § 3701.034). On March 24, 2016, the Ohio Department of Health (“ODH”) informed Plaintiffs that it interprets Section 3701.034 to categorically disqualify any entity that either “perform[s]” or “promote[s]” “nontherapeutic” abortions (as that term is defined in Ohio Rev. Code § 9.04(A)(1)), or affiliates with any entity that does so, from receiving state and certain federal funds that it is
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otherwise eligible and qualified to receive—even if the entity never uses a penny of government money to provide abortion services or advocate for safe and legal abortion. Although there has been confusion regarding what the statute in fact prohibits, the measure as interpreted by ODH effectively bars PPGOH and PPSWO from receiving state and federal funds the organizations use to provide vital non-abortion services to thousands of people in Ohio.
5. PPGOH and PPSWO seek declaratory and injunctive relief because Section 3701.034 violates the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Section 3701.034 impermissibly disqualifies PPGOH and PPSWO from receiving certain funds because of their constitutionally protected advocacy in support of safe and legal abortion. Section 3701.034 also impermissibly disqualifies PPGOH and PPSWO from receiving the funds at issue because of their provision of constitutionally protected abortions, even though those abortion services are undertaken without any government funding or involvement. Section 3701.034 exacts an extreme punishment—total disqualification—even though the funds at issue have nothing to do with abortion.
6. Section 3701.034 cannot be justified on the ground that it avoids government subsidization of abortion, because (with a few narrow exceptions) federal and state law already prohibit government funds from being used for abortion services, see, e.g., Ohio Rev. Code § 9.04(B), and PPGOH and PPSWO have rigorously adhered to those prohibitions. Nor can Section 3701.034 be justified by its budgetary impact: The government funds diverted from PPGOH and PPSWO are theoretically available to other organizations, which could apply to receive the same grant money.
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7. The principal effect of Section 3701.034 will be to deprive Ohio residents, including low-income women, men, and teens, of much needed services. No other existing organization in the region comes close to matching either PPGOH’s or PPSWO’s trusted high quality of care, accessibility, and specialized expertise in the services it provides. Even if other health care providers are eventually able to provide similar services, many patients’ health care and access to other services will be disrupted because other providers are not prepared to assume responsibility for those services. Disruptions in care, including testing and treatment, could have a serious impact on the health of those patients.
8. Section 3701.034 will take effect on May 23, 2016. If permitted to stand, Section 3701.034 will cause significant and irreparable harm to PPGOH and PPSWO, as well as those served by PPGOH and PPSWO, who will have few or no options for vital health services. Enforcement of Section 3701.034 will force PPGOH and PPSWO to eliminate services, including life-saving health care services and educational programs. These cuts will fall hardest on the many low-income Ohioans served by PPGOH’s and PPSWO’s programs, and those PPGOH and PPSWO employees whose jobs will likely be terminated. Termination of employees, among other things, will make it difficult to reconstitute these programs should PPGOH and PPSWO become eligible to apply for funding once again.
9. Plaintiffs’ compliance with Section 3701.034’s funding condition (as implemented by ODH)—i.e., by ceasing to perform and “promote” abortions—would constitute an undue, constitutionally intolerable burden on the abortion rights of Ohio women. PPSWO and PPGOH provided approximately 30 percent (approximately 6,257 of 21,186) of the abortions in the State of Ohio in calendar year 2014. In the same year, PPGOH provided approximately 36 percent (approximately 1,500 of 4,137) of the abortions in Franklin County
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and 23 percent (approximately 2,000 of 8,548) of the abortions in Cuyahoga County. PPSWO operates the only abortion clinic in the Cincinnati area, and in 2014 performed 2,757 abortions there. Were Plaintiffs to comply with Section 3701.034’s funding condition, the consequences for Ohio women would be dramatic. Cincinnati would become the largest metropolitan area in the country without an abortion clinic. The overnight disappearance of approximately one quarter to one third of capacity in Franklin and Cuyahoga counties would likely overwhelm existing providers, expand wait times, and leave some women in those counties with no feasible option for exercising their constitutional right to choose to have an abortion. This would worsen an already dire situation for women seeking an abortion in Ohio, as half of Ohio’s abortion clinics have shut down due to restrictive legislation over the last 6 years.
JURISDICTION AND VENUE 10. This Court has subject-matter jurisdiction under 28 U.S.C. § 1331 and § 1343. 11. Plaintiffs’ claim for declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, and by the general legal and equitable powers of this Court. 12. Venue in this judicial district is proper under 28 U.S.C. § 1391(b)(2) because PPSWO is headquartered in Cincinnati, Ohio, and experiences the denial of funding there. Furthermore, the PPSWO health centers affected by Section 3701.034 are located in Hamilton County, Ohio, and but for Section 3701.034 would receive funds administered by ODH. Therefore, a substantial part of the events or omissions giving rise to the claims alleged herein arise in this district. 13. In addition, one of the defendants, Timothy Ingram, the Commissioner of Hamilton County Public Health, resides within this district. Venue is therefore also proper in
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this district under 28 U.S.C. § 1391(b)(1). THE PARTIES
A. Plaintiff PPGOH 14. Plaintiff PPGOH is a not-for-profit corporation organized under the laws of
Ohio. PPGOH brings this action on behalf of itself, its patients, and those benefiting from its health education and outreach services.
15. PPGOH provides affordable, respectful, and high-quality health care to tens of thousands of patients. PPGOH operates 21 health centers in 20 locations in northern, eastern, and central Ohio, which provide a wide range of reproductive health services, including well-women exams, screening for breast and cervical cancer, contraception and contraceptive counseling, and testing and treatment for sexually transmitted diseases and infections. At two of its health centers, located in Columbus and in the Cleveland area, PPGOH provides abortions to women who seek to terminate their pregnancy.
16. Many of the patients who receive health care services at PPGOH’s health centers have limited income. Approximately 40 percent of the patients treated at PPGOH’s health centers in the fiscal year ending June 29, 2015 are low-income, many of whom live at or below the poverty line.
17. PPGOH also provides a variety of education programs through its Health Education and Outreach Department. The department’s mission is to empower Ohioans to make informed, responsible sexual health decisions through comprehensive, evidence-based programming.
18. PPGOH also engages in advocacy and public education activities intended to protect and facilitate access to comprehensive reproductive health, including safe and
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legal abortion services for women who choose to exercise their right to choose that option. 19. Although PPGOH is an independent entity, it is an affiliate of Planned
Parenthood Federation of America, Inc. (“PPFA”), which also advocates for women’s access to comprehensive reproductive health care, including abortion.
20. PPFA’s mission is to ensure that its affiliates provide comprehensive reproductive health care services, high quality care, and educational programs relating to reproductive and sexual health, and to advocate for public policies to ensure access to health services. PPGOH’s association with PPFA is critical to its core mission of ensuring access to reproductive health care. B. Plaintiff PPSWO
21. Plaintiff PPSWO is a not-for-profit corporation organized under the laws of Ohio. PPSWO brings this action on behalf of itself, its patients, and those benefiting from its health education and outreach services.
22. PPSWO provides affordable, respectful, and high quality health care to tens of thousands of patients in Southwest Ohio and Northern Kentucky. PPSWO operates seven health centers in Southwest Ohio, which are located in Cincinnati, Dayton, Hamilton, Springdale, and Springfield. Those health centers provide a wide range of reproductive health services, including well-women exams, screening for breast and cervical cancer, contraception and contraceptive counseling, and STD testing and treatment. At one of its health centers, located in Cincinnati, PPSWO provides abortions. Approximately 75 percent of the patients treated in these health centers are low-income.
23. PPSWO also provides a variety of education programs through its dedicated team of education staff. The team’s mission is to empower Ohioans to make informed,
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responsible sexual health decisions through comprehensive, evidence-based programming. 24. PPSWO also engages in advocacy and public education activities intended
to protect and facilitate access to safe and legal abortion services for women who choose to exercise their right to choose that option.
25. Like PPGOH, PPSWO is an affiliate of PPFA, and PPSWO’s association with PPFA is critical to its core mission of ensuring access to reproductive health care. C. Defendants
26. Defendant Richard Hodges is the Director of ODH, which is the agency responsible for administering state and federal programs that disburse funds to service providers, and which would disburse the funds at issue to PPGOH and PPSWO in the absence of Section 3701.034. Defendant Hodges is sued only in his official capacity.
27. Timothy Ingram is the Commissioner of Hamilton County Public Health, which is the agency responsible for administering certain state and federal programs that disburse funds to service providers in Hamilton County, and which would disburse certain funds at issue to PPSWO in the absence of Section 3701.034. Defendant Ingram is sued only in his official capacity.
PPGOH’S AND PPSWO’S GRANT PROGRAMS 28. Until the passage of Section 3701.034, PPGOH and PPSWO participated in many programs that are intended to promote public health, including and especially the health of lower-income women and minorities. Almost all of those programs are funded entirely by the federal government. Under those programs, a federal agency provides funding to the State of Ohio, which contracts with local service providers directly, or passes those funds on to local agencies, which in turn contract with local service providers to provide the services. Section
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3701.034 will bar PPGOH and PPSWO from carrying out the services that they previously provided under those programs, to the detriment of the health and health literacy of many Ohio residents. A. Infertility Prevention Project/STD Prevention Program
29. The STD Prevention Program, which is part of the Infertility Prevention Project, is a federal program that subsidizes the provision of diagnostic tests and treatments for sexually transmitted diseases (“STDs”) (today, more generally referred to as sexually transmitted infections (“STIs”)). Section 318 of the Public Health Service Act (“PHSA”) authorizes the United States Secretary of Health and Human Services to make project grants to states for STD control and prevention programs, including screening, diagnostic tests, and treatment. See 42 U.S.C. § 247c(c) (authorizing Secretary to make grants to “States and, in consultation with the State health authority, to political subdivisions of States for … sexually transmitted diseases surveillance activities, including the reporting, screening, and follow up of diagnostic tests for, and diagnosed cases of, sexually transmitted diseases”).1
30. STD Prevention Program funds are granted by the United States Centers for Disease Control (“CDC”) to states or state agencies (“grantees”), such as ODH. Grantees in turn may enter into agreements with other entities (“subgrantees”) to provide STD Prevention Program services.
31. PPGOH has served as a subgrantee in the STD Prevention Program for more than 15 years. In fiscal year ending July 30, 2016, PPGOH received testing kits, diagnostic testing, and treatment medication valued at $420,000. Approximately 64,300 of the 90,000 STD tests that PPGOH administers annually are funded through the STD Prevention Program

1

The STD Prevention Program was once part of the now-defunct Infertility Prevention Project, which was

also authorized under section 318 of the PHSA.

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to benefit Ohioans who could not otherwise afford the costs of those services. 32. PPSWO has served as a subgrantee in the STD Prevention Program for more
than 14 years. For the period May 1, 2015 to April 30, 2016, it received testing kits, processing, and treatment medications for its patients under this program. PPSWO uses these items to provide approximately 7,943 STD tests and 1,150 treatments annually to benefit Ohioans who could not otherwise afford the costs of those services. B. Breast and Cervical Cancer Project
33. Congress established the National Breast and Cervical Cancer Early Detection Program when it enacted the Breast and Cervical Cancer Mortality Prevention Act of 1990. Breast and Cervical Cancer Project (“BCCP”) funds are intended to ensure access to high quality screening and follow-up services for low-income and minority women. See 42 U.S.C. § 247B(k)(2).
34. BCCP funds are awarded by the CDC to grantees, including ODH, which in turn disburse funds to service providers through 11 Regional Enrollment Agencies. Service providers do not receive up-front grants but are instead reimbursed for the services they provide.
35. PPGOH has received funding under the BCCP for more than 20 years. In fiscal year ending July 30, 2015, it was reimbursed in the amount of $18,876 for services provided to eligible recipients. PPGOH uses those funds to provide life-saving pap tests, breast exams, colposcopies, and cervical biopsies to low-income women over the age of 40 who are at risk for cancer but are not eligible for coverage under Medicaid.
36. PPSWO has received funding under the BCCP for more than 12 years. For the period May 1, 2015 to April 30, 2016, it was reimbursed in the amount of $3,056 for
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BCCP services. PPSWO uses those funds to provide life-saving pap tests, breast exams, colposcopies, and cervical biopsies to low-income women over the age of 40 who are at risk for cancer but are not eligible for coverage under Medicaid. C. Minority HIV/AIDS Initiative & HIV Prevention Program
37. The Minority HIV/AIDS Initiative was established by Congress in 1999 in response to growing concern about the impact of HIV and AIDS on racial and ethnic minorities. See Pub. L. No. 105-277, 112 Stat. 2681 (1998).
38. Minority HIV/AIDS Initiative funds are granted by the CDC to grantees, including ODH. ODH operates an HIV/STD Prevention Program, in cooperation with the federal Minority HIV/AIDS Initiative, which provides funds to local health authorities for purposes of HIV prevention programs. ODH and/or the local health authorities enter into agreements with subgrantees to provide HIV prevention services.
39. For purposes of the Minority HIV/AIDS Initiative, PPGOH is a subgrantee of the Canton City Health Department, the Summit County Health Department, and the City of Cleveland. It has received funding under the program for 22 years. For fiscal year ending December 31, 2016, PPGOH received three Minority HIV/AIDS Initiative grants totaling $112,845. PPGOH uses its Minority HIV/AIDS Initiative funds to provide anonymous and confidential HIV tests to low-income and minority Ohioans. PPGOH’s program focuses on African-American women with risk factors for HIV.
40. The HIV Prevention Program is a comprehensive federal prevention program intended to reduce new infections, increase access to care, improve health outcomes for people living with HIV, and promote health equity. HIV Prevention Program funds are granted by the CDC to grantees, including ODH and local health authorities. ODH and/or
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local health authorities enter into agreements with organizations like PPSWO to provide HIV prevention services.
41. PPSWO has received HIV Prevention Program funding for four years. For the grant year ending December 31, 2016, PPSWO was awarded more than $100,000 in HIV Prevention Program grants by Public Health—Dayton & Montgomery County and Hamilton County Public Health.
42. PPSWO uses its Minority HIV/AIDS Initiative/HIV Prevention funds to provide 1,600 anonymous and confidential HIV tests annually, as well as education and referrals, to low-income and minority Ohioans. PPSWO’s program focuses on gay men with risk factors for HIV. D. “Healthy Moms Healthy Babies” Infant Mortality Initiative
43. The “Healthy Moms Healthy Babies” Infant Mortality Initiative is a neighborhood outreach program that targets pregnant, at-risk African-American women. It is funded by the Ohio Infant Mortality Reduction Initiative, which itself is funded by a block grant to ODH from the United States Department of Health and Human Services (“HHS”) under Title V of the Social Security Act. 42 U.S.C. § 701 et seq. The purpose of the Ohio Infant Mortality Reduction Initiative is to provide community-based outreach and care coordination services in targeted communities with at-risk, low-income, African-American, pregnant women and their families. Grantees may provide services themselves or, as is the case in Ohio, enter into agreements with subgrantees to provide services.
44. PPGOH has received Infant Mortality Reduction Initiative grants for 20 years. For the period July 1, 2015 through September 30, 2016, PPGOH received two grants totaling approximately $350,000, including a $185,000 grant from Trumbull County Health
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Department and $168,500 from the Mahoning County General Health District. 45. PPGOH uses the Infant Mortality Reduction Initiative funds it receives to
provide education, outreach, home visits, and referrals to women before pregnancy, during pregnancy, and up to two years after birth, including providing critical education and assistance in the areas of health, housing, nutrition, and employment. Many of the women in the program do not have transportation for prenatal appointments, may not have health insurance, and/or may engage in high-risk activities. E. Personal Responsibility Education Program
46. The federal Personal Responsibility Education Program (“PREP”) was authorized in 2010 as part of the Affordable Care Act. See 42 U.S.C. § 713. Through the PREP program, HHS provides grants to states and other entities to educate young people regarding abstinence and contraception. ODH has a PREP grant designed to reduce teen pregnancy and sexually transmitted infection rates for young people in Ohio, aged 14 to 19, who are in the foster care and juvenile justice systems.
47. Through this program, ODH works through nine regional grantees, who in turn receive training and then work regionally to train direct-care staff who work with foster care and juvenile-justice-involved youth. The program consists of an evidence-based pregnancy and STD prevention curriculum, Reducing the Risk (“RTR”), as well as other topics related to health and adulthood, including healthy relationships (a Planned Parenthood curriculum), financial literacy, and preparing for careers.
48. For the fiscal year ending July 31, 2016, PPGOH received a $166,508 grant from ODH to carry out PREP programming in 14 counties in Ohio. For fiscal year ending July 31, 2016, PPGOH also received an $18,160 grant from Summit County Public Health
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and Cuyahoga County Board of Health and a $23,597 grant from Cuyahoga County—for a total of $208,265.87 in PREP funding—to provide PREP programming in those counties. With these funds, PPGOH has trained 209 agency staff members who have provided PREP services to 706 young Ohioans.
49. For the fiscal year ending July 31, 2016, PPSWO received two grants from ODH totaling $291,000 to carry out PREP programming in 18 counties. With PREP funding, PPSWO has trained 270 agency staff members who have provided the evidence-based education to 1,170 young Ohioans, approximately one third of the total number of young persons who have received PREP education in Ohio. F. Violence Against Women Act
50. The federal Violence Against Women Act (“VAWA”) authorizes funding for a Sexual Violence Prevention Program, the goals of which are (1) to reduce the incidence of rape and other forms of sexual violence through primary prevention and education, and (2) to ensure that survivors and their families and friends have access to quality hotline services. The VAWA Sexual Violence Prevention Program includes several grant programs, including Enhancement Projects for outreach to specific communities.
51. VAWA funds are granted by multiple federal agencies to state grantees including ODH. ODH enters into agreements with subgrantees to provide VAWA Sexual Violence Prevention Program services.
52. For fiscal year ending January 31, 2017, PPSWO received $65,000 in federal VAWA funding from ODH. PPSWO uses its VAWA Sexual Violence Prevention Program funds to provide training to students in middle and high schools in Montgomery, Clark, Greene, and Preble counties. Through the program, PPSWO teaches 700 students each year
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about healthy relationships, sexual assault recognition, and bystander intervention skills. Complementary programs are offered for parents.
THE PASSAGE OF SECTION 3701.034 53. Section 3701.034 is merely the latest in a series of enactments by Ohio in recent years that have targeted abortion providers. 54. For instance, for more than ten years, the Ohio legislature and ODH have attempted to shut down abortion providers through increasingly onerous requirements related to an Ohio rule that abortions may be provided only in ambulatory surgical facilities that maintain a written transfer agreement with a local hospital. That rule does nothing to increase patient safety or health and is not medically necessary: surgical abortion is an extremely safe procedure that is almost always performed an outpatient setting, and in the exceedingly rare event that transfer of an abortion patient to an inpatient setting is required, hospitals will not turn patients away. Yet because Ohio hospitals refuse to enter into written transfer agreements with abortion providers (either due to hospitals’ religious affiliation or their fear of harassment and intimidation from pro-life activists), ODH and the Ohio legislature have leveraged the rule to target abortion providers. In 2013, Ohio passed a law that, among other things, prevented public hospitals from entering into written transfer agreements with facilities where “nontherapeutic abortions” are performed. Ohio Rev. Code § 3727.60(B)(1). And in 2015, Ohio passed a law that, among other things, made denial of a waiver of the written transfer agreement requirement automatic grounds for suspension of an ambulatory surgical center’s license to operate. Ohio Rev. Code § 3702.309. 55. Ohio also has some of the most restrictive laws in the country governing access to abortion, including requiring women seeking abortions to make two separate trips
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to a health center to receive state-mandated information. 56. Governor John Kasich signed Substitute House Bill 294 into law, as Section
3701.034 of the Ohio Code, on February 21, 2016. 57. The provisions in Section 3701.034 at issue in this lawsuit take effect on May
23, 2016. 58. Section 3701.034 requires ODH to ensure that funds it receives through
several state and federal programs are not used to “(1) Perform nontherapeutic abortions; (2) Promote nontherapeutic abortions; (3) Contract with any entity that performs or promotes nontherapeutic abortions; [or] (4) Become or continue to be an affiliate of any entity that performs or promotes nontherapeutic abortions.”
59. Section 3701.034 defines “Promote” to mean “to advocate for, assist with, encourage, or popularize through advertising or publicity.”
60. Under Section 3701.034, a “nontherapeutic abortion” is defined as “an abortion that is performed or induced when the life of the mother would not be endangered if the fetus were carried to term or when the pregnancy of the mother was not the result of rape or incest reported to a law enforcement agency.” Ohio Rev. Code § 9.04(A)(1). Under this definition, abortions are “nontherapeutic” even when they are required to avoid serious but non-life-threatening harms to the woman or to terminate pregnancies resulting from unreported rapes and incest.
61. Section 3701.034 explicitly governs ODH’s allocation of funds provided by the federal government under the Violence Against Women Act, the Breast and Cervical Cancer Mortality Prevention Act of 1990, the CDC’s Infertility Prevention Project, HHS’s Minority HIV/AIDS Initiative, and HHS’s Personal Responsibility Education Program.
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Section 3701.034 also governs ODH’s allocation of state funds, including funds for Ohio’s Infant Mortality Initiative (which is itself funded by the federal government pursuant to a grant from HHS).
62. Under Section 3701.034, as interpreted by ODH, PPGOH and PPSWO are prohibited from receiving certain federal or state funds because they perform “nontherapeutic” abortions and promote “nontherapeutic” abortions, as defined under the law, with separate funds, and because each affiliates with PPFA, which also promotes “nontherapeutic” abortions as defined under the law.
63. Both of the original House co-sponsors indicated that the primary purpose of Section 3701.034 was to prevent government funds from being used for elective abortions, even though state and federal law already prevented federal funds for being used for that purpose. See House Floor Debate, Statement of Rep. Margaret Conditt (Nov. 17, 2015) (stating that the purpose of the bill was to “require the Ohio Department of Health, or ODH, to ensure that funds received from the state, or a variety of federal funds, are not used to perform or promote nontherapeutic abortions.”); House Floor Debate, Statement of Rep. Bill Patmon (Feb. 10, 2016) (rationale behind the bill is “that taxpayer dollars should not be used for [non]therapeutic abortions.”). The title of the bill also reflects this purpose. See Substitute H.B. 294 (131st Gen. Assembly) (2016) (short title of the bill is “Dept of Healthensure state/federal funds not used for elective abortions”).
64. Another supporter of the bill, Senator Peggy Lehner, candidly explained that the law amounted to retribution for Planned Parenthood’s decision to be an abortion provider. According to Senator Lehner, the bill was “necessary only because Planned Parenthood has chosen—you like the word choice—they have chosen to be the leading abortion provider in
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this nation. You say, but oh, but that’s only three percent of what they do. Well if it’s only three percent, then perhaps they should be looking to say, let’s drop abortion, and concentrate on all those other things. … We have an obligation … to say … to Planned Parenthood, until you get out of the business of termination of pregnancy, the destruction of human life, we are not going to choose to fund you.” Senate Floor Debate, Statement of Sen. Peggy Lehner (Jan. 27, 2016).
65. Section 3701.034 is unnecessary to prevent federal and state funds from being used to perform “nontherapeutic abortions,” as the State defines that term. The federal Hyde Amendment, which has been attached to congressional appropriation acts every year since 1976, has long prohibited the use of federal funds to provide abortions that would be defined as “nontherapeutic” under Ohio law. Ohio law also contains a separate provision, analogous to the federal Hyde Amendment, banning the use of funds of the “state or any political subdivision thereof” for “nontherapeutic” abortions. Ohio Rev. Code § 9.04(B).
66. Prior to enacting Section 3701.034, the Ohio legislature made no finding and considered no evidence suggesting that either PPGOH or PPSWO had violated those prohibitions.
THE IMPACT OF SECTION 3701.034 ON PPGOH, PPSWO, AND THE COMMUNITIES THEY SERVE 67. Section 3701.034 will have a devastating impact on PPGOH, PPSWO, and the communities they serve. 68. PPGOH will lose approximately $640,000 in grant funds annually as well as $420,000 worth of diagnostic testing and treatment dedicated to providing health care and
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health education programs to Ohioans.2 69. PPSWO will lose approximately $469,000 in grant funds annually as well as
diagnostic testing and treatment supplies under these programs. 70. Without that funding, PPGOH’s and PPSWO’s ability to offer life-saving
health care services and educational programs to tens of thousands of individuals in lowincome communities will be severely limited.
71. For example, PPGOH and PPSWO can offer services to patients without substantial wait times, and in many instances can see patients on the same day that they seek an appointment. On information and belief, the public health clinics that operate in the same regions as PPGOH and PPSWO have limited hours and/or have wait times of several weeks to several months for appointments.
72. Few, if any, other organizations possess the same level of expertise and experience in administering the education programs affected by Section 3701.034 with. PPFA and its affiliates have long been recognized as a leader in sex and reproductive education. PPGOH and PPSWO have won competitive grants and received praise from administrators for the services they have provided under the affected programs.
73. Plaintiffs have no adequate remedy at law and will suffer irreparable harm if Section 3701.034 is not enjoined. A. Impact on PPGOH and The Communities It Serves
74. If implemented, Section 3701.034 will prevent PPGOH from participating in the Infertility Prevention Project/STD Prevention Program, resulting in a loss of $420,000
2 For the fiscal year ending June 2015, PPGOH received an extended grant under the “Healthy Moms Healthy Babies” program. Because of the additional $50,000 awarded to PPGOH through that grant, PPGOH’s total funding under these programs is approximately $690,000 this year.
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worth of diagnostic testing and treatment for STIs. Approximately 64,300 of the 90,000 STD tests that PPGOH administers annually are funded through the STD Prevention Program, and PPGOH cannot provide the same amount of free testing and treatment without these funds.
75. On April 13, 2016, PPGOH received a letter signed by Director Hodges, informing PPGOH that ODH will terminate its contract under the STD Prevention Program effective May 22, 2016. The letter states that ODH is terminating the funds as required by Section 3701.034.
76. Although the availability of public and private health centers varies throughout northern, eastern, and central Ohio, few health care providers are prepared to provide STD testing and treatment in a similarly robust fashion and in a similarly discreet environment as PPGOH. Many PPGOH health centers are open six days per week and do not limit the hours during which patients can obtain STD tests, ensuring the privacy of patients who seek such testing. By contrast, most other Federally Qualified Health Centers (“FQHCs”) and local health departments only offer free or reduced-cost STD testing on one or two days per week. Because STD testing is provided at such limited times, the reason patients who visit the departments at those times require care is readily apparent. Because 40 percent of PPGOH’s patients are low-income , many will be unable to turn to providers that charge for services.
77. Some communities served by PPGOH do not even have local health centers that provide STD testing and treatment. But even in cities such as Columbus, where local health departments offer testing multiple days per week, those departments are not prepared to absorb PPGOH’s patients. At least one advises patients that they should “[p]lan to arrive
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early” because the clinic “may fill up quickly” and “may stop taking patients early if it becomes full.” Sexual Health Program Information and Services Types, City of Columbus Public Health, https://www.columbus.gov/publichealth/programs/sexual-health/ (last visited May 10, 2016). Many communities served by PPGOH are classified by the U.S. Department of Health and Human Services as Medically Underserved Areas, meaning they have too few primary care providers, high infant mortality, high poverty or a high elderly population.
78. Absent the support that until now has been provided by the BCCP, PPGOH will be unable to provide life-saving pap tests, breast exams, colposcopies, and cervical screenings to low-income Ohioans under the BCCP. Although PPGOH is dedicated to continuing to provide cancer screenings in the absence of this support, it will no longer be able to provide free screenings to those women served by this grant. PPGOH will work with patients to provide screenings on a sliding-fee scale, but for many patients at or below the poverty level, any cost renders screenings unaffordable.
79. On April 13, 2016, PPGOH received a letter signed by Director Hodges informing PPGOH that ODH will terminate its agreement to provide services through BCCP effective May 22, 2016. The letter states that ODH is terminating the contract “on the basis that the enactment of R.C. 3701.034 terminates funding.”
80. Very few, if any, other clinics provide similar breast and cervical cancer prevention services free of cost. The existing no-cost and low-cost providers in the regions served by PPGOH are unable to offer same-day and next-day appointments as PPGOH currently does. The approximate wait time for the same screening and a local health department or FQHC is one to two weeks. These wait times may become even longer if the
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other providers are forced to absorb PPGOH’s patients. 81. Section 3701.034 will also end PPGOH’s involvement in the Minority
HIV/AIDS Initiative, which enabled PPGOH to provide 3,600 free, anonymous, and confidential HIV tests throughout Ohio. Without the $112,845 in funds it annually receives under this program, PPGOH will be forced to terminate its HIV outreach and prevention services and ask patients to pay for HIV tests on a sliding-fee scale in all of the health centers in the communities covered by the grant.
82. On April 4, 2016, PPGOH received a letter from Eric Seachrist, a fiscal officer at Summit County Public Health, stating that Summit County will terminate its contract under the HIV Prevention Program effective May 23, 2016 because Summit Country “must comply with [Section 3701.034].”
83. On April 20, 2016, PPGOH received a letter from James M. Adams, the Health Commissioner for the Canton City Health Department. Commissioner Adams writes that “it is with regret” that he has to inform PPGOH that Canton will terminate its agreement with PPGOH to provide services under the HIV Prevention Program as of May 20, 2016. The letter further states that Canton has been “most appreciative” of its collaboration with PPGOH.
84. PPGOH’s inability to provide HIV outreach and free testing services will be felt heavily by the communities it serves. PPGOH is the largest provider of HIV testing and treatment in Cleveland, Akron, and Canton. In his April 20, 2016 letter, Commissioner Adams expressed appreciation that PPGOH had succeeded at encouraging testing among populations that “otherwise have nowhere else to go to get tested for HIV.”
85. Other local health care providers likely do not have the infrastructure to
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absorb PPGOH’s patients, and, upon information and belief, ODH has not developed a contingency plan to care for patients who cannot afford testing and treatment. The effect on the community is potentially catastrophic. When individuals are not made aware of ways to protect themselves, HIV spreads rapidly and may become a public health crisis. This is especially true in economically disadvantaged and rural areas, where drug cultures tend to thrive and individuals are unable or unwilling to drive significant distances to get tested.
86. Without funding from the Minority HIV/AIDS Initiative, PPGOH will have to lay off four full-time employees.
87. Under Section 3701.034, PPGOH will lose approximately $350,000 annually in grant money under the Healthy Moms Healthy Babies program. Because there is no other grant money available to PPGOH to carry out services under this program, PPGOH will be forced to terminate the Healthy Moms Healthy Babies program entirely.
88. On April 19, 2016, PPGOH received a letter signed by Patricia M. Sweeney, Health Commissioner of the Mahoning County District Board of Health, informing PPGOH that the board will terminate its contract with PPGOH to provide services under the Healthy Moms Healthy Babies program effective May 23, 2016 as “require[d]” by Section 3701.034. The letter also states that the board is “sorry that this had to happen and thank[s] you for the service you have provided over the years.”
89. On April 22, 2016, PPGOH received a letter signed by Frank Migliozzi, Health Commissioner of the Trumbell County Combined Health District. The letter states that Trumbell County “must” terminate its contract with PPGOH as of May 20, 2016 in accordance with Section 3701.034.
90. These cuts will deprive 245 expectant and new mothers every year from
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PPGOH’s expertise in providing critical health and parenting education and other vital assistance.
91. PPGOH will likely also have to lay off the six staff members dedicated to the Healthy Moms Healthy Babies program.
92. Finally, Section 3701.034 will eliminate $208,265 in funding under the PREP program, depriving at-risk young Ohioans of PPGOH’s expertise in training of professionals in juvenile justice and foster care settings to work with youth regarding teen pregnancy, adulthood preparation, and healthy relationships.
93. On April 4, 2016, PPGOH received a letter signed by Eric Seachrist of Summit County Public Health informing PPGOH that Summit County will terminate PPGOH’s services under the PREP program beginning May 23, 2013 “pursuant to [House Bill 294].”
94. On April 13, 2016, PPGOH received a letter signed by Director Hodges, informing PPGOH that ODH will cease funding PPGOH under the PREP program as of May 22, 2016. The letter states that ODH is terminating the funds as required by Section 3701.034.
95. PPGOH also received notification dated April 27, 2016 from the Cuyahoga County Board of Health, terminating its PREP funding effective May 20, 2016.
96. There is no other provider in the areas served by PPGOH with the same expertise and experience in teen-pregnancy and health-relationships curricula.
97. As the funding at issue here amounts to 55 percent of PPGOH’s education budget, Section 3701.034 will also threaten the employment of PPGOH’s community health educators.
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B. Impact on PPSWO and The Communities It Serves 98. PPSWO will likewise no longer be able to offer important health and
education services if Section 3701.34 is implemented. If Section 3701.034 takes effect, PPSWO will no longer be able to provide approximately 3,970 STD tests (at a value of $31,000) and 1,150 free prescriptions to its patients (at a value of $18,500) through the STD Prevention Program. Given that approximately 75 percent of PPSWO’s patients are lowincome—and thus cannot afford even heavily subsidized testing and prescriptions—the law will force PPSWO to turn away patients who need care because it is unable to absorb the costs of providing this free testing and treatment. Although the availability of public and private health centers varies throughout southwestern Ohio, it is unlikely that other providers are prepared to provide health care and educational services comparable to those provided by PPSWO.
99. On April 13, 2016, PPSWO received letters signed by Director Hodges, informing PPSWO that ODH will terminate funding for the STD Prevention Program effective May 22, 2016. The letters explain that Section 3701.034 prohibits ODH from providing funds to an entity that performs or promotes “nontherapeutic” abortions.
100. Section 3701.034 will also result in the termination of PPSWO’s BCCP funding. As a result, PPSWO will be forced to reduce the number of life-saving pap tests, breast exams, colposcopies, and cervical screenings it is able to provide free of charge to low-income women who are ineligible for Medicaid.
101. PPSWO will also lose funds for HIV testing, particularly men who have sex with men and other people with risk factors for HIV. Funds under the HIV Prevention Project currently allow PPSWO to carry out 1,600 HIV tests each year as well as education
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and referrals for patients with positive results to care and case management. Without those funds, PPSWO will be unable to continue this critical program with at-risk populations with which it has built trust and rapport. PPSWO has also had to lay off four staff members dedicated to the HIV Prevention Program.
102. On February 23, 2016, Timothy Ingram, Health Commissioner of Hamilton County Public Health, sent a letter to PPSWO stating that Hamilton County was terminating its contract with PPSWO for HIV testing and risk counseling services effective March 31, 2016. That letter stated that Hamilton County was terminating PPSWO’s contract because Section 3701.034 “prohibit[s] any Ohio government agency to contract with any organization with similar functions like Planned Parenthood.”
103. On April 18, 2016, Janine Howard, Director of Disease Prevention for Public Health—Dayton & Montgomery County, sent a letter to PPSWO stating that Dayton & Montgomery County was terminating its contract with PPSWO to provide services supporting the Ohio HIV Prevention Statewide Initiative effective May 23, 2016. That letter states that Dayton & Montgomery County are terminating PPSWO’s contract because “[p]ursuant to [Section 3701.034], ODH must ensure that state funds received by ODH and certain federal funds are not used … to contract or affiliate with any entity that performs or promotes nontherapeutic abortions” and that “ODH subrecipients[] and contracts must comply with this law.”
104. By ending PPSWO’s eligibility for PREP funds, Section 3701.034 will also strip PPSWO of $291,000 per year. As a result, PPSWO will no longer be able to train juvenile-justice and foster-care staff members, and hundreds of staff members and more than 1,000 at-risk youth will be deprived of PPSWO’s expertise in topics such as healthy
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relationships, avoidance of unwanted sex, contraception, and financial and workforce literacy.
105. On April 13, 2016, PPSWO received a letter signed by Director Hodges informing PPSWO that Section 3701.034 “effectively terminates” PPSWO’s eligibility for PREP funds. The letter further explains that ODH will no longer provide PPSWO with PREP funding as of May 22, 2016.
106. PPSWO will also lose the $65,000 it receives under the VAWA program annually, effectively ending its successful program designed to teach students about healthy relationships and prevent violence, and thereby depriving approximately 700 students per year of PPSWO’s expertise in teaching about healthy relationships and violence prevention.
107. PPSWO has already been forced to lay off one staff member because of the uncertainty faced in connection with receipt of VAWA and PREP funds, and PPSWO will likely have to lay off another staff member if it loses the VAWA grant entirely.
CLAIMS FOR RELIEF CLAIM I – FIRST AMENDMENT 108. Plaintiffs hereby incorporate Paragraphs 1 through 107 above. 109. Section 3701.034 violates the First Amendment by denying state and federal funds to PPGOH and PPSWO because of—and in retaliation for—their constitutionallyprotected advocacy for abortion rights and affiliation with other organizations that also advocate for abortion rights and/or provide abortion services. CLAIM II – DUE PROCESS CLAUSE 110. Plaintiffs hereby incorporate Paragraphs 1 through 107 above. 111. Section 3701.034 violates the Fourteenth Amendment by denying state and
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federal funds to PPGOH and PPSWO because of—and in retaliation for—their exercise of their own constitutionally protected right to provide abortions and their patients’ exercise of the constitutional right to choose to have an abortion.
CLAIM III – EQUAL PROTECTION CLAUSE 112. Plaintiffs hereby incorporate Paragraphs 1 through 107 above. 113. Section 3701.034 violates the Equal Protection Clause of the Fourteenth Amendment by singling out abortion providers and those who “promote” abortions, including PPGOH and PPSWO, for unfavorable treatment without a constitutionally sufficient justification.
RELIEF REQUESTED WHEREFORE, Plaintiff requests that this Court:
A. Issue a declaratory judgment that Section 3701.034 of the Ohio Revised Code violates the First Amendment to the United States Constitution;
B. Issue a declaratory judgment that Section 3701.034 of the Ohio Revised Code violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution;
C. Issue a declaratory judgment that Section 3701.034 of the Ohio Revised Code violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution;
D. Issue preliminary and permanent injunctive relief, without bond, restraining the enforcement, operation, and execution of Section 3701.034 of the Ohio Revised Code, by enjoining Defendants, their agents, employees, appointees, or successors from enforcing, threatening to enforce, or otherwise applying the provisions of Section 3701.034 and directing
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Case: 1:16-cv-00539-MRB Doc #: 1 Filed: 05/11/16 Page: 29 of 31 PAGEID #: 29 Defendants to honor their contracts with and contractual offers to Plaintiffs, to accept and consider without regard to Section 3701.034 Plaintiffs’ applications for grants and funding, and to reinstate Plaintiffs’ contracts that were terminated pursuant to Section 3701.034;
E. Award Plaintiffs their attorney’s fees, costs, and expenses, pursuant to 42 U.S.C. § 1988; and
F. Grant such further relief as this Court deems just and proper.
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Helene Krasnoff Carrie Y. Flaxman Planned Parenthood Federation of America 1110 Vermont Avenue, NW, Suite 300 Washington, D.C. 20005 (202) 973-4800 (202) 296-3480 (fax) helene.krasnoff@ppfa.org carrie.flaxman@ppfa.org Applications for Pro Hac Vice pending
Paul R.Q. Wolfson Kimberly A. Parker WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000 (202) 663-6363 (fax) paul.wolfson@wilmerhale.com kimberly.parker@wilmerhale.com Applications for Pro Hac Vice pending

