IN THE SUPREME COURT OF IOWA

No. 20–0804

Submitted March 23, 2021—Filed June 30, 2021

PLANNED PARENTHOOD OF THE HEARTLAND, INC., on behalf of 

itself and its patients,

Appellee,

vs.

KIM REYNOLDS, IOWA DEPARTMENT OF HUMAN SERVICES, IOWA 

DEPARTMENT OF PUBLIC HEALTH, and KELLY GARCIA in her 

Official Capacity as Director of the Iowa Department of Human Services 

and Interim Director of the Iowa Department of Public Health,

Appellants.

Appeal from the Iowa District Court for Polk County, Paul Scott, 

Judge.

State and state agencies appeal district court order declaring Act 

placing conditions on participation in federally funded grant programs 

unconstitutional. REVERSED AND REMANDED.

Oxley, J., delivered the opinion of the court, in which Christensen, 

C.J., and Waterman, Mansfield, McDonald, and McDermott, JJ., joined. 

Appel, J., filed a dissenting opinion.

Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor 

General, Thomas J. Ogden (argued), Assistant Attorney General, for 

appellants.
2

Julie A. Murray (argued) and Carrie Y. Flaxman of Planned 

Parenthood Federation of America, Washington, D.C., and Rita Bettis 

Austen of America Civil Liberties Union of Iowa Foundation, Des Moines, 

for appellee.

Alan R. Ostergren, Des Moines, and Charles D. Hurley, Urbandale, 

for amicus curiae the Family Leader Foundation.
3

OXLEY, Justice.

The Iowa General Assembly enacted sections 99 and 100 of House 

File 766, which added funding conditions prohibiting abortion providers 

from participating in two federally funded educational grant programs 

directed at reducing teenage pregnancy and promoting abstinence. A

former grantee of both grants, now ineligible to receive funding, 

immediately sought declaratory and injunctive relief on the basis that the 

conditions violated its constitutional rights. The district court agreed and 

enjoined enforcement of the legislative enactments. Upon careful analysis 

of the challenged constitutional rights and the State’s interest in selecting 

the messenger for its programs, we conclude the conditions are rationally 

related to the classification selected by the general assembly. Because an

abortion provider lacks a freestanding constitutional right to provide 

abortions, any conditions premised on providing abortions cannot be 

considered unconstitutional. We reverse the district court’s order striking 

down sections 99 and 100 of House File 766.

I. Background Facts and Proceedings.

Planned Parenthood of the Heartland (PPH) challenges an 

amendment to Iowa law that prevents it from receiving federal grant 

funding under two state-administered programs in which it has 

historically participated: the Community Adolescent Pregnancy Prevention 

Program (CAPP), administered by the Iowa Department of Human Services,

and the Personal Responsibility Education Program (PREP), administered 

by the Iowa Department of Public Health. The state agencies award federal 

grants to third parties through a competitive bidding process. Both 

programs focus on educating Iowa’s youth about sexual education, 

including pregnancy prevention. PREP is particularly focused on 

providing programming to select counties in an effort to reduce teen 
4

pregnancies and sexually transmitted infections (STIs) in high-risk areas

of the state.

As a condition of the grants, recipients must use state-selected 

curricula in both programs. Neither curriculum allows discussion about 

abortion, and the funds for the programs are strictly prohibited from being 

used to support abortion-related services. The parties stipulate that PPH 

has neither used grant funding for abortion-related services nor discussed 

abortion as part of CAPP or PREP programming in the past.

PPH has been a grantee of CAPP and PREP funding since 2005 and 

2012, respectively. In some cases, PPH has partnered with schools that 

do not otherwise have similar programming or trained personnel to provide 

CAPP and PREP programs. During the 2018–2019 contract period, PPH 

received awards of $182,797 for CAPP and $85,000 for PREP 

programming. PPH used that funding to provide CAPP or PREP services 

in ten different counties. In five of those counties (Des Moines, Lee, Linn, 

Pottawattamie, and Woodbury Counties), PPH was the only fiscal year 

2020 CAPP or PREP applicant. If PPH does not receive funding for these 

grants, those five counties will likely not receive any CAPP or PREP 

programming.

On June 11, 2019, PPH signed four two-year CAPP contracts with 

the Iowa Department of Human Services and was approved for $463,374 

in grant funding for CAPP programming during the first two-year period. 

On July 31, PPH signed a one-year PREP contract with the Iowa 

Department of Public Health containing three one-year renewal options 

and was awarded $85,076 in grant funding for the first year of PREP 

programming. PPH estimates the loss of CAPP and PREP funding will 

result in a 28% reduction in its education budget. 
5

On April 27, 2019, the Iowa General Assembly passed sections 99 

and 100 of House File 766 (the Act), which provide that any contract for 

CAPP or PREP funding entered into on or after July 1, 2019, must exclude 

from eligibility any applicant entity

that performs abortions, promotes abortions, maintains or 

operates a facility where abortions are performed or promoted, 

contracts or subcontracts with an entity that performs or 

promotes abortions, becomes or continues to be an affiliate of 

any entity that performs or promotes abortions, or regularly 

makes referrals to an entity that provides or promotes 

abortions or maintains or operates a facility where abortions 

are performed.

2019 Iowa Acts ch. 85, §§ 99(1) (CAPP funding), 100(1) (PREP funding).

Although the Act is written in general terms, an exception exempts from 

the exclusionary language any 

nonpublic entity that is a distinct location of a nonprofit 

health care delivery system, if the distinct location provides 

[CAPP or PREP] services but does not perform abortions or 

maintain or operate as a facility where abortions are 

performed.

Id. at §§ 99(1), 100(2). PPH asserts the exception is intended to benefit at 

least two existing CAPP and PREP grantees within the UnityPoint hospital 

system. On May 3, Governor Kim Reynolds signed the Act into law.

By its terms, the Act clearly precludes PPH from participating in the 

CAPP and PREP programs. In 2017, PPH performed approximately 95% 

of all abortions in Iowa. Aside from PPH, only one other provider in Iowa 

performs abortions that are generally available to the public. Upon patient 

request, all PPH health centers refer patients for abortion care. PPH also 

engages in advocacy that supports access to abortion services for patients 

who decide to have an abortion. PPH is an ancillary organization of 

Planned Parenthood North Central States, a Planned Parenthood affiliate.
6

Shortly after the Governor signed the bill, PPH brought a declaratory 

judgment action arguing the Act violated PPH’s rights to equal protection, 

due process, free speech, and free association under the Iowa 

Constitution. On May 29, the District Court for Polk County issued a 

temporary injunction enjoining enforcement of the Act, finding that PPH 

was likely to prevail on its equal protection claim. Two days later, on May 

31, the Iowa Department of Human Services and the Iowa Department of 

Public Health, respectively, sent notices of intent to award PPH a threeyear contract for CAPP programming and a four-year contract for PREP 

programming.

After cross motions for summary judgment, the district court 

granted PPH’s motion for summary judgment. The district court 

concluded that the Act’s “nonprofit health care delivery system” exception 

made the Act so overinclusive and underinclusive that it failed a rational 

basis review. The State appealed, and we retained the appeal.

II. Standard of Review.

“We review constitutional claims de novo.” AFSCME Iowa Council 

61 v. State, 928 N.W.2d 21, 31 (Iowa 2019). In reviewing constitutional 

challenges to statutes, “we must remember that statutes are cloaked with 

a presumption of constitutionality. The challenger bears a heavy burden, 

because it must prove the unconstitutionality beyond a reasonable doubt.” 

Id. (quoting State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005),

superseded by statute on other grounds, 2009 Iowa Acts ch. 119, § 3 

(codified at Iowa Code § 692A.103 (Supp. 2009)), as recognized in In re 

T.H., 913 N.W.2d 578, 587–88 (Iowa 2018)).

III. Analysis.

PPH raises two primary challenges to the Act. PPH alleges the Act 

violates its equal protection rights under the Iowa Constitution by 
7

unconstitutionally distinguishing between those who provide and advocate 

for abortion and those who do not. It also challenges the Act under the 

unconstitutional conditions doctrine, arguing the Act conditions the 

receipt of government funds on PPH giving up its rights to free speech, free 

association, and a due process right to provide abortions. 

A. Equal Protection Challenge. PPH claims that the Act violates 

its right to equal protection under article I, sections 11 and 62 of the Iowa 

Constitution. In support of that contention, PPH argues that the Act is 

underinclusive, overinclusive, and not rationally related to a state interest. 

Alternatively, PPH argues the Act burdens its fundamental rights such 

that we should subject the Act to strict scrutiny review. We conclude 

rational basis is the appropriate level of scrutiny, and the Act passes 

rational basis review.

While federal precedent is instructive when interpreting Iowa’s 

similar equal protection provisions, we are not bound to follow federal 

analysis in construing Iowa’s constitutional provisions. See Varnum v. 

Brien, 763 N.W.2d 862, 878 & n.6 (Iowa 2009). We zealously protect our 

constitution’s equal protection mandate, but we must also respect the 

legislative process, which means we start with a presumption that 

legislative enactments are constitutional. AFSCME Iowa Council 61, 928 

N.W.2d at 31–32.

Iowa’s tripartite system of government requires the legislature 

to make difficult policy choices, including distributing benefits 

and burdens amongst the citizens of Iowa. In this process, 

 

1“All men and women are, by nature, free and equal, and have certain inalienable 

rights--among which are those of enjoying and defending life and liberty, acquiring, 

possessing and protecting property, and pursuing and obtaining safety and happiness.” 

Iowa Const. art. I, § 1.

2“All laws of a general nature shall have a uniform operation; the general assembly 

shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon 

the same terms shall not equally belong to all citizens.” Iowa Const. art. I, § 6.
8

some classifications and barriers are inevitable. As a result, 

[we] pay deference to legislative decisions when called upon to 

determine whether the Iowa Constitution’s mandate of 

equality has been violated by legislative action. More 

specifically, when evaluating challenges based on the equal 

protection clause, our deference to legislative policy-making is 

primarily manifested in the level of scrutiny we apply to review 

legislative action.

Id. (quoting Varnum, 763 N.W.2d at 879).

To begin the equal protection inquiry, “plaintiffs must allege that the 

defendants are treating similarly situated persons differently.” State v. 

Doe, 927 N.W.2d 656, 662 (Iowa 2019) (quoting King v. State, 818 N.W.2d 

1, 24 (Iowa 2012)). “If the two groups are not similarly situated, we need

not scrutinize the legislature’s differing treatment of them.” In re Det. of 

Hennings, 744 N.W.2d 333, 339 (Iowa 2008). We must make the similarly

situated determination “with respect to the purposes of the law.” Varnum, 

763 N.W.2d at 883 (emphasis omitted).

The State argues that PPH fails this threshold test because 

organizations that provide abortions are not similarly situated to those 

that do not provide abortions in the context of a law seeking to exclude 

proabortion messages from state-sponsored sexual education programs.

The State’s argument requires us to consider the purposes behind the 

funding conditions contained in the Act. “Once the purposes of the law 

are considered in determining whether persons in the differently treated 

classes are similarly situated, the distinction between the threshold test 

and the ultimate identification and examination of the purposes of the law 

becomes blurred.” State v. Dudley, 766 N.W.2d 606, 616 (Iowa 2009). 

