Laxalt Amicus Ohio Abortion

Case: 16-4027 Document: 87 Filed: 08/03/2018 Page: 1
No. 16-4027
In the
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Planned Parenthood of Greater Ohio, et al,

Plaintiff-Appellee,
v.
Lance Himes, in his official capacity as Director of the Ohio Department of
Health,
Defendant-Appellant.
Appeal from the United States District Court

Southern District of Ohio
Honorable Michael R. Barrett
EN BANC BRIEF OF AMICI CURIAE STATES OF MICHIGAN,

ALABAMA, ARIZONA, ARKANSAS, INDIANA, KANSAS, LOUISIANA,
NEVADA, OKLAHOMA, SOUTH CAROLINA, SOUTH DAKOTA,
TENNESSEE, TEXAS, WEST VIRGINIA, AND WISCONSIN IN SUPPORT
OF DEFENDANT-APPELLANT, IN SUPPORT OF REVERSAL
Bill Schuette
Michigan Attorney General
Aaron D. Lindstrom
Solicitor General
Counsel of Record
P.O. Box 30212
Lansing, MI 48909
517-241-8403
LindstromA@michigan.gov
Attorneys for Amicus Curiae

TABLE OF CONTENTS
Page
Table of Authorities .................................................................................................. ii
Statement of Interest of Amici Curiae States.............................................................1
Statement of the Case.................................................................................................2
Argument....................................................................................................................3
I. States have no constitutional obligation to fund abortions or to allow
abortion providers to administer state health programs. .................................3
II. The Court should not reach the speech issue because the conduct issue
fully resolves this case. ....................................................................................8
III. If the Court were to reach the speech issue, it should recognize that
Ohio is allowed to express its viewpoint and to choose its
spokesperson when engaging in government speech. .....................................9
Conclusion and Relief Requested ............................................................................13
Certificate of Compliance ........................................................................................16

Certificate of Service ...............................................................................................17
i
TABLE OF AUTHORITIES
Page
Cases
Agency for International Development v. Alliance for Open Society

International, Inc.,
133 S. Ct. 2321 (2013) .............................................................................. 13
Ashwander v. TVA,
297 U.S. 288 (1936) ................................................................................... 9
Freedom from Religion Found., Inc. v. City of Warren, Mich.,

707 F.3d 686 (6th Cir. 2013) ..................................................................... 12
Harris v. McRae,
448 U.S. 297 (1980) ......................................................................... passim
Johanns v. Livestock Mktg. Ass’n,

544 U.S. 550 (2005) ................................................................................. 11
Maher v. Roe,
432 U.S. 464 (1977) ....................................................................... 3, 5, 6, 7
Planned Parenthood of Indiana, Inc. v. Comm’r of Indiana State Dep’t
Health,
699 F.3d 962 (7th Cir. 2012) ....................................................................... 7
Planned Parenthood of Mid-Missouri & E. Kansas, Inc. v. Dempsey,
167 F.3d 458 (8th Cir. 1999) ....................................................................... 7
Planned Parenthood of Se. Pennsylvania v. Casey,

505 U.S. 833 (1992) ................................................................................... 7
Pleasant Grove City, Utah v. Summum,

555 U.S. 460 (2009) ................................................................................. 10
Poelker v. Doe,
432 U.S. 519 (1977) ................................................................................... 3
ii
Roe v. Wade,
410 U.S. 113 (1973) ................................................................................... 3
Rosenberger v. Rector & Visitors of Univ. of Virginia,

515 U.S. 819 (1995) ................................................................................. 12
Rust v. Sullivan,
500 U.S. 173 (1991) ..................................................................... 3, 4, 5, 12
Spector Motor Service, Inc. v. McLaughlin, Tax Com’r,

323 U.S. 101 (1944) ................................................................................... 9
Walker v. Texas Div., Sons of Confederate Veterans, Inc.,

135 S. Ct. 2239 (2015) .............................................................................. 11
Webster v. Reproductive Health Services,
492 U.S. 490 (1989) ................................................................................... 4
Whole Woman’s Health v. Hellerstedt,