Respectfully submitted,
/s/Jennifer L. Branch Jennifer L. Branch # 0038893 Trial Attorney for Plaintiffs Alphonse A. Gerhardstein # 0032053 GERHARDSTEIN & BRANCH CO. LPA 432 Walnut Street, Suite 400 Cincinnati, Ohio 45202 (513) 621-9100 (513) 345-5543 (fax) agerhardstein@gbfirm.com jbranch@gbfirm.com
Alan E. Schoenfeld WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 937-7294 (212) 230-8888 (fax) alan.schoenfeld@wilmerhale.com Application for Pro Hac Vice pending
Counsel for Plaintiffs Planned Parenthood of Greater Ohio and Planned Parenthood Southwest Ohio Region

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Case: 1:16-cv-00539-MRB Doc #: 1 Filed: 05/11/16 Page: 31 of 31 PAGEID #: 31 CERTIFICATE OF SERVICE
I hereby certify that on May 11, 2016, a copy of the foregoing pleading was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I further certify that a copy of the foregoing pleading and the Notice of Electronic Filing has been served by ordinary U.S. mail and email upon all parties for whom counsel has not yet entered an appearance electronically.
/s/ Jennifer L. Branch Trial Attorney for Plaintiff
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Case: 1:16-cv-00539-MRB Doc #: 1-1 Filed: 05/11/16 Page: $1BoTfF1/PPAGEDIDW#:32

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Planned Parenthood of Greater Ohio, et al.,

Plaintiffs,

Case No. 1:16cv539

v.

Judge Michael R. Barrett

Richard Hodges, et al.,

Defendants.

OPINION & ORDER

This matter is before the Court upon Plaintiffs’ Motion for Temporary Restraining

Order and Preliminary Injunction. (Doc. 7). Defendant Timothy Ingram, Health

Commissioner, Hamilton County General Health District, has filed a Memorandum in

Opposition. (Doc. 16). Defendant Richard Hodges, Director of the Ohio Department of

Health, has also filed a Memorandum in Opposition. (Doc. 17). Plaintiffs filed a Reply.

(Doc. 18). The parties agreed to waive oral argument on Plaintiffs’ Motion as to the

temporary restraining order. (Doc. 14).

For the reasons stated herein, Plaintiffs’ Motion for Temporary Restraining Order

and Preliminary Injunction is granted as to the temporary restraining order; and held in

abeyance as to the preliminary injunction.

I. BACKGROUND

Plaintiffs Planned Parenthood of Greater Ohio (“PPGOH”) and Planned

Parenthood Southwest Ohio Region (“PPSWO”) filed this action under 42 U.S.C. § 1983

based on an alleged violation of Plaintiffs’ First Amendment rights to associate and

engage in constitutionally protected activities, as well as an alleged violation of Plaintiffs’ rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment. Plaintiffs seek to enjoin Defendants Richard Hodges, in his official capacity as the Director of the Ohio Department of Health (“ODH”), and Timothy Ingram, in his official capacity as Health Commissioner, Hamilton County General Health District (“Hamilton County”), from enforcing Ohio Revised Code § 3701.034 or terminating Plaintiffs’ funding pursuant to that provision.
A. PPGOH and PPSWO Plaintiffs operate twenty-eight health centers throughout the State of Ohio. (Doc.
7-1, Iris E. Harvey Decl. ¶ 9; Doc. 7-2, Jerry H Lawson Decl. ¶ 8). At three of the health centers, Plaintiffs provide abortion services to women who want to terminate a pregnancy. (Harvey Decl. ¶ 13; Lawson Decl. ¶ 12). Plaintiffs also engage in advocacy for a woman’s right to a safe and lawful abortion. (Harvey Decl. ¶ 15; Lawson Decl. ¶ 14). Although Plaintiffs are independent entities, they are affiliates of Planned Parenthood Federation of America, Inc., which advocates for a woman’s access to comprehensive reproductive health care, including abortion. (Harvey Decl. ¶ 16; Lawson Decl. ¶ 15).
At all of their health centers, Plaintiffs provide educational and counseling services to thousands of women, men, and teens, along with a wide range of health care services, including reproductive health and family-planning services and accompanying health care services, breast and cervical cancer examinations, testing and treatment for sexually transmitted diseases (“STDs”), and relationship, parenting, and sex education programs. (Harvey Decl. ¶ 9; Lawson Decl. ¶ 8).
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For over twenty years, Plaintiffs have received federally-funded grants and contracts administered by the ODH to provide these non-abortion related services.1 Relevant to the discussion here, Plaintiffs have received funds under the following programs: (1) The Infertility Prevention Project/STD Prevention Program, a federal program that subsidizes diagnostic tests and treatments for STDs. Through this program, PPGOH provides approximately 64,300 STD tests annually and PPSWO provides approximately 3,970 STD tests annually. (Harvey Decl. ¶¶ 23-26; Lawson Decl. ¶¶ 21-24); (2) The Breast and Cervical Cancer Project, a federal program designed to provide cancer screening and follow-up services for low-income and minority women. Through this program, Plaintiffs provide pap tests, breast exams, colposcopies, and cervical biopsies to low-income women over the age of 40 who are at risk for cancer but are not yet Medicare-eligible. (Harvey Decl. ¶¶ 27-31; Lawson Decl. ¶¶ 25-28); (3) The Minority HIV/AIDS Initiative, a federal program designed to promote HIV testing and education for racial and ethnic groups that are disproportionately impacted by the disease; and the HIV Prevention Program, a federal prevention program intended to reduce new infections, increase access to care, improve health outcomes for people living with HIV, and promote health equity. (Harvey Decl. ¶¶ 3239; Lawson Decl. ¶¶ 29-34); (4) The Infant Mortality Initiative, a federally-funded program which provides community-based outreach and care coordination services in targeted communities to at-risk, low-income, African-American pregnant women and
1For example, the STD Prevention Program funds are granted by the United States Centers for Disease Control to states or state agencies, such as ODH, (“grantees”) which then may then enter into agreements with other entities (“subgrantees”) to provide services under the program. (Doc. 1, ¶ 30). PPGOH has served as a subgrantee in the STD Prevention Program for more than 15 years. (Doc. 1, ¶ 31). PPSWO has served as a subgrantee in the STD Prevention Program for more than 14 years. (Doc. 1, ¶ 32).
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their families. PPGOH uses this funding for its “Healthy Moms Healthy Babies” program, which provides case management work for women before pregnancy, during pregnancy, and up to two years after the birth, including education and assistance in the areas of health, housing, nutrition, and employment. (Harvey Decl. ¶¶ 40-45); (5) The Personal Responsibility Education Program, a federal grant program designed to educate young people regarding abstinence and contraception, with the goal of reducing teen pregnancy and STD rates. Plaintiffs use this funding to provide training to staff who work with the targeted populations. (Harvey Decl. ¶¶ 46-53; Lawson Decl. ¶¶ 35-39); and (6) The Violence Against Women Act Sexual Violence Prevention Program, which aims to reduce the incidence of sexual violence through primary prevention and education. Under this program, PPSWO educates approximately 700 students in middle and high schools in Montgomery, Clark, Greene, and Preble Counties each year about healthy relationships, sexual assault recognition, and bystander intervention skills. (Lawson Decl. ¶¶ 40-45).
It is undisputed that in providing service to Ohio residents under these six programs, Plaintiffs have routinely passed audits and program reviews. (Doc. 1, ¶ 2). There is also no dispute that Plaintiffs have not used the funding they received through these programs to provide abortions.
B. Section 3701.034 Ohio Revised Code § 3701.034 was signed into law on February 21, 2016 and
takes effect on May 23, 2016. Section 3701.034 will impact the funding Plaintiffs receive under the six programs listed above. Section 3701.034 identifies these programs by name and requires ODH to ensure the funds and materials that ODH
4

receives and distributes through the 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.
Ohio Rev. Code § 3701.034(B)-(G). Under the statute, “promote” means “to advocate for, assist with, encourage, or popularize through advertising or publicity.” Ohio Rev. Code § 3701.034 (A)(8).
After the passage of Section 3701.034, Plaintiffs received letters from ODH and local health departments that their current contracts under the impacted programs would be terminated. (Harvey Decl. Exs. A-J; Lawson Decl. Exs. A-G). On an annual basis, PPGOH will lose $640,000 in grant funds as well as $420,000 worth of diagnostic testing and treatment under these programs. (Harvey Decl., ¶ 5). PPSWO will lose $469,460 in grant funds annually as well as $49,500 worth of diagnostic testing and treatment. (Lawson Decl. ¶ 5).
Plaintiffs argue that Section 3701.034 violates the First Amendment by conditioning eligibility for government funds on recipients agreeing to forgo constitutionally protected speech and activities. Plaintiffs also argue that Section 3701.034 violates the Due Process Clause of the Fourteenth Amendment by placing an unconstitutional condition on a woman’s right to an abortion. Finally, Plaintiffs argue that Section 3701.034 violates the Equal Protection Clause by discriminating against entities, such as Plaintiffs, who perform or “promote” abortion.
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II. ANALYSIS A. Standard of Review Under Federal Rule of Civil Procedure 65, the purpose of a temporary restraining
order “is to preserve the status quo so that a reasoned resolution of a dispute may be had.” Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996).
The Sixth Circuit has held that the standard for obtaining a temporary restraining order and the standard for obtaining a preliminary injunction are the same. Workman v. Bredesen, 486 F.3d 896 (6th Cir. 2007). In determining whether to grant or deny a temporary restraining order, this Court must consider four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” City of Pontiac Retired Emps. Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (per curiam) (en banc) (internal quotation marks omitted).
“These factors are not prerequisites which must be met, but are interrelated considerations that must be balanced together.” Northeast Ohio Coalition for Homeless and Service Employees, 467 F.3d 999, 1009 (6th Cir. 2006) (quoting Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991)). “For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer.” Id.
B. Delay in seeking injunctive relief Defendants argue that Plaintiffs could be denied relief based upon their delay in
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seeking injunctive relief alone. Plaintiffs respond that there was uncertainty as to whether ODH would interpret the statute to require the termination of all existing contracts on May 23, 2016, or whether after the effective date, the statute prohibited ODH from entering into new contracts with entities that “promote” or provide abortions. Plaintiffs explain that on March 24, 2016 ODH confirmed that it would interpret Section 3701.034 to require termination of existing contracts as of May 23, 2016. Plaintiffs explain that they requested injunctive relief on May 11, 2016, which was seven weeks after ODH’s position was made clear and only two weeks after receiving termination letters from several grantees.
“Where a plaintiff seeks solely equitable relief, his action may be barred by the equitable defense of laches if (1) the plaintiff delayed unreasonably in asserting his rights and (2) the defendant was prejudiced by this delay.” Am. Civil Liberties Union of Ohio, Inc. v. Taft, 385 F.3d 641, 647 (6th Cir. 2004) (citing Brown–Graves Co. v. Central States, Southeast and Southwest Areas Pension Fund, 206 F.3d 680, 684 (6th Cir. 2000)).
The Court finds that under the circumstances, Plaintiffs have not delayed unreasonably in asserting their rights. Plaintiffs’ delay was attributable to a lack of certainty regarding the effect of Section 3701.034. Cf. Bell v. Rankin, No. 2:11-CV-168, 2011 WL 761544, at *4 (S.D. Ohio Feb. 24, 2011) (denying motion for temporary restraining order on several alternative basis, including laches; plaintiff was aware of his legal position and the facts giving rise to claims for several years); Advocacy Org. For Patients & Providers v. Mercy Health Servs., 987 F. Supp. 967, 970 (E.D. Mich. 1997) denying motion for temporary restraining order under doctrine of laches, but also
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because plaintiffs did not demonstrate irreparable harm; plaintiffs knew about the merger at least three months before requesting the TRO, as evidenced by a complaint filed with the FTC in an attempt to stop the merger).
Even if the Court were to find that Plaintiffs’ delay was unreasonable, the Court finds that Defendants have not been prejudiced by the delay. Defendants claim prejudice based on their work to develop plans for transitioning services to other providers. Specifically, Defendants have reassigned providers to cover the geographic areas previously served by Plaintiffs. (Doc. 17-5, Angela Norton Aff., ¶¶ 10-12). Defendants also explain that it is their understanding that the Mahoning County District Board of Health will be hiring staff previously employed by Plaintiffs. (Doc. 17-6, Dyane Gogan Turner Aff., ¶ 6).2 Defendants explain that it is also their understanding that the local health districts who contracted with Plaintiffs have entered into contracts with other providers, or are in negotiations with prospective providers. (Doc. 17-4, Amanda Dennison Aff., ¶ 16). Other than this effort expended, most of which did not involve Defendants, Defendants have not identified any other form of prejudice. Cf. Kay v. Austin, 621 F.2d 809, 813 (6th Cir. 1980) (doctrine of laches bars equitable relief because “the state's interest in proceeding with the election increases in importance as resources are committed and irrevocable decisions are made, and the candidate's claim to be a serious candidate who has received a serious injury becomes less credible by his having slept on his rights.”).
Therefore, Plaintiffs’ request for injunctive relief is not barred by the equitable defense of laches.
2However, Defendants have not explained what role they played in making these arrangements or whether Defendants will have any obligation after the Mahoning County District Board of Health hires these employees.
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C. Discussion of four factors 1. Likelihood of success on the merits a. First Amendment: Freedom of Speech and Association Plaintiffs argue that Section 3701.034 violates Plaintiffs’ First Amendment rights
of freedom of speech and association because it imposes unconstitutional conditions on the receipt of government funds.
Under the “modern ‘unconstitutional conditions’ doctrine . . . the government ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech’ even if he has no entitlement to that benefit.” Bd. of Cnty. Comm'rs v. Umbehr, 518 U.S. 668, 674, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996). As the Supreme Court has explained, “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 . . . allow[ing] the government to ‘produce a result which [it] could not command directly.’” Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958)).
The principle that a funding condition can result in an unconstitutional burden on First Amendment rights was discussed in depth by the Supreme Court in Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, 133 S.Ct. 2321, 186 L.Ed.2d 398 (2013). The Supreme Court explained that an unconstitutional funding condition is not limited to those situations where the condition is not relevant to the objectives of the program, or “when the condition is actually coercive, in the sense of an offer that cannot be refused.” Id. at 2328. Instead, the Supreme Court explained, “the relevant distinction that has
9

emerged from our cases is between conditions that define the limits of the government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.” Id. This distinction echoed the Supreme Court’s earlier decision in Rust v. Sullivan, 500 U.S. 173, 197, 111 S.Ct. 1759, 1774, 114 L.Ed.2d 233 (1991), wherein the Court held that unconstitutional conditions doctrine is violated where the government places “a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program.”
Here, the federal Hyde Amendment and Ohio’s own laws have long barred Plaintiffs from using state or federal funds to provide abortions.3 However, Section 3701.034 bars any entity that engages in advocacy in favor nontherapeutic abortions from receiving funds administered by ODH, even though those funds would not be used to “promote” or perform abortions. Section 3701.034 allows ODH to leverage its control over government funds to prevent recipients of government funds from engaging in constitutionally protected speech and association, even if that speech is undertaken with private funds. Therefore, the Court concludes that Section 3701.034 “compels as a condition of federal funding the affirmation of a belief that by its nature cannot be
3As the Sixth Circuit has explained: The Hyde Amendment prohibits federal reimbursement for abortions except in circumstances Congress, rather than a doctor, deems medically necessary. . . . Every year since 1976, Congress has passed some version of the Hyde Amendment. . . . Following passage of the first Hyde Amendment, many states promulgated laws restricting Medicaid coverage to those abortions federally funded under the Hyde Amendment. Planned Parenthood Affiliates of Michigan v. Engler, 73 F.3d 634, 636 (6th Cir. 1996).
10

confined within the scope of the Government program. In so doing, it violates the First Amendment and cannot be sustained.” Alliance, 133 S.Ct. at 2332; see also Planned Parenthood of Cent. & N. Ariz. v. Arizona, 718 F.2d 938, 942-44 (9th Cir. 1983) (although the state need not fund abortions, the state “may not unreasonably interfere with the right of Planned Parenthood to engage in abortion or abortion-related speech activities”)).
ODH relies on the Fifth Circuit’s decision in Planned Parenthood Association of Hidalgo County. Texas, Inc. v. Suehs, 692 F.3d 343 (5th Cir. 2012) in support of its position that Ohio can choose to adopt a policy of disfavoring abortion with its own subsidies. Like Section 3701.034, the program created by the Texas Legislature, the Women’s Health Program (“WHP”), denied funding to entities who perform or “promote” elective abortions. Id. at 347. However, unlike Section 3701.034, the WHP was designed to “expand access to preventative health and family planning services for women.” Id. at 346. The Fifth Circuit concluded that although the WHP’s restriction on promoting elective abortions “functions as a speech-based funding condition, it also functions as a direct regulation of the content of a state program, and is therefore constitutional under the reasoning of Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991).” In contrast, Section 3701.034 is unconstitutional because it places the speech-based funding condition on the recipient for activities outside the six impacted programs. See Planned Parenthood of Mid–Mo. & E. Kan., Inc. v. Dempsey, 167 F.3d 458, 462 (8th Cir. 1999) (“Legislation that simply dictates the proper scope of government-funded programs is constitutional, while legislation that restricts protected grantee activities outside government programs is unconstitutional”).
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Therefore, the Court concludes that Plaintiffs have a strong likelihood of success on the merits of their First Amendment claims.
b. Fourteenth Amendment: Due Process Plaintiffs argue that Section 3701.34 violates the Due Process Clause of the Fourteenth Amendment because Ohio may not use its control over government funds to do indirectly what it could not do directly under the Constitution: stop abortion providers from providing safe and legal abortions. Defendants seem to argue that Plaintiffs are not proper parties to raise this Fourteenth Amendment claim. However, abortion providers have standing to enforce their patients’ right to choose to have an abortion under the Due Process Clause. See Singleton v. Wulff, 428 U.S. 106, 117 (1976) (concluding that “it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision”); Planned Parenthood Ass’n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1396 (6th Cir. 1987) (concluding that Planned Parenthood has standing to assert the due process rights of women seeking right to have an abortion). “[W]hile the unconstitutional conditions doctrine has been most consistently applied to protect First Amendment rights, it has also been applied by the Supreme Court to other constitutional provisions.” R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 434 (6th Cir. 2005); see Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2594, 186 L. Ed. 2d 697 (2013) (“We have said in a variety of contexts that ‘the government may not deny a benefit to a person because he exercises a constitutional right.’”) (quoting Regan v. Taxation With Representation of Wash., 461
12

U.S. 540, 545, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983)). Accordingly, the Sixth Circuit has held that “[t]he doctrine should equally apply to prohibit the government from conditioning benefits on a citizen's agreement to surrender due process rights.” R.S.W.W, 397 F.3d at 434 (citing Vance v. Barrett, 345 F.3d 1083, 1089 (9th Cir. 2003)).
In Planned Parenthood of Indiana v. Commissioner of Indiana State Department of Health, 699 F.3d 962 (7th Cir. 2012), plaintiffs sought to enjoin an Indiana law which prohibited abortion providers from receiving any state contracts and grants, including those involving state-administered federal funds. Id. at 969. The Seventh Circuit began its analysis by explaining that the plaintiffs’ “unconstitutional-conditions claim necessarily derives from a woman's constitutional right to obtain an abortion.” Id. at 986 (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)). The court explained this constitutional right derives from the Due Process Clause of the Fourteenth Amendment. Id. at 986-87. The court then explained that under Casey, the government may not impose an “undue burden” on a woman’s right to have an abortion, which exists if the challenged law has “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id. at 987 (quoting Casey, 505 U.S. at 878, 112 S.Ct. 2791 (plurality opinion)). However, the court also noted that the Supreme Court has held that “[t]he Government has no constitutional duty to subsidize an activity merely because the activity is constitutionally protected and may validly choose to fund childbirth over abortion.” Id. (quoting Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)).
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Applying this analysis, the Seventh Circuit found that plaintiffs were not likely to succeed on their unconstitutional-conditions claim. Id. at 988. The court noted that plaintiffs did not argue that the loss of funding imposed an undue burden on a woman’s right to obtain an abortion. Id. The court concluded that a state funding condition can violate the constitutional right to abortion only if the effect of the funding condition itself is to place an undue burden on women’s ability to choose to have an abortion. Id. (explaining that if “the government's refusal to subsidize abortion does not unduly burden a woman's right to obtain an abortion, then Indiana's ban on public funding of abortion providers—even for unrelated services—cannot indirectly burden a woman's right to obtain an abortion.”).
Plaintiffs argue that in contrast to the plaintiffs in Planned Parenthood of Indiana, Plaintiffs can show that the effect of Section 3701.034 is to place an undue burden on a woman’s right to obtain an abortion.
Plaintiffs explain that they provided approximately 30% (approximately 6,257 of 21,186) of the abortions in the State of Ohio in calendar year 2014. Plaintiffs point out that in 2014, PPGOH provided approximately 36% (approximately 1,500 of 4,137) of the abortions in Franklin County and 23% (approximately 2,000 of 8,548) of the abortions in Cuyahoga County. (Harvey Decl., ¶ 8). Plaintiffs explain that the loss of these services in Franklin and Cuyahoga counties would likely overwhelm existing providers, expand wait times, and leave some women in those counties with no feasible option for exercising their constitutional right to choose to have an abortion. (Harvey Decl., ¶ 8). Plaintiffs explain that PPSWO operates the only surgical abortion clinic in the Cincinnati area, and in 2014 performed 2,757 abortions there. (Lawson Decl., ¶ 7). Plaintiffs
14

maintain that if they were to comply with Section 3701.034’s funding condition, Cincinnati would become the largest metropolitan area in the country without a surgical abortion clinic. (Lawson Decl., ¶ 7).
The Court concludes that for purposes of deciding Plaintiffs’ Motion for Temporary Restraining Order, Plaintiffs have established that the effect of Section 3701.034 is to impose an “undue burden” on a woman’s right to have an abortion.
There is also no doubt that the Ohio Legislature enacted Section 3701.034 for the purpose of placing a substantial obstacle in the path of a woman seeking to obtain an abortion. In a statement on the floor of the Ohio Senate, Senator Peggy Lehner explained that the law was:
necessary only because Planned Parenthood has chosen—you like the word choice—they have chosen to be the leading abortion provider in this nation. You say, but oh, but that’s only three percent of what they do. Well if it’s only three percent, then perhaps they should be looking to say, let’s drop abortion, and concentrate on all those other things. … [W]e have an obligation … to say … to Planned Parenthood, until you get out of the business of termination of pregnancy, the destruction of human life, we are not going to choose to fund you. Senate Floor Debate, Statement of Sen. Peggy Lehner (Jan. 27, 2016). Therefore, the Court concludes that Plaintiffs have a strong likelihood of success on the merits of their Fourteenth Amendment Due Process claims.
c. Equal protection The Equal Protection Clause of the Fourteenth Amendment “prohibits discrimination by government which either burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference.” Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 986 (6th Cir. 2012) (quoting TriHealth, Inc. v. Bd. of Comm'rs, 430 F.3d 783, 788
15

(6th Cir. 2005)). Plaintiffs argue that Section 3701.034 violates the Equal Protection Clause by
singling out entities that perform or promote abortions and those who contract or affiliate with those entities. Plaintiffs argue that Section 3701.034 is subject to strict scrutiny because the State of Ohio lacked any legitimate reason for distinguishing Plaintiffs from the other similarly-situated service providers whose contracts were approved. Defendants respond that Section 3701.034 is only subject to rational-basis review because Plaintiffs are not a suspect class. See United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973) (explaining that an indigent woman desiring an abortion does not come within a category of a suspect class).
“[E]ven in the absence of a suspect class, a classification warrants strict scrutiny if it burdens the exercise of a fundamental right.” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 534 (6th Cir. 2007). While Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) established a fundamental right to abortion, the Court concludes that Section 3701.034 cannot satisfy the rational basis test, and therefore it is unnecessary to address a strict scrutiny analysis.
Defendants explain that Section 3701.034 is rationally related to Ohio’s interest in favoring childbirth. However, Defendants fail to explain how the prohibition on funding found in Section 3701.034 is necessary to prevent state funds from being used to fund abortion services. Defendants do not claim that any of the funds from the six impacted programs have ever been used to fund abortions. Instead, it appears that the interest of Ohio, in the words of Senator Lehner, was to have Plaintiffs “get out of the
16

business of termination of pregnancy.” The Supreme Court has explained that the “desire to harm a politically unpopular
group” does not constitute a legitimate governmental interest. Moreno, 413 U.S. at 534, 93 S.Ct. 2821. For example, in Planned Parenthood of Minn. v. Minnesota, the Eighth Circuit explained that the record demonstrated that “Planned Parenthood of Minnesota in its abortion stance has made itself unpopular among some segments of the population.” 612 F.2d 359, 361 (8th Cir. 1980). However, the court explained that “Planned Parenthood's unpopularity in and of itself and without reference to some independent considerations in the public interest” did not justify a Minnesota statute prohibiting the state health commissioner from issuing grants to nonprofit corporations that perform abortions. Id. at 361; see also Planned Parenthood Greater Memphis Region v. Dreyzehner, 853 F. Supp. 2d 724, 737 (M.D. Tenn. 2012) (same and collecting cases).
Because Section 3701.034 bears no rational relationship to Ohio’s stated interest of favoring childbirth, the Court concludes that Plaintiffs have a strong likelihood of success on the merits of their Equal Protection claims.
Based on the foregoing, the factor of likelihood of success on the merits weighs in favor of granting a temporary restraining order.
2. Irreparable injury The Supreme Court has held that “[t]he loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); see also Planned Parenthood Ass'n of Cincinnati v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987)
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(finding irreparable injury where plaintiff has shown substantial likelihood of success on merits of constitutional challenge to abortion regulation).
Moreover, Plaintiffs explain that without the funds at issue here, Plaintiffs will be forced to stop providing services such as pap smears and other cancer screenings, tests for HIV/AIDS and tests and treatment for other STDs, infant mortality prevention programs, and sexual health education programs. Plaintiffs maintain that it would be difficult to reconstitute those programs if and when the statute is held unconstitutional.
Therefore, the Court concludes that for purposes of deciding Plaintiffs’ Motion for Temporary Restraining Order, Plaintiffs have established irreparable injury. This factor weighs in favor of granting a temporary restraining order.
3. Substantial harm to others The Court finds that Defendants will not suffer substantial harm if the Section 3701.034 is enjoined. See Planned Parenthood Association of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987) (no substantial harm in preventing city from enforcing ordinance that was likely to be found unconstitutional, as the state has no valid interest in enforcing an unconstitutional ordinance); Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cty., Tenn., 274 F.3d 377, 400 (6th Cir. 2001) (“[I]f the plaintiff shows a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to inhere in its enjoinment.”). Defendants argue that it has already begun working with local health departments and service providers to develop transition plans to implement Section 3701.034. While ODH has not specifically identified any new contracts or other obligations, Hamilton County has explained that it has entered into a contract with the
18

nonprofit organization Caracole to provide HIV testing and counseling services in Hamilton County. (Doc. 15-1, Ex. D). Plaintiffs maintain that any harm to Caracole can be avoided by tailoring the TRO to exclude the contract with Caracole. The same exclusion can be made for any other contracts where Defendants have already replaced Plaintiffs’ contract with a contract with another organization.
Therefore, the Court concludes Plaintiffs have established that the harm to others is minimal. This factor weighs in favor of granting a temporary restraining order.
4. Public interest The Sixth Circuit has explained that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Liberty Coins, LLC v. Goodman, 748 F.3d 682, 690 (6th Cir. 2014), cert. denied, 135 S. Ct. 950 (2015). Moreover, Plaintiffs explain that if Section 3701.034 is enforced, Plaintiffs will be forced to end health care and education programs and terminate employees, depriving thousands of Ohioans of high-quality, affordable health care services and education programs. For example, Plaintiffs conduct approximately 50 percent of the STD tests in the state of Ohio each year. (Doc. 18-2, Lawson 2d. Decl. ¶ 2). In addition, Plaintiffs explain that only certified and trained HIV testers can provide testing under the HIV Prevention Program, and officials in Canton have reported that they have not been able to locate a replacement for PPGOH under this program. (Doc. 18-1, Harvey 2d Decl. ¶ 3). Therefore, the Court concludes Plaintiffs have established that the public interest factor weighs in favor of granting a temporary restraining order.
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II. CONCLUSION
Based on the on the foregoing, Plaintiffs’ Motion for Temporary Restraining Order
and Preliminary Injunction (Doc. 7) is GRANTED as to the temporary restraining order;
and HELD IN ABEYANCE as to the preliminary injunction. It is hereby ORDERED that:
1. Defendants Richard Hodges, Director of the Ohio Department of Health, and Timothy Ingram, Commissioner of Hamilton County Public Health, and their agents, employees, appointees, and successors are temporarily RESTRAINED from enforcing Ohio Rev. Code § 3701.034;
2. While this Temporary Restraining Order is in place, Defendants shall not terminate Plaintiffs’ funding pursuant to Section 3701.034, shall accept and consider without regard to Section 3701.034 Plaintiffs’ applications for grants and funding, and shall reinstate Plaintiffs’ contracts which were terminated pursuant to Section 3701.034, except where Defendants have already replaced Plaintiffs’ contract with a contract with another organization that has already become effective and under which another organization is already providing services;
3. There is evidence in the record that Hamilton County has replaced Plaintiff PPSWO’s HIV Prevention Program services by entering into a contract with Caracole, Inc., and that the contract was effective April 1, 2016. Out of concern for disrupting ongoing care and services, the Court will not at this time order reinstatement of PPSWO’s contract with Hamilton County for these services. This does not prevent the Court from ordering reinstatement of such contract in the future, and Defendants must refrain from terminating Plaintiffs’ other contracts;
4. This Temporary Restraining Order shall expire on June 6, 2016 at 11:59 p.m., unless extended by the Court;
5. This Temporary Restraining Order is effective upon its entry; and
6. There is no requirement of any bond.
IT IS SO ORDERED.
/s/ Michael R. Barrett JUDGE MICHAEL R. BARRETT
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Planned Parenthood of Greater Ohio, et al.,

Plaintiffs,

Case No. 1:16cv539

v.