There is an “inescapable relationship between the threshold test and the 

ultimate scrutiny of the legislative basis for the classification.” Id.; see 

also AFSCME Iowa Council 61, 928 N.W.2d at 32 (“[D]etermining whether 

classifications involve similarly situated individuals is intertwined with 
9

whether the identified classification has any rational basis.”). For this 

reason, we generally reserve application of the threshold test to extreme 

disparities in classifications. See Houck v. Iowa Bd. of Pharmacy Exam’rs, 

752 N.W.2d 14, 21 (Iowa 2008) (finding pharmacists are not similarly 

situated to nonpharmacists for purposes of a statute regulating certain 

drugs); State v. Kout, 854 N.W.2d 706, 708 (Iowa Ct. App. 2014) (finding 

that a defendant out on bail is not similarly situated to defendants 

awaiting trial in jail for purposes of a rule awarding credit for time served 

pretrial). Given this overlap, we will assume the two groups are similarly 

situated and “focus instead on the grounds justifying the law.” Tyler v. 

Iowa Dep’t of Revenue, 904 N.W.2d 162, 168 (Iowa 2017).

We next determine what level of scrutiny applies. “[T]he level of 

scrutiny depends on the type of state statutory classification under 

attack.” Sherman v. Pella Corp., 576 N.W.2d 312, 317 (Iowa 1998). “In 

most cases,” we apply the “very deferential” rational basis test. Varnum, 

763 N.W.2d at 879. Under rational basis review, a statute survives an 

equal protection challenge

so long as there is a plausible policy reason for the 

classification, the legislative facts on which the classification 

is apparently based rationally may have been considered to be 

true by the governmental decisionmaker, and the relationship 

of the classification to its goal is not so attenuated as to render 

the distinction arbitrary or irrational.

Id. (quoting Racing Ass’n of Cent. Iowa v. Fitzgerald (RACI II), 675 N.W.2d 

1, 7 (Iowa 2004). While this level of scrutiny is “admittedly deferential” to 

the legislative branch, “it is not a toothless one.” RACI II, 675 N.W.2d at 9

(second quoting Mathews v. De Castro, 429 U.S. 181, 185, 97 S. Ct. 431, 

434 (1976)). We must engage in a “meaningful review . . . mandated by 

our constitutional obligation to safeguard constitutional values.” Id.
10

PPH also argues that strict scrutiny applies because the Act targets 

its fundamental rights. Cases that involve “[a] classification based on race 

or national origin and classifications affecting fundamental rights” require 

strict scrutiny. Sherman, 576 N.W.2d at 317. Fundamental rights are 

commonly articulated as those “which are ‘deeply rooted in this Nation’s 

history and tradition’ and ‘implicit in the concept of ordered liberty.’ ” 

Seering, 701 N.W.2d at 664 (quoting Chavez v. Martinez, 538 U.S. 760, 

775, 123 S. Ct. 1994, 2005 (2003)). Under strict scrutiny, a law is 

presumptively invalid, and the burden is on the government to show that 

the law is “narrowly tailored to serve a compelling state interest.” In re 

S.A.J.B., 679 N.W.2d 645, 649 (Iowa 2004) (quoting Santi v. Santi, 633 

N.W.2d 312, 318 (Iowa 2001)).

Because the district court held that the Act fails even rational basis 

review, we start with the lower level of scrutiny. In conducting rational 

basis review, we first “determine whether there was a valid, ‘realistically 

conceivable’ purpose that served a legitimate government interest.” 

AFSCME Iowa Council 61, 928 N.W.2d at 32 (quoting Residential & Agric. 

Advisory Comm., LLC, 888 N.W.2d 24, 50 (Iowa 2016)). “Next, [we] must 

evaluate whether the ‘reason has a basis in fact.’ ” Id. (quoting McQuistion 

v. City of Clinton, 872 N.W.2d 817, 831 (Iowa 2015)). Here, “actual proof 

of an asserted justification [is] not necessary, but [we will] not simply 

accept it at face value and [will] examine it to determine whether it [is] 

credible as opposed to specious.” Qwest Corp. v. Iowa State Bd. of Tax 

Rev., 829 N.W.2d 550, 560 (Iowa 2013). “Finally, ‘we evaluate whether the 

relationship between the classification and the purpose for the 

classification “is so weak that the classification must be viewed as 

arbitrary.” ’ ” AFSCME Iowa Council 61, 928 N.W.2d at 33 (quoting 

Residential & Agric. Advisory Comm., LLC, 888 N.W.2d at 50).
11

The State presented three different purposes for the law: to express 

its preference for childbirth over abortion, to ensure that its statesponsored sexual education message is not delivered by entities that derive 

significant revenue from abortion-related activities, and to avoid indirectly 

subsidizing abortion providers. Only one of these purposes must be 

rational for the Act to pass constitutional muster. 

“[T]he Constitution does not forbid a State or city, pursuant to 

democratic processes, from expressing a preference for normal childbirth

. . . .” Poelker v. Doe, 432 U.S. 519, 521, 97 S. Ct. 2391, 2392 (1977); see 

also Webster v. Reprod. Health Servs., 492 U.S. 490, 509, 109 S. Ct. 3040, 

3052 (1989) (“[Missouri’s] decision here to use public facilities and staff to 

encourage childbirth over abortion ‘places no governmental obstacle in the 

path of a woman who chooses to terminate her pregnancy.’ ” (quoting 

Harris v. McRae, 448 U.S. 297, 315 100 S. Ct. 2671, 2687 (1980)). 

Additionally, “[w]hen 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.” Rosenberger v. Rector & Visitors of Univ. of Va., 

515 U.S. 819, 833, 115 S. Ct. 2510, 2519 (1995). As a general matter, the 

state is entitled to refuse to fund abortion efforts. See Maher v. Roe, 432 

U.S. 464, 473–74, 97 S. Ct. 2376, 2382–83 (1977). Thus, all three 

purposes advanced by the State are legitimate purposes under rational 

basis review.

We next consider whether the classification made by the Act has a 

basis in fact, giving deference to the general assembly. Under rational 

basis review, we “uphold legislative classifications based on judgments the 

legislature could have made, without requiring evidence or ‘proof’ in either 

a traditional or a nontraditional sense.” King, 818 N.W.2d at 30.
12

It is clear from the record that PPH is a vocal advocate in support of

a woman’s right to obtain an abortion and in its provision of abortionrelated services. Advocating for abortion is an important component of its 

platform. While the CAPP and PREP programs expressly preclude any 

discussion about abortion within the context of the programs, and the 

parties agree PPH has never overstepped the bounds of the programs, the 

programs are aimed largely at preventing teenage pregnancies through 

abstinence and contraception. The programs are presented to school-age 

children, often related to a school setting. Even if the programs do not 

include any discussions about abortion, the goals of promoting abstinence 

and reducing teenage pregnancy could arguably still be undermined when 

taught by the entity that performs nearly all abortions in Iowa. The State 

could also be concerned that using abortion providers to deliver sex 

education programs to teenage students would create relationships 

between the abortion provider and the students the State does not wish to 

foster in light of its policy preference for childbirth over abortion. The 

government has considerable leeway in selecting who will deliver a 

government message, whether the message is a diversity and inclusion 

program, a drug prevention program, or, in this case, a sexual education 

and teen pregnancy prevention program.

These considerations provide a factual basis to support the State’s 

assertion that the general assembly could have passed the Act out of 

concern that its message could be diluted if PPH, the primary abortion 

provider in the state, delivered the state-sponsored sexual education 

programs. See Planned Parenthood of Greater Ohio v. Hodges, 917 F.3d 

908, 910 (6th Cir. 2019) (en banc) (holding that a similar funding condition 

passed rational basis review based on state’s concern that it would 
13

“muddl[e]” its message of preferring live birth over abortion “by using 

abortion providers as the face of state healthcare programs”).

Finally, “a merely rational relationship between the classification 

and the policy justification” satisfies rational basis review. AFSCME Iowa 

Council 61, 928 N.W.2d at 32 (quoting Varnum, 763 N.W.2d at 879). This 

final step includes evaluating the Act for overinclusiveness and 

underinclusiveness. Varnum, 763 N.W.2d at 899–900. “As the degree to 

which a statutory classification is shown to be over-inclusive or underinclusive increases, so does the difficulty in demonstrating the 

classification substantially furthers the legislative goal.” Id. at 900. If a 

statute is underinclusive, it does not address all possible aspects of the 

state interest, and if the statute is overinclusive, it affects things that have 

nothing to do with the state interest. Id. at 899–900. Yet, only when there 

exist “extreme degrees of overinclusion and underinclusion in relation to 

any particular goal” can a statute “be said to [not] reasonably further that 

goal.” Bierkamp v. Rogers, 293 N.W.2d 577, 584 (Iowa 1980) (en banc)

(concluding statute barring recovery by guest in automobile against driver 

was “so overinclusive and underinclusive” to defy rational basis review 

where “[t]he certainty with which just claims are and would be barred and 

the relative ease with which collusion can be accomplished despite the 

statute is obvious”); see also AFSCME Iowa Council 61, 928 N.W.2d at 40 

(holding limitation on mandatory collective bargaining topics for units 

comprised of less than thirty percent public safety employees “is not so 

extremely overinclusive or underinclusive as to flunk our deferential 

rational basis review”); Ames Rental Prop. Ass’n v. City of Ames, 736 

N.W.2d 255, 260–61 (Iowa 2007) (explaining, in assessing whether zoning 

ordinance restricting area to single-family dwellings was so extremely over-
14

and underinclusive to fail rational basis, “[c]ity council members are 

permitted to legislate based on their observations of real life”).

The district court held, and PPH argues, that the Act cannot survive 

rational basis because the levels of overinclusion and underinclusion 

demonstrate that the classification does not further the State’s goals. The 

underinclusion in the Act stems from the carve out for any grantee that 

operates at a “distinct location” but is affiliated with “a nonprofit health 

care delivery system.” As PPH points out, this exception

would permit entities to participate in CAPP and PREP even if 

they belong to a health care delivery system that routinely 

provides abortion-related services, is well-known in the 

community for that service, garners significant revenue from 

abortion, and promotes and refers patients for abortions in 

Iowa.

PPH argues that if the Act’s purpose is to prohibit entities that provide 

abortion services from delivering the State’s sexual education messages, 

then the law is underinclusive because the exception allows some entities 

that engage in those same activities to participate in the programs. PPH 

also contends that the Act is overinclusive because it bars “entities that do 

not provide abortion in Iowa at all, but instead provide referrals for 

abortion, engage in advocacy to protect and expand abortion access, or 

associate with abortion providers or advocates.”

The carve out’s distinction between abortion providers and 

“nonprofit health care delivery systems” provides a rational distinction 

between the two UnityPoint entities included in the carve out and PPH. 

The carve out is limited to a distinct location of a “nonprofit health care 

delivery system” where no abortions are performed at the distinct location. 