136 S. Ct. 2292 (2016) ................................................................................ 8
Women’s Cmty. Health Ctr. of Beaumont, Inc. v. Texas Health Facilities
Comm’n,
685 F.2d 974 (5th Cir. 1982) ....................................................................... 7
Statutes
42 U.S.C. § 300a-6 ........................................................................................ 4
Ohio Rev. Code Ann. § 3701.034(A)(7) ........................................................... 4
Ohio Rev. Code Ann. § 3701.034(B) ..................................................... passim
Ohio Rev. Code Ann. § 3701.034(B)(1) ....................................................... 5, 8
Ohio Rev. Code Ann. § 3701.034(B)(2) ........................................................... 9
Ohio Rev. Code Ann. § 3701.034(B)(3) ....................................................... 8, 9
Ohio Rev. Code Ann. § 3701.034(C) ..................................................... passim
Ohio Rev. Code Ann. § 3701.034(D) ..................................................... passim
iii
Ohio Rev. Code Ann. § 3701.034(E) ..................................................... passim
Ohio Rev. Code Ann. § 3701.034(F) ..................................................... passim
Ohio Rev. Code Ann. § 3701.034(G) ..................................................... passim
Ohio Rev. Code Ann. § 9.04(A)(1) .................................................................. 4
iv
STATEMENT OF INTEREST OF AMICI CURIAE STATES

The district court permanently enjoined an Ohio statute that bans the use of
certain public funds from being “used to . . . [p]erform nontherapeutic abortions.”
Ohio Rev. Code Ann. § 3701.034(B)–(G). Because of this permanent injunction,
those public funds may now be used to perform elective abortions.
Many States, including the amici States (Michigan, Alabama, Arizona,
Arkansas, Indiana, Kansas, Louisiana, Nevada, Oklahoma, South Carolina, South
Dakota, Tennessee, Texas, West Virginia, and Wisconsin), ban the use of public
funds for abortions. E.g., Guttmacher Institute, https://www.gutt-macher.org/
state-policy/explore/state-funding-abortion-under-medicaid (listing 32 States that
forbid the use of federal funds for nontherapeutic abortions). The validity of these
funding bans is the real issue in this case, not Planned Parenthood’s right to
advocate for abortion. After all, it is lawful for Ohio to decide not to fund conduct
(performing abortions) and not to fund entities that engage in that conduct, and
therefore this Court should not reach the hypothetical question whether it would be
also be lawful to deny Planned Parenthood funding based on a separate reason—
Planned Parenthood’s speech promoting abortion.
The amici States file this brief because this case will affect similar
challenges Planned Parenthood may bring against funding bans in their States.
And if this Court somehow reaches the speech issue, the amici States also have an
1
interest in protecting their freedom when engaging in government speech to choose
their own messages and messengers.
STATEMENT OF THE CASE
Ohio’s funding statute covers funds received through six programs: (1) the
Violence Against Women Act, (2) the Breast and Cervical Cancer Prevention Act,
(3) the infertility prevention project, (4) the minority HIV/AIDS initiative, (5) the
infant mortality reduction initiative, and (6) the personal responsibility education
program. Ohio Rev. Code § 3701.034(B)–(G).
For each of these programs, the statute identifies four triggers that cut off
funding. Specifically, the department of health shall ensure that funds received
through the programs “are not used to”:
(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. [§ 3701.034(B); § 3701.034(C)–
(G).]
The district court permanently enjoined Ohio from “enforcing any provision
of Ohio Revised Code § 3701.034 against Plaintiffs and any others similarly
situated.” Op. R. 60, PageID#2144 (emphasis added).
2
ARGUMENT
I. States have no constitutional obligation to fund abortions or to allow

