By Dave Andrusko

In a major victory, the full U.S. Court of Appeals for the Sixth Circuit today upheld an Ohio law that made entities that perform or promote abortions, such as Planned Parenthood, ineligible to participate in six state-funded health programs. The 11-6 decision, written by Judge Jeffrey Sutton, overturned an April 2018 decision by a three-judge panel of the same circuit that had upheld a 2016 decision by Judge Michael Barrett striking down the law.

As was pointed out by Ohio newspapers, the decision was a major victory for pro-life Gov. Mike DeWine, who, as attorney general, asked the full court to reconsider the panel’s decision.

The plaintiffs —Planned Parenthood of Greater Ohio and Planned Parenthood Southwest Ohio Region—argued that the law “imposes an unconstitutional condition on public funding in violation of the Due Process Clause.”

But in a key conclusion, citing prior Supreme Court decisions, Judge Sutton wrote that “the affiliates do not have a due process right to perform abortions.” That right is held by the woman alone.

And, according to Columbus Dispatch reporter Jack Torry,

Sutton, Ohio’s former state solicitor, wrote that the Ohio law does “not violate a woman’s right to obtain an abortion. It does not condition a woman’s access to any of these public health programs on refusing to obtain an abortion.” “It makes these programs available to every woman, whether she seeks an abortion or not,” Sutton wrote. “Nor, on this record, has there been any showing that the Ohio law will limit the number of clinics that offer abortions in the state.” Referring to the 1992 U.S. Supreme Court decision that ruled a state cannot place an “undue burden” on a woman’s right to seek an abortion, Sutton wrote that Planned Parenthood had to demonstrate the Ohio law would impose an “undue burden” on a woman’s right to an abortion. “Its vow to keep performing abortions sinks any pre-enforcement action, and any speculation about what would happen if it changed its mind is just that,” Sutton wrote.

Citing the principles established by prior Supreme Court decisions, Judge Sutton then went on to concluded that

These principles establish the following line between what Ohio may do and what it may not do. It may choose not to fund a private organization’s health and education initiatives. Private organizations do not have a constitutional right to obtain governmental funding to support their activities. The State also may choose not to subsidize constitutionally protected activities. Just as it has no obligation to provide a platform for an individual’s free speech, say a Speaker’s Corner in downtown Columbus, it has no obligation to pay for a woman’s abortion. Case after case establishes that a government may refuse to subsidize abortion services. …Both the United States and Ohio have done exactly that, whether through the Hyde Amendment, or through Ohio Revised Code. (Internal citations omitted for clarity.)

Sutton noted, “The only other circuit [the 7th in2012] in the country to squarely address this issue reached the same conclusion.”

Michael Gonidakis, president of Ohio Right to Life, responded “Ohio Right to Life worked tirelessly to enact this law and we are grateful that the federal appellate court agrees with our strategy. We’re thankful for the leadership of former Representative Margy Conditt, who sponsored this bill in the Ohio House.”