A “nonprofit health care delivery system” is expressly defined as a “regional 

health care network consisting of hospital facilities . . . that provide a range 

of primary, secondary, and tertiary inpatient, outpatient, and physician 
15

services.” 2019 Iowa Acts ch. 85, §§ 99(3), 100(4). So the carve out allows 

a distinct part of a broad-based healthcare entity, essentially a hospital,

to provide the CAPP and PREP programming—as long as the distinct 

location does not perform abortions—even if the healthcare entity itself 

does so. PPH’s services, on the other hand, are focused specifically on 

“reproductive health services,” including “well-patient exams, cancer 

screening, STI testing and treatment, a range of birth control options 

including long-acting reversible contraceptives, and transgender 

healthcare,” as well as medication and surgical abortions. The State 

supports the carve out by arguing that a clinic associated with a hospital, 

which happens to provide abortions at other locations, presents a different 

type of messenger than an entity that focuses solely on reproductive 

health. Given the deference owed to the general assembly under rational 

basis review, this argument adequately explains the carve out. The general 

assembly could make a rational decision that its abstinence and 

pregnancy prevention messages will be less likely to be diluted when 

presented by an entity providing a broad range of healthcare services than 

one limited to reproductive health, with a focus on abortion.

In any event, any underinclusion caused by the carve out is not 

extreme, which is required before the legislation would fail rational basis 

review. PPH performs 95% of the abortions in the State of Iowa. If the 

Act’s purpose is to prohibit abortion providers from delivering Iowa’s 

sexual education message to youth, then a statute barring the 

organization responsible for 95% of abortions from providing the 

educational programs is not extremely underinclusive. See AFSCME Iowa 

Council 61, 928 N.W.2d at 39 (“[D]efining the class of persons subject to a 

regulatory requirement . . . requires that some persons who have an almost 

equally strong claim to favored treatment be placed on different sides of 
16

the line . . . [and this] is a matter for legislative, rather than judicial, 

consideration.” (omissions and second alteration in original) (quoting Wis. 

Educ. Ass’n Council v. Walker, 705 F.3d 640, 655 (7th Cir. 2013))).

PPH also argues the Act is overinclusive and could be more targeted 

to the State’s goals. PPH notes that if it is ineligible to participate in the 

CAPP and PREP programs, a number of youth will be deprived of the 

benefits of the educational programs, pointing to the five counties in which 

PPH is the only applicant to seek funding and provide the programming. 

This is not an example of overinclusiveness but an expression of PPH’s 

disagreement with the legislation. “Overinclusiveness” would mean that 

the legislation denies participation to entities that do not provide 

abortions. PPH gives no example of where that has occurred. But in any 

event, “under the rational basis test, we do not require the [statute] to be 

narrowly tailored.” Ames Rental Prop. Ass’n, 736 N.W.2d at 260. Nor does 

the ineffectiveness of the conditions make the Act “violative of the Iowa 

Constitution under the rational basis test, [unless] the classification [is 

shown to] involve ‘extreme degrees of overinclusion and underinclusion in 

relation to any particular goal.’ ” Id. (quoting RACI II, 675 N.W.2d at 10).

The fit of a statute does not have to be perfect to satisfy a rational

basis review. See LSCP, LLLP v. Kay–Decker, 861 N.W.2d 846, 859 (Iowa 

2015) (“[T]he fit between the means chosen by the legislature and its 

objective need only be rational, not perfect.”).3 The CAPP and PREP 

programs involve sexual education for teenagers aimed at preventing 

teenage pregnancy. Abortion is a potential response to an unintended 

pregnancy, providing a logical connection to the pregnancies the CAPP and 

 

3PPH’s reliance on the First Amendment case of Ward v. Rock Against Racism, 491 

U.S. 781, 109 S. Ct. 2746 (1989), has no bearing on our equal protection rational basis 

review. The narrowly tailored standard for a direct First Amendment challenge is 

inapposite to a rational basis analysis.
17

PREP programs are designed to prevent. The educational programs are 

not so unrelated to abortion as to make irrational the State’s judgment 

that its educational message may be distorted if delivered by an abortion 

provider. See Hodges, 917 F.3d at 911–14 (Ohio funding restrictions for 

government-sponsored health and educational programs targeting 

sexually transmitted diseases, breast and cervical cancer, teen pregnancy, 

infant mortality, and sexual violence were sufficiently related to abortion 

to support restrictions on program recipients who perform or promote 

nontherapeutic abortions); cf. U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 

533–35, 93 S. Ct. 2821, 2825–26 (1973) (requirement for household 

members to be related not rationally related to limit on receipt of food

stamps under justification of limiting subsidy to “one economic unit”

sharing cooking facilities, where congressional history revealed intent to 

exclude hippies from program). Having concluded the Act’s distinction 

between abortion providers and nonabortion providers is rationally related 

to the State’s purpose of choosing the speaker for its educational 

messages, we need not address the State’s other purposes supporting the 

Act.

While we disagree with the district court’s conclusion that the Act

fails rational basis review, we may affirm its holding that the Act violates 

PPH’s equal protection rights on any basis supported by the record. See 

Gartner v. Iowa Dep’t of Pub. Health, 830 N.W.2d 335, 350 (Iowa 2013). 

Thus, we consider whether the Act is subject to strict scrutiny. PPH 

contends that strict scrutiny applies because the Act affects its 

fundamental right to provide abortions, a woman’s fundamental right to 

obtain an abortion, and its rights to freedom of speech and freedom of 

association.
18

The core problem with PPH’s position is that it rests on an internal 

contradiction. On the one hand, PPH argues that its abortion services “are 

wholly separate from and do not use or rely on CAPP or PREP funding.” 

On the other hand, PPH argues that the challenged legislation denying it 

CAPP and PREP funding “burdens the fundamental right to abortion.” 

PPH argues that a restriction on abortion providers obtaining grant 

money for sexual education programming affects a woman’s ability to 

obtain an abortion. The facts, and PPH’s own arguments, do not support 

such a conclusion. PPH concedes that no matter the outcome of this 

litigation, its abortion services will not be affected. Logically so, since PPH 

is prohibited from using any of the grant funds for abortion-related 

services. If PPH receives the funds, they will be used only to provide the 

educational programming. If PPH does not receive the funds, it will not 

provide the programming. Whether PPH receives the funds and provides 

the programming or does not receive the funds and does not provide the 

programming, a woman’s ability to obtain an abortion from PPH is 

unaffected. PPH’s argument itself admits the Act will have no effect on a 

woman’s fundamental right to obtain an abortion.

In arguing that the Act fails rational basis review, PPH maintained 

that the CAPP and PREP programs have “nothing to do with abortion.” Its 

contradictory line of reasoning selectively weaves its way through the facts 

to assert that the CAPP and PREP programs simultaneously have nothing 

to do with abortion yet still burden a woman’s ability to obtain an abortion. 

PPH cannot have it both ways.

Since the right to obtain an abortion is unaffected, it follows that the 

Act does not affect any right PPH may have to provide abortions, regardless 

of whether that right is fundamental for purposes of triggering strict 

scrutiny under an equal protection challenge. PPH has failed to identify a 
19

fundamental right burdened by the Act’s exclusion of abortion providers 

from its grant funding, and the Act is therefore not subject to strict 

scrutiny. The Act does not violate PPH’s equal protection rights.

B. Unconstitutional Conditions. PPH also seeks to uphold the 

district court’s ruling that the Act is unconstitutional by arguing the Act 

violates the unconstitutional conditions doctrine premised on PPH’s rights 

to free speech, association, and due process. We have never before 

recognized the unconstitutional conditions doctrine as a limit on state 

funding decisions. As a general matter, the unconstitutional conditions 

doctrine provides that the government may not require a recipient of 

government funds to forego certain constitutional rights as a condition to 

receiving the funds. See, e.g., Agency for Int’l Dev. v. All. for Open Soc’y 

Int’l, Inc. (Agency I), 570 U.S. 205, 213–14, 133 S. Ct. 2321, 2327–28

(2013). The doctrine has long existed in United States Supreme Court 

jurisprudence, though the exact contours of the doctrine are not always 

clear.

We first dispense with procedural issues raised by the parties. The 

State argues we should not consider this argument on appeal because it 

was not fully argued below due to the district court’s resolution of the case

on equal protection grounds. “Although the district court did not decide 

the case on constitutional grounds, we can consider these grounds on 

appeal to affirm the trial court’s judgment, because the [plaintiff] made the 

constitutional challenges below.” Gartner, 830 N.W.2d at 350. We proceed 

to consider PPH’s unconstitutional conditions challenge. 

We start with the premise that the government is not required to 

remain viewpoint neutral. By its very nature, the general assembly 

legislates based on policy decisions favoring one view over another all the 

time: “competition over cartels, solar energy over coal, weapon 
20

development over disarmament, and so forth.” Agency I, 570 U.S. at 221, 

133 S. Ct. at 2332 (Scalia, J., dissenting). In the context of abortion, the 

legislature may make the policy decision to favor childbirth over abortion, 

which means it can also choose to fund childbirth but withhold funding 

for abortion. See Maher, 432 U.S. at 473–74, 97 S. Ct. at 2382 (explaining 

that a woman’s constitutional right to be free “from unduly burdensome 

interference with her freedom to decide whether to terminate her 

pregnancy . . . 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”). “[V]iewpoint-based funding 

decisions can [also] be sustained in instances in which the government is 

itself the speaker, or in instances, like Rust [v. Sullivan, 500 U.S. 173, 111 

S. Ct. 1759 (1991)], in which the government ‘used private speakers to 

transmit specific information pertaining to its own program.’ ” Legal Servs. 

Corp. v. Velazquez, 531 U.S. 533, 541, 121 S. Ct. 1043, 1048 (2001) 

(citation omitted) (quoting Rosenberger, 515 U.S. at 833, 115 S. Ct. at 

2519).

Given this premise, it is noncontroversial that the legislature has 

“the authority to impose limits on the use of [grant] funds to ensure they 

are used in the manner [the legislature] intends.” Agency I, 570 U.S. at

213, 133 S. Ct. at 2328. Notwithstanding, the unconstitutional conditions 

doctrine prevents the government from making funding decisions that 

“deny a benefit to a person on a basis that infringes his constitutionally 

protected . . . [rights] even if he has no entitlement to that benefit.” Id. at 

214, 221 133 S. Ct. at 2328, 2332 (omission in original) (quoting Rumsfeld 

v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 59, 126 S. Ct. 1297, 

1307 (2006)) (holding requirement for organizations receiving funding 

under United States Leadership Against HIV/AIDS, Tuberculosis, and 
21

Malaria Act to affirmatively express opposition to prostitution violated First 

Amendment free speech protections by compelling, as a condition of 

federal funding, the affirmation of a belief that by its nature could not be 

confined within the scope of the government program). In other words, 

“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.” Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 2697 

(1972). This is so because

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.” Such 

interference with constitutional rights is impermissible.

Id. (alteration in original) (citation omitted) (quoting Speiser v. Randall, 357 

U.S. 513, 526, 78 S. Ct. 1332, 1342 (1958)).

The Supreme Court has characterized the unconstitutional 

conditions doctrine as “vindicat[ing] the Constitution’s enumerated rights 

by preventing the government from coercing people into giving them up.” 

Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604, 133 S. Ct. 

