Ohio Republicans must believe that there is not enough work for lawyers. How else to explain passing a bill that almost certainly won’t withstand a court challenge?
Yesterday, hearings were scheduled on a bill ( HB298) in the Ohio Legislature to strip funding from Planned Parenthood. According to news reports, the “bill re-prioritizes how federal funding for family-planning services is distributed by the state. Money must first be made available to public clinics, then private entities that provide comprehensive primary- and preventative-care services in addition to family-planning services, and finally to groups like Planned Parenthood. Such a pecking order essentially cuts off aid to Planned Parenthood.”
This bill is almost certainly unconstitutional. This is because the bill violates the Free Speech, Association, and Due Process rights of Planned Parenthood by punishing the group for advocating for abortion rights or by providing constitutionally protected abortion services. The government cannot enact a law aimed at the view point of a particular group.
This issue came up in Kansas. The Kansas Legislature did what the Ohio Republicans are trying to do: Kansas passed a law allocating federal family planning dollars first to public health departments and hospitals, leaving no money for Planned Parenthood or similar groups. Planned Parenthood sued in federal court, claiming that the statute has the effect of violating its constitutional rights by discriminating against it based upon its participation in protected activity.
A federal judge agreed and blocked the implementation of the law. You can read his opinion here. The federal judge in Kansas concluded that Planned Parenthood was denied funding “precisely because of Planned Parenthood’s otherwise legal and constitutionally-protected conduct.” The law was unconstitutional because of this “punitive aspect of the statute” and because the statute was enacted “for an improper, discriminatory purpose.”
There’s more. The bill also violates federal law. As this Memorandum from the DHS explains, federal funding of abortion services is already not permitted under federal law except in extraordinary circumstances. However, Medicaid and other federal laws provide that service providers like Planned Parenthood may not be excluded from funding simply because they separately provide abortion services.
In conclusion, grandstanding in politics is part of the process. We love good political theater and hearings. But (like the Attorney General’s lame federal lawsuit against the contraception provider rules under the ACA), we wish Ohio Republicans would stop wasting the state’s resources on lawyers by passing laws that will almost certainly be struck down as unconstitutional.