July 13, 2016 — A federal appeals court on Tuesday ruled that Utah cannot block the allocation of federal funding to Planned Parenthood Association of Utah (PPAU), AP/Sacramento Bee reports (Whitehurst, AP/Sacramento Bee, 7/13).
Following last year's release of misleading videos targeting Planned Parenthood, Utah Gov. Gary Herbert (R) ordered the state Department of Health to stop distributing federal funding to PPAU. In response, Planned Parenthood filed a lawsuit against Herbert, arguing that the governor's orders violate Planned Parenthood's constitutional rights to due process and free speech.
In September 2015, U.S. District Court Judge Clark Waddoups issued a temporary restraining order on Herbert's decision through Oct. 15, 2015, ruling that Herbert's actions seem "to have been made on unconstitutional grounds" because there have been no allegations that PPAU broke any laws. In October 2015, Waddoups said he would extend the temporary restraining order until he issued a written ruling.
However, in December 2015, Waddoups reversedhis prior decision and ruled that Utah could end $275,000 in federal funding to Planned Parenthood for sexuality education and testing for sexually transmitted infections while the organization continues its lawsuit. Tom Hudachko, a spokesperson for the Utah Department of Health, said the Planned Parenthood contracts would continue through the end of 2015.
Later that month, Planned Parenthood asked the 10th Circuit Court of Appeals to review Waddoups' ruling. The appeals court issued an emergency hold barring Herbert from blocking the funding.
Appeals court arguments
A three-judge panel of the 10th Circuit heard arguments in the case in March.
Peggy Tomsic, an attorney for PPAU, argued that Herbert's decision to block the funding was an unconstitutional, political act against PPAU. Tomsic said Herbert was aware that investigations into Planned Parenthood had found no evidence of wrongdoing when he ordered the funding block. Further, allowing Waddoups' decision to stand would send the message that public officials may "punish their political enemies for exercising their constitutional rights," Tomsic said.
Separately, Tyler Green of the Utah attorney general's office claimed that there is still suspicion that Planned Parenthood could have acted unlawfully. Green also claimed that the governor has the authority to end at-will contracts (Women's Health Policy Report, 3/9).
On Tuesday, the appeals court panel in a 2-1 vote ruled that the state's effort to defund PPAU could have violated the organization's free speech rights and its right to establish clinics for women seeking abortion care.
According to Reuters, the decision requires Waddoups to order a preliminary injunction blocking the state's defunding effort while PPAU seeks a permanent injunction (Stempel, Reuters, 7/12). Courts in several other states have blocked similar attempts to defund Planned Parenthood in response to the misleading videos (Women's Health Policy Report, 3/9).
In the appeals court decision, Circuit Judge Mary Beck Briscoe wrote that a reasonable jury would determine that PPAU would likely experience irreparable harm if the funding cutoff was allowed to take effect.
Further, she wrote that a jury also would likely find that Herbert capitalized on the misleading footage as a way to penalize PPAU and limit the organization's ability to offer abortion care. Briscoe wrote, "This seems especially true given Herbert's concession that the allegations made by CMP are unproven and in fact false, and in light of the current political climate."
PPAU CEO Karrie Galloway praised the court's decision as a "major victory" for patients and abortion providers (Reuters, 7/12). "Our doors are open today and they will be tomorrow -- no matter what," Galloway said (AP/Sacramento Bee, 7/13).
Meanwhile, Jon Cox, a spokesperson for Herbert, said the governor will consult state Attorney General Sean Reyes (R) to determine the state's next steps (Reuters, 7/12).