2586, 2594 (2013). While the doctrine has particular application in 

protecting First Amendment rights, see Perry, 408 U.S. at 597, 92 S. Ct. 

at 2697 (“[The government] may not deny a benefit to a person on a basis 

that infringes his constitutionally protected interests—especially, his 

interest in freedom of speech.”); see also Rust, 500 U.S. at 197–99, 111 

S. Ct. at 1774–75 (holding the Department of Health and Human Services 

could condition participation in family planning projects under Title X of 

the Public Health Service Act on agreement not to counsel, refer, or provide 

information about abortions as a method of family planning without 
22

violating recipients’ free speech rights as long as condition applied only 

within the program), it has also been applied to the Fifth Amendment right 

to just compensation, see Koontz, 570 U.S. at 599, 604, 133 S. Ct. at 2591, 

2594 (holding water district imposed improper restrictions on application 

for land-use permits), the fundamental right to travel, see Mem’l Hosp. v. 

Maricopa Cnty., 415 U.S. 250, 269 94 S. Ct. 1076, 1088 (1974) (holding 

county’s requirement that indigent be resident of county for one year 

before extending healthcare benefits burdened the right to travel), and the 

right to due process under the Fourteenth Amendment, see R.S.W.W., Inc. 

v. City of Keego Harbor, 397 F.3d 427, 434–35 (6th Cir. 2005) (considering 

whether owners of microbrewery had constitutionally protected property 

interest under Fourteenth Amendment to liquor license in challenging 

administrative condition placed on licensee), among others.

“[T]he government may not require a person to give up a 

constitutional right . . . in exchange for a discretionary benefit conferred 

by the government where the benefit sought has little or no relationship 

to” the constitutional right given up. Dolan v. City of Tigard, 512 U.S. 374, 

385, 114 S. Ct. 2309, 2317 (1994). Government action that pressures 

someone into forfeiting their constitutional rights by withholding benefits 

violates the unconstitutional conditions doctrine regardless of whether the 

government is ultimately successful in its coercive efforts. See Koontz, 570 

U.S. at 606, 133 S. Ct. at 2595. The relevant distinction “is between 

conditions that define the limits of the government spending program,” 

which are allowed, “and conditions that seek to leverage funding to 

regulate speech [or other protected conduct] outside the contours of the 

program itself,” which are not. Agency I, 570 U.S. at 214–15, 133 S. Ct. 

at 2328.
23

But if a condition does not implicate the recipient’s constitutional 

rights, it cannot be considered unconstitutional. See Agency for Int’l Dev. 

v. All. for Open Soc’y Int’l, Inc. (Agency II), 591 U.S. ___, ___, 140 S. Ct. 

2082, 2087–88 (2020) (rejecting challenge by plaintiffs’ foreign 

organizations, who had no constitutional rights when acting in foreign 

countries, to same funding condition found unconstitutional in Agency I

when applied to plaintiffs’ American organizations, explaining “plaintiffs 

cannot export their own First Amendment rights to shield foreign 

organizations from Congress’s funding conditions”).4 At bottom, the 

doctrine comes into play when the government uses funding or other 

benefits in an effort to coerce the recipient into giving up their own 

constitutional rights. “This doctrine, sometimes murky, requires close 

attention to the potentially implicated right.” Planned Parenthood of Ind., 

Inc. v. Comm’r of Ind. State Dep’t Health, 699 F.3d 962, 969 (7th Cir. 2012).

With this understanding of the doctrine, we examine the 

constitutional rights PPH claims are burdened by the Act’s conditions. See 

Hodges, 917 F.3d at 915 (“The unconstitutional-conditions doctrine no 

more elevates non-constitutional claims into constitutional ones than it 

insulates protected rights from protection.”). The Act precludes 

disbursement of CAPP and PREP funds to any applicant that engages in 

specific activity, including: providing abortions, promoting abortions, or 

affiliating with those who perform or promote abortions. See 2019 Iowa 

Acts ch. 85, §§ 99(1), 100(1). PPH asserts these conditions violate its rights 

to due process, free speech, and free association, respectively. PPH

admittedly engages in all three of these activities. Therefore, if any of these 

 

4We note that the Supreme Court has never found a condition unconstitutional 

where the plaintiff challenged conditions that impacted anything other than their own 

constitutional rights. See Hodges, 917 F.3d at 926 n.8 (White, J., dissenting). We 

therefore tread carefully in this nuanced area of the law.
24

conditions passes constitutional muster, PPH is properly excluded from 

the funding and its unconstitutional conditions claim must fail. See 

Hodges, 917 F.3d at 911.

We begin with the limitation that denies funding to grantees who 

provide abortions. PPH argues this funding condition violates its due 

process rights. PPH must first establish it has a constitutional due process 

right to provide abortions before this condition can be considered 

unconstitutional. See Planned Parenthood of Ind., Inc., 699 F.3d at 986 

(“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.”). This is consistent with the approach taken in 

Rust, where the Court identified the bases of the recipients’ 

unconstitutional condition challenge as violating their First Amendment 

“right[s] to engage in abortion advocacy and counseling.” 500 U.S. at 196, 

111 S. Ct. at 1774. PPH argues abortion providers have a freestanding

right to provide abortions and that right is coextensive with the right of 

women to receive abortions. The few courts that have considered this 

claimed right have generally rejected it.

In Planned Parenthood of Greater Ohio v. Hodges, an Ohio Planned 

Parenthood affiliate made the same argument in its challenge to an Ohio 

statute similar to Iowa’s Act. 917 F.3d at 911–12. The United States Court 

of Appeals for the Sixth Circuit relied on Planned Parenthood of 

Southeastern Pennsylvania v. Casey, 505 U.S. 833, 884, 112 S. Ct. 2791, 

2824 (1992) (plurality opinion), to conclude abortion providers do not have 

a freestanding right to perform abortions. Id. at 912. Specifically, the 

court relied on Casey’s statement that

[w]hatever constitutional status the doctor-patient relation 

may have as a general matter, . . . in the present context it is 

derivative of the woman’s position. The doctor-patient relation 
25

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.

Id. (quoting Casey, 505 U.S. at 884, 112 S. Ct. at 2824). In Planned 

Parenthood of the Heartland v. Reynolds, we stated a woman’s 

fundamental due process rights to obtain an abortion under the Iowa 

Constitution are similarly premised on rights of autonomy that are 

personal to her, including her right to shape her “own identity, destiny, 

and place in the world” without unwarranted intrusion from the state. 915 

N.W.2d 206, 237 (Iowa 2018). 

PPH offers no authority to support a provider’s freestanding due 

process right to provide an abortion. We agree with the Sixth Circuit that

“[i]n the absence of a constitutional right to perform abortions, the 

plaintiffs have no basis to bring an unconstitutional-conditions claim.” 

Hodges, 917 F.3d at 912; see also Teixeira v. Cnty. of Alameda, 873 F.3d 

670, 690 (9th Cir. 2017) (“Never has it been suggested, for example, 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.”); Planned Parenthood of Ind., Inc., 699 F.3d at 986 

(“Planned Parenthood’s unconstitutional-conditions claim necessarily 

derives from a woman’s constitutional right to obtain an abortion.” (citing 

Casey, 505 U.S. at 846, 112 S. Ct. at 2804)). Given the “deeply personal 

nature” of the rights we have recognized related to obtaining an abortion, 

Planned Parenthood of the Heartland, 915 N.W.2d at 234, any possible 

right a provider may have by way of performing the procedure is no more 

than derivative of a woman’s personal rights. 

The dissent attempts to import third-party standing into the 

unconstitutional conditions analysis by arguing the State is attempting to 
26

do indirectly what it cannot do directly: banning abortion providers from 

performing abortions. But “[t]he direct-indirect dynamic . . . is not by itself 

what triggers the doctrine.” Hodges, 917 F.3d at 914. The direct-indirect

formulation makes sense when a condition is used to leverage the 

recipient’s own constitutional rights. If the government cannot mandate a 

recipient to give up its constitutional rights, it should not be able to reach 

the same result by conditioning a government benefit on the 

relinquishment of those same constitutional rights. See Perry, 408 U.S. 

at 597, 92 S. Ct. at 2697 (“[I]f 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.”).

But using the direct-indirect framework does not work when the 

recipient relies on the derivative rights of others to challenge a funding 

condition. The Supreme Court has cautioned that “[l]ike any general rule,” 

allowing an abortion provider to claim standing to vindicate the 

constitutional rights of a third party “should not be applied where its 

underlying justifications are absent.” Singleton v. Wulff, 428 U.S. 106, 

114, 96 S. Ct. 2868, 2874 (1976). Inserting the derivative right into the 

direct-indirect formula would improperly superimpose the derivative rights 

analysis onto the unconstitutional conditions doctrine, essentially using a 

tail-wagging-the-dog logic to turn the derivative right into a direct right. 

“Medical centers do not have a constitutional right to offer abortions. Yet, 

if we granted [PPH] relief today, we would be effectively saying that they 

do. That is not the role of the unconstitutional-conditions doctrine.” 

Hodges, 917 F.3d at 915. 

Our holding under the unconstitutional conditions doctrine does not 

implicate PPH’s ability to bring a derivative constitutional challenge 
27

asserting a woman’s rights, a claim PPH did not make. That claim would 

need to be analyzed under the proper constitutional framework. The 

dissent attempts to usurp the unconstitutional conditions doctrine and 

use that analysis instead. To assert a derivative claim, the plaintiff must 

first show that a state’s regulation of the plaintiff’s activities adversely 

affects the rights of another. See, e.g., Whole Woman’s Health v. 

Hellerstedt, 579 U.S. ___, ___, 136 S. Ct. 2292, 2312 (2016) (“[T]he 

admitting-privileges requirement places a ‘substantial obstacle in the path 

of a woman’s choice.’ ” (quoting Casey, 505 U.S. at 877, 112 S. Ct. at 

2820)); Singleton, 428 U.S. at 117, 96 S. Ct. at 2875 (“[A]n impecunious 

woman cannot easily secure an abortion without the physician’s being 

paid by the State. The woman’s exercise of her right to an abortion . . . is 

therefore necessarily at stake here.”). As a threshold matter, third-party 

standing requires the right—here, a woman’s right to an abortion—to be 

“inextricably bound up with the activity the litigant wishes to pursue.” 

Singleton, 428 U.S. at 114, 96 S. Ct. at 2874. The activity PPH wishes to 

pursue is participation in the CAPP and PREP programs. Thus, the 

question in the derivative right context would be the effect of the 

challenged State action—here, precluding PPH from participating in the 

CAPP or PREP programs—on a woman’s right to obtain an abortion.5 And 

as we explained in our equal protection analysis, precluding abortion 

 

5PPH’s concession that it will give up participation in the CAPP and PREP 

programs rather than stop performing abortions would likely defeat the derivative claim

had it been made. See Whole Woman’s Health, 579 U.S. at ___, 136 S. Ct. at 2316 

(affirming district court’s conclusion that requirements for abortion facilities to meet 

surgical-center standards placed “a substantial obstacle in the path of women seeking 

an abortion” based on evidence it would reduce the number of available abortion facilities 

in Texas below the number needed to meet the demand). As already noted, the awards 

that PPH has received for CAPP and PREP services do not, and cannot, contribute to 

PPH’s overhead for abortion-related services. So discontinuing the CAPP and PREP 

funding has no adverse impact on PPH’s ability to keep providing abortions. 
28

providers from receiving funding for the educational CAPP and PREP 

programs has no effect on a woman’s ability to obtain an abortion. In the 

words of Singleton, a woman’s constitutional rights related to abortion are 

not “inextricably bound up” with the CAPP and PREP funding. Id. A 

woman’s derivative rights are simply not implicated here.