Judge Michael R. Barrett

Richard Hodges, et al.,

Defendants.

OPINION & ORDER

This matter is before the Court upon Plaintiffs’ Motion for Preliminary Injunction

(Doc. 7); and Motions for Judgment on the Merits and a Permanent Injunction (Docs.

38, 47). These motions have been fully briefed (Docs. 49, 53, 55); and on August 2,

2016, the Court held a hearing on the motions (Doc. 57).

For the reasons stated herein, Plaintiffs’ Motion for Preliminary Injunction (Doc.

7); and Motions for Judgment on the Merits and a Permanent Injunction (Docs. 38, 47)

are GRANTED.

I. BACKGROUND

Plaintiffs Planned Parenthood of Greater Ohio (“PPGOH”) and Planned

Parenthood Southwest Ohio Region (“PPSWO”) filed this action under 42 U.S.C. § 1983

claiming that Ohio Revised Code § 3701.034 violates the First Amendment, as well as

the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment.

On May 23, 2016, this Court temporarily restrained the enforcement of Section

3701.034. (Doc. 19). Plaintiffs now seek judgment on the merits and to permanently

enjoin Defendant Richard Hodges, in his official capacity as the Director of the Ohio Department of Health (“ODH”), from enforcing Section 3701.034.
Section 3701.034 requires ODH to ensure that the federal funds and materials which ODH receives and distributes under six specific programs are either “not used to do any of the following” or “not distributed to entities that 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. Ohio Rev. Code § 3701.034(B)-(G). Under the statute, “promote” means “to advocate for, assist with, encourage, or popularize through advertising or publicity.” Ohio Rev. Code § 3701.034(A)(8).
Plaintiffs operate twenty-eight health centers in Ohio. (Doc. 40-1, Iris E. Harvey 1st Decl. ¶ 9; Doc. 40-2, Jerry Lawson 1st Decl. ¶ 8). At three of the health centers, Plaintiffs provide abortion services. (Harvey 1st Decl. ¶ 13; Lawson 1st Decl. ¶ 12). Plaintiffs also advocate for a woman’s right to abortion. (Harvey 1st Decl. ¶ 15; Lawson 1st Decl. ¶ 14). In addition, Plaintiffs are affiliates of Planned Parenthood Federation of America, Inc., which advocates for a woman’s access to comprehensive reproductive health care, including abortion. (Harvey 1st Decl. ¶ 16; Lawson 1st Decl. ¶ 15). There is no dispute that Section 3701.034 applies to Plaintiffs.
For a number of years, Plaintiffs have received federal funds and materials distributed by ODH and Ohio county health departments under the six health and
2

education programs which are covered by Section 3701.034: (1) STD Prevention Program (federal program which subsidizes diagnostic tests and treatments for certain sexually transmitted diseases); (2) Minority HIV/AIDS Initiative (federal program designed to provide HIV testing and education for communities that are disproportionately affected by HIV); (3) Personal Responsibility Education Program (federal program designed to educate young people about abstinence and contraception, with the goal of reducing teen pregnancy and STD rates); (4) Breast and Cervical Cancer Prevention Program (federal program which subsidizes cancer screening and follow-up services for low-income and minority women); (5) Ohio Infant Mortality Reduction Initiative (federally-funded neighborhood outreach and care coordination program which assists pregnant, at-risk African-American women and their families); (6) Violence Against Women Act Sexual Violence Prevention Program (federally-funded program which aims to reduce sexual violence through primary prevention and education). (Harvey 1st Decl. ¶¶ 12, 28, 32, 47; Lawson 1st Decl. ¶¶ 11, 26, 35, 40).
In many instances, Plaintiffs were chosen over other entities to receive these funds and materials as part of a competitive grant process. (Harvey 1st Decl. ¶ 12; Lawson 1st Decl. ¶ 11). Plaintiffs have also passed all state and local audits and program reviews. (Harvey 1st Decl. ¶ 12; Lawson 1st Decl. ¶ 11). However, after the passage of Section 3701.034, Plaintiffs received letters from ODH and local health departments which stated that their current contracts under the impacted programs would be terminated. (Harvey 1st Decl., Exs. A-J; Lawson 1st Decl. Exs. A-G).
In their Complaint, Plaintiffs claim that Section 3701.034 is unconstitutional
3

because as a condition of receiving government funds, recipients must abandon their right to engage in free speech and association protected by the First Amendment and their right to provide abortion services protected by the Due Process Clause. Plaintiffs also claim that Section 3701.034 violates the Equal Protection Clause by discriminating against entities, such as Plaintiffs, who engage in this constitutionally protected activity. II. ANALYSIS
A. Standard of Review Under Federal Rule of Civil Procedure 65: “Before or after beginning the hearing
on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing.” Fed. R. Civ. P. 65(a)(2). At the hearing on August 2, 2016, the parties agreed that Plaintiffs’ request for preliminary injunctive relief should be consolidated with a final resolution on the merits of Plaintiffs’ request for permanent injunctive relief. The parties also agreed that the Court can determine the propriety of Plaintiffs' requested permanent injunction solely on the basis of the record before the Court and the evidence presented in conjunction with the preliminary injunction hearing.
“A party is entitled to a permanent injunction if it can establish that it suffered a constitutional violation and will suffer continuing irreparable injury for which there is no adequate remedy at law.” Lee v. City of Columbus, Ohio, 636 F.3d 245, 249 (6th Cir. 2011) (quoting Wedgewood Ltd. P'ship I v. Twp. of Liberty, Ohio, 610 F.3d 340, 349 (6th Cir. 2010)). However, “[i]njunctive relief involving matters subject to state regulation may be no broader than necessary to remedy the constitutional violation.” Kallstrom v. City of Columbus, 136 F.3d 1055, 1069 (6th Cir. 1998) (citations omitted).
4

B. First Amendment: Freedom of Speech and Association Plaintiffs argue that under the unconstitutional conditions doctrine, Section
3701.034 violates Plaintiffs’ First Amendment rights of freedom of speech and association.
The First Amendment, applicable to the States through the Due Process Clause of the Fourteenth Amendment, provides that “Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble.” U.S. Const. amend. I; Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). “The First Amendment extends beyond the right to speak to encompass the ‘right of expressive association,’ i.e., the ‘right to associate for the purpose of speaking.’” Miller v. City of Cincinnati, 622 F.3d 524, 537 (6th Cir. 2010) (quoting Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 68, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006)).1
However, before any further discussion of the First Amendment or the unconstitutional conditions doctrine, the Court must address Defendant’s two-part argument that it is unnecessary for the Court to rule on Plaintiffs’ speech and association claims.
First, Defendant argues that in enacting Section 3701.034, Ohio’s legislature made a policy choice regarding public funding of nontherapeutic abortions, and that policy choice should stand. Defendant is correct that state legislatures have “wide latitude in choosing among competing demands for limited public funds.” Maher v. Roe,
1The parties have not questioned that the speech proscribed by Section 3701.034 (“Promot[ing] nontherapeutic abortions”) or the type of association proscribed by Section 3701.34 (“Becom[ing] or continu[ing] to be an affiliate of any entity that perfoms or promotes nontherapeutic abortions”) falls within the protections of the First Amendment.
5

432 U.S. 464, 479, 97 S.Ct. 2376, 2385, 53 L.Ed.2d 484 (1977). However, this wide latitude to set spending priorities exists “[s]o long as legislation does not infringe on other constitutionally protected rights.” National Endowment for the Arts v. Finley, 524 U.S. 569, 588, 118 S. Ct. 2168, 2179, 141 L. Ed. 2d 500 (1998) (citing Regan v. Taxation With Representation of Washington, 461 U.S. 540, 549, 103 S. Ct. 1997, 2002, 76 L. Ed. 2d 129 (1983)); see also Planned Parenthood of Cent. & N. Ariz. v. Arizona, 718 F.2d 938, 942-44 (9th Cir. 1983) (although the state need not fund abortions, the state “may not unreasonably interfere with the right of Planned Parenthood to engage in abortion or abortion-related speech activities”)).
Second, Defendant argues that because Plaintiffs cannot show that the provisions of Section 3701.034 which regulate conduct are unconstitutional, the doctrine of constitutional avoidance precludes this Court’s review of Plaintiffs’ speech and association claims. This is a misapplication of the constitutional avoidance doctrine. As the Supreme Court has explained, the constitutional avoidance doctrine “[i]s a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts.” Clark v. Martinez, 543 U.S. 371, 381-82, 125 S. Ct. 716, 724-25, 160 L. Ed. 2d 734 (2005) (citing Rust v. Sullivan, 500 U.S. 173, 191, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) and Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988)). Defendant concedes elsewhere, in a footnote, that the “promoting nontherapeutic abortions” provision can be severed from the “providing nontherapeutic abortions.” (Doc. 36, PAGEID # 550) (citing Free Enter. Fund v. Pub. Co. Accounting
6

Oversight Bd., 561 U.S. 477, 508, 130 S. Ct. 3138, 3161, 177 L. Ed. 2d 706 (2010)
(“[W]hen confronting a constitutional flaw in a statute, we try to limit the solution to the
problem, severing any problematic portions while leaving the remainder intact.”
(quotations and citation omitted)). Therefore, the Court concludes that it is proper to
rule on Plaintiffs’ speech and association claims.
Plaintiffs argue that by categorically disqualifying entities that promote
nontherapeutic abortions or affiliate with entities that perform or promote nontherapeutic
abortions, Section 3701.034 imposes unconstitutional conditions on those entities’
speech and association rights.
Under the “modern ‘unconstitutional conditions’ doctrine . . . the government
‘may not deny a benefit to a person on a basis that infringes his constitutionally
protected . . . freedom of speech’ even if he has no entitlement to that benefit.” Bd. of
Cnty. Comm'rs v. Umbehr, 518 U.S. 668, 674, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996).
The Supreme Court has explained that:
For at least a quarter-century, this Court has made clear that 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. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For 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.’ Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. Such interference with constitutional rights is impermissible.
Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 2697, 33 L. Ed. 2d 570 (1972);
see also Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2598, 186 L. Ed.
7

2d 697 (2013) (“A predicate for any unconstitutional conditions claim is that the government could not have constitutionally ordered the person asserting the claim to do what it attempted to pressure that person into doing.”) (citing Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 59-60, 126 S. Ct. 1297, 1307, 164 L. Ed. 2d 156 (2006)).
There is no dispute that, in this instance, Ohio could not have constitutionally legislated a direct ban on either promoting nontherapeutic abortions or affiliating with an entity that performs or promotes nontherapeutic abortions. Such a ban on Plaintiffs’ speech or association would have been a violation of the First Amendment. See Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 829, 115 S. Ct. 2510, 2516, 132 L. Ed. 2d 700 (1995) (“When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”) (citing R.A.V. v. St. Paul, 505 U.S. 377, 391, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)).
However, Defendant, citing Maher v. Roe, 432 U.S. 464, 97 S.Ct. 237, 653 L.Ed.2d 484 (1977), argues that Ohio could refuse to directly fund abortion services, and therefore it necessarily follows that Ohio can refuse to provide funding to abortion providers for separate services which are not related to abortion.
Defendant is correct that Maher made it clear that states are free to “make a value judgment favoring childbirth over abortion, and . . . implement that judgment by the allocation of public funds.” Maher, 432 U.S. at 474. As a result, for a long time, Ohio has had legislation in place which bars the use of public funds to directly fund abortion services. See, e.g., Ohio Rev. Code § 5101.56 (providing that “[u]nless
8

required by the United States Constitution or by federal statute, regulation, or decisions of federal courts, state or local funds may not be used for payment or reimbursement for abortion services” unless certain circumstances apply). Whether Ohio can refuse to provide funding for non-abortion services to abortion providers is a different question, and is one which requires the application of the unconstitutional conditions doctrine.
In Rust v. Sullivan, 500 U.S. 173, 197, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), the Supreme Court explained that “our ‘unconstitutional conditions' cases involve situations in which the Government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program.”
Applying the unconstitutional conditions doctrine in Rust, the Supreme Court upheld regulations promulgated under Title X of the Public Health Service Act, which provides federal funding for family-planning services and authorizes the Secretary of Health and Human Services to “make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services.” Id. at 178 (quoting 42 U.S.C. § 300(a)). The regulations prohibited these Title X funds from being used “in programs where abortion is a method of family planning.” Id. at 178.
The Supreme Court explained this restriction on the subsidization of abortionrelated speech contained in the regulations was permissible:
Title X expressly distinguishes between a Title X grantee and a Title X project. The grantee, which normally is a health care organization, may
9

receive funds from a variety of sources for a variety of purposes. The grantee receives Title X funds, however, for the specific and limited purpose of establishing and operating a Title X project. 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 provide abortion related services, and engage in abortion advocacy; it simply is required to conduct those activities through programs that are separate and independent from the project that receives Title X funds.
Id. at 196 (emphasis in original). The Supreme Court concluded:
By requiring that the Title X grantee engage in abortion-related activity separately from activity receiving federal funding, Congress has . . . not denied it the right to engage in abortion-related activities. Congress has merely refused to fund such activities out of the public fisc, and the Secretary has simply required a certain degree of separation from the Title X project in order to ensure the integrity of the federally funded program.
Id. at 198.
In support of its position that Section 3701.034 does not create an
unconstitutional condition, Defendant relies on Planned Parenthood Association of
Hidalgo County Texas, Inc. v. Suehs, 692 F.3d 343 (5th Cir. 2012). At issue in Suehs
was a program created by the Texas Legislature, the Women’s Health Program
(“WHP”), which was designed to “expand access to preventative health and family
planning services for women.” Id. at 346. The WHP denied funding to entities that
performed or promoted elective abortions. Id. at 347.
Defendant points out that even though Texas’s funding condition applied to
program participants, rather than just program activities, the Fifth Circuit found the
funding restriction was proper. However, there are key differences between Section
3701.034 and the WHP, as the Fifth’s Circuit explanation of its holding illustrates:
Texas's restriction on promoting elective abortions directly regulates the content of the WHP as a state program. The policy expressed in the WHP is for public funds to subsidize non-abortion family planning speech to the exclusion of abortion speech. § 1.19(b), 2011 Tex. Gen. Laws at 335.
10

Texas's authority to promote that policy would be meaningless if it were forced to enlist organizations as health care providers and messagebearers that were also abortion advocates. The authority of Texas to disfavor abortion within its own subsidized program is not violative of the First Amendment right, as interpreted by Rust v. Sullivan. Consequently, Texas's choice to disfavor abortion does not unconstitutionally penalize the appellees' speech. Id. at 350. In contrast, Section 3701.034 is not a direct regulation of the content of a state program. Instead, Section 3701.034 places the speech-based funding condition on the recipient of the funds for activities conducted outside the six programs impacted by Section 3701.034. As a result, Section 3701.034 does not “leave the grantee unfettered in its other activities.” Rust, 500 U.S. at 196. Moreover, Section 3701.034 lacks the policy which was specifically expressed in the WHP. Stated differently, Section 3701.034 is silent regarding the use of public funds to subsidize non-abortion family planning speech to the exclusion of abortion speech. As such, there is “no programmatic message of the kind recognized in Rust and which sufficed there to allow the Government to specify the advice deemed necessary for its legitimate objectives.” Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 548, 121 S. Ct. 1043, 1052, 149 L. Ed. 2d 63 (2001). Next, Defendant argues that Section 3701.034 does not result in an unconstitutional burden on Plaintiffs’ First Amendment rights because it does not compel any speech. However, that is not the relevant distinction. The Supreme Court has explained that an unconstitutional condition is not limited to those situations where the condition is not relevant to the objectives of the program, or “when the condition is actually coercive, in the sense of an offer that cannot be refused.” Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, 133 S.Ct. 2321, 2328, 186 L.Ed.2d 398 (2013). Instead,
11

“the relevant distinction . . . is between conditions that define the limits of the government spending program—those that specify the activities [the legislature] wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.” Id.
Here, the conditions imposed by Section 3701.034 seek to leverage funding to regulate speech outside the contours of the six programs impacted by Section 3701.034. There is no dispute that these six programs subsidize tests and treatment for STDs, cancer screenings for women, HIV testing and education, measures to reduce infant mortality, education for teens regarding abstinence and contraception, and the prevention of sexual violence. There is nothing within the scope of these programs related to performing abortions, promoting abortions or affiliating with an entity that performs or promotes abortions. Therefore, under the unconstitutional conditions doctrine, Section 3701.034 cannot condition funding for these programs based on a recipient’s exercise of the right to free speech or association outside of these programs. Accord Planned Parenthood of Mid–Mo. & E. Kan., Inc. v. Dempsey, 167 F.3d 458, 462 (8th Cir. 1999) (“Legislation that simply dictates the proper scope of government-funded programs is constitutional, while legislation that restricts protected grantee activities outside government programs is unconstitutional”); Hill v. Kemp, 645 F. Supp. 2d 992, 1002 (N.D. Okla. 2009) (“The State is free to fund adoption services to exclusion of any abortion-related services, but it may not deny [the plaintiff] funding conditioned upon [the plaintiff’s] waiver of its right to engage in protected speech activity with its private funds.”).
Finally, taking somewhat of a different tact, Defendant calls attention to the fact
12

that some of the grants impacted by Section 3701.034 require recipients of the grant to use ODH’s curriculum for their training programs. Defendant explains that because Ohio has developed a particular message which it has approved as a part of these programs, Section 3701.034 avoids confusing this message by eliminating the potential that someone offering a contrary message will be among Ohio’s messengers.
Defendant relies on the Supreme Court’s decision in Rosenberger v. Rector & Visitors of Univ. of Virginia, which held: “When 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.” 515 U.S. 819, 833, 115 S. Ct. 2510, 2519, 132 L. Ed. 2d 700 (1995) (citing Rust, 500 U.S. at 196-200). This principle has its origins in Rust v. Sullivan, which is considered to have been one of the first cases recognizing the government speech doctrine. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001) (“The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to governmental speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding.”). However, this principle is not applicable here because as explained above, the programs impacted by Section 3701.034 do not convey any message related to abortion. Therefore, there is no potential that Ohio’s message of favoring childbirth over abortion will be garbled or distorted. Moreover, the record is devoid of any evidence showing that in implementing these programs in the past, Plaintiffs have actually conveyed a message related to abortion.2
2Defendant only argues as a hypothetical that it is possible for pregnant patients who go to Planned Parenthood to receive services under one of the programs impacted by Section
13

Defendant makes a somewhat related argument that the funding provided by the programs impacted by Section 3701.034 frees up other general funds for Plaintiffs to use for other purposes, such as promoting abortions. Citing Holder v. Humanitarian Law Project, 561 U.S. 1, 31, 130 S. Ct. 2705, 2725, 177 L. Ed. 2d 355 (2010), Defendant explains “[m]oney is fungible” and therefore Plaintiffs’ education programs are inextricably intertwined with its abortion business. Defendant explains further that this confuses Ohio’s message of favoring childbirth over abortion.
To begin, the Supreme Court has rejected “the assumption as a general matter” that government funding “will simply supplant private funding, rather than pay for new programs or expand existing ones.” Agency for Int'l Dev., 133 S. Ct. at 2331; see also Planned Parenthood of Cent. & N. Arizona v. State of Ariz., 718 F.2d 938, 945 (9th Cir. 1983) (holding as a matter of law, “the freeing-up theory cannot justify withdrawing all state funds from otherwise eligible entities merely because they engage in abortionrelated activities disfavored by the state.”).
Moreover, Holder v. Humanitarian Law Project “concerned the quite different context of a ban on providing material support to terrorist organizations, where the record indicated that support for those organizations’ nonviolent operations was funneled to support their violent activities.” Agency for Int'l Dev., 133 S. Ct. at 2331 (citing Holder, 561 U.S. at 29-30). There is no support in this record that the funds previously provided to Plaintiffs under the programs impacted by Section 3701.034 were
3701.034 could receive “options counseling,” which could include discussing abortion as an option. However, as Plaintiffs point out, all providers who receive Title X funding are required to provide “options counseling.” This counseling must be “neutral, factual information and nondirective counseling on each of the options” available to pregnant woman. 42 U.S.C. § 59.5(a)(5)(ii). Plaintiffs also point out that Defendant has identified the Cuyahoga County Board of Health and Belmont County General Health as eligible providers under Section 3701.034, yet those two entities also receive Title X funds and are required to provide “options counseling.”
14

funneled to support Plaintiffs in the promotion of abortion or performance of abortion services. To the contrary, the record shows that Plaintiffs maintain measures to ensure that none of the funds received from the state or federal government are used, directly or indirectly, to subsidize the promotion of abortion or performance of abortion services.
Testifying on behalf of PPGOH as a witness under Federal Rule of Civil Procedure 30(b)(6), Barbara Singhaus, PPGOH’s chief operating officer and chief financial officer, was asked, “[h]ow do you know that none of the funds received from the programs identified in the law that's challenged here contribute directly or indirectly to the performance or promotion or abortion?” (Doc. 40-15, PAGEID #1500). Singhaus responded:
We have a very sophisticated cost allocation methodology that is audited and reviewed by our independent auditors and by the Title 10 reviewers. We allocate every single one of our costs to between our health centers and isolating the surgical centers, including all of our administrative costs and our medical director's costs, so those funds and the costs associated with those are allocated very carefully. (Id., PAGEID # 1500-1501). When asked whether it is “fair to say then that none of the funds that have been provided to PPGOH through these programs are relied on by PPGOH to provide abortion services,” Singhuas responded, “Yes.” (Id., PAGEID #1501). Similarly, testifying on behalf of PPSWO as a Rule 30(b)(6) witness, Jerry Lawson, PPSWO’s president and chief executive officer, explained: We have very scrupulous financial accounting methods to make sure that revenue and expenses are properly coded to the service that's being provided, whether it's surgery or whether it's something else. We have different managers, so the surgery manager does not manage elsewhere. (Doc. 40-16, PAGEID # 1729).
15

Defendant points out that until April 2016, PPSWO offered free STD testing
under the STD Prevention Program at the surgical center for patients receiving
abortions. (See Doc. 40-16, PAGEID # 1724-1725). However, Defendant does not
explain how offering this test at the surgical center garbles or distorts Ohio’s message.
The STD testing is not related to the abortion services, nor is it a precursor to a
discussion about abortion services. Instead, it is a medically separate service, which
Plaintiffs code and allocate to ensure the funding is also separate from Plaintiffs’
abortion services. In addressing the same argument in support of similar legislation,
one district court explained:
To be sure, Rust upheld a requirement for adequate separation of abortion and non-abortion-related services. But that makes no difference here. The defunding provision does not impose a requirement for adequate separation. Instead, the provision flatly defunds abortion providers, no matter how thoroughly they separate abortion and non-abortion-related services. And while, without adequate separation, one might reasonably fear that money paid for a recipient's non-abortion-related services could indirectly support the provision of abortions—money, after all, is fungible— the contention that this defeats the plaintiffs' claim here fails both on the facts and on the law.
Planned Parenthood of Sw. & Cent. Florida v. Philip, No. 4:16CV321-RH/CAS, 2016 WL
3556568, at *5 (N.D. Fla. June 30, 2016). This Court’s conclusion is the same.
Therefore, the Court concludes that Section 3701.034 violates the First
Amendment.
C. Fourteenth Amendment: Due Process
Plaintiffs argue that Section 3701.034 violates the Due Process Clause of the
Fourteenth Amendment because Ohio cannot require Plaintiffs to cease performing
nontherapeutic abortions as a condition of funding.
“The fundamental right to privacy contained in the Due Process Clause of the
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Fourteenth Amendment includes the right to choose to have an abortion, subject to certain limitations.” Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006) (citing Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 869, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)). Abortion providers have standing to enforce their patients’ right to choose to have an abortion under the Due Process Clause. See Singleton v. Wulff, 428 U.S. 106, 117 (1976) (concluding that “it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision”); Planned Parenthood Ass’n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1396 (6th Cir. 1987) (concluding that Planned Parenthood has standing to assert the due process rights of women seeking right to have an abortion).
Plaintiffs argue that Ohio could not pass a law directing otherwise qualified abortion providers not to perform “nontherapeutic” abortions, and therefore under the unconstitutional conditions doctrine, Ohio cannot require abortion providers to abandon a constitutionally protected activity as a condition of receiving public funds unrelated to abortion.
“[W]hile the unconstitutional conditions doctrine has been most consistently applied to protect First Amendment rights, it has also been applied by the Supreme Court to other constitutional provisions.” R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 434 (6th Cir. 2005); see Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2594, 186 L. Ed. 2d 697 (2013) (“We have said in a variety of contexts that ‘the government may not deny a benefit to a person because he exercises a
17

constitutional right.’”) (quoting Regan v. Taxation With Representation of Wash., 461
U.S. 540, 545, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983)). Accordingly, the Sixth Circuit
has held that “[t]he doctrine should equally apply to prohibit the government from
conditioning benefits on a citizen's agreement to surrender due process rights.”
R.S.W.W, 397 F.3d at 434 (citing Vance v. Barrett, 345 F.3d 1083, 1089 (9th Cir.
2003)).
Citing Rust v. Sullivan, Defendant argues that there is no due process right to
government subsidies: “‘the Due Process Clauses generally confer no affirmative right
to governmental aid, even where such aid may be necessary to secure life, liberty, or
property interests of which the government itself may not deprive the individual.’” Rust,
500 U.S. at 201 (quoting Webster v. Reprod. Health Servs., 492 U.S. 490, 507 (1989));
see also Rust, 500 U.S. at 193 (“A legislature's decision not to subsidize the exercise of
a fundamental right does not infringe the right.” (quoting Regan, 461 U.S. at 549)).
However, this is not in dispute. What is at issue is whether Section 3701.034
suppresses the exercise of due process rights “outside the contours” of the six impacted
programs. As one Florida district court has recently explained in addressing a provision
similar to Section 3701.034:
If, as the Court said in Rust, Congress can prohibit the use of federal funds for abortion services but cannot restrict a recipient of federal funds from separately providing abortion services, then the Florida legislature likewise can prohibit the use of state funds for abortion services but cannot prohibit a recipient of state funds from separately providing abortion services. Rust is fatal to the defunding provision, which was enacted precisely and only for a prohibited purpose: to reach other, unrelated activities that are separate from the recipient's abortion services. That this was the only purpose of the defunding provision is clear because Florida law already prohibited the use of state funds for abortions.
Planned Parenthood of Sw. & Cent. Florida v. Philip, No. 4:16CV321-RH/CAS, 2016 WL
18

