The US Court of Appeals for the Sixth Circuit [official website] held [opinion, PDF] Wednesday that an Ohio law [JURIST report] banning the state’s Department of Health from funding any entity or its affiliate performing or promoting non-therapeutic abortions through grants received from six non-abortion-related federal health programs is unconstitutional.

The plaintiffs in the case, Planned Parenthood of Greater Ohio and Planned Parenthood Southwest Ohio Region (Planned Parenthood) [advocacy websites], filed a § 1983 action [JURIST report] in federal district court alleging that Ohio Revised Code § 3701.034 violated their First Amendment [GPO backgrounder, PDF] rights by denying state and federal funds because of and in retaliation for their constitutionally protected advocacy for abortion rights and affiliation with other organizations that also advocate for abortion rights and/or provide abortion services.

Additionally, Planned Parenthood alleged that § 3701.034 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment [GPO backgrounder] 1) by denying state and federal funds because of and in retaliation for plaintiffs’ own constitutionally protected right to provide abortions and their patients’ exercise of the constitutional right to choose; and 2) by singling out abortion providers and those who “promote” abortions for unfavorable treatment without a constitutionally sufficient justification.

All said, funding to approximately 27 of Planned Parenthood Clinics were affected by the law. The district court granted a temporary restraining order on the day § 3701.034 was to take effect and upon further arguments, granted the Planned Parenthood’s motions for judgment on the merits and a permanent injunction.

A three-judge panel of the Sixth Circuit agreed and unanimously affirmed the district court stating:

Although the government has no obligation to subsidize constitutionally protected activity, it may not use its control over funds to curtail the exercise of constitutionally protected rights outside the scope of a government-funded program. … Although Plaintiffs’ choice to resist ODH’s unconstitutional attempt to coerce them to abandon all abortion activity and advocacy means that women in Ohio will not suffer the drastic reduction in abortion services that would have occurred if Plaintiffs had made a different choice, § 3701.034 still has a substantial effect on women, in addition to providers. … It is undisputed that Plaintiffs are among the largest providers of health services in the areas their twenty-seven clinics serve under the federal programs at issue, and provide many of those services free of charge to low-income and underserved communities. If Plaintiffs are excluded from the federal programs, they will no longer be able to provide the services for free. … Nothing within the scope of these six programs relates to performing or promoting abortion. Therefore, the district court correctly determined that § 3701.034 cannot condition participation in funding for these programs on a recipient’s foregoing the exercise of its rights of free speech or association outside these programs.

The Ohio Attorney General’s office is currently reviewing [WP report] the ruling to determine whether to seek an en banc or US Supreme Court review.