Where abortion providers have no constitutional right to perform 

abortions, we conclude the unconstitutional conditions doctrine does not 

prohibit the State from barring abortion providers from receiving CAPP and 

PREP funding. In light of this conclusion, we need not consider PPH’s free 

speech and free association challenges. PPH concedes it performs 

abortions, and it is precluded by the Act from receiving funds under that 

condition. Therefore, we need not decide whether the other conditions 

involving advocating for abortion or affiliating with abortion providers 

would also prevent it from receiving the grant funds. See Hodges, 917 

F.3d at 911 (“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.”). Any discussion of PPH’s first 

amendment or free association challenges would therefore be advisory, an 

opinion we have “neither . . . a duty nor the authority to render.” Hartford–

Carlisle Sav. Bank v. Shivers, 566 N.W.2d 877, 884 (Iowa 1997).

IV. Conclusion.

For these reasons, the decision of the district court is reversed, and 

the case is remanded for further proceedings.

REVERSED AND REMANDED.

Christensen, C.J., and Waterman, Mansfield, McDonald, and 

McDermott, JJ., join this opinion. Appel, J., files a dissenting opinion.
29

#20–0804, Planned Parenthood v. Reynolds

APPEL, Justice (dissenting).

In this case, the district court resolved the controversy by 

determining that the exception in the statutes, 2019 Iowa Acts ch. 85, 

§§ 99, 100, for certain health care facilities rendered the statutes so 

overbroad and under inclusive that the statutes violated equal protection 

under the Iowa Constitution.

I, however, take a different approach. I conclude that the statutes 

impose unconstitutional conditions on Planned Parenthood of the 

Heartland (PPH) by attempting to restrict abortion activities done on “their 

own time and dime.” The legislature through unconstitutional conditions 

in these statutes is trying to accomplish indirectly what it cannot do 

directly: namely, attack abortion rights. This cannot be permitted. For 

the reasons expressed below, I would affirm the lower court’s grant of 

PPH’s motion for summary judgment on other grounds. 

I. Background.

A. Overview of Legislative Regulation of Abortion.

1. Federal restrictions. In 1973, the United States Supreme Court 

decided Roe v. Wade. 410 U.S. 113, 93 S. Ct. 705 (1973). Since the Roe 

decision, opponents of the decision have sought ways to limit its scope

through federal and state legislative and executive action.

On the federal level, the first successful effort to limit the impact of 

Roe was the Helms Amendment to the Foreign Assistance Act. Foreign 

Assistance Act of 1973, Pub. L. No. 93-189, § 2, 87 Stat. 714, 716 (codified 

as amended at 22 U.S.C. § 2151b(f)(1)). Passed in 1973, the Helms 

Amendment declared that “[n]one of the [Foreign Assistance Act] funds . . . 

may be used to pay for the performance of abortions as a method of family 

planning or to motivate or coerce any person to practice abortions.” Id. 
30

The Helms Amendment, however, did not prevent private funds from being 

used for abortion purposes, on an entity’s own time and dime, but only 

limited the use of foreign aid dollars for that specific purpose. It regulated 

solely how government money was spent. 

In 1976, Congress passed the Hyde Amendment. Departments of 

Labor and Health, Education, and Welfare Appropriation Act of 1977, 

Pub. L. No. 94-439, § 209, 90 Stat. 1418, 1434 (1976). The Hyde 

Amendment provides, in relevant part, “[n]one of the funds contained in 

this Act [Medicaid] shall be used to perform abortions except where the life 

of the mother would be endangered if the fetus were carried to term.” Id. 

In Harris v. McRae, the United States Supreme Court, over a dissent by

Justice Brennan, upheld the Hyde Amendment from constitutional attack. 

448 U.S. 297, 326–27, 100 S. Ct. 2671, 2693 (1980). In Maher v. Roe, the 

Supreme Court held that the right to choose an abortion did not impose 

an affirmative burden on the government to remove obstacles to the 

exercise of the right if the government did not create the obstacle. 432 

U.S. 464, 474, 97 S. Ct. 2376, 2382–83 (1977). Neither of these cases 

purported to control abortion related activities that private entities did on 

their own time and dime. 

In 1984, President Reagan’s Administration announced what has 

been called “the Mexico City Policy,” an abortion restriction named after 

the location of a conference where the administration announced its new 

policy. See Samantha Lalisan, Policing the Wombs of the World’s Women: 

The Mexico City Policy, 95 Ind. L.J. 977, 985 (2020) [hereinafter Lalisan]. 

Under the Mexico City Policy, the United States would no longer contribute 

foreign aid “to separate nongovernmental organizations which perform or 

actively promote abortion as a method of family planning in other nations.” 

Id. (quoting The White House Office of Policy and Development, US Policy 
31

Statement for the International Conference on Population, 10 Population & 

Dev. Rev. 574, 578 (1984)). 

The Mexico City Policy was unsuccessfully challenged on free 

speech, association, and privacy grounds in DKT Mem’l Fund Ltd. v. 

Agency for Int’l Dev., 887 F.2d 275, 282–99 (D.C. Cir. 1989), and Planned 

Parenthood Fed’n of Am., Inc. v. Agency for Int’l Dev., 915 F.2d 59, 60–61

(2d Cir. 1990). In the ensuing years, the Mexico City Policy was on again 

and off again depending upon the viewpoint of the administration in power. 

See Lalisan, 95 Ind. L.J. at 988–89. Under the Trump administration, the 

Mexico City Policy was expanded to include all global health assistance 

funds. Id. at 990–92. 

Finally, the executive branch engaged in additional regulation of 

abortion when the Department of Health and Human Services 

promulgated rules prohibiting the use of Title X funds for programs in 

which abortion counseling, referrals, or promotions were included. See 

Rust v. Sullivan, 500 U.S. 173, 177–81, 111 S. Ct. 1759, 1764–66 (1991). 

The Supreme Court in Rust v. Sullivan upheld the regulations on the 

ground that the federal government had the power to control the manner 

in which its own funds were spent. Id. at 201–02, 111 S. Ct. at 1776–77. 

The rules in Rust were thus not time-and-dime-type regulations. Even so, 

the approach of the Supreme Court in Rust has been criticized as being 

insufficiently protective of free speech. See, e.g., Roberta J. Sharp, Holding 

Abortion Speech Hostage: Conditions on Federal Funding of Private 

Population Planning Activities, 59 Geo. Wash. L. Rev. 1218, 1230–32 

(1991); Christina E. Wells, Abortion Counseling as Vice Activity: The Free 

Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 

95 Colum. L. Rev. 1724, 1725–26 (1995).
32

2. State regulation. State legislatures have also been active in the 

area of regulation of abortion. Physicians and abortion providers 

challenged direct state restriction on abortion in a series of cases including 

Doe v. Bolton, 410 U.S. 179, 193–201, 93 S. Ct. 739, 748–52 (1973)

(finding statute requiring abortions be conducted at hospitals or 

accredited hospitals, requiring the interposition of a hospital abortion 

committee, requiring confirmation by other physicians, and limiting 

abortion to Georgia residents unconstitutional), Planned Parenthood of 

Central Missouri v. Danforth, 428 U.S. 52, 67–79, 96 S. Ct. 2831, 2840–45

(1976) (striking down spousal and blanket parental consent requirements 

and limitations on certain procedures), City of Akron v. Akron Center for 

Reproductive Health, Inc., 462 U.S. 416, 439–52, 103 S. Ct. 2481, 2497–

2504 (1983) (striking down parts of provisions of a statute related to 

parental consent, informed consent, twenty-four-hour waiting period, and 

disposal of fetal remains for second trimester abortions), Planned 

Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 881–

901, 112 S. Ct. 2791, 2822–33 (1992) (invalidating spousal consent 

provision but upholding informed consent requirements, twenty-four-hour 

waiting period, parental consent provisions, reporting and recordkeeping 

requirement of statute), Whole Woman’s Health v. Hellerstedt, 579 U.S. 

___, ___, 136 S. Ct. 2292, 2310–18 (2016) (invalidating requirements that 

abortion providers have admitting privileges at local hospitals and that 

abortion facilities meet standards for ambulatory surgical centers), and

June Medical Services L.L.C. v. Russo, 591 U.S. ___, ___, 140 S. Ct. 2103, 

2112–13 (2020) (plurality opinion) (same). 

Most recently, a number of states have sought to “defund” abortion 

provider and advocate Planned Parenthood. For example, the State of 

Indiana passed a statute barring Planned Parenthood from receiving any 
33

Medicaid reimbursement, a provision that was upheld in Planned 

Parenthood of Indiana, Inc. v. Commissioner of Indiana State Department of 

Health. 699 F.3d 962, 985 (7th Cir. 2012). On the other hand, in Planned 

Parenthood of Central North Carolina v. Cansler, the district court entered 

a preliminary injunction preventing enforcement of a defunding statute. 

804 F. Supp. 2d 482, 483–84 (M.D.N.C. 2011). Cases discussing the 

defunding controversy are discussed in greater detail below. These 

indirect regulations seek to prohibit funding based upon what Planned 

Parenthood does on its own time and dime.

II. Third-Party Standing to Assert Abortion Rights.

Of all the major abortion rights cases, Roe is the only one to have 

been brought directly by a pregnant woman. Since Roe, in case after case, 

abortion providers or doctors have brought cases asserting claims based 

upon the abortion rights of women. See, e.g., Casey, 505 U.S. at 845, 112 

S. Ct. at 2803.

The fountainhead case in the abortion context is Singleton v. Wulff.

428 U.S. 106, 96 S. Ct. 2868 (1976). In Singleton, the Supreme Court 

found that physicians had standing to challenge a Missouri statute that 

excluded from Medicaid coverage abortions that were not “medically 

indicated.” Id. at 108, 96 S. Ct. at 2871. The plurality emphasized that 

“the most effective advocates” should be permitted to defend third-party 

rights where there is a close relationship between the litigant and where 

there is hindrance to the third-party’s ability to litigate. Id. at 114–16, 96 

S. Ct. at 2874–75. After Singleton, the Supreme Court has considered 

abortion cases brought by providers or doctors in a long line of cases. See,

e.g., June Med. Servs., 591 U.S. at ___, 140 S. Ct. at 2118; Whole Woman’s 

Health, 579 U.S. at ___, ___, 136 S. Ct. at 2301, 2314; Gonzales v. Carhart, 

550 U.S. 124, 133, 127 S. Ct. 1610, 1619–20 (2007), Ayotte v. Planned 
34

Parenthood of N. New England, 546 U.S. 320, 324–25, 126 S. Ct. 961, 965

(2006); Stenberg v. Carhart, 530 U.S. 914, 922, 120 S. Ct. 2597, 2605 

(2000); Mazurek v. Armstrong, 520 U.S. 968, 969–70, 117 S. Ct. 1865, 

1866 (1997) (per curiam); Casey, 505 U.S. at 845, 112 S. Ct. at 2803; City 

of Akron, 462 U.S. at 440 n.30, 103 S. Ct. at 2498 n.30; Danforth, 428 

U.S. at 62, 96 S. Ct. at 2837–38; Bolton, 410 U.S. at 188–89, 93 S. Ct. at 

745–46. 