3556568, at *4 (N.D. Fla. June 30, 2016).3
Section 3701.034 fares no better under Rust because Section 3701.034 prohibits
funding for programs which are not related to abortion services based on a recipient’s
exercise of due process rights to perform abortion services. Accord Harris v. McRae,
448 U.S. 297, 317, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980) (“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 Court has already concluded that Section 3701.034 conditions funding
under the six impacted programs based on a recipient’s exercise of the right to free
speech or association outside the contours of these six programs. This conclusion is no
different when it comes to a recipient’s exercise of due process rights. The six
programs impacted by Section 3701.034 subsidize tests and treatment, screenings and
education programs which are not related to performing abortions. Section 3701.034
does not provide any way for an entity to limit its use of the funding distributed under
Section 3701.034 to those six programs, while using private funds to perform abortions.
Defendant maintains that this does not end the analysis. Defendant relies on
Planned Parenthood of Indiana v. Commissioner of Indiana State Department of Health,
699 F.3d 962 (7th Cir. 2012), in which the Seventh Circuit upheld an Indiana law which
3The provision challenged in Planned Parenthood of Sw. & Cent. Florida v. Philip provides that a state agency, local government entity, or Medicaid managed-care plan “may not expend funds for the benefit of, pay funds to, or initiate or renew a contract with an organization that owns, operates, or is affiliated with one or more clinics that are licensed under this chapter and perform abortions.” Florida Statutes § 390.0111(15). This “defunding provision” was subject to certain exceptions “for contracts entered into before the provision's effective date, funds payable on a fee-for-service basis under the Medicaid statute, and funds paid to clinics that perform abortions only in limited circumstances—circumstances much narrower than encompassed by a woman's constitutional right to an abortion.” 2016 WL 3556568, at *1.
19

prohibited abortion providers from receiving any state contracts and grants, including those involving state-administered federal funds. Id. at 969. As part of its analysis, the Seventh Circuit explained that under Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 846, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), the government may not impose an “undue burden” on a woman’s right to have an abortion, which exists “if the challenged law has the ‘purpose or effect’ of placing ‘a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’” Id. at 987 (quoting Casey, 505
U.S. at 878, 112 S.Ct. 2791 (plurality opinion)). The court then explained that under Rust, a state funding condition can violate the constitutional right to abortion only if the
effect of the funding condition itself is to place an undue burden on women’s ability to choose to have an abortion. Id. at 988 (explaining that if “the government's refusal to
subsidize abortion does not unduly burden a woman's right to obtain an abortion, then Indiana's ban on public funding of abortion providers—even for unrelated services— cannot indirectly burden a woman's right to obtain an abortion.”).
This Court has serious doubts as to whether it is proper to import the undue burden analysis from Casey,4 into the analysis here, which Defendant has acknowledged is “a case about money.” (Doc. 53, PAGEID #2049). Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 651 F.3d 218 (2d Cir. 2011), which was
later affirmed by the Supreme Court, contains an explanation of the distinction: For constitutional purposes, a federal subsidy program is fundamentally different from “direct state interference” with a particular activity. See Maher v. Roe, 432 U.S. 464, 475, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977). “Constitutional concerns are greatest when the State attempts to impose
4The Supreme Court recently reiterated this undue burden analysis in Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016), as revised (June 27, 2016) (explaining that the rule announced in Casey, “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”).
20

its will by force of law; the State's power to encourage actions deemed to be in the public interest is necessarily far broader.” Id. at 476, 97 S.Ct. 2376. As a result, “the Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake.” Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 587-88, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998). Subsidy conditions, absent special circumstances, “cannot be subject to the least- or less-restrictive means mode of analysis—which, like the undue burden test ..., is more appropriate for assessing the government's direct regulation of a fundamental right—when the government creates a federal spending program.” Brooklyn Legal Servs. v. Legal Servs. Corp., 462 F.3d 219, 229 (2d Cir. 2006), cert. denied, 552 U.S. 810, 128 S.Ct. 44, 169 L.Ed.2d 11 (2007).
Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 651 F.3d 218, 243 (2d
Cir. 2011) (Straub, J. dissenting), aff'd sub nom. Agency for Int'l Dev. v. All. for Open
Soc'y Int'l, Inc., 133 S. Ct. 2321, 186 L. Ed. 2d 398 (2013).5 Because Section 3701.034
creates a subsidy condition, the undue burden test from Casey is not applicable.
Accord Planned Parenthood of Sw. & Cent. Florida v. Philip, No. 4:16CV321-RH/CAS,
2016 WL 3556568, at *6 (N.D. Fla. June 30, 2016) (“Nothing in Whole Woman's Health
or Casey suggests in any way that those decisions were intended to supplant the wholly
separate unconstitutional-conditions doctrine.”).
Therefore, the Court concludes that Section 3701.034 violates the Due Process
Clause of the Fourteenth Amendment.
D. Equal protection
Plaintiffs argue that Section 3701.034 violates the Equal Protection Clause by
singling out entities that perform or promote abortions and those who affiliate with those
entities. However, because the Court has concluded that the “performing
5The Seventh Circuit, at the time it issued its opinion in Planned Parenthood of Indiana v. Commissioner of Indiana State Department of Health, did not have the benefit of the Supreme Court’s opinion in Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc. because it was decided almost a year later.
21

nontherapeutic” and “promoting nontherapeutic abortions” provisions of Section 3701.034 are unconstitutional under the First Amendment and the Due Process Clause of the Fourteenth Amendment, the Court need not address Plaintiffs’ claim under the Equal Protection Clause.
E. Irreparable injury and lack of adequate remedy at law “Where the plaintiff establishes a constitutional violation after a trial on the merits,
the plaintiff will be entitled to permanent injunctive relief upon showing 1) a continuing irreparable injury if the court fails to issue the injunction, and 2) the lack of an adequate remedy at law.” Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998) (citing cases).
“The loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); see also Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) (citing Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981) (holding that if the constitutional right of privacy is either threatened or in fact being impaired, this mandates a finding of irreparable injury).
Plaintiffs maintain that if Section 3701.034 were to go into effect, they would no longer be unable to offer free of charge some of the services under the programs impacted by Section 3701.034. (Doc. 40-5, Iris Harvey 3d Decl., ¶ 6, PAGEID # 952) (“Without funding from those programs, PPGOH will be constrained in its ability to offer free services, such as screening for sexually transmitted diseases, HIV, and breast and cervical cancer”). Plaintiffs maintain that the requirement to pay even a reduced fee will deter patients from seeking these potentially life-saving services. (Harvey 3d Decl., ¶ 8,
22

PAGEID # 953). Plaintiffs would also no longer have access to the juvenile justice and foster care systems to teach teenagers about healthy relationships as part of the PREP program. (Harvey 3d Decl., ¶ 7, PAGEID # 953; Doc. 40-6, Jerry Lawson 3d Decl., ¶ 9, PAGEID # 959). Based on this evidence in the record, the Court finds the irreparable injury is continuing and there is a lack of an adequate remedy at law because monetary damages could not compensate Plaintiffs for this injury.
Accordingly, the Court concludes that Plaintiffs have established that if the enforcement of Section 3701.034 is not permanently enjoined, Plaintiffs will suffer a continuing irreparable injury for which there is no adequate remedy at law. III. CONCLUSION
Based on the on the foregoing, Plaintiffs are entitled to judgment on the merits of their First Amendment claim and Fourteenth Amendment Due Process claim. Accordingly, Plaintiffs’ Motion for Preliminary Injunction (Doc. 7); and Motions for Judgment on the Merits and a Permanent Injunction (Docs. 38, 47) are GRANTED. It is hereby ORDERED that:
1. Defendant Richard Hodges, Director of the Ohio Department of Health, and his agents, employees, appointees, and successors are PERMANENTLY RESTRAINED AND ENJOINED from enforcing any provision of Ohio Revised Code § 3701.034 against Plaintiffs and any others similarly situated;
2. This Order is effective upon its entry; and 3. The Clerk is DIRECTED to enter judgment in favor of Plaintiffs. IT IS SO ORDERED.
/s/ Michael R. Barrett JUDGE MICHAEL R. BARRETT
23

 
 Case: 1:16-cv-00539-MRB Doc #: 66 Filed: 04/20/18 Page: 1 of 33 PAGEID #: 2213 (1 of 33)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: April 18, 2018
Mr. Afshin Bahrampour 415 Thirteenth Street Las Vegas, NV 89101
Ms. Jennifer L. Branch Mr. Alphonse A. Gerhardstein Gerhardstein & Branch 432 Walnut Street, Suite 400 Cincinnati, OH 45202
Mr. Stephen P. Carney Mr. Zachery P. Keller Mr. Eric E. Murphy Ms. Ryan Lynn Richardson Ms. Hannah Carrigg Wilson Office of the Attorney General of Ohio 30 E. Broad Street, 25th Floor Columbus, OH 43215
Ms. Michelle Nicole Diamond Mr. Alan Evan Schoenfeld Wilmer Hale 250 Greenwich Street 7 World Trade Center New York, NY 10007
Ms. Laura Etlinger New York State Office of the Attorney General Albany, NY 12224
Ms. Carrie Y. Flaxman Ms. Helene T. Krasnoff Planned Parenthood Federation of America 1110 Vermont Avenue, Suite 300 Washington, DC 20005

Case: 1:16-cv-00539-MRB Doc #: 66 Filed: 04/20/18 Page: 2 of 33 PAGEID #: 2214 (2 of 33)

Mr. Jyotin R. Hamid Debevoise & Plimpton 919 Third Avenue New York, NY 10022
Mr. Aaron D. Lindstrom Office of the Attorney General of Michigan P.O. Box 30212 Lansing, MI 48909-0000
Ms. Kimberly A. Parker Mr. Paul R.Q. Wolfson Wilmer Hale 1875 Pennsylvania Avenue, N.W. Washington, DC 20006

Re:

Case No. Himes

16-4027,

Planned

Parenthood

of

Grtr.

OH,

et

al

v.

Lance

Originating Case No. : 1:16-cv-00539

Dear Counsel, The court today announced its decision in the above-styled case.

Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.

Yours very truly,

Deborah S. Hunt, Clerk

cc: Mr. Richard W. Nagel Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

Case: 1:16-cv-00539-MRB Doc #: 66 Filed: 04/20/18 Page: 3 of 33 PAGEID #: 2215 (3 of 33)

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0076p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

PLANNED PARENTHOOD OF GREATER OHIO; PLANNED ┐

PARENTHOOD OF SOUTHWEST OHIO REGION,

│

Plaintiffs-Appellees, │

v.

││>

│

LANCE HIMES, in his official capacity as Interim Director of the Ohio Department of Health,

│ │ │

Defendant-Appellant. │

┘

No. 16-4027

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. _________________

COUNSEL
ARGUED: Eric E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Paul R.Q. Wolfson, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Appellees. ON BRIEF: Eric E. Murphy, Hannah C. Wilson, Ryan L. Richardson, Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Paul R.Q. Wolfson, Kimberly A. Parker, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Jennifer L. Branch, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Helene T. Krasnoff, Carrie Y. Flaxman, PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, D.C., for Appellees. Aaron D. Lindstrom, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Laura Etlinger, OFFICE OF THE NEW YORK ATTORNEY GENERAL, Albany, New York, Jyotin Hamid, DEBEVOISE & PLIMPTON LLP, New York, New York, for Amici Curiae.

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_________________
OPINION _________________
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.1
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
1The statutory language, quoted infra at pp. 3–5, can be read to prohibit the recipient’s use of program funds to perform or promote abortion, or to contract or affiliate with organizations that do. However, ODH has made clear that it reads the provisions as prohibiting ODH from using program funds to contract with organizations that perform or promote abortions or affiliate with entities that do so, even if the funds are used strictly for program purposes, which by definition are unrelated to abortion. See PID 883.

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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.2 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. Id.
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.
I.
Ohio Revised Code § 3701.034
Ohio Revised Code § 3701.034, which was to take effect on May 23, 2016, provides:
Prohibition on use of certain funds concerning nontherapeutic abortions (A) As used in this section:
(1) “Affiliate” means an entity that has with another entity a legal relationship created or governed by at least one written instrument that demonstrates any of the following:

2The district court did not reach Plaintiffs’ Equal Protection claim.

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(a) Common ownership, management, or control; (b) A franchise agreement; (c) The granting or extension of a license or other agreement that authorizes an entity to use the other entity’s brand name, trademark, service mark, or other registered identification mark.
(2) “Violence Against Women Act” means section 1910A of section 40151 of the “Violent Crime Control and Law Enforcement Act of 1994,” part A of Title XIX of the “Public Health and Human Services Act,” 108 Stat. 1920 (1994), former 42 U.S.C. 300w, 42 U.S.C. 280b-1b, as amended.
(3) “Breast and Cervical Cancer Mortality Prevention Act” means the “Breast and Cervical Cancer Mortality Prevention Act of 1990,” 104 Stat. 409 (1990), 42 U.S.C. 300k, as amended.
(4) “Infertility prevention project” means the infertility prevention project operated by the United States centers for disease control and prevention.
(5) “Minority HIV/AIDS initiative” means the minority HIV/AIDS initiative operated by the office of minority health in the United States department of health and human services.
(6) “Personal responsibility education program” means the program administered by the administration for children and families in the United States department of health and human services to educate adolescents on abstinence and contraception for the prevention of pregnancy and sexually transmitted infections.
(7) “Nontherapeutic abortion” has the same meaning as in section 9.04 of the Revised Code.[3]
(8) “Promote” means to advocate for, assist with, encourage, or popularize through advertising or publicity.[4]
(B) – (G)[5] The department of health shall ensure that all funds it receives through [the Violence Against Women Act, Breast and Cervical Cancer Mortality
3Ohio law defines “nontherapeutic abortion” as “an abortion that is performed or induced when the life of the mother would not be endangered if the fetus were carried to term or when the pregnancy of the mother was not the result of rape or incest reported to a law enforcement agency.” Ohio Rev. Code § 9.04(A)(1).
4The prohibition on funding entities that “promote” nontherapeutic abortions is found in § 3701.034(B)(2), (C)(2), (D)(2), (E)(2), (F)(2), and (G)(2).
5Sections (B) through (G), which address each of the programs separately, share identical language in subsections (1) through (4), and are condensed for brevity.

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Prevention Act, Infertility prevention project, Minority HIV/AIDS initiative, infant mortality reduction or infant vitality initiatives] 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.
Ohio Rev. Code § 3701.034.
Plaintiffs
Plaintiffs PPGOH and PPSWO are not-for-profit corporations organized under Ohio law. PID 84, 126; PPSWO President & CEO Jerry Lawson Decl., PPGOH President & CEO, Iris Harvey Decl. PPGOH and PPSWO are independent entities; however, both are affiliates of Planned Parenthood Federation of America, Inc. (PPFA), which advocates for women’s access to comprehensive reproductive healthcare, including abortion. PID 86, Harvey Decl.; 2123/Dist. Ct. Op. 8/12/16. Plaintiffs now operate twenty-seven6 health centers throughout Ohio, which are staffed with physicians, nurse practitioners, and physician assistants, who provide well-woman exams, testing and treatment for sexually transmitted diseases, screenings for breast and cervical cancer and HIV, and contraception and contraceptive counseling. Three of the twenty-seven health centers also provide abortion services. PID 86/Harvey Decl.; 126, 127/Lawson Decl. Separate from their government-funded health services and education programs, PPGOH and PPSWO advocate for a woman’s right to safe and lawful abortion through public awareness campaigns and public education activities. PID 86, 127-28.
No government funds are used to pay for or subsidize Plaintiffs’ abortion services or advocacy; Plaintiffs operate within the confines of federal and Ohio law, which for decades have prohibited the use of public funds to pay for abortions. PID 87/Harvey Decl.; PID 12829/Lawson Decl; see also infra n.8. It is undisputed that Plaintiffs “maintain measures to ensure
6During the pendency of this appeal, Plaintiffs’ counsel advised that one of the twenty-eight health centers has closed for reasons unrelated to this case. The district court’s opinion states that Plaintiffs operate twenty-eight health centers; that number was accurate at the time.

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that none of the funds received from the state or federal government are used, directly or indirectly, to subsidize the promotion of abortion or performance of abortion services.” PID 2136/Dist. Ct. Op. 8/12/16.
Largely through competitive grant processes, Plaintiffs have for years received funds (and material assistance) distributed by ODH and county health departments under the six federal programs impacted by § 3701.034: the Infertility prevention project, Breast and Cervical Cancer Mortality Prevention Act, Violence Against Women Act, Minority HIV/AIDS initiative, STD Prevention Program, and Personal Responsibility Education Program (PREP).7
Throughout those years, Plaintiffs passed all state and local audits and program reviews. After § 3701.034 was enacted, however, ODH and local health departments notified Plaintiffs that their contracts under the six federal programs would be terminated and they would not be eligible for funding. PID 883-908/ODH letters to ODH subcontractors and Plaintiffs, and letters from local agencies/subcontractors to Plaintiffs advising of termination of contracts; PID 2124/Dist. Ct. Op. 8/12/16.
Standard of Review
This court reviews a challenge to the constitutionality of a statute de novo. Entm’t Prods., Inc. v. Shelby Cty., Tenn., 721 F.3d 729, 733 (6th Cir. 2013). The district court’s factual findings are reviewed for clear error, its legal conclusions are reviewed de novo, and the scope of injunctive relief is reviewed for abuse of discretion. Sec’y of Labor, U.S. Dep’t of Labor v. 3Re.com, Inc., 317 F.3d 534, 537 (6th Cir. 2003). “A party is entitled to a permanent injunction if it can establish that it suffered a constitutional violation and will suffer continuing irreparable injury for which there is no adequate remedy at law.” Lee v. City of Columbus, Ohio, 636 F.3d 245, 249 (6th Cir. 2011) (quoting Wedgewood Ltd. P’ship I v. Twp. of Liberty, Ohio, 610 F.3d 340, 349 (6th Cir. 2010)). “Injunctive relief involving matters subject to state regulation may be

7Plaintiffs’ counsel advised the court by letter dated July 27, 2017, that PPGOH did not reapply for grant
funding under the PREP program when its contract expired on July 31, 2017, and that it appears that ODH will no longer be responsible for allocating PREP funds as of August 1, 2017; thus “there is a question as to whether [this court] need consider PREP in its analysis of Section 3701.034.”

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no broader than necessary to remedy the constitutional violation.” Kallstrom v. City of Columbus, 136 F.3d 1055, 1069 (6th Cir. 1998).
II.
We first address ODH’s standing argument. ODH asserts that the district court erroneously transformed a woman’s abortion right into a provider’s right by treating Plaintiffs as if they hold an independent due process abortion right. Challenging the district court’s reliance on Singleton v. Wulff, 428 U.S. 106 (1976), ODH asserts that the doctrine of third-party standing permits a party to assert the rights of another only if the party shows that the missing party’s rights have been violated; and because abortion providers lack any abortion right of their own, no burden on them could ever amount to an unconstitutional burden without a separate showing of an unconstitutional effect on women. Appellant Br. 42–44. According to ODH, “That abortion providers must rely on the rights of women confirms that they do not hold the constitutional rights here.” Appellant Br. 44.
ODH does not grapple with precedent, which clearly holds that abortion providers have standing to enforce their patients’ abortion rights. See PID 2138; Singleton v. Wulff, 428 U.S. 106, 118 (1976) (“[I]t generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.”); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 62 (1976) (physicians who supervised abortions at Planned Parenthood had standing to challenge constitutionality of Missouri statute); Planned Parenthood Ass’n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1396 (6th Cir. 1987) (holding that Planned Parenthood and its Medical Director had standing to assert third-party rights (of women) as well as their own rights); see also Planned Parenthood Ass’n of Utah v. Herbert, 828 F.3d 1245, 1260 (10th Cir. 2016) (“[B]ecause 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.”) (quoting City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 427 (1983), overruled in part on other grounds in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 870 (1992)); Planned Parenthood of Wis. v. Doyle, 162 F.3d 463, 465 (7th Cir. 1998) (“The standing of the physician

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plaintiffs, and of Planned Parenthood as the owner of abortion clinics in Wisconsin, to maintain this suit is not open to question.”). ODH cites no case holding that an abortion provider lacks standing to challenge a law concerning abortion.
ODH’s remaining arguments go to the merits and are addressed below.
III.
ODH asserts that the “conduct provision” of § 3701.034 (precluding entities that perform abortions from obtaining funding under six federal programs) comports with due process under Maher v. Roe, 432 U.S. 464 (1977), Harris v. McRae, 448 U.S. 297 (1980), and Rust v. Sullivan, 500 U.S. 173 (1991), and argues that we should decide the case on this basis alone, without reaching the First Amendment claim because any ruling on that claim would be an improper advisory opinion in violation of the doctrine of constitutional avoidance.
We need not address ODH’s constitutional-avoidance argument because we conclude that § 3701.034 violates Plaintiffs’ due process rights by imposing unconstitutional conditions.
A.
The Supreme Court remarked decades ago that the unconstitutional-conditions doctrine is well-established:
For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable government 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. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests––especially, his interest in freedom of speech. For 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.’ Speiser v. Randall, 357 U.S. 513, 526 [(1958)]. Such interference with constitutional rights is impermissible.
Perry v. Sindermann, 408 U.S. 593, 597 (1972) (emphasis added); see also Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 612 (2013) (“A predicate for any unconstitutional conditions claim is that the government could not have constitutionally ordered the person

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asserting the claim to do what it attempted to pressure that person into doing.”) (citing Rumsfeld
v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 59–60 (2006)).
More recently, in Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, 570 U.S. 205
(2013) (hereafter AOSI), the Supreme Court invalidated a statutory provision requiring
organizations receiving program funds to have a policy explicitly opposing prostitution and sex
trafficking, finding the provision imposed an unconstitutional condition by requiring that a
recipient affirm “a belief that by its nature cannot be confined within the scope of the
Government program.” AOSI, 570 U.S. at 221. Chief Justice Roberts wrote for the Court:
The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 . . . outlined a comprehensive strategy to combat the spread of HIV/AIDS around the world. As part of that strategy, Congress authorized the appropriation of billions of dollars to fund efforts by nongovernmental organizations to assist in the fight. The Act imposes two related conditions on that funding: First, no funds made available by the Act “may be used to promote or advocate the legalization or practice of prostitution or sex trafficking.” [28 U.S.C.] § 7631(e). And second, no funds may be used by an organization “that does not have a policy explicitly opposing prostitution and sex trafficking.” 7631(f). This case concerns the second of these conditions, referred to as the Policy Requirement. The question is whether that funding condition violates a recipient’s First Amendment rights.
. . . . By demanding that funding recipients adopt—as their own—the Government’s view on an issue of public concern, the condition by its very nature affects “protected conduct outside the scope of the federally funded program.” Rust, 500 U.S., at 197. A recipient cannot avow the belief dictated by the Policy Requirement when spending Leadership Act funds, and then turn around and assert a contrary belief, or claim neutrality, when participating in activities on its own time and dime. By requiring recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient. See ibid. (“our ‘unconstitutional conditions’ cases involve situations in which the Government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program”).
AOSI, 570 U.S. at 208, 218–19. AOSI thus reiterated that the government may not require the
surrender of constitutional rights as a condition of participating in an unrelated government
program. Id. at 214; see also Rust, 500 U.S. at 197.

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The unconstitutional-conditions doctrine is not limited to First Amendment rights, but rather, applies in a number of contexts, Koontz, 570 U.S. at 604 (“We have said in a variety of contexts that ‘the government may not deny a benefit to a person because he exercises a constitutional right.’”) (citation omitted), including, as this court has recognized, to vindicate “due process rights,” R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 434 (6th Cir. 2005) (“Under the unconstitutional conditions doctrine, ‘a state actor cannot constitutionally condition the receipt of a benefit, such as a liquor license or an entertainment permit, on an agreement to refrain from exercising one’s constitutional rights.’”) (quoting G&V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1077 (6th Cir. 1994)).
B.
ODH characterizes Plaintiffs’ claims as resting on an asserted entitlement to government funding. See Appellant Br. 2, 5 (“Ohio decided to favor childbirth over abortion when it distributes public funds for six health and education programs. Unhappy with Ohio’s choice, Planned Parenthood seeks a different allocation . . . . It seeks a constitutional guarantee to public funding—a guarantee that forces Ohio, against its own judgment, to give public money to large abortion providers. The Constitution contains no such guarantee.”)
ODH mischaracterizes Plaintiffs’ argument. Plaintiffs do not claim an entitlement to government funds. They acknowledge the government’s right to define the parameters of its own programs, and have complied with all program requirements. What they do claim is a right not to be penalized in the administration of government programs based on protected activity outside the programs. As the district court noted, § 3701.034 is unnecessary to accomplish Ohio’s choices to favor childbirth and refrain from subsidizing abortions; the program funds here have nothing to do with abortion and for decades both federal and Ohio law8 have prohibited the use of government funds to pay for abortions. PID 2139-42.

8See McRae, 448 U.S. at 302 (“Since September 1976, Congress has prohibited—either by an amendment
to the annual appropriations bill for the Department of Health, Education, and Welfare or by a joint resolution—the use of any federal funds to reimburse the cost of abortions under the Medicaid program except under certain specified circumstances. This funding restriction is commonly known as the ‘Hyde Amendment,’ after its original congressional sponsor, Representative Hyde.”) (footnote omitted); Ohio Rev.Code § 9.04, titled “State funding for nontherapeutic abortion coverage prohibited.”

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Maher, McRae, and Rust hold that the government may constitutionally make policy and value judgments in allocating public funds under government programs, and is not required to subsidize abortion by including coverage for abortion in public-benefits programs. Maher, 432 U.S. at 470–71, 474 (rejecting challenge to Connecticut Welfare Department regulation limiting state Medicaid benefits for first-trimester abortions to those that are medically necessary); McRae, 448 U.S. at 322–23 (rejecting challenge to Medicaid Act’s Hyde Amendment’s limitation of funding to those abortions necessary to save life of mother, while permitting funding of costs associated with childbirth.); Rust, 500 U.S. at 192–94 (rejecting challenge to regulations providing funding for family-planning services but prohibiting funds for abortion counseling and referral). The Constitution does not require that the government fund all family-planning activities equally. See Rust, 500 U.S. at 194. Further, the failure to subsidize the exercise of a constitutional right does not abridge the right. See Maher, 432 U.S. at 474; McRae, 448 U.S. at 316–17; Rust, 500 U.S. at 193.
None of these principles are implicated here. The issue in the instant challenge is different: whether Ohio may require a provider to surrender the right to provide safe and lawful abortions on its own “time and dime” as a condition of participating in government programs that have nothing to do with abortion.
McRae and Maher do not suggest that such a requirement is constitutional. In fact, McRae acknowledged 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.” 448 U.S. at 317 n.19.
And Rust makes clear that the Maher line of cases is inapposite here. In Rust, the Supreme Court addressed regulations implementing Title X of the Public Health Services Act, 42 U.S.C. §§ 300–300a-6, which “provides federal funding for family-planning services,” and authorizes the Secretary of the Department of Health and Human Services to “make grants and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services.” 500 U.S. at 178 (quoting 42 U.S.C. § 300(a)).

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The challenged regulations prohibited use of Title X funds “in programs where abortion is a
method of family planning.” Id. The plaintiffs, Title X grantees and doctors who supervise Title
X funds, attacked the facial validity of the regulations and sought declaratory and injunctive
relief on behalf of themselves and their patients. The Second Circuit “upheld the regulations,
finding them to be a permissible construction of the statute as well as consistent with the First
and Fifth Amendments to the Constitution.” Id.
In addressing the petitioners’ First Amendment challenge to the regulations on the basis
that they impermissibly discriminated based on viewpoint by prohibiting “all discussion about
abortion as a lawful option––including counseling, referral, and the provision of neutral and
accurate information about ending a pregnancy––while compelling the clinic or counselor to
provide information that promotes continuing a pregnancy to term,” the Rust Court observed:
There is no question but that the statutory prohibition contained in § 1008 is constitutional. In Maher v. Roe, 432 U.S. 464 [] (1977), we upheld a state welfare regulation under which Medicaid recipients received payments for services related to childbirth, but not for nontherapeutic abortions. The Court rejected the claim that this unequal subsidization worked a violation of the Constitution. We held that the government may “make a value judgment favoring childbirth over abortion, and . . . implement that judgment by the allocation of public funds.” Id., 432 U.S., at 474 []. Here the Government is exercising the authority it possesses under Maher and Harris v. McRae, 448 U.S. 297 [] (1980), to subsidize family planning services which will lead to conception and childbirth, and declining to “promote or encourage abortion.” The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other. “[A] legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right.” Regan [v. Taxation with Representation of Wash.,] 461 U.S. [540], 549 [1983] . . . . “There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.” Maher, supra, 432 U.S., at 475 [].
. . . . Petitioners’ assertions ultimately boil down to the position that if the government chooses to subsidize one protected right, it must subsidize analogous counterpart rights. But the Court has soundly rejected that proposition. Regan v. Taxation with Representation of Wash., supra; Maher v. Roe, supra; Harris v. McRae,

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supra. Within far broader limits than petitioners are willing to concede, when the Government appropriates public funds to establish a program it is entitled to define the limits of that program.
Rust, 500 U.S. at 192–94. Rust thus simply reiterated that the government is not required to
subsidize the provision or promotion of abortion, even when it chooses to fund other family-
planning programs and services. Critically, the regulations at issue in Rust, unlike § 3701.034,
were directly related to the use of the program funds: Title X family-planning funds could not be
used to fund family-planning programs where abortion is a method of family planning. Here, the
statute restricts funds in programs that are completely unrelated to family planning or abortion.
Further, the regulations challenged in Rust, unlike the statute here, did not penalize abortion
providers for activities outside the federally funded family-planning program.
Rust itself observed, “our ‘unconstitutional conditions’ cases involve situations in which
the Government has placed a condition on the recipient of the subsidy rather than on a particular
program or service, thus effectively prohibiting the recipient from engaging in the protected
conduct outside the scope of the federally funded program.” Id. at 197 (emphasis in original).
Unlike in Rust, that is precisely what § 3701.034 does.
Further, in rejecting the petitioners’ reliance on the unconstitutional-conditions doctrine,
the Rust Court distinguished the Rust petitioners’ situation from alternative scenarios similar to
the one presented here:
Petitioners also contend that the restrictions on the subsidization of abortionrelated speech contained in the regulations are impermissible because they condition the receipt of a benefit, in these cases Title X funding, on the relinquishment of a constitutional right, the right to engage in abortion advocacy and counseling. Relying on Perry v. Sindermann, 408 U.S. 593, 597 [] (1972), and FCC v. League of Women Voters of Cal., 468 U.S. 364 [] (1984), petitioners argue that “even though the government may deny [a] . . . benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.” Perry, supra, 408 U.S., at 597 [].
Petitioners’ reliance on these cases is unavailing, however, because here the Government is not denying a benefit to anyone, but 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

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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 grantee receives Title X funds, however, for the specific and limited purpose of establishing and operating a Title X project. 42 U.S.C § 300(a). 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 conduct those activities through programs that are separate and independent from the project that receives Title X funds. 42 CFR § 59.9 (1989).
Id. at 196–97 (emphasis in original). In contrast, the statute here does not distinguish between
the grantee and the project; it does not permit the grantee to keep the abortion-related speech and
activities separate from governmental programs; it does not leave the grantee unfettered in its
other activities; and it does not permit the grantee to “continue to perform abortions, provide
abortion-related services, and engage in abortion advocacy . . . through programs that are
separate and independent from the project[s] that receive[] the [six program funds].” Rust,
500 U.S. at 197.
Thus, we do not agree with ODH that § 3701.034 “comports with due process” under
Maher, McRae, and Rust.
C.
We turn to ODH’s argument, rejected by the district court, that the unconstitutional-
conditions doctrine, at most, bars unconstitutional conditions only when they actually operate to
impose an undue burden. ODH relies on the Seventh Circuit’s divided decision in 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) (hereafter PPI).9 Appellant Br. 36–37,
47-48; Reply Br. 4, 14. There, PPI, a Medicaid provider that performs abortions, and two low-

9The State of Indiana petitioned for certiorari, arguing that the Court should address the important national
issue whether states may preclude abortion providers from receiving Medicaid subsidies. No. 11-2464, 2011 WL 3274237. Planned Parenthood then filed a conditional cross-petition for certiorari, requesting that if the Court grants Indiana’s petition, it also grant review of the Seventh Circuit’s unconstitutional-conditions holding. Conditional Cross-Petition for Certiorari filed in No. 12-1559, 2013 WL 1191187. The Supreme Court denied certiorari.

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income patients who used its services, brought suit under 42 U.S.C. § 1983, challenging the
constitutionality of an Indiana law that prohibited state agencies from contracting with or making
grants to any entity that performs abortions. The district court did not rule on PPI’s
unconstitutional-conditions claim, but the Seventh Circuit panel majority addressed it, observing
that the government need not be neutral between abortion providers and other medical providers,
particularly regarding the use of public funds, and that as long as the difference in treatment does
not unduly burden a woman’s right to obtain an abortion, the government is free to treat abortion
providers differently from other medical providers:
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. . . . Here, Planned Parenthood’s unconstitutional-conditions claim necessarily derives from a woman’s constitutional right to obtain an abortion. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 [] (1992) (“Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment.” (emphasis added)). Under existing precedent any protection for Planned Parenthood as an abortion provider is “derivative of the woman’s position.” Id. at 884 [] (plurality opinion).
Two aspects of the Supreme Court’s abortion jurisprudence are important here. First, the Court has explained that the constitutional right to obtain an abortion is a right against coercive governmental burdens; the government may not “prohibit any woman from making the ultimate decision to terminate her pregnancy” before fetal viability or impose an “undue burden on a woman’s ability to make this decision.” Id. at 874, 879 []; see also Gonzales v. Carhart, 550 U.S. 124, 146 [] (2007). An “undue burden” exists if the challenged law has the “purpose or effect” of placing “a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Casey, 505 U.S. at 878 [] (plurality opinion); see also Gonzales, 550 U.S. at 146 [].
Accordingly, the Court has conceptualized the right as “a constitutionally protected interest ‘in making certain kinds of important decisions’ free from governmental compulsion.” Maher v. Roe, 432 U.S. 464, 473 (1977) (quoting Whalen v. Roe, 429 U.S. 589, 599–600 & nn. 24 & 26 [] (1977)).
This brings up the second important point. The Court has explicitly rejected a neutrality-based view of abortion rights. Thus, the Court has held that although the abortion right recognized in Roe v. Wade “protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy[,] [i]t 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.” Id. at 473–74 []. In Maher the Court upheld

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Connecticut’s ban on public funding for non-therapeutic abortions because it “places no obstacles—absolute or otherwise—in the pregnant woman’s path to an abortion.” Id. at 474 []. The Court reaffirmed Maher in Harris v. McRae, 448 U.S. 297, 314–17 [] (1980), upholding the Hyde Amendment. And in Webster v. Reproductive Health Services, 492 U.S. 490, 508–11 [] (1989), the Court upheld Missouri’s statutory ban on the use of public employees and facilities to perform or assist in the performance of an abortion.
Finally, in Rust v. Sullivan, 500 U.S. 173 [] (1991), the Court rejected a challenge to federal regulations prohibiting recipients of Title X family-planning grants from advocating abortion as a method of family planning or referring patients for abortion. Under the regulations, grant recipients with abortion-related practices could continue to receive Title X money only if they segregated their abortionrelated activities in a separate affiliate. Id. at 179–81 []. Rust held that the regulations did not place an unconstitutional condition on Title X grant recipients. Id. at 203. This was so whether the claim was premised on the speech rights of the providers, id. at 196–99 [], or the abortion rights of their patients, id. at 201–03 []. As relevant here, the Court reaffirmed the holdings of Webster, Harris, and Maher that “[t]he Government has no constitutional duty to subsidize an activity merely because the activity is constitutionally protected and may validly choose to fund childbirth over abortion.” Id. at 201. Because the Title X regulations did not place an undue burden on a woman’s right to obtain an abortion or otherwise impose an unconstitutional condition on grant recipients, the Court upheld the regulatory scheme. Id. at 203 [].
As these cases make clear, the government need not be neutral between abortion providers and other medical providers, and this principle is particularly wellestablished in the context of governmental decisions regarding the use of public funds. As long as the difference in treatment does not unduly burden a woman’s right to obtain an abortion, the government is free to treat abortion providers differently.
Applying these principles here, the unconstitutional-conditions claim is not likely to succeed. Planned Parenthood does not argue that the loss of its block-grant funding imposes an undue burden—directly or indirectly—on a woman’s right to obtain an abortion. If, as the foregoing cases hold, the government’s refusal to subsidize abortion does not unduly burden a woman’s right to obtain an abortion, then Indiana’s ban on public funding of abortion providers—even for unrelated services—cannot indirectly burden a woman’s right to obtain an abortion.
PPI, 699 F.3d at 986–88 (emphasis in original).10

10Judge Cudahy dissented in part, concluding that the record was insufficiently developed to permit
consideration of the state’s restrictions on block-grant funding (Medicaid funding was also at issue) and that “the issue of unconstitutional conditions should be remanded to the district court for development of the record with respect to any possible imposition of a burden on access to abortions.” 699 F.3d at 988–89.

