Sutton Jeffrey S. Sutton of the United States Court of Appeals for the Sixth Circuit. (Photo: Diego M. Radzinschi/ALM)

A split en banc ruling from the U.S. Court of Appeals for the Sixth Circuit has cleared the way for Ohio to cut funding to health care groups that provide abortions.

Tuesday’s 11-6 ruling in a case brought by Planned Parenthood in Ohio overturns a unanimous three-judge panel and a district court, which had found an Ohio law meant to prevent funding from going to groups that provide or promote abortions was unconstitutional. But the en banc panel on Monday found there is no constitutional violation, since there is no due process right to perform abortions.

Judge Jeffrey Sutton wrote the majority opinion holding that Ohio’s law “will not create an undue burden on a woman’s right to an abortion.”

“Private organizations do not have a constitutional right to obtain governmental funding to support their activities,” Sutton wrote. “The state also may choose not to subsidize constitutionally protected activities. Just as it has no obligation to provide a platform for an individual’s free speech, say a Speaker’s Corner in downtown Columbus, it has no obligation to pay for a woman’s abortion. Case after case establishes that a government may refuse to subsidize abortion services.”

“The Supreme Court has never identified a freestanding right to perform abortions,” Sutton continued. “To the contrary, it has indicated that there is no such thing. … Medical centers do not have a constitutional right to offer abortions. Yet, if we granted Planned Parenthood relief today, we would be effectively saying that they do.”

In the dissent, Judge Helene White said the majority failed to apply a recent U.S. Supreme Court doctrine prohibiting the government from imposing a condition on funds if those conditions violate the Constitution if enacted as a regulation and if they affect protected conduct outside the scope of a government program.

“The majority’s novel rule gives the government the authority to impose almost any condition it wants on abortion providers so long as the providers continue to perform abortions,” White wrote. “The government acknowledged as much at oral argument. This type of assault on a constitutional right is precisely the type of harm the unconstitutional-conditions doctrine is meant to protect against.”

Wilmer Cutler Pickering Hale and Dorr’s Alan Schoenfeld argued for the Planned Parenthood affiliates, and Stephen Carney, of the Ohio attorney general’s office, represented the state. Ohio state solicitor Eric Murphy, recently confirmed to the Sixth Circuit, also was on the team defending Ohio. U.S. Justice Department appellate lawyer Hashim Mooppan, appearing in support of Ohio, argued for the U.S. government as an amicus.

The Ohio case is almost assured to go up to the U.S. Supreme Court. In December, the Supreme Court declined to review two appellate court decisions blocking state efforts to deny public funding to Planned Parenthood chapters.

The two cases from Kansas and Louisiana—Andersen v. Planned Parenthood of Kansas & Mid-Missouri and Gee v. Planned Parenthood of Gulf Coast—involved the Medicaid Act’s “qualified provider” provision and whether it created a right to challenge a state’s decision that a provider is “not qualified” under state regulations. The two states had terminated their Medicaid provider agreements with the Planned Parenthood affiliates.

The Fifth and Tenth circuits ruled against the states.

The Supreme Court denied review without comment, but Justice Clarence Thomas dissented. Thomas, joined by justices Samuel Alito Jr. and Neil Gorsuch, accused his colleagues of “abdicating” their judicial duty because of the cases’ abortion connection.

“Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty,” Thomas wrote, noting the legal issue has nothing to do with abortion. “If anything, neutrally applying the law is all the more important when political issues are in the background.”

Marcia Coyle contributed to this report.

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