The Supreme Court has found third-party standing in other contexts 

after Singleton. For instance, in Craig v. Boren, the Supreme Court allowed 

a beer vendor to assert the rights of men aged 18 to 20 under a statute 

that prohibited men in that age group from consuming 3.2% beer while 

women of the same age were permitted to consume. 429 U.S. 190, 192–

93, 97 S. Ct. 451, 454 (1976). Because men were impacted by the statute 

for only two years, any litigation they might bring would likely be moot 

before it could be authoritatively decided. See id. at 192–94, 97 S. Ct. at 

454–55. 

Most recently, the United States Supreme Court has considered two 

abortion cases that tested the approach of the new majority on the 

Supreme Court. The first case is Whole Woman’s Health, 579 U.S. ___, 

136 S. Ct. 2292, and the second case is June Medical Services, 591 U.S. 

___, 140 S. Ct 2103. 

In Whole Woman’s Health, the Court considered a challenge by 

abortion providers, acting on behalf of themselves and their patients, to 

challenge Texas law related to abortion. 579 U.S. at ___, 136 S. Ct. at 

2301. The Texas law required that physicians performing abortions to 

have admitting privileges at a hospital no further than thirty miles from 

the abortion facility on the day of procedure. Id. at ___, 136 S. Ct. at 2300. 
35

Further, the Texas statute required that the facility meet the standards for 

an ambulatory surgical center. Id. 

The majority of the Court concluded that the provisions imposed an 

undue burden on the right to abortion under Casey. Id. at ___, ___, 136 

S. Ct. at 2312, 2318. Notably, however, Justice Thomas dissented. Id. at 

___, 136 S. Ct. at 2321–30 (Thomas, J., dissenting). Among other things, 

he asserted that the Court should not strike down abortion regulations “at 

the behest of abortion clinics and doctors.” Id. at ___, 136 S. Ct. at 2321. 

Justice Thomas acknowledged that since Singleton, the Court had 

“unquestioningly accepted doctors’ and clinics’ vicarious assertion of the 

constitutional rights of hypothetical patients.” Id. at ___, 136 S. Ct. at 

2323. But Justice Thomas asserted that the doctors and clinics should 

not have third-party standing in abortion cases. Id.

In June Medical Services, the Supreme Court considered the 

constitutionality of a Louisiana law that was strikingly similar to the Texas 

law found unconstitutional in Whole Woman’s Health. 591 U.S. at ___, 

140 S. Ct. at 2112. On the question of the standing of doctors and clinics 

to litigate the issue, Justice Breyer for the plurality found that the state 

had waived the issue. Id. at ___, 140 S. Ct. at 2117. Justice Breyer, 

however, noted that the rule regarding standing of third parties is 

“prudential” and cited a lengthy line of precedents where doctors and 

clinics litigated abortion issues. Id. at ___, 140 S. Ct. at 2117–18. 

Justice Thomas again dissented. Id. at ___, 140 S. Ct. at 2142–53 

(Thomas, J., dissenting). He escalated the rhetoric by referring to doctors 

as “abortionists.” Id. at ___, 140 S. Ct. at 2142. He concluded that the 

third-party standing question was not waived, that the rule against thirdparty standing was based on Article III rather than prudential concerns,
36

and that the doctors and clinics had no private rights of their own in the 

action. Id. at ___, 140 S. Ct. at 2143–49. 

Justice Alito agreed with Justice Thomas on the standing issue. Id.

at ___, 140 S. Ct. at 2153–54 (Alito, J., dissenting). Justice Alito suggested 

that the providers may have a financial interest in avoiding burdensome 

regulations that gives rise to a conflict of interests between the providers 

and abortion patients. Id. at ___, 140 S. Ct. 2166–68. Aside from the 

conflict of interest, Justice Alito concluded that abortion providers could 

not establish requisite close relationship to the third party and hindrance 

in the ability of the third party to bring the constitutional claims. Id. at 

___, 140 S. Ct. at 2167–70.

Whole Woman’s Health and June Medical Services are, of course, 

controversial on the merits of the “undue burden” test employed in the 

cases and its application. The continued validity of the long line of 

abortion cases where abortion providers were held to have standing to 

litigate has been questioned by what has so far been an increasing vocal 

minority of the Supreme Court as a tool to restrict abortion rights. 

Whether the previously-thought-settled notion that abortion providers 

have standing to litigate has also received attention in recent academic 

commentary. See generally Elika Nassirinia, Note, Third-Party Standing 

and Abortion Providers: The Hidden Dangers of June Medical Services, 16 

Nw. J.L. & Soc. Pol’y 214 (2021) (discussing the different challenges to 

abortion providers’ third-party standing in June Medical Services); Hannah 

Tuschman, Challenging TRAP Laws: A Defense of Standing for Abortion 

Providers, 34 Berkeley J. Gender L. & Just. 235 (2019) (discussing 

Targeted Regulation of Abortion Providers (TRAP) laws and the history of 

third-party standing in the abortion context); Brandon L. Winchel, Note,

The Double Standard for Third-Party Standing: June Medical and the 
37

Continuation of Disparate Standing Doctrine, 96 Notre Dame L. Rev. 421 

(2020) (comparing the third-party standing doctrine in abortion cases and 

other cases).

The case before us is at the intersection of third-party standing and 

the unconstitutional conditions doctrine, which I turn to next.

III. Unconstitutional Conditions Doctrine. 

A. Introduction. The question of whether the statute violates the 

unconstitutional conditions doctrine is distinct from the equal protection 

challenge. The unconstitutional conditions doctrine generally prevents the 

state from leveraging its allocation of benefits to 

“manipulate[ constitutional rights] out of existence.” Frost v. R.R. Comm’n, 

271 U.S. 583, 594, 46 S. Ct. 605, 607 (1926). 

In this case, the statutes impose three unconstitutional conditions: 

(1) that grant recipients not engage in abortion activity (the conduct 

prong), (2) that grant recipients not engage in abortion advocacy (the 

advocacy prong), and (3) that grant recipients shall not affiliate with other 

groups supporting abortion rights (the affiliation prong). The majority 

asserts that because the conduct condition passes constitutional muster, 

we need not address the unconstitutionality of the advocacy and affiliation 

conditions. 

The majority chooses to closely follow the approach presented in a 

challenge to a statute similar to the one before us in Planned Parenthood 

of Greater Ohio v. Hodges, 917 F.3d 908 (6th Cir. 2019) (en banc). The 

majority also relies on Planned Parenthood of Indiana. 699 F.3d 962.

I rely on different authorities and come to a different conclusion. In 

my view, the conduct, affiliate, and advocacy prongs all fail under the 

unconstitutional conditions doctrine. My views generally align with the 

six-judge dissent in Hodges. 917 F.3d at 917–33 (White, J., dissenting). I 
38

reject the reasoning of Planned Parenthood of Indiana, 699 F.3d 962, and 

instead find support in Planned Parenthood of Southwest & Central Florida

v. Philip, 194 F. Supp. 3d 1213 (N.D. Fla. 2016), and Planned Parenthood 

of Central North Carolina v. Cansler, 877 F. Supp. 2d 310 (M.D.N.C. 2012). 

B. The Distinction Between the Government’s Control of 

Expenditures and Unconstitutional Conditions on Recipients. At the 

beginning, it is important to distinguish between the power of government 

to control its own expenditures and the power of government to control the 

conduct of recipients of government funds that are conducted on their own 

time and dime. In this case, state government has chosen to provide a sex 

education program in which reference to abortion is prohibited. See 2019 

Iowa Acts ch. 85, §§ 99, 100. As a general proposition, the Supreme Court 

cases hold that the state can determine the type of services it chooses to 

buy. Specifically, there is no government obligation to subsidize abortion 

or abortion counseling by including coverage for abortion or abortion 

counseling in public benefit programs. See Hodges, 917 F.3d at 912

(majority opinion). PPH accepts all the restrictions fashioned by the state 

in its sex education programs at issue in this case. And, it is undisputed 

that PPH has followed all such state-imposed restrictions in the many 

years that it has participated in the state’s sex education programs.

The question under the unconstitutional conditions doctrine is quite 

different. Here, we do not deal with conditions imposed on a government 

program controlling what the government chooses to buy, but instead we 

face government restrictions on the conduct of the recipient outside the 

program itself. Id. at 928–29 (White, J., dissenting). While the state under 

Supreme Court precedents may control the content of its sex education

program, the question raised by the unconstitutional conditions doctrine 

is whether the state may prohibit grantees from engaging in conduct the 
39

state disfavors outside the government-sponsored program on its own time 

and dime. Rust, 500 U.S. at 197, 111 S. Ct. at 1774; see also Regan v. 

Tax’n with Representation of Wash., 461 U.S. 540, 546, 103 S. Ct. 1997, 

2001 (1983). In other words, the question is to what extent may the 

government, as a condition of receiving a government grant, reach out to 

regulate constitutional activity of a recipient outside the confines of the 

program. See Hodges, 917 F.3d at 917 (disagreeing with the power of the 

state to impose conditions on abortion provider for activity conducted on 

its own time and dime).

C. Overview of Unconstitutional Conditions Doctrine. The 

unconstitutional conditions doctrine has been around for a long time. The 

early cases describe the doctrine in general terms. It has been said that 

the government cannot leverage its allocation of benefit to “manipulate[ 

constitutional rights] out of existence” and cannot impose conditions 

which require the relinquishment of constitutional rights. Frost, 271 U.S. 

at 594, 46 S. Ct. at 607. Another case broadly declared “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 

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, 51 S. Ct. 159,

164 (1931). And, it has been declared that the state “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, 92 S. Ct. 2694, 2697

(1972).

While these cases generally outline the unconstitutional conditions 

doctrine, more recent cases have added at least some details. For example,

in Koontz v. St. Johns River Water Management District, the Supreme Court 

emphasized that a violation of the unconstitutional conditions doctrine 
40

produces “constitutionally cognizable injury” even when a party refuses to 

cede to the coercive pressure. 570 U.S. 595, 607, 133 S. Ct. 2586, 2596 

(2013). This is an important concept. Under Koontz, a party subjected to 

an unconstitutional condition does not bear the burden of a fact specific 

showing of the adverse impact on the exercise of the constitutional right 

involved. 

A recent case gives us further insight into the application of the 

unconstitutional conditions limitation by the Supreme Court. In Agency 

for International Development v. Alliance for Open Society International, Inc., 

the Supreme Court considered a statute that required organizations 

receiving federal funds to fight AIDS to have a policy explicitly opposing

advocating for the legalization of prostitution and sex trafficking. 570 U.S. 

205, 208, 133 S. Ct. 2321, 2324 (2013). The Agency for International 

Development Court noted that if the government directly required 

recipients to have such a policy, a violation of the First Amendment would 

be present. Id. at 213, 133 S. Ct. at 2327. According to the Agency for 

International Development Court, the question was whether the conditions 

on the grant “define the federal program” or whether they “reach outside 

it.” Id. at 217, 133 S. Ct. at 2330. The Supreme Court concluded that the 

requirement that grant recipients explicitly oppose advocating for 

legalization of prostitution and sex trafficking was an unconstitutional 

condition. Id. at 221, 133 S. Ct. at 2332. A principle in Agency for 

International Development is that the government cannot attempt to 

achieve indirectly what it cannot achieve directly. 

D. Application of Unconstitutional Conditions Doctrine in 

Context of Abortion Rights. 

