Republicans in the Ohio Legislature will again seek to remove Planned Parenthood as a recipient of state and federal funds that support family planning and basic health providers for women in Ohio. Back in April, Gary Dougherty, State Legislative Director for Planned Parenthood Affiliates of Ohio, wrote a Guest Post on the effect such cuts to will have on women. Go back and read it; everything he said then remains true.
We suggested back in February that a bill to defund Planned Parenthood was unconstitutional. Since then, bad news: a Federal Appeals Court in Texas reversed a lower court decision finding that the cuts were unconstitutional.
However, a Federal Appeals Court in Indiana held that a similar attempt in Indiana violated Federal law. Planned Parenthood successfully argued that the defunding law violates the Medicaid Act’s “free choice of provider” provision, which requires state Medicaid plans to allow patients to choose their own medical provider. The court explained that under the federal law, a state “does not have plenary authority to exclude a class of providers for any reason—more particularly, for a reason unrelated to provider qualifications.” In other words, the state cannot remove Planned Parenthood from the list of providers for non-abortion related services for a reasons that have nothing to do with its ability to provide such services.
The practical effect of these decisions – if they stand after a possible Supreme Court review – is to give Ohio a choice. Ohio can defund Planned Parenthood, but only if Ohio refuses to accept federal family planning money under Medicaid. This means that Ohio would give up about $9.8 used to provide family planning and other preventative services – including cancer screenings – to Ohio women.
DirtGirl noted that the Republicans in the Legislature will seek to pass some versipon of the “heartbeat bill” to restrict abortions after a heartbeat is detected. She notes that this bill is “plainly unconstitutional.” Not much discussion necessary on that one. Even Senate President Niehaus has conceded this point.
DirtGirl then suggests that “will emerge will be “informed consent” legislation that — rather than banning abortion after a heartbeat is detected — forces a woman to listen to, or watch, the fetal heart beating.”
This, too, is likely unconstitutional. Compelling the physician to make audible the heartbeat of the fetus violates the First Amendment rights of physicians by compelling them to convey the state’s message. Crucial to this view is that the audible heartbeat serves no medical purpose, so the law is intended only to discourage the abortion. In some cases, courts have upheld heightened “informed consent” requirements for women seeking an abortion. For example, in Casey – which re-affrimed Roe – the Supreme Court upheld a law that required an abortion provider to inform women seeking an abortion of the relevant health risks and the “probable gestational age of the unborn child.” In a later decision, Gonzales v. Carhart, the Supreme Court held that the state “may use its voice and regulatory authority to show its profound respect for the life within the woman” without violating the First Amendment.
What makes this different? The informed consent laws upheld by the Supreme Court did not impose an undue burden on a woman’s right to have an abortion and only, in the Court’s view, required the disclosure of truthful, non-misleading, and relevant information. A bill along the lines described by DirtGirl goes too far by requiring the provision of medically unnecessary, and therefore irrelevant, information to women.
Putting aside that these bills are bad policy, at a minimum, these bills will result in hundreds of thousands of dollars in legal bills to the State as it seeks to defend this ideologically driven legislation. It really shows where Republican priorities are these days.