abortion providers to administer state health programs.
This Court is not writing on a blank slate when considering whether the
States have a constitutional obligation to fund abortions. To the contrary, the
Supreme Court has repeatedly “held that the government may ‘make a value
judgment favoring childbirth over abortion, and . . . implement that judgment by
the allocation of public funds.’ ” Rust v. Sullivan, 500 U.S. 173, 192–93 (1991)
(ellipsis in original).
This rule dates back to 1977, just four years after Roe v. Wade, 410 U.S. 113
(1973), when the Supreme Court held, in Maher v. Roe, 432 U.S. 464 (1977), that
the right recognized in Roe v. Wade “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” to fund childbirth but
not abortion. Id. at 474. That same year, in Poelker v. Doe, 432 U.S. 519 (1977)
(per curiam), the Court found “no constitutional violation by the city of St. Louis
in electing, as a policy choice, to provide publicly financed hospital services for
childbirth without providing corresponding services for nontherapeutic abortions.”
Id. at 521.
The Court has followed that rule ever since. It applied this rule again in
Harris v. McRae, 448 U.S. 297 (1980). In McRae, the Court explained that Roe v.
3
Wade’s protection of “a woman’s freedom of choice [ ] did not translate into a
constitutional obligation of [a State] to subsidize abortions,” and so upheld the
federal Hyde Amendment’s ban on abortion funding because it did not “impinge[ ]
on the constitutionally protected freedom of choice recognized in Wade.” Id. at
315, 317. In Webster v. Reproductive Health Services, 492 U.S. 490, 511 (1989),
the Court again reiterated that “the State need not commit any resources to
facilitating abortions.” Id. at 511. And in Rust v. Sullivan, 500 U.S. 173 (1991),
the Supreme Court upheld federal regulations that prohibited the funding of
“ ‘programs where abortion is a method of family planning,’ ” id. at 178 (quoting
42 U.S.C. § 300a-6), because “the Government [was] exercising the authority it
possesses under Maher and [McRae] to subsidize family planning services which
will lead to conception and childbirth, and declining to ‘promote or encourage
abortion,’ ” id. at 193.
What was true in these cases in also true in Ohio’s. Ohio’s funding law
requires its department of health to ensure that funds it receives “are not used to
. . . [p]erform nontherapeutic abortions” or to “[c]ontract with any entity that
performs . . . nontherapeutic abortions.” Ohio Rev. Code § 3701.034(B)–(G); see
also § 3701.034(A)(7) & § 9.04(A)(1) (defining “nontherapeutic abortion” as “an
abortion that is performed or induced when the life of the mother would not be
endangered if the fetus were carried to term or when the pregnancy of the mother
4
was not the result of rape or incest reported to a law enforcement agency”). This
means that the department of health cannot give Planned Parenthood funds to use
to perform abortions and cannot contract with Planned Parenthood to administer
any of the six programs that the statute covers.
The statute’s rule that those public funds may not be used to “[p]erform
nontherapeutic abortions,” e.g., § 3701.034(B)(1), is constitutionally permissible
under Maher and the other cases. Yet despite these controlling precedents, the
district court enjoined Ohio from enforcing “any provision of Ohio Revised Code
§ 3701.034” against Planned Parenthood or “any other similarly situated”—i.e.,
any other abortion providers. Op., R. 60, PageID#2144 (emphasis added).
And the statute’s rule that public funds may not be used to “[c]ontract with
any entity that performs . . . nontherapeutic abortions,” e.g., § 3701.034(B)(3), is
also constitutionally permissible. As the Supreme Court’s cases from Maher to
Rust show, Planned Parenthood has no right to funding to perform abortions: the
right to an abortion does “not translate into a constitutional obligation of [a State]
to subsidize abortions.” McRae, 448 U.S. at 315. And if the right to an abortion
does not create an obligation to subsidize abortions, it is even harder to see how a
right to an abortion could create an obligation to subsidize abortion providers by
having them administer non-abortion health programs. Put simply, the fact that
5
Planned Parenthood performs abortions does not give it a constitutional right to
funding to administer state or federal health programs.
The unconstitutional-conditions doctrine does not change this outcome
because no right to an abortion is being burdened at all—let alone unduly
burdened—by Ohio’s decision about how to allocate public funds. The Supreme
Court has already held that this right, which belongs to women, not to abortion
providers, is not burdened by a State’s decision not to fund abortion: a ban on
funding places “no obstacles absolute or otherwise in the pregnant woman’s path
to an abortion.” Maher, 432 U.S. at 474 (emphasis added); see also id. at 473–74
(focusing on whether there is a “state-created obstacle” and noting that indigency
“is neither created nor in any way affected” by a funding ban); McRae, 448 U.S. at
314 (same).