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We are not persuaded by the Seventh Circuit’s reasoning or ODH’s arguments. The Seventh Circuit did not directly address the unconstitutional-conditions argument. It identified the right at issue as a woman’s right to obtain an abortion free of the government’s imposition of an undue burden; noted that the cases make clear that the government is not required to remain neutral on abortion and has no obligation to fund abortion or abortion advocacy, even when funding other family-planning activity; noted that there was no claim or showing that the loss of the block-grant money imposed an undue burden on a woman’s right to obtain an abortion; and concluded without further explanation that if “the government’s refusal to subsidize abortion does not unduly burden a woman’s right to an abortion, then Indiana’s ban on public funding of abortion providers––even for unrelated services––cannot indirectly burden a woman’s right to obtain an abortion.” PPI, 699 F.3d at 988 (emphasis in original). This analysis completely elides the unconstitutional-conditions argument by concluding, in effect, that because Ohio has the right to refuse to fund abortion, it necessarily has the right to refuse to provide any funds to abortion providers, regardless of how the funds are to be used; and this right is subject only to the requirement that it not unduly burden a woman’s right to obtain an abortion, which the challenged provision did not.
In discussing Rust, the PPI court appeared to recognize that the undue burden and unconstitutional-conditions doctrines are different––“[b]ecause the Title X regulations did not place an undue burden on a woman’s right to obtain an abortion or otherwise impose an unconstitutional condition on grant recipients, the Court upheld the regulatory scheme,” id. at 988 (emphasis added)––but then went on to ignore the latter. Its analysis does not grapple with the argument that although the government may constitutionally place conditions on the use of program funds, favoring one public policy over others even in the face of a constitutional right to pursue the disfavored policy, the government may not constitutionally exclude a recipient from funding based on the recipient’s exercise of constitutional rights outside the parameters of the program that have no bearing on or nexus to the program. PPI fails to acknowledge that if the government cannot directly prohibit Plaintiffs from providing and advocating for abortion on their own time and dime, it may not do so by excluding them from government programs for which they otherwise qualify and which have nothing to do with the government’s choice to disfavor abortion.

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We note that PPI was decided before AOSI, which may account for the failure to give
due consideration to the unconstitutional-conditions doctrine. Other courts have applied the
unconstitutional-conditions doctrine in similar circumstances without engaging in an undue-
burden analysis. In Planned Parenthood Ass’n of Utah v. Herbert , 828 F.3d 1245 (10th Cir.
2016) (hereafter PPAU), Utah’s governor, one of the defendants, issued a directive instructing
state agencies to cease acting as intermediaries for pass-through federal funds to Planned
Parenthood for four federal programs unrelated to abortion. 828 F.3d at 1250. The directive was
issued in response to videos released by an organization purportedly showing Planned
Parenthood staff discussing its fetal-tissue donation program. PPAU sought declaratory and
injunctive relief under 42 U.S.C. § 1983, alleging violations of its Equal Protection, First
Amendment, and Due Process rights, the latter two under the unconstitutional-conditions
doctrine. Id. at 1258. PPAU’s motion for preliminary injunction argued that its “association
with other Planned Parenthood providers who participate in lawful programs that allow abortion
patients to donate fetal tissue for scientific research . . . is protected under the First Amendment,”
and that the governor’s directive violated its rights and its patients’ due process rights “to
provide and access abortion services by imposing a penalty on PPAU for the provision of and/or
association with abortion services without adequate justification.” Id. at 1251. The district court
denied the motion for temporary restraining order and PPAU sought interlocutory review.
The Tenth Circuit reversed on the First Amendment and Due Process claims and
remanded for entry of a temporary restraining order in PPAU’s favor, observing:
PPAU’s unconstitutional conditions claims . . . . alleged . . . that Herbert took a discretionary executive action, i.e., issuing the Directive, that terminated PPAU’s contractual relationships with [the Executive Director of the Utah Department of Health] and was motivated by PPAU’s engagement in the following activities: “associat[ing] with other Planned Parenthood providers who participate in lawful programs that allow abortion patients to donate fetal tissue for scientific research,” Dist. Ct. Docket No. 3 at 3; advocating for legal abortions, App. at 475; associating with organizations for political, social and education reasons, id. at 476; and providing abortion services to its patients. . . . . PPAU has also alleged in Count 3, without serious challenge from defendants, a Fourteenth Amendment right. The Supreme Court has recognized that “the Fourteenth Amendment’s concept of personal liberty and restrictions upon state

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action . . . encompass[es] a woman’s decision whether or not to terminate her pregnancy.” Roe v. Wade, 410 U.S. 113, 153 (1973). The Court has also recognized 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.” City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 427 [] (1983) (quoting Doe v. Bolton, 410 U.S. 179, 192 [] (1973)), overruled on other grounds by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 [] (1992). . . .
Having determined that PPAU has identified valid First and Fourteenth Amendment rights, that leaves the question of whether PPAU can establish that Herbert issued the Directive in retaliation for PPAU’s exercise of those rights. The district court concluded that PPAU failed to establish a likelihood of success on this point . . . .
. . . . [disagreeing with district court’s determination that PPAU did not establish that the governor’s opposition to abortion was a substantial or motivating factor for the directive/termination of contracts]
. . . . Considering all of th[e] evidence together, we conclude that a reasonable finder of fact is more likely than not to find that Herbert issued the Directive to punish PPAU for the First and Fourteenth Amendment rights it has identified in this litigation . . . .
. . . . In summary, we conclude that PPAU has established a substantial likelihood of success on the merits of its unconstitutional conditions claims and that the district court erred in concluding otherwise.
PPAU, 828 F.3d at 1259–63. The PPAU court did not find it necessary to ask whether the
Governor’s directive would unduly burden the availability of abortion services in Utah. It was
enough that the directive likely11 amounted to an unconstitutional penalty for PPAU’s abortion-
related conduct and association.
In Planned Parenthood of Southwest & Central Florida v. Philip, 194 F. Supp. 3d 1213
(N.D. Fla. 2016) (hereafter PPSCF), the district court rejected the argument of the defendants,
Florida’s State Surgeon General and Secretary of Health Care Administration, that the only
restriction the Constitution places on abortion legislation is that the state cannot impose an undue

11Because the court was reviewing the denial of a preliminary injunction, it evaluated the likelihood of success on the merits.

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burden on a woman’s right to an abortion. 194 F. Supp. 3d at 1220. PPSCF and other affiliates
challenged a newly enacted “defunding provision,” Fla. Stat. § 390.0111(15), which provided, as
pertinent here, that a state agency or local government entity “may not expend funds for the
benefit of, pay funds to, or initiate or renew a contract with an organization that owns, operates,
or is affiliated with one or more clinics that are licensed under this chapter and perform
abortions.” 194 F. Supp. 3d at 1215. The district court granted the plaintiffs’ motion for
preliminary injunction, observing:
Under the defunding provision, as a condition of receiving state or local funds for unrelated services, the plaintiffs must stop providing abortions that women are constitutionally entitled to obtain. But as the defendants acknowledged at oral argument, the state could not constitutionally prohibit the plaintiffs from providing these abortions. The Supreme Court has repeatedly said that a government cannot prohibit indirectly—by withholding otherwise-available public funds—conduct that the government could not constitutionally prohibit directly.
. . . . Here . . . the constitutional right at issue—or, at least, the primary constitutional right at issue—belongs to the plaintiffs’ patients. A patient has a right to an abortion, within limits. See, e.g., Whole Woman’s Health v. Hellerstedt, No. 15–274, ––– U.S. –––, 136 S. Ct. 2292, 195 L. Ed. 2d 665 (U.S. June 27, 2016); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 [] (1982); Roe v. Wade, 410 U.S. 113 [] (1973). The plaintiffs have a right to provide abortions, but the right is derivative of the patients’ rights.
. . . . If, as the Court said in Rust, Congress can prohibit the use of federal funds for abortion services but cannot restrict a recipient of federal funds from separately providing abortion services, then the Florida legislature likewise can prohibit the use of state funds for abortion services but cannot prohibit a recipient of state funds from separately providing abortion services. Rust is fatal to the defunding provision, which was enacted precisely and only for a prohibited purpose: to reach other, unrelated activities that are separate from the recipient’s abortion services. That this was the only purpose of the defunding provision is clear because Florida law already prohibited the use of state funds for abortions.
PPSCF, 194 F. Supp. 3d at 1216–19. Similar to ODH’s argument here, the Florida defendants
argued that the unconstitutional-conditions doctrine does not apply in the abortion context and
that the statute was limited only by Casey’s requirement that the state cannot impose an undue
burden on women’s right to an abortion. The PPSCF court rejected that argument:

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The defendants’ assertion that the unconstitutional-conditions doctrine does not apply in this context is incorrect. Nothing in Whole Woman’s Health or Casey suggests in any way that those decisions were intended to supplant the wholly separate unconstitutional-conditions doctrine. And Rust’s analysis is squarely to the contrary.
PPSCF, 194 F. Supp. 3d at 1220.12 We agree.
Finally, in Planned Parenthood of Central North Carolina v. Cansler, 877 F. Supp. 2d
310 (M.D. N.C. 2015) (hereafter PPCNC), PPCNC alleged that a North Carolina statute violated
its rights under the Due Process Clause by denying non-abortion related funding based on its
activity as an abortion-rights advocate and abortion provider. 877 F. Supp. 2d at 314–15. The
district court granted PPCNC’s motion for summary judgment and a permanent injunction,
concluding that the provision violated PPCNC’s due process (and First Amendment) rights
because only PPCNC and its affiliates were excluded and, since there was no evidence that it
would have used government funds for abortion-related services, the provision limited access to
government funding in a manner that impeded the organization’s constitutional rights and was
not necessary to serve a compelling government interest. Id. at 318–21. The PPCNC court
stated:
[I]t is undisputed that only Planned Parenthood and its affiliates are excluded from DHHS-administered contracts and grants under Section 10.19. It is also undisputed that Planned Parenthood is an entity that would be otherwise eligible to receive funding, but for Section 10.19. Moreover, although Defendant contends that Section 10.19 operates merely as an exercise of discretion with regard to funding decisions, based on the State’s objective in favoring childbirth over abortion, it is undisputed that the government funding at issue in this case would not be used to fund abortion-related services or advocacy. In that regard, the Court notes that Defendant has provided no evidence that the funding prohibition in Section 10.19 is necessary to ensure that government funds are not used for abortion-related services, as both federal and North Carolina legislation already exist to bar government funds from being used for abortion-related services. Furthermore, Defendant has presented no evidence or even allegation that Plaintiff would use, or has ever used, government funds for abortion-related services. Rather, “there is no dispute that Section 10.19 prohibits Planned Parenthood and its affiliated organizations, including PPCNC, from receiving funding for non-abortion-related projects based on their other activities for which

12No appeal was taken in PPSCF.

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they have not sought funding.” (Prelim. Inj. Order, 804 F. Supp. 2d at 493). Therefore, based on the evidence before the Court, and the line of precedent described herein, the Court finds that Section 10.19 limits access to government funding for Plaintiff, as a recipient, in a manner that impedes Plaintiff’s constitutional rights, and which is not necessary to serve a compelling government interest. [Planned Parenthood of Mid-Mo. & E. Kan., Inc. v.] Dempsey, 167 F.3d [458,] 461 [(8th Cir. 1999)] (“[F]unding classifications that interfere with the exercise of constitutional rights must be necessary to promote a compelling interest.” (internal quotations and citations omitted)).
PPCNC, 877 F. Supp. 2d at 320–21 (most internal citations to record omitted).13 The same is true here.
We reject the Seventh Circuit’s analysis in PPI in favor of the reasoning in these cases, which parallels our own.
In sum, as reaffirmed in AOSI, which was decided after PPI, although the government has no obligation to subsidize constitutionally protected activity, it may not use its control over funds to curtail the exercise of constitutionally protected rights outside the scope of a government-funded program. In the instant case, § 3701.034 imposes conditions on funding under the six non-abortion related federal programs and the unconstitutional-conditions doctrine is thus applicable. We do not find PPI persuasive; as the district court determined, its importation of Casey’s undue-burden analysis is questionable. See PPSCF, 194 F. Supp. 3d at 1213. Neither Casey, 505 U.S. 833, nor Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), discussed infra, suggests that the undue-burden analysis was intended to replace the unconstitutional-conditions doctrine.
IV.
Even accepting ODH’s assertion that in the “abortion” context we must engage in an undue-burden analysis, Plaintiffs established that § 3701.034 is unnecessary to advance the interests ODH asserts.
Several years after the Seventh Circuit issued PPI, the Supreme Court clarified the undue-burden standard in Whole Woman’s Health, 136 S. Ct. 2292, as revised (June 27, 2016),
13No appeal was taken in PPCNC.

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explaining that “[t]he [undue-burden] rule announced in Casey . . . requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Whole Woman’s Health, 136 S. Ct. at 2309–1014 (citing Casey, 505 U.S. at 887–898) [] (opinion of the Court) (performing this balancing with respect to a spousal notification provision); id., at 899–901 [] (joint opinion of O’Connor, Kennedy, and Souter, JJ.) (same balancing with respect to a parental notification provision)).
A.
ODH asserts that the “conduct provision,” which bars funding for entities that perform abortions, furthers the following important state interests: 1) the interest in promoting life, 2) “prevent[ing] entanglement between program services and abortion services–ensuring that taxpayer dollars do not subsidize abortion,” 3) serving “administrative considerations” by ensuring that taxpayer funds do not directly or indirectly subsidize abortion (“it is much easier for the government simply to preclude abortion providers from participating in the programs than to allow their participation subject to costly oversight and audits”), and 4) “help[ing] Ohio convey its childbirth preference” “[b]y separating abortion providers from these programs, the Conduct Provision clarifies Ohio’s message.” Appellant Br. 39–41.
However, Ohio’s important interests in preferring childbirth to abortion, promoting life, and not subsidizing abortions have only the most tenuous relationship to § 3701.034. Precluding Plaintiffs from funding under the six federal preventive-health programs that have nothing to do with abortion does little to promote these interests. Separate and apart from § 3701.034, no program funds are or can be used to perform, promote or support abortion. See McRae, 448 U.S. at 303. Nor does ODH’s asserted interest in preventing entanglement between program services and abortion services have any weight, since the six government programs have nothing to do with abortion and there is no evidence of a history of entanglement. Regarding the administrative burden of “costly oversight and audits,” ODH neither cites the record nor points to evidence in support.

14Citing Whole Woman’s Health and Casey, Plaintiffs correctly assert that Ohio indisputably could not ban PPGOH and PPSWO from providing “nontherapeutic abortions.” Appellees Br. 35.

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B.
ODH argues that § 3701.034’s “conduct provision” neither directly nor indirectly imposes any burden on a woman’s right to an abortion. Appellant Br. 36–38.
ODH does not contest that if Plaintiffs acquiesce in the unconstitutional conditions by ceasing all abortion activity and advocacy in favor of continuing to participate in the six federal programs, women in Ohio will suffer an undue burden on their ability to obtain legal abortions. Relying on deposition testimony regarding funding for Plaintiffs’ various activities, ODH argues that Plaintiffs will not abandon their abortion activities, and thus women’s abortion rights will not be unduly burdened. ODH cites no case in support of its argument that a plaintiff who establishes an unconstitutional condition must also show that it would yield to the unconstitutional coercion. ODH’s argument sidesteps that the Supreme Court has recognized that the unconstitutional-conditions doctrine prohibits the imposition of the condition itself. See AOSI, 570 U.S. at 214 (government action need not be “actually coercive” to constitute an unconstitutional condition).
ODH further argues that abortion rights are different because the right belongs to women, not their health-care providers, and although Plaintiffs might be disadvantaged, § 3701.034 does not unduly burden women’s right to access abortion because Plaintiffs will continue to operate as usual. It has been recognized repeatedly that because the abortion right depends on providers to offer the service, conditions on abortion providers inherently affect women seeking abortions. See Singleton v. Wulff, 428 U.S. 106, 117 (1976) (observing that since a woman “cannot safely secure an abortion without the aid of a physician,” “the constitutionally protected abortion decision is one in which the physician is intimately involved,” and “[a]side from the woman herself, therefore, the physician is uniquely qualified to litigate the constitutionality of the State’s interference with, or discrimination against, that decision.”); Planned Parenthood of Mid-Mo. & E. Kan., 167 F.3d at 464 (addressing the effect of the challenged Missouri law on “Planned Parenthood’s constitutional right[]” to “provide abortion services”); Planned Parenthood of Cent. & N. Ariz., 718 F.2d at 944 (determining “whether the State unduly interfered with Planned Parenthood’s exercise of its right to perform abortion and abortion-related services”).

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Further, there is no complete separation between the Plaintiff providers and their patients that ODH would have us accept. Although Plaintiffs’ choice to resist ODH’s unconstitutional attempt to coerce them to abandon all abortion activity and advocacy means that women in Ohio will not suffer the drastic reduction in abortion services that would have occurred if Plaintiffs had made a different choice, § 3701.034 still has a substantial effect on women, in addition to providers. It is undisputed that Plaintiffs are among the largest providers of health services in the areas their twenty-seven clinics serve under the federal programs at issue,15 and provide many of those services free of charge to low-income and underserved communities.16 If Plaintiffs are excluded from the federal programs, they will no longer be able to provide the services for free.17 Thus, as a condition of retaining access to abortion free of undue governmental interference, Ohio women must forego the extensive and subsidized access to health services under federal programs that they previously enjoyed. Although Ohio women do not have a right to the programs, they do have a right not to have their access to important health services curtailed because their major abortion providers opted to protect women’s abortion rights rather than yield to unconstitutional conditions.

15Plaintiffs provide more than half of all STD tests administered in Ohio under the STD Prevention Program. PID 1858/Wolfson Decl. exhibit 26; PID 302/Lawson 2d Decl. ¶ 2. In the fiscal year that ended in June 2015, PPGOH provided approximately 64,300 STD tests and treatment for patients who tested positive and required treatment. PID 89/Harvey Decl. ¶ 10. Of the 90,000 STD tests that PPGOH administers annually, approximately 64,300 are funded through the STD Prevention Program. PID 89/Harvey Decl. ¶ 24. PPSWO provides approximately 7,943 STD tests and 1,150 treatments annually. PID 130/Lawson Decl. ¶ 22.
PPGOH is the largest provider of HIV testing and treatment in Cleveland, Akron, and Canton. PID 92/Harvey Decl. ¶ 38. PPSWO provides approximately 1,600 anonymous and confidential HIV tests annually. PID 132/Lawson Decl. ¶ 31.
PPGOH also provided 4,400 pap smears and 3,700 breast exams. PID 85/Harvey Decl. ¶ 10.
ODH failed to identify alternative providers to fill most of the gaps in service that would result from excluding Plaintiffs from funding under the six federal programs. PID 1858/Wolfson Decl. exh. 26.
16Approximately 75% of PPSWO’s patients and 40% of PPGOH’s patients fall within the low-income classification. PID 127/Lawson Decl. ¶ 10; PID 87/Harvey Decl. ¶ 19. Many live in medically underserved areas–– communities classified by the U.S. Department of Health and Human Services as having too few primary-care providers, high infant mortality and poverty rates, or large elderly populations. See PID 85/Harvey Decl. ¶ 11; PID 127/Lawson Decl. ¶ 10.
17PID 952/Harvey 3d Decl. ¶ 6 (“Without funding from those programs [§ 3701.034 reaches], PPGOH will be constrained in its ability to offer free services, such as screening for sexually transmitted diseases, HIV, and breast and cervical cancer, and end the affected education programs.”)

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V. FIRST AMENDMENT CLAIM
We turn to ODH’s argument that § 3701.034’s speech provision, which prohibits the allocation of program funds to any entity that promotes abortions, does not violate the First Amendment. Appellant Br. 49–55.
In some cases, a funding condition can result in an unconstitutional burden on First Amendment rights. See AOSI, 570 U.S. at 218 (“By requiring recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient.”); Rumsfeld, 547 U.S. at 59 (the First Amendment supplies “a limit on Congress’ ability to place conditions on the receipt of funds”).
A.
As discussed, ODH is correct that states are free to “make a value judgment favoring childbirth over abortion, and . . . implement that judgment by the allocation of public funds.” PID 2129, citing Maher, 432 U.S. at 474; see also McRae, 448 U.S. at 302. For decades Ohio legislation has been in place that bars the use of public funds to pay for abortion services. PID 2129, citing Ohio Rev. Code § 5101.56 (providing that “[u]nless required by the United States Constitution or by federal statute, or decisions of federal courts, state or local funds may not be used for payment or reimbursement for abortion services” unless certain circumstances apply, none applicable here). Plaintiffs accept this as a given.
Relying on Planned Parenthood Ass’n of Hidalgo County Texas, Inc. v. Suehs, 692 F.3d 343 (5th Cir. 2012), ODH argues that § 3701.034’s speech provision does no more than is constitutionally permissible by seeking “to ensure that contractors who convey Ohio’s messages do so efficiently and effectively,” Appellant Br. 52–53. In Suehs, the Texas legislature created the “Women’s Health Program (WHP),” 2005 Tex. Gen. Laws 2817, 2871, in 2005, which was designed to “expand access to preventative health and family planning services for women.” 692 F.3d. at 346 (citation omitted). Since the WHP’s inception, the Texas Legislature prohibited the Texas Health and Human Services Commission (THHSC), which administers the WHP, from contracting with “entities that perform or promote elective abortions or are affiliates that perform or promote elective abortions.” Id. at 346 (citation omitted). However, THHSC did not exclude

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Planned Parenthood from receiving WHP funds until 2011, when the Texas Legislature re-
authorized the WHP and promulgated regulations. The plaintiff health-clinic operators alleged
that the regulations violated their First Amendment rights of free-speech and association, and the
guarantee of Equal Protection. Applying the unconstitutional-conditions doctrine, the district
court determined the regulations likely violated these constitutionally guaranteed rights and
issued a preliminary injunction. The Fifth Circuit vacated the district court’s order granting a
preliminary injunction and remanded, explaining:
We begin with the restriction on promoting elective abortions. The THHSC regulations exclude health care providers from the WHP who “promote [ ] elective abortions as . . . abortion facilit[ies] licensed under [the] Health and Safety Code.” 1 Tex. Admin. Code § 354.1363(a)(2)(A). This restriction, in a sense, imposes a speech-based condition on organizations receiving the benefit of WHP funding. If an organization wishes to receive WHP funding, it may not “[a]dvocate[ ] or popularize[ ] [elective abortions] by, for example, advertising or publicity” as a licensed abortion facility. Id. § 354.1362(6). Although this restriction functions as a speech-based funding condition, it also functions as a direct regulation of the content of a state program, and is therefore constitutional under the reasoning of Rust v. Sullivan, 500 U.S. 173 [] (1991). In Rust v. Sullivan, the Supreme Court considered federal regulations limiting the abortionrelated speech of clinics receiving funds under Title X of the Public Health Service Act. 500 U.S. at 178 []. The disputed regulations broadly prohibited a Title X project from promoting or advocating abortion as a method of family planning, including advocating abortion in the political arena. Id. at 180 []. The Court upheld the regulations, reasoning that the government could disfavor abortion within its own subsidized program, and that exclusively subsidizing nonabortion family planning speech did not penalize abortion speech. Id. at 192–93 []. Subsequent opinions have recognized Rust as affirming the government’s authority to enact viewpoint-based restrictions on speech when the government is, in effect, the speaker. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 540–41 [] (2001); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833 [] (1995). “[W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.” Rosenberger, 515 U.S. at 833 [] (citing Rust, 500 U.S. at 194 []). . . .
. . . . We hold that Texas may deny WHP funds from organizations that promote elective abortions. This specific restriction on the breadth of the program functions as a direct regulation of the definitional content of a state program, and it is therefore unnecessary to examine it within the framework of the unconstitutional conditions doctrine. The district court erred in enjoining this provision of the regulations.
Suehs, 692 F.3d 343, 349–50.

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We agree with the district court that Suehs is distinguishable and inapposite:
Defendant points out that even though Texas’s funding condition applied to program participants, rather than just program activities, the Fifth Circuit found the funding restriction was proper. However, there are key differences between Section 3701.034 and the WHP, as the [Fifth Circuit’s] explanation of its holding illustrates:
Texas’s restriction on promoting elective abortions directly regulates the content of the WHP as a state program. The policy expressed in the WHP is for public funds to subsidize non-abortion family planning speech to the exclusion of abortion speech. § 1.19(b), 2011 Tex. Gen. Laws at 335. Texas’s authority to promote that policy would be meaningless if it were forced to enlist organizations as health care providers and message-bearers that were also abortion advocates. The authority of Texas to disfavor abortion within its own subsidized program is not violative of the First Amendment right, as interpreted by Rust v. Sullivan. Consequently, Texas’s choice to disfavor abortion does not unconstitutionally penalize the appellees’ speech.
[692 F.3d] at 350. In contrast, Section 3701.034 is not a direct regulation of the content of a state program. Instead, Section 3701.034 places the speech-based funding condition on the recipient of the funds [based on] activities conducted outside the six programs impacted . . . As a result, Section 3701.034 does not “leave the grantee unfettered in its other activities.” Rust, 500 U.S. at 196.
Planned Parenthood of Greater Ohio, 201 F. Supp. 3d at 905.
B.
We also reject ODH’s related argument that the State of Ohio may, consistent with the
First Amendment, ensure that its message favoring childbirth over abortion is not garbled. As
the district court found, this case involves no state “message” related to or regarding abortion;
§ 3701.034 affects programs that have nothing to do with abortion or family planning, and seeks
to impose restrictions on recipients’ speech outside the six government programs the statute
funds. PID 2132/Dist. Ct. Op.; see, e.g., AOSI, 570 U.S. at 218 (a recipient of government
funding is free under the First Amendment to express its own views “when participating in
activities on its own time and dime”).

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C.
As the district court determined, because “the conditions imposed by Section 3701.034 seek to leverage funding to regulate speech outside the contours of the six programs impacted by Section 3701.034,” the unconstitutional-conditions doctrine applies. Planned Parenthood of Greater Ohio, 201 F. Supp. 3d at 906 (emphasis added). Nothing within the scope of these six programs relates to performing or promoting abortion. Therefore, the district court correctly determined that § 3701.034 cannot condition participation in funding for these programs on a recipient’s foregoing the exercise of its rights of free speech or association outside these programs. PID 2133. Accord Dempsey, 167 F.3d at 462 (“Legislation that simply dictates the proper scope of government-funded programs is constitutional, while legislation that restricts protected grantee activities outside government programs is unconstitutional[.]”); Planned Parenthood of Cent. & N. Ariz. v. Ariz., 718 F.2d 938, 942–44 (9th Cir. 1983) (although the state need not fund abortions, the state “may not unreasonably interfere with the right of Planned Parenthood to engage in abortion or abortion-related speech activities”); Hill v. Kemp, 645 F. Supp. 2d 992, 1002 (N.D. Okla. 2009) (“The State is free to fund adoption services to exclusion of any abortion-related services, but it may not deny [the plaintiff motorists and non-profit prochoice association] funding [for specialty license plate fees] conditioned upon [the plaintiff’s] waiver of its right to engage in protected speech activity with its private funds.”); see also In re Tam, 808 F.3d 1321, 1348–50 (Fed. Cir. 2015), as corrected (Feb. 11, 2016), aff’d sub nom. Matal v. Tam, 137 S. Ct. 1744 (2017) (“The government’s discretion to direct its spending, while broad, is not unbounded, and the limits take account of the real-world effect on the speech of those subject to the conditions. If a program arises under the Spending Clause, Congress is free to attach ‘conditions that define the limits of the government spending program—those that specify the activities Congress wants to subsidize.’ Agency for Int’l Dev. [AOSI], 133 S. Ct. at 2328. However, Congress does not have the authority to attach ‘conditions that seek to leverage funding to regulate speech outside the contours of the program itself.’ Id.”).
The district court correctly determined that § 3701.034 violates Plaintiffs’ rights of free speech and association.

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VI. ENTRY OF PERMANENT INJUNCTION
In its Reply Brief ODH states simply that it “agrees that if this Court finds the Conduct and Speech Provisions both unconstitutional,” the permanent injunction factors are met, Reply Br. 29, thus we do not address the issue further.
VII.
For the reasons stated, we AFFIRM the district court’s grant of Plaintiffs’ motions for judgment on the merits and for a permanent injunction.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 16-4027

PLANNED PARENTHOOD OF GREATER OHIO; PLANNED PARENTHOOD OF SOUTHWEST OHIO REGION,
Plaintiffs - Appellees,
v.
LANCE HIMES, in his official capacity as Interim Director of the Ohio Department of Health,
Defendant - Appellant.

FILED
Apr 18, 2018
DEBORAH S. HUNT, Clerk

Before: SILER, CLAY, and WHITE, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court for the Southern District of Ohio at Cincinnati.
THIS CAUSE was heard on the record from the district court and was argued by counsel.
IN CONSIDERATION THEREOF, it is ORDERED that the district court’s grant of Plaintiffs’ motions for judgment on the merits and for a permanent injunction are AFFIRMED.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Case: 1:16-cv-00539-MRB Doc #: 72 Filed: 03/13/19 Page: 1 of 39 PAGEID #: 2257 (1 of 39)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: March 12, 2019

Mr. Steven H. Aden Alliance Defending Freedom 801 G Street, N.W., Suite 509 Washington, DC 20001
Mr. Afshin Bahrampour 415 Thirteenth Street Las Vegas, NV 89101
Ms. Jennifer L. Branch Mr. Alphonse A. Gerhardstein Gerhardstein & Branch 432 Walnut Street, Suite 400 Cincinnati, OH 45202
Mr. Stephen P. Carney Mr. Benjamin Michael Flowers Mr. Zachery P. Keller Ms. Ryan Lynn Richardson Ms. Hannah Carrigg Wilson Office of the Attorney General of Ohio 30 E. Broad Street, 25th Floor Columbus, OH 43215
Ms. Michelle Nicole Diamond Mr. Alan Evan Schoenfeld Wilmer Hale, 250 Greenwich Street 7 World Trade Center New York, NY 10007
Ms. Laura Etlinger New York State Office of the Attorney General The Capitol, Albany, NY 12224

Case: 1:16-cv-00539-MRB Doc #: 72 Filed: 03/13/19 Page: 2 of 39 PAGEID #: 2258 (2 of 39)
Mr. Thomas Molnar Fisher Office of the Attorney General of Indiana 302 W. Washington Street Fifth Floor Indianapolis, IN 46204
Ms. Carrie Y. Flaxman Mr. Alphonse A. Gerhardstein Planned Parenthood Federation of America 1110 Vermont Avenue Suite 300 Washington, DC 20005
Mr. Jyotin R. Hamid Debevoise & Plimpton 919 Third Avenue New York, NY 10022
Mr. Thomas Dietrich Hill 1615 M Street, N.W. Suite 800 Washington, DC 20036-0000
Mr. Hashim M. Mooppan Mr. Lewis Yelin U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W. 7245 Washington, DC 20530
Ms. Kimberly A. Parker Mr. Paul R.Q. Wolfson Wilmer Hale 1875 Pennsylvania Avenue, N.W. Washington, DC 20006
Mr. Jay A. Sekulow American Center for Law & Justice 1000 Regent University Drive Robertson Hall Suite 422 Virginia Beach, VA 23467-0000

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Re: Case No. 16-4027, Planned Parenthood of Grtr. OH, et al v. Richard Hodges Originating Case No. : 1:16-cv-00539
Dear Counsel, The court today announced its decision in the above-styled case. Enclosed is a copy of the court's opinion together with the judgment which has been entered
in conformity with Rule 36, Federal Rules of Appellate Procedure. Yours very truly,
Deborah S. Hunt, Clerk

cc: Mr. Richard W. Nagel Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 19a0042p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

PLANNED PARENTHOOD OF GREATER OHIO; PLANNED ┐

PARENTHOOD OF SOUTHWEST OHIO REGION,

│

Plaintiffs-Appellees, │

│

>

v.