1. Overview. There have been a couple dozen cases dealing with 

the application of the unconstitutional conditions doctrine in the context 
41

of abortion. The results are scattered. Some, like Planned Parenthood of 

Indiana, seem to support the state. 699 F.3d at 986–88. Others, like 

Philip, 194 F. Supp. 3d 1213, and Cansler, 877 F. Supp. 2d 310, seem to 

support the positions of PPH. 

Many of the cases like Planned Parenthood of Indiana predate the 

very important unconstitutional conditions cases of Koontz, 570 U.S. at 

607, 133 S. Ct. at 2596 (holding that there is no need to show 

acquiescence to unconstitutional demand), and Agency for International 

Development, 570 U.S. at 213, 221, 133 S. Ct. at 2327, 2332 (prohibiting 

indirect regulation when direct regulation would be unconstitutional), and 

are therefore of limited value. But the more recent Hodges case 

incorporates recent Supreme Court cases and has spirited majority and 

dissenting opinions. Both opinions are written with clarity and confidence. 

They come to opposite results. Hodges is thus an excellent vehicle to 

examine the application of the unconstitutional conditions doctrine in the 

context of abortion restrictions from two very different perspectives. 

2. Authorities prior to Planned Parenthood of Greater Ohio v. 

Hodges. There are a number of cases that address the question of 

unconstitutional conditions in the abortion context prior to Hodges. A 

brief survey shows considerable variability in the approaches and 

outcomes but illustrates the tapestry of the relevant caselaw.

Some of the cases deal with the question of whether a Planned 

Parenthood affiliate may obtain state funds to support its program, 

including abortion services. For example in Planned Parenthood Ass’n–

Chicago Area v. Kempiners, the district court ruled that the Planned 

Parenthood affiliate could not compel the state to adopt a provision of 

neutrality with respect to providing funds for abortion services. 531 

F. Supp. 320, 325 (N.D. Ill. 1981), vacated and remanded on other 
42

grounds, 700 F.2d 1115 (7th Cir. 1983) (per curiam). As a result, 

according to the district court, the state “is free to express its preference 

for childbirth, by subsidizing it and not abortion.” Id. 

But then, in Planned Parenthood of Central & Northern Arizona v.

State of Arizona, the United States Court of Appeals for the Ninth Circuit 

considered the legality of a footnote in Arizona legislation that forbade state 

social welfare funds from being expended in support of “nongovernmental 

organizations that perform[ed] abortions and engage[d] in abortion-related 

activities.” 718 F.2d 938, 941 (9th Cir. 1983). The district court granted 

summary judgment for Planned Parenthood of Central and Northern 

Arizona (PPCNA) and enjoined enforcement of the footnote. Id. On appeal, 

the Ninth Circuit held that the State of Arizona “may not unreasonably 

interfere with the right of Planned Parenthood to engage in abortion or 

abortion-related speech activities, but the State need not support, 

monetarily or otherwise, those activities.” Id. at 944. The question was 

who interfered with whom: did PPCNA interfere with the state’s right to 

spend its money as it pleases, or did the state interfere with PPCNA’s right 

to engage in protected freedoms. Id. The Ninth Circuit remanded the case 

for further fact-finding on the question of whether a total withdrawal of 

state funds was the only way to prevent PPCNA from using state funds for 

abortion-related services. Id. at 946. On remand, however, the district 

court was instructed that it could not use the “freeing up” theory to 

withdraw state funds merely because an eligible entity was engaged in 

abortion activities disfavored by the state. Id. at 945. 

Another district court case considering the unconstitutional 

conditions doctrine was Planned Parenthood of Central Texas v. Sanchez. 

280 F. Supp. 2d 590 (W.D. Tex. 2003). Planned Parenthood of Central 

Texas challenged a statute that prevented disbursement of Medicaid 
43

dollars to any entity that performed abortions even if the abortions were 

paid for by private funds. Id. at 593. The district court enjoined 

enforcement of the statute under the unconstitutional conditions doctrine. 

Id. at 609, 612. Although the district court believed the specific 

constitutional rights were far from clear, it concluded that:

abortion providers have some constitutionally-protected right, 

derived from their patients’ rights, to perform the services that 

are necessary to enable women to exercise their own 

constitutional rights. This derivative right stems from the fact 

that, as abortion providers who help women to realize their 

constitutional rights safely, the Plaintiffs are in a unique 

position to assert their patients’ constitutional rights.

Id. at 608. 

The United States District Court for the District of Kansas

considered the unconstitutional conditions doctrine in Planned 

Parenthood of Kansas, Inc. v. City of Wichita. 729 F. Supp. 1282 (D. Kan.

1990). In this case, the district court held that a local government decision 

not to provide funding for family planning programs to Planned 

Parenthood of Kansas was unconstitutional “viewpoint-based

discrimination” that singled out Planned Parenthood of Kansas on the 

basis of advocacy of unpopular ideas in violation of the First Amendment. 

Id. at 1287–88.

A few years later, in Planned Parenthood of Mid-Missouri & Eastern 

Kansas, Inc. v. Dempsey, the Eighth Circuit considered a state statute 

excluding abortion providers from receiving state family planning funds. 

167 F.3d 458, 460 (8th Cir. 1999). In Dempsey, the court held that the 

restriction would be an unconstitutional condition unless the grantees 

were allowed to create independent affiliates that could perform abortions. 

Id. at 463–64. 
44

In 2012, another federal district court considered an 

unconstitutional conditions claim in Cansler. 877 F. Supp. 2d 310. In 

Cansler, a state statute barred Planned Parenthood of Central North 

Carolina (PPCNC) from receiving state funds for contracts or grants with 

the state. Id. at 313. The district court noted that the defendant had 

produced no evidence that PPCNC would use or ever had used state funds 

to support abortion-related services. Id. at 320. Further, the state 

produced no evidence that the restriction was necessary to ensure that the 

state funds were not used for abortion services. Id.

As a result, the district court found that the statute imposed an 

unconstitutional condition on the plaintiff. Id. at 321. The district court 

specifically rejected the claim that the unconstitutional conditions 

doctrine did not extend to a provider of services to others. Id. In support 

of its conclusion, the district court cited O’Hare Truck Service, Inc. v. City 

of Northlake, 518 U.S. 712, 725–26, 116 S. Ct. 2353, 2360–61 (1996), and 

Board of County Commissioners v. Umbehr, 518 U.S. 668, 686, 116 S. Ct.

2342, 2352 (1996). Further, the district court noted that in Rust, 500 U.S. 

173, 111 S. Ct. 1779, the service providers sought to continue to provide 

services to others. Cansler, 877 F. Supp. 2d at 321.

A few months later, however, the Fifth Circuit decided an

unconstitutional conditions case that did not go the plaintiff’s way in 

Planned Parenthood Ass ’n of Hidalgo County Texas, Inc. v. Suehs. 692 

F.3d 343 (5th Cir. 2012). In Suehs, the Fifth Circuit vacated a district 

court preliminary injunction related to provisions of Texas regulations 

prohibiting Medicaid providers from performing or promoting elective 

abortions. Id. at 346. The scope of the ruling is not entirely clear. The 

Suehs court, however, found that Texas could deny funds to organizations

that perform elective programs, characterizing the regulation as “a direct 
45

regulation of the definitional content of a state program.” Id. at 350. With 

respect to restrictions on affiliates, the Suehs court indicated the 

regulation was problematic because it did not amount to a direct 

regulation of the content of a government program. Id. at 351. The 

preliminary injunction was vacated and the matter remanded for further 

proceedings. Id.

Shortly after Suehs was decided, the Seventh Circuit handed down 

Planned Parenthood of Indiana. 699 F.3d 962. In Planned Parenthood of 

Indiana, the Planned Parenthood affiliate challenged an Indiana statute 

that “prohibit[ed] state agencies from providing state or federal funds to 

‘any entity that performs abortions or maintains or operates a facility 

where abortions are performed.’ ” Id. at 967 (quoting Ind. Code § 5–22–

17–5.5(b) (2011)). The Seventh Circuit noted that under applicable law, 

the state was not required to be neutral on the abortion issue. Id. at 987. 

The court noted that there was no viable claim that the denial of block 

grant funds would impose an undue burden on a woman’s right to obtain 

an abortion. Id. at 988. 

In 2016, the Tenth Circuit considered the unconstitutional 

conditions doctrine in Planned Parenthood Ass’n of Utah v. Herbert, 828 

F.3d 1245 (10th Cir. 2016). In Herbert, the Governor of Utah directed state 

officials to stop providing Planned Parenthood Association of Utah (PPAU)

with federal pass-through funds to carry out various state programs. Id.

at 1247. The action was taken after the release of edited videos which 

suggested that PPAU was engaged in the illegal sale of fetal tissue. Id. at 

1250. The state made no claim that PPAU misused funds or that it was 

unqualified to provide contracted services. Id. at 1251. It was also 

undisputed that PPAU had no direct connection to any of the activities 

allegedly depicted in the videos. Id. The Herbert court reversed the district 
46

court denial of a preliminary injunction and remanded the case for its 

entry. Id. at 1266.

The Herbert court found that there was substantial likelihood that 

the state action violated the unconstitutional conditions doctrine. Id. at 

1263. The Herbert court noted that the Governor’s action was motivated 

by the lawful activity of PPAU associating with other providers. Id. at 1259. 

The Herbert court also noted that the Planned Parenthood affiliate 

alleged, “without serious challenge from defendants,” a Fourteenth 

Amendment right. Id. at 1260. The Herbert court quoted City of Akron for 

the proposition 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.’ ” Id. (alteration and omission in original) 

(quoting City of Akron, 462 U.S. at 427, 103 S. Ct. at 2491 (1983)).

Finally, in 2016, the Northern District of Florida considered the 

unconstitutional conditions issue in Philip, 194 F. Supp. 3d 1213. The 

case involved a statute enacted by the Florida legislature blocking abortion 

providers from receiving funds from state and local governments. Id. at 

1215. In considering whether the legislation amounted to an 

unconstitutional condition, the court asked the question whether “the 

legislature could directly require the recipient to engage in (or abstain 

from) that unrelated activity.” Id. at 1217. The court concluded that “the 

state could not directly prohibit the plaintiffs from providing abortions.” 

Id.

The court further asserted that it was irrelevant whether any right 

belonging to Planned Parenthood of Southwest and Central Florida 

(PPSCF) related to abortions was derivative of the right of women. Id. at 
47

1218. It noted that in Rust, the Supreme Court considered a restriction 

on the use of federal funds for abortions without making any distinction 

between the recipients’ own rights and those derived from their patients. 

Id. The district court granted PPSCF a preliminary injunction. Id. at 1224.

3. Planned Parenthood of Greater Ohio v. Hodges. The recent 

Hodges case bears marked similarity to this case. A review of the majority 

and dissenting opinions provides a good overview of the issue presented in 

this case.

In 2016, Ohio enacted a statute that:

require[d] 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.”

Hodges, 917 F.3d at 910 (majority opinion) (quoting Ohio Rev. Code 

§ 3701.034(B)–(G) (2016)). The programs impacted by the statute targeted

“sexually transmitted diseases, breast cancer and cervical cancer, teen 

pregnancy, infant mortality, and sexual violence.” Id. The Ohio 

Department of Health determined that the statute required the end of 

contracts with the Planned Parenthood affiliates because the “entities 

perform abortions, advocate for abortion, and affiliate with other entities 

that do the same.” Id. at 911. The district court enjoined the state from 

enforcing the law and a panel of the Sixth Circuit agreed. Id. The Sixth 

Circuit, however, decided to review the matter en banc. Id. 