Further, the facts in this case show that Planned Parenthood will continue to
provide abortions: Planned Parenthood of Greater Ohio, for example, has
conceded that discontinuing its participation in the covered programs will have no
impact on its provision of abortion services. PPGOH Dep., R. 35, p. 251,
PageID#451; see also Hodges Appeal Br. 11 (citing the sealed deposition of
Planned Parenthood of Southwest Ohio for similar admission).
The fact that women encounter no state-created burden at all under the Ohio
statute means that the statute places no condition on the abortion right, and if there
6
is no condition at all, then there cannot be an unconstitutional condition on the
abortion right.
As for abortion providers, they have no constitutional right to perform
abortions, so they are not being asked to (let alone coerced into) giving up any
constitutional right. This is because the “ ‘constitutional right to an abortion’ . . .
protects the woman from unduly burdensome interference with her freedom to
decide whether to terminate her pregnancy.” Maher, 432 U.S. at 473–74
(emphasis added). “[A]ny protection for Planned Parenthood as an abortion
provider is ‘derivative of the woman’s position.’ ” Planned Parenthood of
Indiana, Inc. v. Comm’r of Indiana State Dep’t Health, 699 F.3d 962, 987 (7th Cir.
2012) (quoting Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833,
884 (1992) (plurality opinion)); Planned Parenthood of Mid-Missouri & E.
Kansas, Inc. v. Dempsey, 167 F.3d 458, 464 (8th Cir. 1999) (“Any constitutional
right of clinics to provide abortion services, however, is derived directly from
women’s constitutional right to choose abortion.”); Women’s Cmty. Health Ctr. of
Beaumont, Inc. v. Texas Health Facilities Comm’n, 685 F.2d 974, 982 (5th Cir.
1982) (“[W]hatever constitutional claims the [abortion-providing medical facility]
may have under Roe v. Wade must derive from the rights of women.”). And there
is no need for any derivative protection for abortion providers when, as Planned
7
Parenthood itself concedes, women will not experience any diminished access to
abortion even if Planned Parenthood receives no funds as a result of Ohio’s statute.
In fact, the panel here made the provider’s substantive-due-process right
even stronger than the woman’s right. Although a woman’s right extends only to
freedom from an “undue burden,” Whole Woman’s Health v. Hellerstedt, 136 S.
Ct. 2292, 2309 (2016), the panel concluded that the provider’s right was violated
without examining whether even one woman had actually suffered any burden at
all on her right to an abortion. And the fact that the panel concluded the provider’s
right could be violated even if no woman’s right to an abortion was burdened
shows that the panel’s approach would create a right that is separate and
independent of the woman’s right, not derivative of the woman’s right.
In sum, because an abortion provider does not have a constitutional right
(1) to perform an abortion, (2) to receive funding for an abortion, or (3) to
administer any health program for a State, nothing in the Constitution bars a State
from deciding to bar an abortion provider from administering its health programs.
II. The Court should not reach the speech issue because the conduct issue
fully resolves this case.
Because Planned Parenthood performs abortions, it cannot clear the conduct-
based hurdles of § 3701.034(B)(1) or (B)(3) or the identical hurdles in paragraphs
(C), (D), (E), (F), and (G). And since it cannot meet those requirements, the other
8
barriers Planned Parenthood complains about—i.e., the ban on using the funds to
“[p]romote nontherapeutic abortions” or to “[c]ontract with any entity that . . .
promotes nontherapeutic abortions,” § 3701.034(B)(2), (B)(3) (emphasis added)—
are legally irrelevant in this case. Put simply, even if Planned Parenthood
completely stopped engaging in any speech promoting abortions, it still would not
qualify for funding because of its abortion conduct. And that means that the
speech issue in this case is purely academic, and any analysis of that issue would
be advisory. E.g., Spector Motor Service, Inc. v. McLaughlin, Tax Com’r, 323
U.S. 101, 105 (1944) (“If there is one doctrine more deeply rooted than any other
in the process of constitutional adjudication, it is that we ought not to pass on
questions of constitutionality . . . unless such adjudication is unavoidable.”);
Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (listing
numerous applications of the doctrine beyond merely choosing between competing
interpretations of statutory text); McRae, 448 U.S. at 307.
III. If the Court were to reach the speech issue, it should recognize that
Ohio is allowed to express its viewpoint and to choose its spokesperson
when engaging in government speech.
The six programs at issue involve government speech, not private speech.
For example, the grant under the Violence Against Women Act is “for the purpose
of education,” § 3701.034(B), and the “personal responsibility education program”
is also, as its name indicates, for education, § 3701.034(G). Similarly, the infant
9
mortality reduction initiative includes “public education about infant mortality”