│

│

│

RICHARD HODGES, in his official capacity as Director │

of the Ohio Department of Health,

│

Defendant-Appellant. │

┘

No. 16-4027

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: October 3, 2018

Decided and Filed: March 12, 2019

Before: COLE, Chief Judge; SILER, BATCHELDER, MOORE, CLAY, GIBBONS, SUTTON, COOK, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, and NALBANDIAN, Circuit Judges. _________________

COUNSEL

REARGUED EN BANC: Stephen P. Carney, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Alan E. Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, for Appellees. Hashim M. Mooppan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Amicus Curiae. ON SUPPLEMENTAL BRIEF: Stephen P. Carney, Eric E. Murphy, Hannah C. Wilson, Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Alan E. Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Jennifer L. Branch, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Helene T. Krasnoff, Carrie Y. Flaxman, PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, D.C., Paul R.Q. Wolfson, Kimberly A. Parker, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Appellees.

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Hashim M. Mooppan, Matthew M. Collette, Lewis S. Yelin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Aaron D. Lindstrom, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Jay Alan Sekulow, AMERICAN CENTER FOR LAW & JUSTICE, Washington, D.C., Steven H. Aden, AMERICANS UNITED FOR LIFE, Arlington, Virginia, Laura Etlinger, OFFICE OF THE NEW YORK ATTORNEY GENERAL, Albany, New York, T. Dietrich Hill, KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C., Washington, D.C., Jyotin Hamid, DEBEVOISE & PLIMPTON LLP, New York, New York, for Amici Curiae.
SUTTON, J., delivered the opinion of the court in which SILER, BATCHELDER, GIBBONS, COOK, GRIFFIN, KETHLEDGE, THAPAR, BUSH, LARSEN, and NALBANDIAN, JJ., joined. WHITE, J. (pp. 13–35), delivered a separate dissenting opinion in which COLE, C.J., and MOORE, CLAY, STRANCH, and DONALD, JJ., joined.
_________________
OPINION _________________
SUTTON, Circuit Judge. Ohio, like many governments, often partners with nonprofit organizations to promote policies of the State. Through one such partnership, the State distributes government funds to several organizations to address a wide range of public health issues. For many years, Planned Parenthood participated in these programs. In 2016, Ohio passed a law that bars its health department from funding organizations that “[p]erform nontherapeutic abortions.” Ohio Rev. Code § 3701.034(B)(1). Two Planned Parenthood affiliates challenged the statute, claiming that it imposes an unconstitutional condition on public funding in violation of the Due Process Clause. The affiliates are correct that the Ohio law imposes a condition on the continued receipt of state funds. But that condition does not violate the Constitution because the affiliates do not have a due process right to perform abortions. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992) (plurality). We reverse the district court’s contrary decision.
I.
Ohio distributes funds to organizations that participate in six government-sponsored health and education programs. The programs target sexually transmitted diseases, breast cancer and cervical cancer, teen pregnancy, infant mortality, and sexual violence.

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Planned Parenthood of Greater Ohio and Planned Parenthood of Southwest Ohio manage twenty-seven health centers across the State. They have participated in these programs for several years. Both entities provide abortions at surgical centers in Bedford Heights, Columbus, and Cincinnati.
For several decades, both federal and state laws have prohibited recipients of public funds from using the money to provide abortions. The Planned Parenthood affiliates comply with these requirements.
In 2016, the Ohio legislature enacted, and Governor Kasich signed into law, House Bill 294 to “Prohibit[] [the] use of certain funds concerning nontherapeutic abortions.” It requires 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.” Ohio Rev. Code § 3701.034(B)–(G). The point of the limitation, the State maintains, is to promote childbirth over abortion, to avoid “muddl[ing]” that message by using abortion providers as the face of state healthcare programs, and to avoid entangling program funding and abortion funding. Appellant’s Br. 39–41.
Ohio’s health department and its local counterparts notified Planned Parenthood of Greater Ohio and Planned Parenthood of Southwest Ohio that the new law would require the State to end their contracts under the programs. Both entities perform abortions, advocate for abortion, and affiliate with other entities that do the same.
Both of the affiliates, from now on referred to as Planned Parenthood in the singular, sued, claiming that the law violates the First and Fourteenth Amendments by conditioning government funding on giving up their rights to provide abortions and to advocate for them. The district court agreed and permanently enjoined the State from enforcing the law.
After a panel of this court affirmed the district court, 888 F.3d 224 (2018), the full court decided to review the appeal, 892 F.3d 1283 (2018) (mem.).

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II.
As the district court saw it, the Ohio law imposes two unconstitutional conditions on Planned Parenthood. It denies the organization funding if it continues to perform abortions— what the court perceived to be a due process violation. And the law denies the organization funding if it continues to promote abortion—what the court perceived to be a free speech violation. To prevail, Planned Parenthood must show that both limitations—the conduct and speech requirements—violate the U.S. Constitution. Ohio may deny funding to Planned Parenthood in other words if either limitation satisfies the Constitution. 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.
First a word or two about unconstitutional conditions. The United States Constitution does not contain an Unconstitutional Conditions Clause. What it does contain is a series of individual rights guarantees, most prominently those in the first eight provisions of the Bill of Rights and those in the Fourteenth Amendment. Governments generally may do what they wish with public funds, a principle that allows them to subsidize some organizations but not others and to condition receipt of public funds on compliance with certain obligations. See Rust v. Sullivan, 500 U.S. 173, 192–94 (1991). What makes a condition unconstitutional turns not on a freestanding prohibition against restricting public funds but on a pre-existing obligation not to violate constitutional rights. The government may not deny an individual a benefit, even one an individual has no entitlement to, on a basis that infringes his constitutional rights. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 214 (2013). Otherwise, the government could leverage its spending authority to limit, if not eliminate, the exercise of this or that constitutional right. In the words of the Supreme Court, the principle “forbids burdening the Constitution’s enumerated rights by coercively withholding benefits from those who exercise them.” Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 606 (2013).
What is the enumerated right at issue here? The guarantee of due process established by the Fourteenth Amendment. That provision, as the United States Supreme Court has come to construe it, prohibits a State from imposing an “undue burden” on a woman’s access to an abortion before fetal viability. Casey, 505 U.S. at 877 (plurality).

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These principles establish the following line between what Ohio may do and what it may not do. It may choose not to fund a private organization’s health and education initiatives. Private organizations do not have a constitutional right to obtain governmental funding to support their activities. The State also may choose not to subsidize constitutionally protected activities. Just as it has no obligation to provide a platform for an individual’s free speech, say a Speaker’s Corner in downtown Columbus, it has no obligation to pay for a woman’s abortion. Case after case establishes that a government may refuse to subsidize abortion services. Rust, 500 U.S. at 201–02; Harris v. McRae, 448 U.S. 297, 315–17 (1980); Maher v. Roe, 432 U.S. 464, 474 (1977). Both the United States and Ohio have done exactly that, whether through the Hyde Amendment, see Pub. L. No. 115-31, §§ 613–14, 131 Stat. 135, 372 (2017), or through Ohio Revised Code § 9.04(B).
By contrast, the State may not condition a benefit by requiring the recipients to sacrifice their constitutional rights. Regan v. Taxation With Representation of Wash., 461 U.S. 540, 545 (1983). Just as the State may not directly order someone to stop exercising his rights, it may not coerce him into “giving them up” by denying the benefits if he exercises those rights. Koontz, 570 U.S. at 604, 612.
The Ohio law falls on the permissible side of this line. Today’s plaintiffs do not have a Fourteenth Amendment right to perform abortions. The Supreme Court has never identified a freestanding right to perform abortions. To the contrary, it has indicated that there is no such thing. “Whatever constitutional status the doctor-patient relation may have as a general matter,” the Court has explained, “in the present context it is derivative of the woman’s position. The doctor-patient relation 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.” Casey, 505 U.S. at 884 (plurality) (emphasis added).
Any doubt about the point is confirmed by the debate at hand in Casey. The abortion providers claimed that a Pennsylvania law, requiring them to inform their patients of the abortion procedure’s details and alternatives at least 24 hours beforehand, violated their patients’ due process rights and their own due process rights that arose from their relationship with the

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patients. The plurality rejected both claims. Abortion rights do not arise from the providerpatient relationship “[o]n its own,” the Court reasoned. Id. After explaining that the law did not unduly burden women’s rights, the plurality concluded that the law had no more constitutional import as to the providers than if its requirements dealt with “a kidney transplant.” Id. at 883. In the absence of a constitutional right to perform abortions, the plaintiffs have no basis to bring an unconstitutional-conditions claim.
At the same time, the Ohio law does not violate a woman’s right to obtain an abortion. It does not condition a woman’s access to any of these public health programs on refusing to obtain an abortion. It makes these programs available to every woman, whether she seeks an abortion or not. Nor, on this record, has there been any showing that the Ohio law will limit the number of clinics that offer abortions in the State. Cf. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309–18 (2016).
A review of the Supreme Court’s decisions in the area fails to reveal a single one in which the plaintiff obtained relief based on a restriction of unprotected activity. The dissent to its credit concedes as much. Infra, at 26 n.8. A benefits condition becomes unconstitutional only when it violates a recipient’s constitutional rights, as the following cases confirm. See, e.g., Koontz, 570 U.S. 595 (permit condition on landowner burdened his Fifth Amendment rights); All. for Open Soc’y Int’l, 570 U.S. 205 (funding condition on aid organization burdened its First Amendment rights); Rust, 500 U.S. 173 (funding condition on Title X grantees did not violate their First Amendment rights); Regan, 461 U.S. 540 (tax-exemption condition on organization did not violate its First Amendment rights); Mem’l Hosp. v. Maricopa Cty., 415 U.S. 250 (1974) (benefits condition on nonresident indigent burdened his Fourteenth Amendment rights).
The only other circuit in the country to squarely address this issue reached the same conclusion. “The first step in any unconstitutional-conditions claim is to identify the nature and scope of the constitutional right arguably imperiled,” it reasoned, and abortion clinics lack a freestanding constitutional right to practice their trade. Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962, 986–88 (7th Cir. 2012). Accordingly, “[a]s long as the difference in treatment does not unduly burden a woman’s right to obtain an abortion, the government is free to treat abortion providers differently” than other entities. Id. at 988. In

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that case, the Seventh Circuit rejected an unconstitutional-conditions challenge to an Indiana law with a conduct component identical in every material way to this Ohio law. In dicta, the Ninth Circuit reached a similar conclusion. “Never has it been suggested,” the court explained, “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.” Teixeira v. Cty. of Alameda, 873 F.3d 670, 689 (9th Cir. 2017) (en banc).
Planned Parenthood nonetheless maintains that a bevy of cases establishes that clinics do have a due process right to perform abortions. But a review of the cases leaves the reader empty handed. Webster v. Reproductive Health Services, 492 U.S. 490 (1989), held that physicians have no right to use public facilities to provide abortions, all consistent with the no-requiredfunding-of-abortions principle on which Ohio’s policy decision rests. After explaining that holding, Webster speculated that it might “be different if the State barred doctors who performed abortions in private facilities from the use of public facilities for any purpose.” Id. at 510 n.8. Three years after Webster, however, Casey ended any speculation over whether providers have a constitutional right to offer abortion services. It indicated they do not.
Planned Parenthood of Central & Northern Arizona v. Arizona, 718 F.2d 938, 946 (9th Cir. 1983), another pre-Casey case, fares no better. It never held that providers have a constitutional right to perform abortions and indeed had no occasion to do so because it analyzed a broad, speech-centric claim about restrictions on a combination of abortion-related activities. Planned Parenthood of Mid-Missouri & East Kansas, Inc. v. Dempsey, 167 F.3d 458, 461–64 (8th Cir. 1999), is to like effect.
The Tenth Circuit, it is true, accepted the existence of a Fourteenth Amendment right to provide abortions. Planned Parenthood Ass’n of Utah v. Herbert, 828 F.3d 1245, 1260 (10th Cir. 2016). But it did so without meaningful analysis or authority, and most importantly it did so in a case in which the State did not challenge the existence of the right.
Third-party-standing cases do not fill this gap. In those cases, the Supreme Court held that abortion providers have standing to bring due process challenges on behalf of their patients. See, e.g., Singleton v. Wulff, 428 U.S. 106, 118 (1976) (plurality); see also Diamond v. Charles,

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476 U.S. 54, 65–66 (1986). But these decisions do not establish that the providers themselves have due process rights. Much to the contrary. The premise of these challenges is that the providers have no constitutional rights of their own in this setting. Why else go through the rigmarole of granting the provider third-party standing to file the claim? The first party (the woman) has the claim, and the third party (the provider) sometimes may bring that claim on her behalf. Any other interpretation of the third-party doctrine, as the plaintiffs use it here, would have this disfiguring effect: It would create a constitutional right for providers to offer abortion services and, in doing so, move the law perilously close to requiring States to subsidize abortions. Case law rejects both possibilities.
Even if the Fourteenth Amendment does not grant Planned Parenthood a constitutional right to perform abortions and even if the third-party-standing doctrine does not fill this gap, the organization maintains that the unconstitutional-conditions doctrine defeats the law all the same. Ohio may not directly ban access to abortion services in the State, Planned Parenthood points out, and the unconstitutional-conditions doctrine bars a State from achieving that same goal indirectly, here by financially incentivizing abortion providers to cease offering this service. Yes, the doctrine would prohibit the State from requiring women to forfeit benefits if they chose to obtain an abortion and if that limitation unduly burdened their access to abortion services. That’s because such a state law would try to achieve indirectly what the State cannot achieve directly with respect to the underlying constitutional right. But, no, the principle does not apply when the State regulates entities with no such constitutional right: abortion providers. In that setting, the clinic is like anyone else in the State, subject to all manner of regulatory incentives and disincentives, whether in the tax code, economic development plans, or any other part of state or local law.
Consistent with this explanation, all of the cases cited by Planned Parenthood with respect to this direct-indirect point involved individuals or entities who held the constitutional right and were discouraged from exercising it. See, e.g., Elrod v. Burns, 427 U.S. 347, 360–61 (1976) (employees claimed that county fired them due to their political affiliation); Perry v. Sindermann, 408 U.S. 593, 597–98 (1972) (professor claimed that state college refused to renew his contract due to his protected speech); Lane v. City of LaFollette, 490 F.3d 410, 419 (6th Cir.

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2007) (employee claimed that city fired him for his political beliefs); Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307, 321 (6th Cir. 1998) (public-employee unions claimed that prohibition on payroll deductions for political causes discouraged their political expression).
The direct-indirect dynamic, put another way, is not by itself what triggers the doctrine. The doctrine applies when the government attempts to ban or undermine a benefit recipient’s exercise of a right that the Constitution guarantees. That’s why an unconstitutional-conditions claim won’t get far if the government could have directly ordered the outcome it wishes to incentivize. In that case, there is no right at issue. See Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 58–60 (2006) (upholding funding condition that required universities to give military recruiters equal access to students, because the First Amendment would allow Congress to directly impose such a requirement). Because Planned Parenthood has no constitutional right to perform abortions, the doctrine does not apply to Ohio’s incentives to refrain from performing them.
Truth be told, general concerns about indirect efforts to accomplish what cannot be accomplished directly illustrate what is wrong with this claim. Medical centers do not have a constitutional right to offer abortions. Yet, if we granted Planned Parenthood relief today, we would be effectively saying that they do. That is not the role of the unconstitutional-conditions doctrine.
That this traditional application of the unconditional-conditions doctrine might apply in other settings, as the dissent points out, infra, at 26, counts as a plus, not a minus, in the constitutional equation. It shows that the principle is a neutral one. And it shows that our assessment of the case turns on the nature of the unconstitutional-conditions doctrine, not on individual preferences with respect to this constitutional right or that one. Any risk of unequal application would arise in this case only if we extend the unconstitutional-conditions doctrine for the first time to an entity (here an abortion provider) that does not have a constitutional right.
In the absence of such an extension, Planned Parenthood worries that the unconstitutional-conditions doctrine will lead to several problematic outcomes. “Imagine,” the dissent suggests, “that the government barred lawyers who represent indigent defendants from

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eligibility for loan forgiveness programs.” Id. Or imagine, we could add, that the government denied government construction contracts to companies that build for customers of a particular faith or race or burdened gun shops with punitive or irrational licensing requirements. Straw men, to be sure, but revealing all the same. None of these hypotheticals reveals a doctrinal (or policy) gap that an extension of the unconstitutional-conditions doctrine needs to fill.
The initial question in each instance is whether such a law would implicate the regulated entity’s constitutional rights or some other prohibition. That seems likely in each setting. The first application would implicate a lawyer’s free speech rights. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 544 (2001). The second application would implicate the prohibition on drawing racial and faith-based classifications in any law. Just as a State could not condition an abortion provider’s subsidy on providing services only to individuals of a certain race or religion, so it could not condition a construction company’s contracts on serving only non-Muslim clients or only white clients. See Emp’t Div. v. Smith, 494 U.S. 872, 877 (1990); Brown v. Bd. of Educ., 347 U.S. 483, 488, 495 (1954). Even aside from the question whether gun stores have Second Amendment rights, compare Teixeira, 873 F.3d at 681–90, with id. at 698–99 (Bea, J., dissenting), the third application confirms that all punitive or irrational licensing requirements run the risk of violating a store’s constitutional rights, whether the store sells guns or not. But it is hardly punitive or irrational for a State to subsidize some activities and not others. The unconstitutional-conditions doctrine no more elevates non-constitutional claims into constitutional ones than it insulates protected rights from protection.
This last point answers the dissent’s next hypotheticals about polling-place funding and gun-shop tax breaks, infra, at 26, as well as any others that a fertile imagination could identify, so long as the law does not violate the regulated entity’s rights or another prohibition. Take the gun shop. Surely a State could deny subsidies for entities dealing with the needs of victims of gun violence to entities or stores that sold guns. In the end, so long as the subsidy program does not otherwise violate a constitutional right of the regulated entity, the State may choose to subsidize what it wishes—whether abortion services or adoption services, whether stores that sell guns or stores that don’t.

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That leads to Planned Parenthood’s next argument. Left untouched, the Ohio law will deprive Ohio women of their constitutional right of access to abortion services without undue burden, because it will lead Planned Parenthood and perhaps other abortion providers to stop providing them. Maybe; maybe not. More to the point, the conclusion is premature and unsupported by the record. It is true that, if these two Planned Parenthood affiliates opted not to provide abortions, women seeking an abortion in Ohio would have to travel farther than they currently do to obtain an abortion. It is also true that this kind of evidence may support an undue-burden challenge by establishing a “substantial obstacle” in the way of those seeking abortions. See Whole Woman’s Health, 136 S. Ct. at 2309–18; Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 604–05 (6th Cir. 2006).
But it is premature to assess any such claim now. For one, it is not clear that the plaintiffs filed an undue-burden challenge on behalf of individual women, as opposed to an unconstitutional-conditions challenge on their own behalf. For another, the record contains more speculation than evidence about what would happen if these two Planned Parenthood affiliates stopped providing abortions. For still another, the only hard evidence on point is that Planned Parenthood does not plan to stop providing abortions, as representatives from each affiliate testified that they would sacrifice government funding to continue providing abortions. On this record, it would be unduly conjectural, and unripe to boot, to imagine what would happen if the plaintiffs changed their mind. Under our Article III authority to resolve “Cases” and “Controversies,” we must limit ourselves to the seen rather than the unseen. And all that the seen shows is that the law will not create an undue burden on a woman’s right to an abortion.
Planned Parenthood insists that it has no obligation to establish an undue burden because the funding condition itself is unconstitutional, making it irrelevant whether the subject of the condition gives in. See Koontz, 570 U.S. at 607. That may be true if the subject of the funding incentive possesses the right. But that is not true in this instance because the subject—here providers, not women—does not possess the right. All of which takes us back to where we started. To have an unconstitutional condition, the State must impose the condition on the individual (or entity) with the constitutional right. If there’s no right, there’s no unconstitutional condition. And the providers have no such constitutional right. The point of the doctrine is to

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protect the underlying right: a woman’s right of access to abortion services without an undue burden. It is not to leverage a constitutional condition into an unconstitutional one while freeing the provider from either asserting a valid right of its own or showing any undue burden on anyone.
That this is a pre-enforcement action, last of all, changes nothing. Even in that setting, Planned Parenthood must show that the Ohio law, if implemented, would impose an undue burden on a woman’s right to an abortion. Its vow to keep performing abortions sinks any preenforcement action, and any speculation about what would happen if it changed its mind is just that.
For these reasons, we reverse the district court’s contrary decision and remand for proceedings consistent with this opinion.

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_________________
DISSENT _________________
HELENE N. WHITE, Circuit Judge, dissenting. The majority makes short work of Plaintiffs’ arguments with three simple assertions. Because Plaintiff clinics have no independent constitutional right to perform abortions, it is impossible for Ohio to violate their due process rights by withholding benefits or imposing burdens based on their abortion activities; a woman has a due process right to obtain certain nontherapeutic abortions, but no condition violates that right unless it imposes an undue burden on that right; because Plaintiff providers have made clear that they will not accede to Ohio’s funding conditions, there is no undue burden on a woman’s abortion right.
The majority does not mention, much less apply, the test the Supreme Court has recently articulated governing the unconstitutional-conditions doctrine. That doctrine prohibits the government from conditioning the grant of funds under a government program if: (1) the challenged conditions would violate the Constitution if they were instead enacted as a direct regulation; and (2) the conditions affect protected conduct outside the scope of the government program. See Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, 570 U.S. 205, 213-15 (2013) (hereafter AOSI). Because (1) the funding conditions in this case would result in an undue burden on a woman’s right to obtain nontherapeutic abortions if imposed directly, and (2) the six federal programs have nothing to do with Plaintiffs’ performing abortions, advocating for abortion rights, or affiliating with organizations that engage in such activity, all on their own “time and dime,” I respectfully dissent.
Enacted in 2016, Ohio Revised Code § 3701.034 (the Statute) 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. A direct regulation barring healthcare providers from performing or promoting nontherapeutic abortions or affiliating with any entity that performs or

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promotes nontherapeutic abortions would violate the Constitution by imposing an undue burden on women seeking abortions and violating the healthcare providers’ rights to free speech and association. The Statute thus satisfies the first element of an unconstitutional condition. The Statute also plainly conditions government funding for programs unrelated to abortion on an entity’s refraining from performing or promoting abortions, or affiliating with any entity that does either. Because § 3701.034 fails both parts of the test applied in AOSI, the district court properly enjoined the law from going into effect.
The majority avoids this straightforward application of the unconstitutional-conditions doctrine primarily by adopting an unprecedented rule that abortion providers—entities that are necessary to ensure a woman’s right to safe abortions—cannot prevail in challenging the Statute because there is no independent constitutional right to provide abortions. For the proposition that there is “no such thing” as a right to perform abortions, the majority cites the statement in the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey that a provider’s constitutional right “is derivative of the woman’s position.” 505 U.S. 833, 884 (1992). (Maj. Op. at 5.) The majority then assumes that a “derivative” right is no right at all. But of course, “derivative” simply means “developed from . . . something else.” Black’s Law Dictionary (10th ed. 2014). An abortion provider’s constitutional right may be derivative of the patient’s right—but it is a right nonetheless.
And, even if the abortion right belongs only to women, it has long been understood that “the right is inextricably bound up with” a provider’s ability to offer these services. Singleton v. Wulff, 428 U.S. 106, 114 (1976) (plurality opinion). Further, the Supreme Court has never suggested that a party that could prevail in challenging a direct regulation is nevertheless powerless to challenge a law that attempts to achieve the same result by imposing a condition on unrelated funding. The majority’s novel rule gives the government the authority to impose almost any condition it wants on abortion providers so long as the providers continue to perform abortions. The government acknowledged as much at oral argument. This type of assault on a constitutional right is precisely the type of harm the unconstitutional-conditions doctrine is meant to protect against.

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I. BACKGROUND
Ohio Revised Code § 3701.034
Ohio Revised Code § 3701.034 provides:
(A) As used in this section:
(1) “Affiliate” means an entity that has with another entity a legal relationship created or governed by at least one written instrument that demonstrates any of the following:
(a) Common ownership, management, or control;
(b) A franchise agreement;
(c) The granting or extension of a license or other agreement that authorizes an entity to use the other entity’s brand name, trademark, service mark, or other registered identification mark.
(2) “Violence Against Women Act” means section 1910A of section 40151 of the “Violent Crime Control and Law Enforcement Act of 1994,” part A of Title XIX of the “Public Health and Human Services Act,” 108 Stat. 1920 (1994), former 42 U.S.C. 300w, 42 U.S.C. 280b-1b, as amended.
(3) “Breast and Cervical Cancer Mortality Prevention Act” means the “Breast and Cervical Cancer Mortality Prevention Act of 1990,” 104 Stat. 409 (1990), 42 U.S.C. 300k, as amended.
(4) “Infertility prevention project” means the infertility prevention project operated by the United States centers for disease control and prevention.
(5) “Minority HIV/AIDS initiative” means the minority HIV/AIDS initiative operated by the office of minority health in the United States department of health and human services.
(6) “Personal responsibility education program” means the program administered by the administration for children and families in the United States department of health and human services to educate adolescents on abstinence and contraception for the prevention of pregnancy and sexually transmitted infections.
(7) “Nontherapeutic abortion” has the same meaning as in section 9.04 of the Revised Code.[1]

1Ohio law defines “nontherapeutic abortion” as “an abortion that is performed or induced when the life of the mother would not be endangered if the fetus were carried to term or when the pregnancy of the mother was not the result of rape or incest reported to a law enforcement agency.” Ohio Rev. Code § 9.04(A)(1).

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(8) “Promote” means to advocate for, assist with, encourage, or popularize through advertising or publicity. (B) – (G)[2] The department of health shall ensure that all funds it receives [through the Violence Against Women Act, Breast and Cervical Cancer Mortality Prevention Act, Infertility prevention project, Minority HIV/AIDS initiative, infant mortality reduction or infant vitality initiatives] 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.
Plaintiffs
Plaintiffs Planned Parenthood of Greater Ohio (PPGOH) and Planned Parenthood Southwest Ohio Region (PPSWO) are not-for-profit corporations organized under Ohio law. PPGOH and PPSWO are also affiliates of Planned Parenthood Federation of America, Inc. (PPFA), which advocates for women’s access to comprehensive reproductive healthcare, including abortion. Plaintiffs operate twenty-seven3 health centers throughout Ohio, which are staffed with physicians, nurse practitioners, and physician assistants, who provide well-woman exams, testing and treatment for sexually transmitted diseases, screenings for breast and cervical cancer and HIV, and contraception and contraceptive counseling. Three of the twenty-seven health centers also provide abortion services. Separate from their government-funded health services and education programs, PPGOH and PPSWO advocate for a woman’s right to safe and lawful abortion through public awareness campaigns and public education activities.
Consistent with federal and Ohio law, no government funds are used to pay for or subsidize Plaintiffs’ abortion services or advocacy. It is undisputed that Plaintiffs “maintain

2Sections (B) through (G), which address each of the programs separately, share identical language in subsections (1) through (4), and are condensed for brevity.
3During the pendency of this appeal, Plaintiffs’ counsel advised that one of the twenty-eight health centers has closed for reasons unrelated to this case. The district court’s opinion states that Plaintiffs operate twenty-eight health centers, which was accurate at the time.

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measures to ensure that none of the funds received from the state or federal government are used, directly or indirectly, to subsidize the promotion of abortion or performance of abortion services.” (R. 60, PID 2136.)
Largely through competitive grant processes, Plaintiffs have for years received funds and material assistance distributed by ODH and county health departments under the six federal programs impacted by § 3701.034: the Infertility Prevention Project, Breast and Cervical Cancer Mortality Prevention Act, Violence Against Women Act, Minority HIV/AIDS Initiative, Infant Mortality Reduction Initiative, and Personal Responsibility Education Program (PREP).4 Throughout those years, Plaintiffs passed all state and local audits and program reviews.
After § 3701.034 was enacted, ODH and local health departments notified Plaintiffs that their contracts under the six federal programs would be terminated and they would not be eligible for funding. Plaintiffs’ termination of services they currently provide under these six programs could have dramatic public-health consequences. For example, as amicus American Public Health Association details, Plaintiffs currently provide over 70,000 free STD tests to lowincome Ohioans annually under the STD Prevention Program. With STDs among Ohioans continuing to rise, Plaintiffs’ non-eligibility in that program could lead to three counties being without any qualified provider because other existing program providers do not have the capacity to fill the gap. Section 3701.034’s bar on funds being distributed to Plaintiffs under the other five programs would require Plaintiffs to cease providing other fundamental public-health services to primarily low-income or at-risk populations, including HIV testing and education, cancer screenings, and sexual-violence-prevention education.5

4Plaintiffs’ counsel advised the court by letter dated July 27, 2017, that PPGOH did not reapply for grant funding under the PREP program when its contract expired on July 31, 2017, and that it appears that ODH will no longer be responsible for allocating PREP funds as of August 1, 2017; thus “there is a question as to whether [this court] need consider PREP in its analysis of Section 3701.034.” (ECF No. 57.)
5PPGOH is the largest provider of HIV testing and treatment in Cleveland, Akron, and Canton, and PPSWO provides approximately 1,600 anonymous and confidential HIV tests annually. PPGOH also provided 4,400 pap smears and 3,700 breast exams in the fiscal year ending in June 2015. Approximately 75% of PPSWO’s patients and 40% of PPGOH’s patients fall within the low-income classification. Many of these patients live in medically underserved areas––communities classified by the U.S. Department of Health and Human Services as having too few primary-care providers, high infant mortality and poverty rates, or large elderly populations. ODH failed to identify alternative providers to fill most of the gaps in service that would result from excluding Plaintiffs from funding under the six federal programs.

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Procedural History
Plaintiffs 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––the exercise of their own constitutionally protected right to provide abortions and their patients’ exercise of the constitutional right to choose to have an 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.” (R. 1, PID 1, 27-28.) Plaintiffs sought to enjoin ODH from enforcing § 3701.034 or terminating Plaintiffs’ funding under the six federal programs pursuant to the Statute.
The district court entered a temporary restraining order on the day § 3701.034 was to take effect. Following discovery, the district court granted Plaintiffs’ motions for judgment on the merits and permanently enjoined ODH from enforcing § 3701.034, reasoning that § 3701.034 violates the unconstitutional-conditions doctrine by impermissibly conditioning funding from programs unrelated to abortion based on a recipient’s refraining from exercising its First Amendment rights to free speech or association outside the contours of the six programs, and refraining from providing abortion services protected by the Due Process Clause.6 Planned Parenthood of Greater Ohio v. Hodges, 201 F. Supp. 3d 898 (S.D. Ohio 2016). A unanimous panel affirmed the district court. 888 F.3d 224 (6th Cir. 2018). The full court then voted for rehearing en banc. 829 F.3d 1283 (6th Cir. 2018).
II. STANDARD OF REVIEW
This court reviews a challenge to the constitutionality of a statute de novo. Entm’t Prods., Inc. v. Shelby County, 721 F.3d 729, 733 (6th Cir. 2013). In reviewing the district
6The district court did not reach Plaintiffs’ Equal Protection claim, nor does the majority. Accordingly, the case must be remanded for the district court to consider the Equal Protection claim.