By a vote of 11–6, a majority of the Sixth Circuit reversed the district 

court. Id. at 917. Writing for the majority, Judge Sutton noted that 

“[p]rivate organizations do not have a constitutional right to obtain 

governmental funding.” Id. at 911–12. While “the State may not condition 
48

a benefit by requiring the recipients to sacrifice their constitutional rights,”

Judge Sutton reasoned that “[t]he Supreme Court has never identified a 

freestanding right to perform abortions.” Id. at 912. 

Citing language in Casey, 505 U.S. at 883, 112 S. Ct. at 2823 

(plurality opinion), Judge Sutton stated that the physicians had no more 

constitutional rights in the abortion context than they did performing a 

kidney transplant. Hodges, 917 F.3d at 912. Judge Sutton asserted that 

the only other circuit court to address the issue—the Seventh Circuit in 

Planned Parenthood of Ind., 699 F.3d at 962—came to the same 

conclusion. Id. at 913. 

Judge Sutton maintained that the third-party standing doctrine did 

not fill the gap created by the lack of a provider’s constitutional right 

related to abortion. Id. at 914. According to Judge Sutton, finding thirdparty standing in Hodges would “move the law perilously close to requiring 

States to subsidize abortions.” Id.

Judge Sutton recognized that a claim might at some point be made 

that Ohio’s statute posed such a burden on Planned Parenthood of Greater 

Ohio (PPGO) that it placed an undue burden on the right to an abortion. 

Id. at 916. But such a challenge, according to Judge Sutton, was 

premature as no hard evidence was developed in the record to support 

such a claim. Id. 

Judge White dissented from the majority view in the case. Id. at 917 

(White, J., dissenting). According to Judge White, under Agency for 

International Development, PPGO needed to show “(1) the challenged 

conditions would violate the Constitution if they were instead enacted as 

a direct regulation” (namely, regulations prohibiting PPGO from engaging 

in abortions), “and (2) the conditions affect protected conduct outside the 

scope of the government program.” Id. A direct prohibition on PPGO from 
49

performing abortions, according to Judge White, would clearly impose an

undue burden on Ohio’s women, thereby satisfying the first Agency for 

International Development prong. Id. at 921–23. Further, Judge White 

observed that the activities prohibited by the statute, performing 

abortions, advocating for abortion rights, or affiliating with organizations 

that engage in such actively, all are on Planned Parenthood’s own “time 

and dime.” Id. at 923 (quoting Agency for Int’l Dev., 570 U.S. at 218, 133 

S. Ct. at 2330). This “straightforward” application of the unconstitutional 

conditions doctrine, according to Judge White, should resolve the case. Id.

Judge White rejected the view that PPGO had to establish an 

independent constitutional right to abortion to invoke the unconstitutional 

conditions doctrine. Id. at 925–31. Among other things, Judge White 

emphasized that the right to an abortion has long been understood to be 

“ ‘inextricably bound up with’ a provider’s ability to offer [abortion]

services.” Id. at 918 (quoting Singleton, 428 U.S. at 114, 96 S. Ct. at 2874).

Judge White recognized that the majority’s argument was that 

because PPGO had no constitutionally protected right as an abortion 

provider, it could not resort to the unconstitutional conditions doctrine. 

Id. at 925. Judge White responded by noting that the unconstitutional 

conduct caselaw merely required that the doctrine could be invoked to 

protect “constitutionally protected” conduct and that a woman’s right to 

seek an abortion was certainly that. Id. Further, Judge White asserted 

that one of the core purposes of the unconstitutional conditions doctrine, 

namely, to prevent government from achieving indirectly what it could not 

achieve directly, was fully present in the case. Id. at 926. Ohio, according 

to Judge White, could not directly prohibit abortion providers from 

performing abortions without placing an undue burden on women seeking 

abortions in the area. Id. Indeed, as pointed out by Judge White, providers 
50

established a challenge to burdensome law on due process grounds in 

Whole Woman’s Health, 579 U.S. at ___, 136 S. Ct. at 2300. Hodges, 917 

F.3d at 926.

Judge White directly challenged the Seventh Circuit’s approach in 

Planned Parenthood of Indiana, 699 F.3d 962. Hodges, 917 F.3d at 927–

29. She attacked the notion that a restriction was not actionable if it does 

not actually operate to impose an undue burden on women seeking 

abortions or upon the abortion providers. Id. at 928. According to Judge 

White, in Agency for International Development, the harm was caused by 

mere imposition of the condition. Id. at 928. And, Judge White cited 

Koontz for the proposition that “[a]s 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.” Id. (quoting Koontz, 570 U.S. at 607, 

133 S. Ct. at 2596).

Judge White noted that Planned Parenthood of Indiana failed to 

recognize the critically important difference “between conditions placed on 

the government program and those imposed on the recipient.” Id. at 928. 

She noted that the entire discussion “rested on the undisputed 

propositions that the government can” fashion the nature of its program 

to favor childbirth. Id. at 929.

But for Judge White, the critical question is whether the state may 

indirectly impose a condition on recipients of state funds that it could not 

directly impose through regulation. Id. at 930. And, of course, Judge 

White emphasized that the state could not directly prohibit providers from 

providing abortions. Id. Yet, according to Judge White, the majority 

developed what amounted to a work around:
51

[T]he 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.

Id. (emphasis omitted). Further, Judge White observed:

[T]o permit the State to leverage its funding to launch a thinly 

veiled attack on women’s rights so long as it camouflages its 

unconstitutional condition in provider-focused verbiage . . .

strikes me as exactly the type of maneuver the doctrine seeks 

to prevent.

Id.

According to Judge White, the consequences of the majority’s 

approach were breathtaking. See id. Indeed, the United States argued in 

the case that Ohio’s “position would authorize the government to pass a 

law prohibiting all doctors who perform abortions from providing any other 

medical services.” Id. 

Judge White noted the potential power of undermining the ability of 

providers to provide abortions. Id. Just about all of the efforts to attack 

abortion rights before the Supreme Court have been state actions targeting

abortion “providers, not women.” Id.; see also, e.g., Whole Woman’s 

Health, 579 U.S. ___, 136 S. Ct. 2292; Stenberg, 530 U.S. 914, 120 S. Ct.

2597; Casey, 505 U.S. 833, 112 S. Ct. 2791; Hodgson v. Minnesota, 497 

U.S. 417, 110 S. Ct. 2926 (1990). According to Judge White, legislatures 

seeking to restrict “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.” Hodges, 917 F.3d at 930. Judge White concluded:

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 
52

refuses to cry uncle and submit to the condition, the conduct 

provision is unconstitutional.

Id. at 931.

Having found the conduct provision unconstitutional, Judge White 

proceeded to deal with the advocacy and affiliation provisions of the Ohio 

law. Id. Such claims, according to Judge White, were “patently 

meritorious.” Id. Judge White quickly recognized that the state could 

regulate the content of the state program. Id. No problem there. Nor, 

according to Judge White, does the message become “garbled” as the 

underlying programs had nothing to do with abortion. Id. at 932. Judge 

White reasoned that the regulations “seek[] to impose restrictions on 

recipients’ speech outside” the scope of the programs. Id. 

The limitations on affiliation fared no better in the hands of Judge 

White. She found the restrictions plainly contrary to Runyon v. McCrary, 

427 U.S. 160, 175, 96 S. Ct. 2586, 2597 (1976), and NAACP v. Alabama 

ex rel. Patterson, 357 U.S. 449, 460, 78 S. Ct. 1163, 1171 (1958). Hodges, 

917 F.3d at 932–33. These cases, according to Judge White, stand for the 

proposition that affiliation advances beliefs and ideas and is conduct 

protected by the First Amendment. Id.

IV. Application of Unconstitutional Conditions Doctrine in This 

Case.

In my view, the statute in this case violates the unconstitutional 

conditions doctrine. I find this conclusion is compelled for several reasons.

First, in my view, abortion providers like PPH may assert the rights 

of women seeking abortions as they have for over forty years. Third-party 

standing makes sense in the abortion context because of the short time 

frame involved and the difficulties of individual parties asserting their 

claims. Further, the ability to obtain an abortion is inextricably 
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intertwined with the ability to find an abortion provider. Regulation of 

providers thus has a direct impact on the ability of potential plaintiffs to 

exercise their right. Further, because of their resources and expertise, 

abortion providers are ordinarily in a better position to develop the 

constitutional claims than are individual plaintiffs. The rights of persons 

seeking abortion are inextricably intertwined with abortion providers as 

abortions cannot be safely performed without them. The intertwined 

relationship between those who seek abortions and abortion providers 

cannot be pulled apart by declarations that the providers have no 

constitutional rights themselves. The providers have standing to assert 

the constitutional rights of others because the rights of third parties are 

constitutionally welded to providers who are essential if the constitutional 

right is to be effectuated. 

Second, assuming PPH has third-party standing, may the state 

simply ban PPH from providing abortions? As noted by the caselaw, a 

central question in the unconstitutional conditions doctrine is whether the 

state is attempting to achieve indirectly what it cannot do directly. In my 

view, the state could not issue a ban on PPH from providing abortion 

services. If the law were otherwise, the state could simply ban all providers 

from engaging in abortion activity and thereby, from a practical point of 

view, eviscerate a woman’s right to choose an abortion.

In this case, there is not the remotest suggestion that there is a 

conflict of interest between PPH and its clients. In any event, I note that 

the conflict-of-interest theory between abortion providers and their clients 

has been rejected in a number of abortion cases. See, e.g., McCormack v. 

Herzog, 788 F.3d 1017, 1028 (9th Cir. 2015); Planned Parenthood of 

Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583, 589 n.9 (5th

Cir. 2014); Charles v. Carey, 627 F.2d 772, 779 n.10 (7th Cir. 1980). It is 
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hard to imagine how there could be a conflict of interest under the facts 

presented in this case. 

The ability to effectively litigate claims is as important as the 

underlying substantive law. A broadly framed constitutional right is of 

little value, for example, if most aggrieved parties are not in a position to 

prosecute claims. As a result, I regard this case as involving a very 

important question regarding the ability of abortion clients and their 

providers to challenge state law restrictions on the right of abortion. 

Although the majority declares its ruling on third-party standing is limited 

to indirect regulation, I fear that the majority opinion’s suggestion that 

PPH is not asserting any rights of constitutional dimension lays the 

groundwork for placing barriers and obstacles designed to make 

challenges to stricter and stricter abortion regulation more and more 

difficult.

In sum, I agree with the approach of Judge White in Hodges. The 

State is attempting to impose a restriction on a provider of abortion 

indirectly which it may not directly impose. Further, provisions of the 

statutes that attempt to prohibit affiliation with other groups performing 

abortion rights or advocating abortion rights offend freedom of association 

rights under article I, section 7 of the Iowa Constitution. See City of 

Maquoketa v. Russell, 484 N.W.2d 179, 184 (Iowa 1992) (en banc). I would 

affirm the district court on the ground that the attempted regulation 

amounts to unconstitutional restriction on the right to abortion. 

For the above reasons, I respectfully dissent.