A divided federal appeals court on Tuesday upheld the constitutionality of an Ohio law that blocks state funding for Planned Parenthood, reversing its own prior ruling and handing a victory to anti-abortion advocates.
In an 11-6 vote, the 6th U.S. Circuit Court of Appeals in Cincinnati rejected the argument by Planned Parenthood affiliates that the funding ban, which also covered non-abortion services, violated their due process rights.
“The affiliates are correct that the Ohio law imposes a condition on the continued receipt of state funds,” Circuit Judge Jeffrey Sutton wrote for the majority. “But that condition does not violate the Constitution because the affiliates do not have a due process right to perform abortions.”
Sutton also found no proof the ban posed an undue burden on a woman’s right to abortion by making the procedure harder to obtain. He also said that the right belonged to women, not Planned Parenthood.
Tuesday’s decision overturned a lower court injunction against the law, which was signed in 2016 by then Governor John Kasich, a Republican. The appeals court had upheld the injunction last April 18.
Planned Parenthood and its lawyers did not immediately respond to requests for comment. The offices of Ohio Governor Mike DeWine and Attorney General Dave Yost, both Republicans, had no immediate comment.
The Ohio law is one of many in recent years from Republican-led states to curtail abortion rights, as President Donald Trump appoints more conservatives to the federal bench.
All 11 judges in Tuesday’s majority are Republican appointees, including four named by Trump, while five of the six dissenting judges were appointed by Democratic presidents.
The Ohio law targeted nearly $1.5 million of annual funding, including from the federal government, that Planned Parenthood said it obtained from the state health department.
It required the department to ensure that funds it received through six non-abortion-related federal programs was not used to fund entities that performed non-therapeutic abortions.
Planned Parenthood said the funding ban would have also covered programs for mothers’ and infants’ health, HIV counseling and testing, and sex education.
Circuit Judge Helene White, who wrote the April 2018 ruling, in a dissenting opinion accused the majority of trying to force Planned Parenthood to “cry uncle” and lose funding as a condition of performing abortions.
“The Constitution prohibits unduly burdening a woman’s abortion right, even in the form of laws that directly target only the gatekeeper to a woman’s abortion right – the provider,” White wrote.
(Reporting by Jonathan Stempel in New York; Editing by Tom Brown and Grant McCool)