and “better birth outcomes.” Ohio Dep’t of Health, https://www.odh.ohio.gov/-
/media/ODH/ASSETS/Files/cfhs/child-and-family-health-services/infant-
mortality-task-force/ocpimfactsheet-hospital.pdf?la=en. Ohio’s STD Prevention
Program also includes education. Ohio Dep’t of Health, http://www.odh.ohio.gov/
odhprograms/bid/stdprev/stdprev.aspx. Further, Ohio has a clear policy, set out in
law, about the viewpoint it wants to promote in conjunction with these programs: it
does not want to promote abortion. § 3701.034(B)–(G). And in any of these
programs, Ohio faces the risk that Planned Parenthood, though serving as Ohio’s
agent in administering its programs, might decide to promote abortion. See, e.g.,
Hodges Appeal Br. 14 (discussing examples from a sealed deposition where a
Planned Parenthood representative admitted that a patient coming for services
relating to the Breast and Cervical Cancer Project or the STD Prevention Program
might also receive what Planned Parenthood calls “options counseling” and so
walk away with a list of abortion providers).
The fact that these programs involve government speech matters to the First
Amendment analysis because “[t]he Free Speech Clause restricts government
regulation of private speech; it does not regulate government speech.” Pleasant
Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009) (emphasis added). “[T]he
Government’s own speech . . . is exempt from First Amendment scrutiny.”
10
Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005). The reason for this
exemption is “that it is the democratic electoral process that first and foremost
provides a check on government speech.” Walker v. Texas Div., Sons of
Confederate Veterans, Inc., 135 S. Ct. 2239, 2245 (2015). “Thus, government
statements (and government actions and programs that take the form of speech) do
not normally trigger the First Amendment rules designed to protect the
marketplace of ideas.” Id. at 2245–46 (emphasis added).
As the Supreme Court recently explained in Walker, “[w]ere the Free
Speech Clause interpreted otherwise, government would not work.” Id. at 2246.
In fact, one of the examples the Court offered in Walker to illustrate that point has
to do with health programs: “How could a state government effectively develop
programs designed to encourage and provide vaccinations, if officials also had to
voice the perspective of those who oppose this type of immunization?” Id. That
reasoning applies equally here: How could a state government effectively promote
childbirth through programs relating to sex, health, and childbirth, if those
administering the program on behalf of the State include the leading voice for
those who promote abortion? And “[t]he fact that private parties take part in the
design and propagation of a message does not extinguish the governmental nature
of the message or transform the government’s role into that of a mere forum
provider.” Id. at 2243.
11
As these cases show, the government is allowed to choose a viewpoint.
Freedom from Religion Found., Inc. v. City of Warren, Mich., 707 F.3d 686, 690
(6th Cir. 2013) (“[T]he First Amendment does not prohibit a government from
making content or viewpoint distinctions when it comes to its own speech.”). It is
a necessary corollary that if the government is allowed to choose a viewpoint, it
must be allowed to choose the agent who will convey that viewpoint. If it can
choose the message, it can also choose the messenger. As the Supreme Court has
explained, citing Rust, “[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 Virginia, 515 U.S. 819, 833 (1995).
And what could be a more legitimate and appropriate step to keep one’s message
from being garbled than to decide not to choose a speaker who spends much of its
time communicating the opposite message?
The fact that this case involves government speech means that no private
party is giving up any right to free speech. All that Planned Parenthood is losing
by being excluded from these programs is an opportunity to be the government’s
mouthpiece. Planned Parenthood remains free outside of these government-speech
programs to express its views on any topic, including abortion. And this case is
not like Agency for International Development v. Alliance for Open Society
12
International, Inc., 133 S. Ct. 2321 (2013), where a federal statute required an
organization to “have a policy explicitly opposing prostitution and sex trafficking”
to participate in the program, id. at 2324; Ohio does not require those who would
participate in these programs to adopt any explicit policy of any sort. Ohio does
not, in short, compel any speech from Planned Parenthood: it does not require
those administering the six programs to say that they oppose abortion. Cf. Agency
of Int’l Dev., 133 S. Ct. at 2332 (addressing a program that required participants
“to pledge allegiance to the Government’s policy”). Instead, Ohio is merely
exercising its freedom to choose to have someone other than Planned Parenthood
be its spokesperson in, for example, its infant mortality reduction initiative.
CONCLUSION AND RELIEF REQUESTED