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court’s grant of injunctive relief, the district court’s factual findings are reviewed for clear error, its legal conclusions are reviewed de novo, and the scope of injunctive relief is reviewed for abuse of discretion. Sec’y of Labor, U.S. Dep’t of Labor v. 3Re.com, Inc., 317 F.3d 534, 537 (6th Cir. 2003). “A party is entitled to a permanent injunction if it can establish that it suffered a constitutional violation and will suffer continuing irreparable injury for which there is no adequate remedy at law.” Lee v. City of Columbus, 636 F.3d 245, 249 (6th Cir. 2011) (quoting Wedgewood L.P. I v. Twp. of Liberty, 610 F.3d 340, 349 (6th Cir. 2010)).
III. DISCUSSION
The majority concludes that the “conduct provision” of § 3701.034 (precluding entities that perform nontherapeutic abortions from obtaining funding under the six federal programs) does not impose an unconstitutional condition because Plaintiffs have no due process right to perform abortions. The majority declines to reach Plaintiffs’ First Amendment challenges to the speech and affiliation provisions (prohibiting the allocation of program funds to any entity that either (1) promotes nontherapeutic abortions, or (2) affiliates with any entity that performs or promotes nontherapeutic abortions) concluding that Ohio may deny funding to Plaintiffs under the six federal programs if any one of the provisions is valid. I address all three provisions because each provision imposes an unconstitutional condition.
A. Due Process Claim
1.
I begin with the unconstitutional-conditions doctrine. The Supreme Court recognized this doctrine many decades ago to ensure that the government cannot leverage its allocation of benefits to “manipulate[]” constitutional rights “out of existence.” Frost v. R.R. Comm’n, 271 U.S. 583, 594 (1926). Generally speaking, “the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose.” Id. at 593. The state’s power, however, “in that respect is not unlimited; and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights.” Id. at 593-94. “Broadly stated, the rule is 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

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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 (1931). Thus, “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,” the government “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 (1972). This doctrine has been applied in a number of contexts where constitutional rights were implicated, see Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604 (2013) (“We have said in a variety of contexts that ‘the government may not deny a benefit to a person because he exercises a constitutional right.’” (citation omitted)), including where the government “condition[s] benefits on a citizen’s agreement to surrender due process rights,” R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 434 (6th Cir. 2005).
“A predicate for any unconstitutional conditions claim is that the government could not have constitutionally ordered the person asserting the claim to do what it attempted to pressure that person into doing.” Koontz, 570 U.S. at 612. And, critically for this case, even when a party “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. at 607; see also AOSI, 570 U.S. at 214 (explaining that a condition need not be “actually coercive” to violate the Constitution).
To be sure, the unconstitutional-conditions doctrine does not render any funding condition that may affect the exercise of constitutional rights unconstitutional. See AOSI, 570 U.S. at 214 (citing United States v. Am. Library Ass’n., Inc., 539 U.S. 194 (2003) (plurality opinion), and Regan v. Taxation With Representation of Wash., 461 U.S. 540, 546 (1983)). Rather, “the relevant distinction” is whether the conditions “define the limits of the government spending program” or are “outside the contours of the program itself.” Id. at 21415. In determining on which side of the line a condition falls, the Supreme Court distinguishes between conditions that regulate the government-funded project and conditions that regulate the recipient of government funds. See Rust v. Sullivan, 500 U.S. 173, 197 (1991) (“[O]ur ‘unconstitutional conditions’ cases involve situations in which the Government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus

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effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program.”).
In AOSI, the Supreme Court invalidated a statutory provision requiring organizations receiving funds under a program designed to combat AIDS and HIV to have a policy explicitly opposing prostitution and sex trafficking. 570 U.S. at 210, 221. The Court first noted that “[w]ere [the Policy Requirement] enacted as a direct regulation of speech, [it] would plainly violate the First Amendment.” Id. at 213. This did not end the inquiry, however. The Court then asked whether the conditions “define the federal program” or “reach outside it,” id. at 217, and explained that “[b]y demanding that funding recipients adopt—as their own—the Government’s view on an issue of public concern, the condition by its very nature affects ‘protected conduct outside the scope of the federally funded program,’” id. at 218 (quoting Rust, 500 U.S. at 197). This was because, under the statutory condition, a funding recipient could not “avow the belief dictated by the Policy Requirement when spending [federal program] funds, and then turn around and assert a contrary belief, or claim neutrality, when participating in activities on its own time and dime.” Id. at 218. Thus, “[b]y requiring recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient.” Id. (citing Rust, 500 U.S. at 197).
A straightforward application of these principles establishes the Statute’s unconstitutionality. First, ODH could not impose the conduct provision as a direct regulation, because to do so would mean passing a law prohibiting the performance of nontherapeutic abortions. There is no dispute that outlawing abortions in Ohio would be an undue burden on women’s ability to access the procedure in that state. Even if the direct regulation were limited to Plaintiffs—a constitutionally dubious maneuver as well, see Planned Parenthood of Cent. N.C. v. Cansler, 877 F. Supp. 2d 310, 327 (M.D.N.C. 2012)—ODH never contested Plaintiffs’ argument that a ban on their providing nontherapeutic abortions would impose an undue burden on women seeking abortions in Ohio.7

7Plaintiffs consistently argued that their ceasing to perform abortions would impose an undue burden on women seeking abortion due to the reduction in abortion services available to the women of Ohio. Despite multiple opportunities in several rounds of briefing before the district court and this court, ODH never attempted to explain

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Second, the Supreme Court explained that permissible “conditions that define the limits of the government spending program” are “those that specify the activities Congress wants to subsidize.” AOSI, 570 U.S. at 214. The condition contained in the conduct provision of § 3701.034, however, does not “define the limits” of the six federal programs at issue because those programs have nothing to do with abortion. Indeed, federal and Ohio law already mandate that funds from those six programs, or any other government funds, cannot be used to subsidize nontherapeutic abortion. Thus, there is no question that this condition “reach[es] outside” the six federal programs and therefore constitutes an unconstitutional condition. See id. at 214-15.
ODH disputes this conclusion, arguing that the conduct provision of § 3701.034 comports with due process under Maher v. Roe, 432 U.S. 464 (1977), Harris v. McRae, 448 U.S. 297 (1980), and Rust, 500 U.S. 173. But these cases merely establish that the government is under no obligation to subsidize abortion or abortion counseling by including coverage for abortion or abortion counseling in public-benefits programs. Maher, 432 U.S. at 470-71, 474 (rejecting challenge to regulation limiting state Medicaid benefits for first-trimester abortions to those that are medically necessary); McRae, 448 U.S. at 322-23 (rejecting challenge to Hyde Amendment’s limitation of Medicaid funding to those abortions necessary to save life of mother or cases of rape or incest, while permitting funding of costs associated with childbirth); Rust, 500 U.S. at 192-94 (rejecting challenge to regulations providing that Title X family-planning funds could not be used to fund family-planning programs where abortion is a method of family planning). That principle is not at issue here because the six federal programs are completely divorced from abortion or family planning.
Rust, in fact, teaches why § 3701.034 is impermissible. Rust involved Title X, which “provides federal funding for family-planning services.” 500 U.S. at 178. The regulations at issue prevented recipients from using Title X funds to engage in abortion advocacy and
why Plaintiffs’ ceasing to perform abortions would not cause an undue burden, instead calling the argument “irrelevant.” (R. 53, PID 2055.) At oral argument before the en banc court, ODH acknowledged that it never briefed the issue but summarily argued in rebuttal that it was “pretty sure we not only do dispute that, but we’d come out on the better side of it.” (Oct. 3, 2018, Oral Arg. 58:58-59:43.) Because a party’s claiming to be “pretty sure” that it would dispute an issue despite never briefing that issue is insufficient to preserve the issue for appeal, ODH forfeited the argument that Plaintiffs’ ceasing to perform abortions would not result in an undue burden. See United States v. Universal Mgmt. Servs., Inc., 191 F.3d 750, 758 (6th Cir. 1999); Thaddeus-X v. Blatter, 175 F.3d 378, 403 n.18 (6th Cir. 1999) (en banc).

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counseling. Id. at 196. Because Title X was a program meant to encourage family-planning services leading to conception and childbirth, and thus discourage abortion, the regulations were permissible in part because they were “designed to ensure that the limits of the federal program are observed.” Id. at 193. In contrast, the six federal programs here have nothing to do with family planning or abortion.
Further, in rejecting the plaintiffs’ unconstitutional-conditions challenge to the regulations, the Rust Court explained that the Supreme Court’s “‘unconstitutional conditions’ cases involve situations in which the Government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program.” Id. at 197. That is precisely what § 3701.034 does; it places conditions on Plaintiffs—the recipients of the subsidies—that prohibit them from engaging in protected conduct outside the scope of the six federal programs.
Finally, it was critical in Rust that the regulations did not deny “the right to engage in abortion-related activities” as a condition of receiving funding. Id. at 198. The regulations were constitutional because they “govern[ed] the scope of the Title X project’s activities,” while “leav[ing] 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 conduct those activities through programs that are separate and independent from the project that receives Title X funds.” Id. at 196. In contrast, § 3701.034’s whole purpose is to fetter Plaintiffs in their other (i.e., abortion-related) activities, which are unrelated to the government-funded programs. Similarly, in FCC v. League of Women Voters of California, 468 U.S. 364, 400 (1984), the Supreme Court struck down a law barring recipients of government funds from engaging in editorializing because the law barred funding recipients “from using even wholly private funds to finance its editorial activity.” But the Court noted that such a law would have been permissible if it allowed the recipient “to establish ‘affiliate’ organizations which could then use the station’s facilities to editorialize with nonfederal funds.” Id. Here, § 3701.034 expressly precludes funding recipients from being an affiliate of any entity that performs or promotes nontherapeutic abortions. See also Planned Parenthood of Mid-Mo.

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& E. Kan., Inc. v. Dempsey, 167 F.3d 458, 463 (8th Cir. 1999) (explaining that a law prohibiting recipients of state family-planning funds from having independent abortion-provider affiliates “would cross the line established in Rust, League of Women Voters, and Regan, and hence be an unconstitutional condition”).
In sum, none of the numerous reasons that the regulations in Rust were upheld is present here: § 3701.034 does not define the scope of the federal programs; and it does not distinguish between the programs and the grantee, restricting only the former, while permitting the latter to “continue to perform abortions, provide abortion-related services, and engage in abortion advocacy . . . through programs that are separate and independent from the project[s] that receive[] the [six program funds].” Rust, 500 U.S. at 196.
For all of these reasons, § 3701.034’s conduct provision is unconstitutional.
2.
The majority avoids more than a cursory discussion of the principles underlying the unconstitutional-conditions doctrine by finding that Plaintiffs’ purported lack of an independent constitutional right to perform abortions is dispositive. As discussed above, the Supreme Court label of the provider’s constitutional right as “derivative of the woman’s position,” 505 U.S. at 884, is a statement about the source of an abortion provider’s constitutional right—not a denial that the provider has a constitutionally protected interest.
However, even accepting that Plaintiffs have no wholly independent constitutional right to perform abortions, but see, e.g., Planned Parenthood Ass’n of Utah v. Herbert, 828 F.3d 1245, 1258-60 (10th Cir. 2016) (noting that Planned Parenthood Association of Utah alleged, “without serious challenge from defendants, a Fourteenth Amendment right” “to provide . . . abortion services”); Dempsey, 167 F.3d at 464 (addressing the effect of the challenged Missouri law on “Planned Parenthood’s constitutional right[]” to “provide abortion services”); Planned Parenthood v. Doyle, 162 F.3d 463, 471 (7th Cir. 1998) (“The constitutional right to an abortion carries with it the right to perform medical procedures that many people find distasteful or worse.”); Planned Parenthood of Cent. & N. Ariz. v. Arizona, 718 F.2d 938, 944 (9th Cir. 1983) (determining “whether the State unduly interfered with Planned Parenthood’s exercise of its right

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to perform abortion and abortion-related services”), it does not follow that the Constitution is indifferent to laws that condition the grant of unrelated public funds on the abandonment of all abortion-related activity. Treating the lack of a personally held, independent right divorced from a woman’s abortion right as a bar to Plaintiffs in this case has dire implications for abortion providers in this circuit and is inconsistent with the purpose behind the unconstitutionalconditions doctrine for at least two reasons.
First, it is worth noting that the Supreme Court has not always couched the unconstitutional conditions doctrine in rights-based language, referring instead to “protected conduct,” Rust, 500 U.S. at 197, or “constitutionally protected interests,” Perry, 408 U.S. at 597. Even if providers have no right of their own to provide abortions, surely providing women with abortions free from undue governmental interference falls into the category of constitutionally protected conduct.
Second, as discussed above, and as the majority acknowledges (see Maj. Op. at 8), one of the purposes of the unconstitutional-conditions doctrine is to prevent the government from achieving indirectly—by conditioning unrelated funds on forgoing constitutionally protected activity—what the government cannot achieve directly. But the majority says that is not what is happening here because “the government could have directly ordered the outcome it wishes to incentivize” in this case. (Maj. Op. at 9.) The majority does not explain how Ohio could directly order the outcome it wishes to incentivize—that Ohio’s healthcare providers cease performing abortions. And even if the direct regulation could constitutionally be limited to Plaintiffs alone, ODH never challenged either in the district court or its briefing in this court, until en banc argument, that barring Plaintiffs from performing abortions would place an undue burden on women seeking abortion given the existing abortion providers in the area. There is no doubt that if Ohio ordered either ban directly, Plaintiffs would be able to challenge that law on due process grounds. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (granting relief to plaintiff abortion providers who challenged on due process grounds regulations imposed on their services); see also Singleton, 428 U.S. at 117-18 (explaining that abortion providers may “assert the rights of women patients as against governmental interference with the abortion decision” because “[a] woman cannot safely secure an abortion without the aid of a physician,” “the

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constitutionally protected abortion decision is one in which the physician is intimately involved,” and “there are several obstacles” to the woman asserting her own rights); Craig v. Boren, 429 U.S. 190, 195 (1976) (noting that service providers “have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function”).
Thus, there is no reason why Plaintiffs cannot prevail on an unconstitutional-conditions claim in this case. The Supreme Court has never suggested that the government can impose a condition on a third party to induce a result that would be unconstitutional if the condition were imposed directly on a party whose rights are affected.8 Nor has the Supreme Court suggested that an entity that could challenge a direct regulation could not prevail in challenging the government’s attempt to reach the same result through a condition imposed on unrelated funding. Consider the examples of the constitutional rights to counsel, to vote, and to bear arms. These rights belong to the criminal defendant, the voter, and the gun owner, respectively. Imagine that the government barred lawyers who represent indigent defendants from eligibility for loan forgiveness programs, denied all government funding to private entities that volunteer to serve as polling places in low-income neighborhoods, or ceased providing all existing tax breaks, subsidies, and government benefits to any store that sells guns. By the majority’s logic, as long as the beleaguered lawyers, polling places, and gun store owners continue to perform these services, no one could successfully challenge the constitutionality of these laws based on the protected rights.9

8The unconstitutional-conditions cases that the Supreme Court has addressed thus far have involved plaintiffs’ challenges to conditions that impact their own, personal constitutional rights. See, e.g., Koontz, 570 U.S. 595; AOSI, 570 U.S. 205; Rust, 500 U.S. 173; Regan, 461 U.S. 540; Mem’l Hosp. v. Maricopa County, 415 U.S. 250 (1974). But the fact that the Court has only had the opportunity to consider cases where a recipient’s own constitutional rights were at issue does not mean that its cases “confirm” that a “benefits condition becomes unconstitutional only when it violates a recipient’s constitutional rights.” (Maj. Op. at 6 (emphasis added).) Those cases just confirm that the Court can only decide the cases that come before it.
9Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), is plainly distinguishable. That case involved the government providing funds to organizations representing indigent clients in a claim against the government for welfare benefits, but prohibiting those same organizations from challenging existing welfare laws as unconstitutional or unlawful in those cases. Id. at 545-47. This law violated the First Amendment, the Court explained, because “it operates to insulate current welfare laws from constitutional scrutiny and certain other legal challenges, a condition implicating central First Amendment concerns,” and “there is no alternative channel for

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The whole point of the unconstitutional-conditions doctrine is to prevent the government from achieving indirectly what it cannot constitutionally achieve directly. And because Plaintiffs could succeed on a due process challenge against the direct version of this law, they can likewise challenge the indirect version as an unconstitutional condition. The majority’s position contravenes the purpose of the unconstitutional-conditions doctrine.10
ODH also asserts (and it appears the majority agrees) that the unconstitutional-conditions doctrine, at most, bars unconstitutional conditions only when they actually operate to impose an undue burden, and, the argument goes, § 3701.034 imposes no such undue burden because Plaintiffs’ representatives testified that Plaintiffs would continue to perform abortions even if the law goes into effect. ODH relies on the Seventh Circuit’s divided opinion in Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Department of Health, 699 F.3d 962 (7th Cir. 2012) (hereafter PPI).11
There, PPI, a Medicaid provider that performs abortions, one of its doctors, and two lowincome patients who used its services, brought suit under 42 U.S.C. § 1983, challenging the constitutionality of an Indiana law that prohibited state agencies from contracting with or making grants to any entity that performs abortions. In addressing PPI’s unconstitutional-conditions claim, the panel majority reasoned:
[T]he government need not be neutral between abortion providers and other medical providers, and this principle is particularly well-established in the context of governmental decisions regarding the use of public funds. As long as the difference in treatment does not unduly burden a woman’s right to obtain an abortion, the government is free to treat abortion providers differently.

expression of the advocacy Congress seeks to restrict.” Id. at 546-47. No such argument could be made about a law stripping loan forgiveness eligibility from attorneys who represent indigent defendants.
10Nor would affirming the district court “effectively [be] saying” that abortion providers “have a constitutional right to offer abortions.” (Maj. Op. at 9.) It would merely be saying that states cannot strip an entity of funding that is unrelated to abortion solely because that entity provides abortions on its “own time and dime.” See AOSI, 570 U.S. at 218.
11The majority’s reliance on the Seventh Circuit “reject[ing] an unconstitutional-conditions challenge to an Indiana law with a conduct component identical in every material way to this Ohio law” (Maj. Op. at 7) ignores that the law at issue in PPI did not prohibit funding for any entity that promotes abortions or, more critically, any entity that affiliates with an entity that promotes or performs abortions. See PPI, 699 F.3d at 967.

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Applying these principles here, the unconstitutional-conditions claim is not likely to succeed. Planned Parenthood does not argue that the loss of its block-grant funding imposes an undue burden—directly or indirectly—on a woman’s right to obtain an abortion. If . . . the government’s refusal to subsidize abortion does not unduly burden a woman’s right to obtain an abortion, then Indiana’s ban on public funding of abortion providers—even for unrelated services—cannot indirectly burden a woman’s right to obtain an abortion.
PPI, 699 F.3d at 988.
The Seventh Circuit’s analysis avoids the unconstitutional-conditions argument by looking at the effect on a woman’s right to obtain an abortion if the provider does not submit to the condition and continues providing abortions. That is not the appropriate analysis. In AOSI, for example, the Supreme Court did not hold that the organizations’ First Amendment rights were not violated because they could simply decline the funding and continue to have whatever policy they wanted about prostitution and sex trafficking. Rather, the Court determined that the condition, if imposed directly, would violate the Constitution. Thus, forcing the organizations to have a policy opposing prostitution and sex trafficking to obtain the relevant funding violated the First Amendment, just as forcing Plaintiffs here to refrain from performing abortions to obtain unrelated funding would violate the Due Process Clause. This is because the unconstitutionalconditions doctrine prohibits the imposition of the condition itself and does not require the party to actually submit to the condition to prevail. AOSI, 570 U.S. at 214 (explaining that government action need not be “actually coercive” to qualify as an unconstitutional condition); see also Koontz, 570 U.S. at 607 (“As 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.”).12 In contrast to the Seventh Circuit’s holding in PPI, this court has already held that whether an entity acquiesces to the government’s proposed condition is “irrelevant” to the condition’s constitutionality. R.S.W.W., 397 F.3d at 436. Yet the majority perplexingly suggests that even a condition imposed directly on women to choose between having an abortion and receiving government benefits could be constitutional if women would choose to cease receiving government benefits. (Maj. Op. at 8 (“[T]he doctrine would prohibit the State from requiring women to forfeit benefits if they chose
12PPI was decided before Koontz and AOSI, which may account for its flawed analysis.

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to obtain an abortion and if that limitation unduly burdened their access to abortion services.”).)13
The PPI majority also failed to recognize Rust’s distinction between conditions placed on the government program and those imposed on the recipient. And although in summarizing Rust the PPI majority seems to recognize that Rust treated the unconstitutional-conditions argument as separate from the undue-burden analysis,14 the PPI majority engaged in no substantive discussion of Rust’s treatment of the separate unconstitutional-conditions claim. See 699 F.3d at 987-88. Rather, the PPI majority’s entire discussion of the unconstitutional-conditions claim rested on the undisputed propositions that the government can constitutionally allocate funds in a manner that favors childbirth over abortion; that there is no constitutional requirement that the government subsidize abortion; and that denying funding for abortion does not unduly burden a woman’s constitutional right to choose to have an abortion. The PPI majority concludes by quoting Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 59-60 (2006): “It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly.” 699 F.3d at 988.
The unstated conclusion holding the PPI majority’s opinion together is that because the government need not subsidize abortion and need not be neutral between abortion providers and other medical providers, particularly with respect to government funds, the government could directly prohibit providers from performing abortions. Of course, this is not the case. The cited cases15 establish that the government can prohibit PPI or other abortion providers from using program funds to perform or advocate for abortion. But nowhere does Rust or any other case
13This suggestion would have particularly troubling implications. It seems that the majority would never allow a facial challenge claiming that a statute imposed an unconstitutional condition on a woman’s abortion right, because the answer to whether a statute will create an undue burden is always “[m]aybe; maybe not.” (Maj. Op. at 11.) This is antithetical to this court’s precedent, see R.S.W.W., 397 F.3d at 436, and antithetical to the purpose of the doctrine, see, e.g., Oil States Energy Servs., LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365, 1377 n.4 (2018) (“The doctrine prevents the Government from using conditions ‘to produce a result which it could not command directly.’” (quoting Perry, 408 U.S. at 597)).
14The PPI majority stated: “Because the Title X regulations did not place an undue burden on a woman’s right to obtain an abortion or otherwise impose an unconstitutional condition on grant recipients, the Court upheld the regulatory scheme.” 699 F.3d at 988 (emphasis added).
15Maher, 432 U.S. 464; Harris, 448 U.S. 297; Rust, 500 U.S. 173; and Webster v. Reprod. Health Servs., 492 U.S. 490 (1989).

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suggest that the government can condition the receipt of unrelated funds on a recipient’s abandoning all activities that facilitate a woman’s right to obtain an abortion, or that advocate for such a right, and any affiliation with any entity that does either. Courts considering similar issues post-AOSI have not followed the Seventh Circuit’s (or the majority’s) analysis. See, e.g., Planned Parenthood of Sw. & Cent. Fla. v. Philip, 194 F. Supp. 3d 1213, 1218-19 (N.D. Fla. 2016) (“If, as the Court said in Rust, Congress can prohibit the use of federal funds for abortion services but cannot restrict a recipient of federal funds from separately providing abortion services, then the Florida legislature likewise can prohibit the use of state funds for abortion services but cannot prohibit a recipient of state funds from separately providing abortion services.”); Cansler, 877 F. Supp. 2d at 320-21 (enjoining law that denied non-abortion-related funding based on Planned Parenthood’s activity as an abortion-rights advocate and abortion provider under the unconstitutional-conditions doctrine).16
I agree with the majority that “[t]he point of the [unconstitutional-conditions] doctrine is to protect the underlying right: a woman’s right of access to abortion services without an undue burden.” (Maj. Op. at 11–12.) But the 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. The majority’s reasoning contorts a doctrine that aims to prevent the government from manipulating rights out of existence, Frost, 271 U.S. at 593-94, to permit the State to leverage its funding to launch a thinly veiled attack on women’s rights so long as it

16The majority’s suggestion that Teixeira v. County of Alameda, 873 F.3d 670, 689-90 (9th Cir. 2017) (en banc), supports its understanding of the unconstitutional-conditions doctrine is unpersuasive. Teixeira does not expressly address the unconstitutional-conditions doctrine, but the law at issue there placed conditions on the sale of firearms in the form of zoning restrictions. In Teixeira, the Ninth Circuit found that “the Second Amendment does not independently protect a proprietor’s right to sell firearms,” id. at 690, and still it held that “Teixeira, as the would-be operator of a gun store, . . . has derivative standing to assert the subsidiary right to acquire arms on behalf of his potential customers,” id. at 678. That is exactly what Plaintiffs argue here. Moreover, the only reason the Ninth Circuit found there was no constitutional violation in Teixeira is that, even if the store was entirely prevented from selling guns, its customers’ Second Amendment rights would not be infringed. Id. at 679-81. In contrast, ODH never contested below that women’s abortion rights would be violated if Plaintiffs were prevented from performing abortions. To the extent Teixeira can be read as instructive, its reasoning supports Plaintiffs’ view of the unconstitutional-conditions doctrine, not the majority’s.

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camouflages its unconstitutional condition in provider-focused verbiage. This strikes me as exactly the type of maneuver the doctrine seeks to prevent.
At bottom, ODH’s position and the majority’s opinion open the door for the government to impose almost any condition17 it wants on abortion providers so long as the abortion providers resist the coercion and continue to perform abortions. At oral argument, the United States, arguing in favor of ODH’s position, acknowledged that ODH’s position would authorize the government to pass a law prohibiting all doctors who perform abortions from providing any other medical services. (Oral Arg. at 33:10-35:30.) This is because as long as enough doctors continue to perform abortions, there would be no undue burden on a woman’s right to obtain one. (Id.) And under the majority’s reasoning, the doctors could not challenge the law as an unconstitutional condition because they have no due process right to provide abortions. Other hypotheticals are imaginable, which before today would have seemed absurd. Using this reasoning, the government can do almost anything it wants to penalize abortion providers so long as they resist the coercion and continue to perform abortions. (Id.)
This result is especially striking in juxtaposition with the Supreme Court’s abortion jurisprudence over the last three decades, which reveals that virtually every attempt to ban or undermine a woman’s abortion right since Roe v. Wade has operated by targeting providers, not women. See, e.g., Whole Woman’s Health, 136 S. Ct. 2292 (imposing admitting-privileges and surgical-center requirements on providers); Stenberg v. Carhart, 530 U.S. 914 (2000) (criminalizing providers’ performance of particular abortion procedures); Casey, 505 U.S. 833 (imposing civil penalties on providers who perform abortions without receiving signed statement of spousal consent); Hodgson v. Minnesota, 497 U.S. 417 (1990) (criminalizing providers’ performance of abortions on minors without both parents’ consent). Those laws, each of which was struck down as unconstitutional, reflect a basic reality that legislatures seeking to undermine 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. That is why the Constitution prohibits unduly burdening a woman’s abortion right, even in the form of laws that directly target only the gatekeeper to a woman’s abortion right—
17Subject only to rational basis review, according to the United States.

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her provider. The impact of the condition is the same, because the provider is the target in name only. In practice, the provider is merely a proxy for the woman and her constitutional rights.
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 refuses to cry uncle and submit to the condition, the conduct provision is unconstitutional.
B. First Amendment Claims
The majority does not reach Plaintiffs’ patently meritorious First Amendment claims, reasoning that because the conduct provision does not impose an unconstitutional burden, ODH may deny funding under the Statute without regard to whether the Statute violates Plaintiffs’ First Amendment rights. But Plaintiffs’ First Amendment claims are not mooted by the purported constitutionality of the conduct provision, and a decision on the First Amendment claims is not rendered advisory by the majority’s decision on the conduct provision. If the First Amendment challenge is successful, Plaintiffs could form affiliate entities to take over their abortion-related activities (see Pls.’ Br. on Reh’g at 18-19), and still receive funds under the six federal programs. In any event, because the conduct provision is unconstitutional, I address Plaintiffs’ First Amendment claims as well.
Plaintiffs assert two claims under the First Amendment, addressing both § 3701.034’s speech provision—which prohibits the allocation of program funds to any entity that promotes nontherapeutic abortions—and its affiliation provision—which prohibits the allocation of program funds to any entity that affiliates with any entity that performs or promotes nontherapeutic abortions. It is undisputed that a funding condition can result in an unconstitutional burden on First Amendment rights. See AOSI, 570 U.S. at 218 (“By requiring recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient.”); Rumsfeld, 547 U.S. at 59 (the First Amendment supplies “a limit on Congress’ ability to place conditions on the receipt of funds”).
Plaintiffs’ First Amendment claim is not vulnerable to attack under either of the rationales the majority appears to adopt in analyzing the due process claim. Plaintiffs are asserting their own First Amendment rights and need not show that a restriction amounts to an

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undue burden on a woman’s right to obtain an abortion to prevail on a claim under the First Amendment. Nor does ODH dispute that it would be unconstitutional to legislate a direct ban on promoting nontherapeutic abortions or affiliating with entities that perform or promote nontherapeutic abortions.
Instead, relying on Planned Parenthood Ass’n of Hidalgo County Texas, Inc. v. Suehs, 692 F.3d 343 (5th Cir. 2012), ODH argues that the Statute’s speech provision does no more than is constitutionally permissible by seeking “to ensure that contractors who convey Ohio’s messages do so efficiently and effectively.” (Appellant’s Br. at 52-53 (citation and internal quotation marks omitted).) This argument is unpersuasive.
In Suehs, the Texas legislature had created the “Women’s Health Program (WHP),” designed to “expand access to preventative health and family planning services for women.” 692 F.3d. at 346 (internal quotation marks and citation omitted). The Texas legislature prohibited the Texas Health and Human Services Commission (THHSC), which administers the WHP, from contracting with “entities that perform or promote elective abortions or are affiliates of entities that perform or promote elective abortions.” Id. (internal quotation marks and citation omitted). The plaintiff health-clinic operators alleged that the regulations violated their First Amendment rights of free-speech and association, and the Fourteenth Amendment’s guarantee of equal protection. Applying the unconstitutional-conditions doctrine, the district court determined that the regulations likely violated these constitutionally guaranteed rights and issued a preliminary injunction. The Fifth Circuit vacated the preliminary injunction and remanded, explaining:
Texas’s restriction on promoting elective abortions directly regulates the content of the WHP as a state program. The policy expressed in the WHP is for public funds to subsidize non-abortion family planning speech to the exclusion of abortion speech. § 1.19(b), 2011 Tex. Gen. Laws at 335. Texas’s authority to promote that policy would be meaningless if it were forced to enlist organizations as health care providers and message-bearers that were also abortion advocates. The authority of Texas to disfavor abortion within its own subsidized program is not violative of the First Amendment right, as interpreted by Rust v. Sullivan. Consequently, Texas’s choice to disfavor abortion does not unconstitutionally penalize the appellees’ speech.
Suehs, 692 F.3d at 350.

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I agree with the district court that this out-of-circuit precedent is distinguishable and inapposite. Suehs is virtually indistinguishable from Rust because, as the Fifth Circuit observed, Texas’s restriction “directly regulates the content of the WHP as a state program.” Id. Here, however, § 3701.034 does not regulate, and has no relation to, the content of the six federal programs.
Further, although Ohio, like Texas, may, consistent with the First Amendment, ensure that its message favoring childbirth over abortion is not garbled, this case plainly involves no state “message” related to or regarding abortion; § 3701.034 affects programs that have nothing to do with abortion or family planning, and seeks to impose restrictions on recipients’ speech outside of those six government programs.
As the Supreme Court made clear in AOSI, the government may not prevent a recipient of government funding from expressing its own views “when participating in activities on its own time and dime.” 570 U.S. at 218. Because “the conditions imposed by Section 3701.034 seek to leverage funding to regulate speech outside the contours of the six programs impacted by Section 3701.034,” the unconstitutional-conditions doctrine applies. Planned Parenthood of Greater Ohio, 201 F. Supp. 3d at 906. Therefore, the district court correctly determined that § 3701.034 violates the First Amendment by conditioning participation in funding for these programs on a recipient’s forgoing the exercise of its rights of free speech outside these programs. See AOSI, 570 U.S. at 218; see also Dempsey, 167 F.3d at 462 (“Legislation that simply dictates the proper scope of government-funded programs is constitutional, while legislation that restricts protected grantee activities outside government programs is unconstitutional . . . .”); Planned Parenthood of Cent. & N. Ariz., 718 F.2d at 944 (although the state need not fund abortions, the state “may not unreasonably interfere with the right of Planned Parenthood to engage in abortion or abortion-related speech activities”).
Finally, by conditioning participation in the six federal programs on refraining from being an affiliate of any entity that promotes or performs nontherapeutic abortions, the Statute effects a separate First Amendment violation of Plaintiffs’ right to free association. See Runyon v. McCrary, 427 U.S. 160, 175 (1976) (“[T]he Court has recognized a First Amendment right to ‘engage in association for the advancement of beliefs and ideas[.]’ That right is protected

Case: 1:16-cv-00539-MRB Doc #: 72 Filed: 03/13/19 Page: 38 of 39 PAGEID #: 2294 (38 of 39)

No. 16-4027

Planned Parenthood of Greater Ohio et al. v. Hodges

Page 35

because it promotes and may well be essential to the ‘[e]ffective advocacy of both public and private points of view, particularly controversial ones’ that the First Amendment is designed to foster.” (third alteration in original) (internal citation omitted) (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958))). Plaintiffs are affiliates of PPFA, which advocates for women’s access to comprehensive reproductive healthcare, including abortion. Thus, even if Plaintiffs ceased performing and promoting nontherapeutic abortions or transferred those functions to an affiliate, the affiliation provision would still prohibit them from obtaining funds under the six federal programs due to their status as affiliates of PPFA. See AOSI, 570 U.S. at 215 (explaining that the funding condition at issue in Regan, 461 U.S. 540, did not violate the unconstitutional-conditions doctrine because the organization retained the ability to “return[] to a ‘dual structure’ it had used in the past”). ODH offers no argument for the constitutionality of this provision aside from those offered to defend the speech provision. For the same reasons, the affiliation provision also imposes an unconstitutional condition.
IV. ENTRY OF PERMANENT INJUNCTION
ODH conceded that it “agrees that if this Court finds the Conduct and Speech Provisions both unconstitutional,” the permanent injunction factors are met. (Reply Br. at 29.)
V. CONCLUSION
For the reasons stated, the district court correctly granted Plaintiffs’ motions for judgment on the merits and for a permanent injunction. Its decision should be affirmed.

