Appeals Court Vacates Injunction Barring Texas Refusal to Fund Planned Parenthood

The Fifth Circuit Court of Appeals has vacated the injunction that protected Planned Parenthood’s participation in Texas Women’s Health Program (WHP). In a unanimous ruling, the three-member panel held that Planned Parenthood should not have been granted a preliminary injunction because it was not likely to succeed on the merits of the case. The district court erred because it struck down the Texas regulations as a whole rather than considering whether any of the provisions might be constitutionally permissible.

The appeals court rejected the district court’s ruling that the regulations violated Planned Parenthood’s First Amendment rights. A restriction on speech as a condition of receiving funding may be constitutional if the government could regulate the grant recipient’s conduct directly. And Texas was free to regulate its coverage of family planning.

Under the regulations, a facility “promotes abortion” if it advocates or popularizes elective abortion, for example, by advertising or publicity of its services as a licensed abortion facility. The court found this restriction permissible based on a 1991 Supreme Court decision, Rust v. Sullivan, that upheld federal regulations denying funding to clinics that advocated abortion as a method of family planning. Reasoning that when government subsidizes speech, it is the speaker, the Supreme Court had ruled that the government could disfavor abortion and limit its subsidies of speech related to family planning to entities that did not advocate abortion. Therefore, the court ruled,Texas may advance its interest in discouraging elective abortions by refusing to fund entities that “promote abortion”or use a trademark of an entity that promotes abortion. The state may subsidize the speech it favors and refuse to subsidize the speech with which it disagrees.

The court then considered the regulation that barred funding of affiliates of organizations that promote abortion. Under the regulation, an”affiliate” is an entity with common ownership, management or control, a franchise, or an entity with authorization to use an identifying mark, such as a trademark or service mark. Reasoning that a shared identifying mark shared the message of the owner, the court upheld the prohibition of funding of entities that use a mark belonging to an entity that could not itself receive WHP funding.

The court acknowledged that other, more conventional definitions of “affiliate” in the Texas regulations were “problematic” because they did not regulate the content of a government program. Speech carried out by a related organization is not speech within the content of the government program, the court stated. However, it would not consider the constitutionality of the regulations in that context or corporate relationships. Because the district court struck down the regulations in their entirety, and the appeals court had ruled that the individual provisions of the regulation must be considered separately, the district court was directed to do so and to reconsider the preliminary injunction on that limited basis.

The Fifth Circuit also addressed the district court’s ruling that the regulations violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The regulations allowed funding of healthcare providers affiliated with hospitals that promoted abortion, but not providers affiliated with clinics. The district court had held that the regulation infringed freedom of speech and applied strict scrutiny. It had ruled the regulations were invalid because they were not necessary to serve a compelling government interest. Having ruled that the regulations did not affect freedom of speech, the appeals court would not apply strict scrutiny. Instead, it directed the district court to consider whether the provisions of the regulation that barred funding of entities affiliated by franchise or common ownership, management or control were constitutional.