The Court should reverse the district court and direct it to issue final
judgment for Director Hodges.
Respectfully submitted,
Bill Schuette
Michigan Attorney General
/s/ Aaron D. Lindstrom

Solicitor General
Counsel of Record
P.O. Box 30212, Lansing, MI 48909
517-241-8403
Attorneys for Amicus Curiae
Dated: July 27, 2018 State of Michigan
13
Steven T. Marshall Adam Paul Laxalt

Attorney General Attorney General
State of Alabama State of Nevada
501 Washington Ave. 100 N. Carson St.
P.O. Box 300152 Carson City, NV 89701
Montgomery, AL 36130
Mike Hunter
Mark Brnovich Attorney General
Attorney General State of Oklahoma
State of Arizona 313 N.E. 21st St.
1275 W. Washington St. Oklahoma City, OK 73105
Phoenix, AZ 85007
Alan Wilson
Leslie Rutledge Attorney General
Attorney General State of South Carolina
State of Arkansas P.O. Box 11549
323 Center St., Ste. 200 Columbia, SC 29211
Little Rock, AR 72201-2610
Marty J. Jackley
Curtis T. Hill, Jr. Attorney General
Attorney General State of South Dakota
State of Indiana 1302 E. Highway 14, Ste. 1
200 W. Washington St., Rm. 219 Pierre, SD 57501-8501
Indianapolis, IN 46204
Herbert H. Slatery III
Derek Schmidt Attorney General and Reporter
Attorney General State of Tennessee
State of Kansas 301 6th Ave. N.
120 S.W. 10th Ave., 2nd Fl. Nashville, TN 37243
Topeka, KS 66612-1597
Ken Paxton
Jeff Landry Attorney General
Attorney General State of Texas
State of Louisiana P.O. Box 12548
P.O. Box 94005 Austin, TX 78711-2548
Baton Rouge, LA 70804
14
Patrick Morrisey Brad Schimel

Attorney General Attorney General
State of West Virginia State of Wisconsin
State Capitol, Bldg. 1, Rm. E-26 P.O. Box 7857
Charleston, WV 25305 Madison, WI 53707-7857
15
CERTIFICATE OF COMPLIANCE
Certificate of Compliance with Type-Volume Limitation, Typeface
Requirements, and Type Style Requirements
1. While there is no court rule setting a length requirement for amicus
briefs at the en banc merits stage, this amicus brief complies with the principle in
Federal Rule of Appellate Procedure 29(a)(5) because this brief contains is less
than half of the length authorized in this Court’s briefing letter for the party’s
principal briefs, excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii).
The brief is 12.5 pages long.
2. This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type style requirements of Rule 32(a)(6)
because this brief has been prepared in a proportionally spaced typeface using
Word 2013 in 14-point Times New Roman.
/s/Aaron D. Lindstrom
Solicitor General
Co-Counsel of Record
P.O. Box 30212
Lansing, MI 48909
517-241-8403
16
CERTIFICATE OF SERVICE
I certify that on July 27, 2018, the foregoing document was served on all
parties or their counsel of record through the CM/ECF system if they are registered
users or, if they are not, by placing a true and correct copy in the United States
mail, postage prepaid, to their address as indicated on the ECF system.
/s/Aaron D. Lindstrom
Solicitor General
Co-Counsel of Record
P.O. Box 30212
Lansing, MI 48909
517-241-8403
17

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Case: 16-4027 Document: 87 Filed: 08/03/2018 Page: 1