Case: 1:16-cv-00539-MRB Doc #: 72 Filed: 03/13/19 Page: 39 of 39 PAGEID #: 2295 (39 of 39)

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 16-4027

PLANNED PARENTHOOD OF GREATER OHIO; PLANNED PARENTHOOD OF SOUTHWEST OHIO REGION,
Plaintiffs - Appellees,
v.
RICHARD HODGES, in his official capacity as Director of the Ohio Department of Health,
Defendant - Appellant.

FILED
Mar 12, 2019
DEBORAH S. HUNT, Clerk

Before: COLE, Chief Judge; SILER, BATCHELDER, MOORE, CLAY, GIBBONS, SUTTON, COOK, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, and NALBANDIAN, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court for the Southern District of Ohio at Cincinnati.
UPON CONSIDERATION of the petition for rehearing en banc and the supplemental briefs and arguments of counsel,
IT IS ORDERED that the judgment of the district court is REVERSED, and the case is REMANDED for further proceedings consistent with the opinion of this court.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Case: 1:16-cv-00539-MRB As of: 03/24/2019 08:18 PM EDT 1 of 11
U.S. District Court Southern District of Ohio (Cincinnati) CIVIL DOCKET FOR CASE #: 1:16−cv−00539−MRB

PROTO

Planned Parenthood of Greater Ohio et al v. Hodges et al Assigned to: Judge Michael R. Barrett Case in other court: Sixth Circuit Court of Appeals, 16−04027 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/11/2016 Date Terminated: 08/12/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Planned Parenthood of Greater Ohio

represented by Alan E. Schoenfeld Wilmer Cutler Pickering Hale and Dorr LLP 7 World Trade Center 250 Greenwich St. New York, NY 10007 212−937−7294 Fax: 212−230−8888 Email: alan.schoenfeld@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED

Alphonse Adam Gerhardstein Gerhardstein & Branch Co. LPA 441 Vine Street Suite 3400 Cincinnati, OH 45202 513−621−9100 Fax: 513−345−5543 Email: agerhardstein@gbfirm.com ATTORNEY TO BE NOTICED

Carrie Y. Flaxman Planned Parenthood Federation of America 1110 Vermont Ave, NW, Suite 300 Washington, DC 20005 (202) 973−4830 Fax: (202) 296−3480 Email: carrie.flaxman@ppfa.org PRO HAC VICE ATTORNEY TO BE NOTICED

Helene T. Krasnoff 1110 Vermont Avenue NW Suite 300 Washington, DC 20005 202/973−4890 Fax: 202/296−3480 Email: helene.krasnoff@ppfa.org ATTORNEY TO BE NOTICED

John Barrow Sprangers Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 202−663−6265 Fax: 202−663−6363 Email: john.sprangers@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:16-cv-00539-MRB As of: 03/24/2019 08:18 PM EDT 2 of 11

Plaintiff
Planned Parenthood of Southwest Ohio Region

Kimberly A. Parker Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 202−663−6987 Fax: 202−663−6363 Email: kimberly.parker@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Nicole Diamond Wilmer Cutler Pickering Hale and Dorr LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 212−295−6427 Fax: 212−230−8888 Email: michelle.diamond@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
Paul R. Q. Wolfson Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 202−663−6390 Fax: 202−663−6363 Email: paul.wolfson@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
Stephanie N. Simon Wilmer Cutler Pickering Hale and Dorr LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 212−295−7210 Fax: 212−230−8888 Email: stephanie.simon@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lynn Branch Gerhardstein & Branch Co. LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202 513−621−9100 x13 Fax: 513−345−5543 Email: jbranch@gbfirm.com ATTORNEY TO BE NOTICED
represented by Alan E. Schoenfeld (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alphonse Adam Gerhardstein (See above for address)

Case: 1:16-cv-00539-MRB As of: 03/24/2019 08:18 PM EDT 3 of 11
ATTORNEY TO BE NOTICED
Carrie Y. Flaxman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Helene T. Krasnoff (See above for address) ATTORNEY TO BE NOTICED
John Barrow Sprangers (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kimberly A. Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Nicole Diamond (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul R. Q. Wolfson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stephanie N. Simon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lynn Branch (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Richard Hodges in his official capacity as Director of the Ohio Department of Health

represented by Ryan L. Richardson 2480 Fair Avenue Bexley, OH 43209 513−571−7116 Email: ryan.richardson@ohioattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven T Voigt Ohio Attorney General's Office Constitutional Offices Section 30 E. Broad St., 16th Floor Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: steven.voigt@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED
Tiffany L. Carwile Ohio Attorney General Constitutional Offices Section

Case: 1:16-cv-00539-MRB As of: 03/24/2019 08:18 PM EDT 4 of 11

30 E. Broad St., 16th Floor Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: tiffany.carwile@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED

Defendant
Timothy Ingram in his official capacity as Commissioner of Hamilton County Public Health TERMINATED: 05/27/2016

represented by Roger Edward Friedmann Hamilton County Civil Division 230 East Ninth Street Suite 4000 Cincinnati, OH 45202 513/946−3004 Fax: 513/579−1707 Email: roger.friedmann@hcpros.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Gerard Florez Assistant Prosecutor, Hamilton County Ohio Civil Division 230 East Ninth Street Suite 4000 Cincinnati, OH 45202 513−946−3229 Fax: 513−946−3018 Email: Michael.Florez@HCPros.org ATTORNEY TO BE NOTICED

Pamela J Sears Hamilton County Prosecutor Civil 230 East Ninth Street Suite 4000 Cincinnati, OH 45202 513/946−3082 Fax: 946−3018 Email: pam.sears@hcpros.org ATTORNEY TO BE NOTICED

Date Filed 05/11/2016 05/11/2016 05/11/2016
05/11/2016

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 paid − receipt number: 0648−5494285), filed by Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Attachments: # 1 Civil Cover Sheet) (Branch, Jennifer) (Entered: 05/11/2016)
2 NOTICE of Appearance by Alphonse Adam Gerhardstein for Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region (Gerhardstein, Alphonse) (Entered: 05/11/2016)
3 MOTION for Leave to Appear Pro Hac Vice of Paul R.Q. Wolfson, Kimberly Parker, Alan Schoenfeld, Carrie Flaxman, Helene Krasnoff (Filing fee $ 1000, receipt number 0648−5494353) by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Exhibit Certificate of Good Standing, # 3 Exhibit Certificate of Good Standing, # 4 Exhibit Certificate of Good Standing, # 5 Exhibit Certificate of Good Standing) (Gerhardstein, Alphonse) (Entered: 05/11/2016)
4 ORDER granting 3 Motion for Leave to Appear Pro Hac Vice of Paul R.Q. Wolfson, Kimberly Parker, Alan Schoenfeld, Carrie Flaxman, and Helene Krasnoff. Signed by Judge Susan J. Dlott. (wam) (Entered: 05/11/2016)

Case: 1:16-cv-00539-MRB As of: 03/24/2019 08:18 PM EDT 5 of 11

05/11/2016 05/11/2016 05/11/2016 05/11/2016
05/11/2016 05/12/2016
05/12/2016 05/12/2016 05/12/2016
05/13/2016 05/13/2016 05/13/2016 05/13/2016
05/16/2016

5 MOTION for Leave to File Excess Pages by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Branch, Jennifer) (Entered: 05/11/2016)
6 ORDER REASSIGNING CASE signed by Judge Susan J. Dlott on 5/11/16. Case reassigned to Judge Michael R. Barrett for all further proceedings. Judge Susan J. Dlott no longer assigned to case. (eh) (Entered: 05/11/2016)
NOTATIONAL ORDER by Judge Michael R. Barrett on 5/11/16 granting 5 Motion for Leave to File Excess Pages. (ba) (Entered: 05/11/2016)
7 MOTION for Temporary Restraining Order and Preliminary Injunction by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Attachments: # 1 Affidavit of Iris Harvey and Exhibits, # 2 Affidavit of Jerry Lawson and Exhibits, # 3 Text of Proposed Order) (Branch, Jennifer). Added MOTION for Preliminary Injunction on 5/12/2016 (eh). (Entered: 05/11/2016)
8 NOTICE of Appearance by Ryan L. Richardson for Defendant Richard Hodges (Richardson, Ryan) (Entered: 05/11/2016)
NOTICE of Hearing on Motion re 7 MOTION for Temporary Restraining Order and Preliminary Injunction; Please be aware that a status conference pursuant to S.D. Ohio Civ. R. 65.1 is set for 5/12/2016 at 03:00 PM by teleconference before Judge Michael R. Barrett; Plaintiff is responsible for notifying opposing counsel regarding the setting of this matter and the following contact information; parties shall initiate contact with the Court by calling 513−564−7660 five minutes prior to 3:00 pm. (ba) (Entered: 05/12/2016)
If this case is referred, it will be to Magistrate Judge Stephanie K. Bowman. (eh) (Entered: 05/12/2016)
9 NOTICE of Appearance by Tiffany L. Carwile for Defendant Richard Hodges (Carwile, Tiffany) (Entered: 05/12/2016)
Minute Entry for proceedings held before Judge Michael R. Barrett: Status Conference held on 5/12/2016 re 7 MOTION for Temporary Restraining Order ; Carrie Flaxman, Jennifer Branch, Alphonse Gerhardstein and Paul Wolfson appeared for Plaintiff; Ryan Richardson appeared for Defendant Hodges; Roger Friedmann and Mike Florez appeared for Defendant Ingram; a possible briefing schedule was discussed and a potential hearing of 5/20/16 at 9:30 am; a follow up Status Conference is set for 5/16/2016 at 09:30 AM by teleconference before Judge Michael R. Barrett; a separate notice to follow regarding conference instructions. (ba) (Entered: 05/12/2016)
10 NOTICE of Appearance by Roger Edward Friedmann for Defendant Timothy Ingram (Friedmann, Roger) (Entered: 05/13/2016)
11 NOTICE of Appearance by Michael Gerard Florez for Defendant Timothy Ingram (Florez, Michael) (Entered: 05/13/2016)
12 NOTICE of Appearance by Pamela J Sears for Defendant Timothy Ingram (Sears, Pamela) (Entered: 05/13/2016)
13 NOTICE: Please be aware that a Status Conference is set for 5/16/2016 at 09:30 AM by teleconference before Judge Michael R. Barrett; YOU MUST ACCESS THIS DOCUMENT TO OBTAIN CONFERENCING INFORMATION. PLEASE BE AWARE THAT YOU MUST BE LOGGED INTO CM/ECF THROUGH THE COURTS WEBSITE (NOT PACER) AT WWW.OHSD.USCOURTS.GOV USING YOUR OWN PASSWORD BEFORE RETRIEVING THIS DOCUMENT THROUGH THE NOTICE OF ELECTRONIC FILING. NOTE: You will be required to use this information each time the Court conducts a telephone conference. (ba) (Entered: 05/13/2016)
Minute Entry for proceedings held before Judge Michael R. Barrett: Status Conference held on 5/16/2016; Carrie Flaxman, Jennifer Branch, Paul Wolfson and Michelle Diamond appeared for Plaintiff; Ryan Richardson appeared for Defendant Hodges; Roger Friedmann, Mike Florez and Pam Sears appeared for Defendant Ingram; parties to submit an agreed briefing order re: 7 Motion for TRO to barrett_chambers@ohsd.uscourts.gov and follow up with the Court for a Status

Case: 1:16-cv-00539-MRB As of: 03/24/2019 08:18 PM EDT 6 of 11

05/16/2016 05/18/2016 05/18/2016 05/18/2016 05/20/2016
05/23/2016 05/24/2016
05/26/2016
05/27/2016 05/31/2016 06/01/2016

Conference set 5/24/2016 at 11:00 AM by teleconference before Judge Michael R. Barrett; parties shall refer to 13 Notice of Telephone Conference for conferencing instructions. (ba) Modified on 5/16/2016 (ba) to edit participants and regenerate a NEF. (Entered: 05/16/2016)
14 NOTICE by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region Proposed Joint Agreed Schedule for Temporary Restraining Motion, Defendants. (Branch, Jennifer) Modified on 5/17/2016 (eh). (Entered: 05/16/2016)
15 MOTION to Dismiss Plaintiffs' Complaint by Defendant Timothy Ingram. Responses due by 6/13/2016 (Attachments: # 1 Exhibit A−D) (Florez, Michael) (Entered: 05/18/2016)
16 RESPONSE in Opposition re 7 MOTION for Temporary Restraining Order and Preliminary Injunction MOTION for Preliminary Injunction filed by Defendant Timothy Ingram. (Florez, Michael) (Entered: 05/18/2016)
17 RESPONSE in Opposition re 7 MOTION for Temporary Restraining Order and Preliminary Injunction MOTION for Preliminary Injunction filed by Defendant Richard Hodges. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Affidavit Tina Bickert, # 4 Affidavit Amanda Dennison, # 5 Affidavit Angela Norton, # 6 Affidavit Dyane Gogan Turner) (Richardson, Ryan) (Entered: 05/18/2016)
18 REPLY to Response to Motion re 7 MOTION for Temporary Restraining Order and Preliminary Injunction MOTION for Preliminary Injunction filed by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Attachments: # 1 Affidavit Second Harvey Declaration, # 2 Affidavit Second Lawson Declaration, # 3 Text of Proposed Order Revised Proposed TRO) (Branch, Jennifer) (Entered: 05/20/2016)
19 ORDER granting 7 Motion for TRO and holding in abeyance the Motion for Preliminary Injunction; this TRO shall expire on 6/6/16 at 11:59 pm; no bond required. Signed by Judge Michael R. Barrett on 5/23/16. (ba) (Entered: 05/23/2016)
Minute Entry for proceedings held before Judge Michael R. Barrett: Status Conference held on 5/24/2016; Carrie Flaxman, Jennifer Branch and Paul Wolfson appeared for Plaintiff; Ryan Richardson and Tiffany Carwile appeared for Defendant Hodges; Roger Friedmann, Mike Florez and Pam Sears appeared for Defendant Ingram; Status Conference set 5/26/2016 at 9:30 AM by teleconference before Judge Michael R. Barrett; parties shall refer to 13 Notice of Telephone Conference for conferencing instructions. (jlw) (Entered: 05/24/2016)
Minute Entry for proceedings held before Judge Michael R. Barrett: Status Conference held on 5/26/2016; Carrie Flaxman, Jennifer Branch, and Paul Wolfson appeared for Plaintiff; Ryan Richardson, Tiffany Carwile, Roger Friedmann, Michael Florez and Pamela Sears appeared for Defendants; parties to provide agreed extension to the 19 TRO Order as soon as possible; a Motion Hearing is set for 8/2/2016 10:00 AM in Courtroom 109 − Cincinnati before Judge Michael R. Barrett as to 7 Motion for Preliminary Injunction; the Court will follow up with the Parties at a Status Conference set for 6/6/2016 at 03:00 PM by teleconference before Judge Michael R. Barrett; parties shall refer to 13 Notice of Telephone Conference for conferencing instructions. (ba) (Entered: 05/26/2016)
20 STIPULATION of Dismissal of Defendant Timothy Ingram, by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Wolfson, Paul) (Entered: 05/27/2016)
21 WAIVER OF SERVICE Returned Executed. Waiver sent to Richard Hodges on 5/12/2016, answer due 7/11/2016. (Branch, Jennifer) (Entered: 05/31/2016)
22 SCHEDULING ORDER as to 7 Preliminary Injunction; Expiration date extended to 8/5/16 at 11:59 pm as to 19 Order as to 7 MOTION for Temporary Restraining Order; Discovery requests due 6/6/16. Discovery Responses and Initial Witness Lists due 6/20/16. Discovery due by 7/8/2016. Simultaneous Opening Briefs due 7/15/16. Simultaneous Response Briefs due 7/25/16. Motion Hearing set for 8/2/2016 at 10:00 AM in Courtroom 109 − Cincinnati before Judge Michael R. Barrett. Signed by Judge

Case: 1:16-cv-00539-MRB As of: 03/24/2019 08:18 PM EDT 7 of 11

06/06/2016 06/30/2016
07/01/2016
07/05/2016 07/05/2016 07/05/2016 07/06/2016 07/07/2016 07/07/2016 07/08/2016 07/11/2016 07/12/2016
07/15/2016

Michael R. Barrett on 6/1/16. (ba) (Entered: 06/01/2016)
Minute Entry for proceedings held before Judge Michael R. Barrett: Status Conference held on 6/6/2016; Paul Wolfson appeared for Plaintiff; Ryan Richardson and Tiffany Carwile appeared for Defendant; parties agree the 22 Calendar Order issued is amenable; Court orders the parties to file a witness list due by 7/25/16; case to proceed as scheduled. (ba) (Entered: 06/06/2016)
23 MOTION for Leave to Appear Pro Hac Vice of Stephanie Simon and Michelle Diamond (Filing fee $ 400, receipt number 0648−5558281) by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Attachments: # 1 Exhibit Michelle Diamond Certificate of Good Standing, # 2 Exhibit Stephanie Simon Certificate of Good Standing) (Branch, Jennifer) (Entered: 06/30/2016)
NOTICE of Hearing: Please be aware that a Discovery Conference is set for 7/5/2016 at 11:30 AM by teleconference before Judge Michael R. Barrett; parties shall refer to 13 Notice of Telephone Conference for conferencing instructions. Should counsel wish to submit information for the Court's review (i.e., protective order), prior to the 11:30 am status conference on 7/5/16, it can be emailed to barrett_chambers@ohsd.uscourts.gov (ba) (Entered: 07/01/2016)
Minute Entry for proceedings held before Judge Michael R. Barrett: Discovery Conference held on 7/5/2016; Jennifer Branch, Allen Schoenfeld, and Michelle Diamond appeared for Plaintiff; Ryan Richardson and Tiffany Carwile appeared for Defendant; plaintiff to file a motion for protective order noting defendant's objections. (ba) (Entered: 07/05/2016)
24 MOTION for Protective Order by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Attachments: # 1 Text of Proposed Order) (Branch, Jennifer) (Entered: 07/05/2016)
25 PROTECTIVE ORDER REGARDING DISCLOSURE AND USE OF DISCOVERY MATERIALS. Signed by Judge Michael R. Barrett on 7/5/16. (ba) (Entered: 07/05/2016)
26 ORDER granting 23 Motion for Leave to Appear Pro Hac Vice of Stephanie Simon and Michelle Diamond for Plaintiffs. Signed by Judge Michael R. Barrett on 7/5/16. (ba) (Entered: 07/06/2016)
27 NOTICE of Appearance by Steven T Voigt for Defendant Richard Hodges (Voigt, Steven) (Entered: 07/07/2016)
28 MOTION for Leave to Appear Pro Hac Vice of John Sprangers (Filing fee $ 200, receipt number 0648−5566237) by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Attachments: # 1 Exhibit Certificate of Good Standing for John Sprangers) (Branch, Jennifer) (Entered: 07/07/2016)
29 ORDER granting 28 Motion for Leave to Appear Pro Hac Vice of John Sprangers for Plaintiffs. Signed by Judge Michael R. Barrett on 7/8/16. (ba) (Entered: 07/08/2016)
NOTICE of Hearing: Please be aware that a Status Conference is set for 7/12/2016 at 03:30 PM by teleconference before Judge Michael R. Barrett; parties shall refer to 13 Notice of Telephone Conference for conferencing instructions. (ba) (Entered: 07/11/2016)
Minute Entry for proceedings held before Judge Michael R. Barrett: Status Conference held on 7/12/2016; Paul Wolfson, Jennifer Branch and Michelle Diamond appeared for Plaintiff; Ryan Richardson appeared for Defendant; opening brief deadlines as to 7 MOTION for Preliminary Injunction are modified as follows: Responses due by 7/18/2016; Replies due by 7/27/2016; additional pleadings due 7/18/16; responses due 7/20/16 and replies are optional and would be due 7/22/16; case to proceed with hearing re 7 Motion for Preliminary Injunction hearing set 8/2/16 at 10:00 am, Courtroom 109. (ba) (Entered: 07/13/2016)
30 MOTION for Leave to File Excess Pages Joint Motion to File Briefs in Excess of 20 Pages by Defendant Richard Hodges. Responses due by 8/8/2016 (Richardson, Ryan) (Entered: 07/15/2016)

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07/18/2016 07/18/2016 07/18/2016 07/18/2016 07/18/2016 07/18/2016 07/18/2016 07/18/2016 07/18/2016 07/18/2016 07/18/2016
07/18/2016 07/18/2016 07/18/2016 07/18/2016

31 ORDER granting 30 Motion for Leave to File Excess Pages. Signed by Judge Michael R. Barrett on 7/18/16. (ba) (Entered: 07/18/2016)
32 NOTICE by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region of Manual Filing of January 27, 2016 Senate Floor Debate (Branch, Jennifer) (Entered: 07/18/2016)
NOTICE re 32 Planned Parenthood of Southwest Ohio Region of Manual Filing of January 27, 2016 Senate Floor Debate. DVD was received and sent to Chambers of Judge Michael R. Barrett. (jlw) (Entered: 07/18/2016)
33 MOTION to Clarify 19 Order on Motion for TRO by Defendant Richard Hodges. Responses due by 8/11/2016 (Attachments: # 1 Exhibit A Declaration of Henry Lustig) (Richardson, Ryan) (Entered: 07/18/2016)
34 MOTION in Limine to Exclude Plaintiffs' Expert Report of Dr. Stanley K. Henshaw by Defendant Richard Hodges. Responses due by 8/11/2016 (Richardson, Ryan) (Entered: 07/18/2016)
35 DEPOSITION of PPGOH Diego Espino, Barbara Singhaus and Iris Harvey taken on July 8, 2016 by Defendant Richard Hodges. (Attachments: # 1 Errata, # 2 Exhibit) (Carwile, Tiffany) (Entered: 07/18/2016)
36 TRIAL BRIEF by Defendant Richard Hodges. (Attachments: # 1 Exhibit A PPSWO Annual report, # 2 Exhibit B PPGOH Annual report, # 3 Exhibit C − PPSWO Interrogatories, # 4 Exhibit D − PPGOH Interrogatories) (Richardson, Ryan) (Entered: 07/18/2016)
37 SEALED DEPOSITION of PPSWO Jerry Lawson and Lee Bower taken on July 6, 2016 by Defendant Richard Hodges. (Attachments: # 1 Exhibit, # 2 Errata) (Carwile, Tiffany) (Entered: 07/18/2016)
38 MOTION for Judgment on the Merits and a Permanent Injunction by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. Responses due by 8/11/2016 (Wolfson, Paul) (Entered: 07/18/2016)
39 BRIEF re 38 MOTION for Judgment on the Merits and a Permanent Injunction by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Wolfson, Paul) (Entered: 07/18/2016)
40 AFFIDAVIT in Support re 38 MOTION for Judgment on the Merits and a Permanent Injunction (Declaration of Paul R.Q. Wolfson) filed by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34) (Wolfson, Paul) (Entered: 07/18/2016)
41 AFFIDAVIT in Support re 38 MOTION for Judgment on the Merits and a Permanent Injunction (Declaration of Terrie Hubbard) filed by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Wolfson, Paul) (Entered: 07/18/2016)
42 AFFIDAVIT in Support re 38 MOTION for Judgment on the Merits and a Permanent Injunction (Declaration of W.M. Martin Haskell) filed by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Wolfson, Paul) (Entered: 07/18/2016)
43 AFFIDAVIT in Support re 38 MOTION for Judgment on the Merits and a Permanent Injunction (Declaration of Stanley K. Henshaw, Ph.D.) filed by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Attachments: # 1 Exhibit A) (Wolfson, Paul) (Entered: 07/18/2016)
44 AFFIDAVIT in Support re 38 MOTION for Judgment on the Merits and a Permanent Injunction (Third Declaration of Iris E. Harvey) filed by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Wolfson, Paul)

Case: 1:16-cv-00539-MRB As of: 03/24/2019 08:18 PM EDT 9 of 11

07/18/2016
07/18/2016
07/20/2016
07/20/2016 07/20/2016 07/20/2016
07/25/2016 07/25/2016 07/27/2016 07/27/2016 07/27/2016 07/27/2016
07/27/2016
07/29/2016 08/02/2016

(Entered: 07/18/2016)
45 AFFIDAVIT in Support re 38 MOTION for Judgment on the Merits and a Permanent Injunction (Third Declaration of Jerry H. Lawson) filed by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Wolfson, Paul) (Entered: 07/18/2016)
46 CERTIFICATE OF SERVICE by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region re 41 Affidavit in Support of Motion, 44 Affidavit in Support of Motion, 42 Affidavit in Support of Motion, 38 MOTION for Judgment on the Merits and a Permanent Injunction , 43 Affidavit in Support of Motion, 40 Affidavit in Support of Motion,,, 39 Brief, 45 Affidavit in Support of Motion, (Wolfson, Paul) (Entered: 07/18/2016)
NOTICE of Hearing on Motion re 7 Motion for Preliminary Injunction; Please be aware that the Motion Hearing set for 8/2/2016 at 10:00 am is RESET IN TIME ONLY from 10:00 am to 01:00 PM and remains set in Courtroom 109 − Cincinnati before Judge Michael R. Barrett. (ba) (Entered: 07/20/2016)
47 MOTION for Permanent Injunction by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. Responses due by 8/15/2016 (Wolfson, Paul) (Entered: 07/20/2016)
48 Amended MOTION in Limine by Defendant Richard Hodges. Responses due by 8/15/2016 (Attachments: # 1 Exhibit Depo Transcript of Dr. Henshaw) (Richardson, Ryan) (Entered: 07/20/2016)
49 RESPONSE to Motion re 33 MOTION to Clarify 19 Order on Motion for TRO filed by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Attachments: # 1 Affidavit of Diego Espino and Exhibits) (Branch, Jennifer) (Entered: 07/20/2016)
50 MOTION to Seal Document 37 Deposition by Defendant Richard Hodges. Responses due by 8/18/2016 (Richardson, Ryan) (Entered: 07/25/2016)
51 ANSWER to 1 Complaint, filed by Richard Hodges. (Richardson, Ryan) (Entered: 07/25/2016)
NOTATIONAL ORDER by Judge Michael R. Barrett on 7/27/16 granting 50 Motion to Seal Document re 37 Deposition. (ba) (Entered: 07/27/2016)
52 ORDER finding as moot 15 Motion to Dismiss. Signed by Judge Michael R. Barrett on 7/27/16. (ba) (Entered: 07/27/2016)
53 RESPONSE in Opposition re 38 MOTION for Judgment on the Merits and a Permanent Injunction filed by Defendant Richard Hodges. (Attachments: # 1 Exhibit A) (Richardson, Ryan) (Entered: 07/27/2016)
54 RESPONSE in Opposition re 34 MOTION in Limine to Exclude Plaintiffs' Expert Report of Dr. Stanley K. Henshaw filed by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Wolfson, Paul) (Entered: 07/27/2016)
55 REPLY to Response to Motion re 47 MOTION for Permanent Injunction , 38 MOTION for Judgment on the Merits and a Permanent Injunction filed by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Wolfson, Paul) (Entered: 07/27/2016)
56 Objection re 25 Protective Order to Certain of Plaintiffs' Confidentiality Designations by Defendant Richard Hodges. (Richardson, Ryan) (Entered: 07/29/2016)
57 Minute Order. Proceedings held before Judge Michael R. Barrett: Motion Hearing held on 8/2/2016 re 38 and 47 Motion for Judgment and Permanent Injunction; taking under advisement 33 Motion to Clairfy; finding as moot 34 Motion and overruling 48 Amended MOTION in Limine ; Responses due by 8/5/2016 re 56 Objection re 25 Protective Order; Court's decision to follow. (Court Reporter Maryann Maffia, Official.) (ba) (Entered: 08/02/2016)

Case: 1:16-cv-00539-MRB As of: 03/24/2019 08:18 PM EDT 10 of 11

08/02/2016 08/05/2016
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NOTICE re 22 Scheduling Order; the TRO will be extended to 8/12/16 at 11:59 pm. (ba) (Entered: 08/02/2016)
58 Response re 56 Objection (non motion) to Certain of Plaintiffs' Confidentiality Designations by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. (Wolfson, Paul) (Entered: 08/05/2016)
59 ORDER denying 33 Motion to Clairfy. Signed by Judge Michael R. Barrett on 8/12/16. (ba) (Entered: 08/12/2016)
60 ORDER granting 38 Motion Preliminary Injunction; granting 47 Motion for Permanent Injunction; granting 7 Motion for Preliminary Injunction. Signed by Judge Michael R. Barrett on 8/12/16. (ba) (Entered: 08/12/2016)
61 CLERK'S JUDGMENT filed concurrently with 60 Order signed by Judge Michael R. Barrett on 8/12/16. (ba) (Entered: 08/12/2016)
62 Transcript of Proceedings, Motion for Judgment on the Merits and a Permanent Injunction, held on August 2, 2016, before Judge Michael R. Barrett. Court Reporter/Transcriber Maryann T. Maffia, Telephone number 513−564−7677. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

09/06/2016 09/08/2016 09/12/2016
09/19/2016
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For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 9/6/2016. Redacted Transcript Deadline set for 9/16/2016. Release of Transcript Restriction set for 11/14/2016. (Maffia, Maryann) (Entered: 08/16/2016)
63 NOTICE OF APPEAL re 61 Clerk's Judgment, 60 Order on Motion for Miscellaneous Relief, Order on Motion for Permanent Injunction, Order on Motion for Preliminary Injunction (Filing fee has been paid, receipt number 0648−5643533) by Defendant Richard Hodges. (Richardson, Ryan) (Entered: 09/06/2016)
USCA Case Number 16−4027 for 63 Notice of Appeal, filed by Richard Hodges. Case Manager − Louise Schwarber. (sct) (Entered: 09/08/2016)
64 Unopposed MOTION for Extension of Time to File Re: Application for Costs and Attorney's Fees, by Plaintiffs Planned Parenthood of Greater Ohio, Planned Parenthood of Southwest Ohio Region. Responses due by 10/6/2016 (Wolfson, Paul) Modified docket text to remove "date requested" text on 9/13/2016 (jee). (Entered: 09/12/2016)
65 ORDER granting 64 Motion for Extension of Time to File an Application for costs and Attorney's Fees; Plaintiffs shall file any Application for Costs and Attorneys Fees 45 days after the last judgment rendered by any court in this case becomes final and not subject to further appeal, certiorari, or other judicial review.. Signed by Judge Michael R. Barrett on 9/19/16. (ba) (Entered: 09/19/2016)
66 USCA JUDGMENT IN CONSIDERATION THEREOF, it is ORDERED that the district courts grant of Plaintiffs motions for judgment on the merits and for a permanent injunction are AFFIRMED as to 63 Notice of Appeal, filed by Richard Hodges Note: Mandate to issue. (pb) (Entered: 04/20/2018)
67 ORDER of USCA − Accordingly, it is ORDERED, that the previous decision and judgment of this court are vacated, the mandate is stayed and this case is restored to the docket as a pending appeal as to 63 Notice of Appeal, filed by Richard Hodges Note: No Mandate details noted. (pb) (Entered: 06/22/2018)
68 ORDER of USCA as to 63 Notice of Appeal, filed by Richard Hodges granting motion for leave to correct the motion for leave to file an amici curiae briefand for leave to correct en banc brief of amici curiae. Note: No Mandate details noted. (sct) (Entered:

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08/20/2018)
69 Appeal Letter re motion to file corrected brief as to 63 Notice of Appeal. (sct) (Entered: 08/20/2018)
70 ORDER of USCA as to 63 Notice of Appeal granting in part the motion of Amicus Curiae United States of America requesting leave to appear at argument. Note: No Mandate details noted. (sct) (Entered: 08/30/2018)
71 ORDER of USCA as to 63 Notice of Appeal: Upon notification of withdrawal as amicus curiae, the State of Michigan is terminated as a party. Note: No Mandate details noted. (er) (Entered: 02/04/2019)
72 ORDER of USCA IT IS ORDERED that the judgment of the district court is REVERSED, and the case is REMANDED for further proceedings consistent with the opinion of this court as to 63 Notice of Appeal, filed by Richard Hodges Note: Mandate to issue. (pb) (Entered: 03/13/2019)