Today the federal Sixth Circuit Court of Appeals issued its decision in Planned Parenthood of Greater Ohio vs. Hodges. This decision applies to the sixth federal circuit, which consists of the states of Kentucky, Michigan, Ohio and Tennessee.
More details below but here is the key Sixth Circuit holding: abortion providers do not have a due process or other constitutional right to provide abortions. This is a ruling entirely separate from the existing law under Roe, which is that women seeking abortions have a constitutional right to obtain them. This decision sets up a split among the circuits, since in 2016 the Tenth Circuit came to the opposite conclusion in similar circumstances, holding that an abortion provider did have a constitutional right to perform abortions, ancillary to the constitutional rights of women seeking abortions.
A split between federal circuits is one of the main ways to get a case in front of the Supreme Court. If the Supreme Court agrees with the Sixth Circuit, it could create a large loophole in the accessibility to abortion. Instead of passing various laws designed to interfere with the women themselves, anti-abortion legislatures could instead pass laws in a variety of areas designed to de-fund non-abortion funds from any organization that provides abortions. It would also open the door to other fiscal and regulatory efforts to impede these providers. In the past such efforts have been struck down, but this case may offer the Supreme Court the opportunity to declare open season on abortion providers.
The facts of this case are relatively simple: the Ohio legislature passed a law that said the Ohio Department of Health was not allowed to provide funding in many non-abortion areas to any organization that provides elective abortions. Examples of such withheld funding were funds to reduce infant mortality, and funds to prevent/treat breast cancer.
Planned Parenthood had been receiving such funds, and sued in federal court to enjoin the Ohio law from taking effect. They won. On appeal, the initial panel of judges for the Ohio Sixth Circuit upheld Planned Parenthood’s victory. However, that court then heard the case again, this time “en banc” (meaning all of 17 of the court’s judges heard it at the same time). The result was today’s decision.
Whether Planned Parenthood will appeal to the Supreme Court is an open question. I think if they did, there’s a very good chance the Supreme Court would hear the case in order to resolve the conflict. Given the current composition of that court, however, Planned Parenthood may not want to risk the chance of losing and having the highest court issue an opinion that expands the Sixth Circuit’s position to the entire country.