Planned Parenthood of Greater Ohio, et al,

Appeal from the United States District Court

EN BANC BRIEF OF AMICI CURIAE STATES OF MICHIGAN,

Attorneys for Amicus Curiae

Table of Authorities .................................................................................................. ii

Statement of Interest of Amici Curiae States.............................................................1

Statement of the Case.................................................................................................2

Conclusion and Relief Requested ............................................................................13

Certificate of Compliance ........................................................................................16

Agency for International Development v. Alliance for Open Society

Freedom from Religion Found., Inc. v. City of Warren, Mich.,

Johanns v. Livestock Mktg. Ass’n,

Planned Parenthood of Se. Pennsylvania v. Casey,

Pleasant Grove City, Utah v. Summum,

Rosenberger v. Rector & Visitors of Univ. of Virginia,

Spector Motor Service, Inc. v. McLaughlin, Tax Com’r,

Walker v. Texas Div., Sons of Confederate Veterans, Inc.,

Whole Woman’s Health v. Hellerstedt,

42 U.S.C. § 300a-6 ........................................................................................ 4

Ohio Rev. Code Ann. § 3701.034(A)(7) ........................................................... 4

Ohio Rev. Code Ann. § 3701.034(B) ..................................................... passim

Ohio Rev. Code Ann. § 3701.034(B)(1) ....................................................... 5, 8

Ohio Rev. Code Ann. § 3701.034(B)(2) ........................................................... 9

Ohio Rev. Code Ann. § 3701.034(B)(3) ....................................................... 8, 9

Ohio Rev. Code Ann. § 3701.034(C) ..................................................... passim

Ohio Rev. Code Ann. § 3701.034(D) ..................................................... passim

Ohio Rev. Code Ann. § 3701.034(E) ..................................................... passim

Ohio Rev. Code Ann. § 3701.034(F) ..................................................... passim

Ohio Rev. Code Ann. § 3701.034(G) ..................................................... passim

Ohio Rev. Code Ann. § 9.04(A)(1) .................................................................. 4

STATEMENT OF INTEREST OF AMICI CURIAE STATES

certain public funds from being “used to . . . [p]erform nontherapeutic abortions.”

Ohio Rev. Code Ann. § 3701.034(B)–(G). Because of this permanent injunction,

those public funds may now be used to perform elective abortions.

Many States, including the amici States (Michigan, Alabama, Arizona,

Arkansas, Indiana, Kansas, Louisiana, Nevada, Oklahoma, South Carolina, South

funds for abortions. E.g., Guttmacher Institute, https://www.gutt-macher.org/

state-policy/explore/state-funding-abortion-under-medicaid (listing 32 States that

also be lawful to deny Planned Parenthood funding based on a separate reason—

Planned Parenthood’s speech promoting abortion.

interest in protecting their freedom when engaging in government speech to choose

their own messages and messengers.

STATEMENT OF THE CASE

program. Ohio Rev. Code § 3701.034(B)–(G).

through the programs “are not used to”:

(1) Perform nontherapeutic abortions;

(2) Promote nontherapeutic abortions;

(3) Contract with any entity that performs or promotes nontherapeutic

situated.” Op. R. 60, PageID#2144 (emphasis added).

I. States have no constitutional obligation to fund abortions or to allow

States have a constitutional obligation to fund abortions. To the contrary, the

judgment favoring childbirth over abortion, and . . . implement that judgment by

the right recognized in Roe v. Wade “implies no limitation on the authority of a

State to make a value judgment favoring childbirth over abortion, and to

in electing, as a policy choice, to provide publicly financed hospital services for

childbirth without providing corresponding services for nontherapeutic abortions.”

Wade’s protection of “a woman’s freedom of choice [ ] did not translate into a

constitutional obligation of [a State] to subsidize abortions,” and so upheld the

on the constitutionally protected freedom of choice recognized in Wade.” Id. at

“ ‘programs where abortion is a method of family planning,’ ” id. at 178 (quoting

42 U.S.C. § 300a-6), because “the Government [was] exercising the authority it

will lead to conception and childbirth, and declining to ‘promote or encourage

abortion,’ ” id. at 193.