'Defund Planned Parenthood' law struck down in Ohio is similar to Tennessee's

A federal appeals court has struck down as constitutionally flawed an Ohio law that shares language and intent — “defunding Planned Parenthood” — with a law recently enacted in Tennessee.

The 6th Circuit U.S. Court of Appeals this week ruled the government can’t ban a provider of health services from state or federal money solely because it offers abortion counseling or elective abortions.

In Tennessee:Senate votes to ban TennCare funds from health care providers that perform elective abortions

The ruling came in a challenge by Planned Parenthoods of Greater Ohio and the Southwest Ohio Region to an Ohio law that barred abortion providers from state funds that went toward services that had nothing to do with abortion.

“Although the government has no obligation to subsidize constitutionally protected activity, it may not use its control over funds to curtail the exercise of constitutionally protected rights outside the scope of a government-funded program,” 6th Circuit Judge Helene N. White wrote in the opinion.

The 6th Circuit has jurisdiction over cases in Tennessee, too.

Court: Right not to pay limited

The court ruled that government long has had the right to bar state and federal money from being used to pay for abortion services, but that right stops there.

Citing an earlier decision on the same issue, White wrote that a “substantial constitutional question would arise if Congress had attempted to withhold all Medicaid benefits from an otherwise eligible candidate simply because that candidate had exercised her constitutionally protected freedom to terminate her pregnancy by abortion.”

Tennessee law borrows words

Lawmakers in Tennessee earlier this year passed a law House sponsor Rep. Jimmy Matlock, R-Lenoir City, said “defunded Planned Parenthood.”

Gov. Bill Haslam signed it into law earlier this month.

That law doesn’t defund Planned Parenthood. The law directs the state’s finance director to get a waiver from the federal government so the TennCare chief can then bar health service providers such as Planned Parenthood from receiving payments under the state’s TennCare insurance program for the poor.

But the 6th Circuit ruling makes clear government can’t keep Planned Parenthood and other health care clinics that also provide abortion counseling and abortions from being paid with government money for services that do not involve either abortion counseling or elective abortions.

The court noted such health care clinics also provide affordable reproductive health services, including examinations and birth control, to low-income women.

“Although Ohio women do not have a right to the programs, they do have a right not to have their access to important health services curtailed because their major abortion providers opted to protect women’s abortion rights rather than yield to unconstitutional conditions,” the opinion stated.

Matlock, who is running for Congress, used wording in the preamble of his bill that is identical to that used in the Ohio law and to language being pushed by anti-abortion lobbying groups across the nation.

“It is the policy of this state to favor childbirth and family planning services that do not include elective abortions or the promotion of elective abortions within the continuum of care or services and to avoid the direct or indirect use of state funds to promote or support elective abortions,” that language states.

Matlock: 'Regulatory environment' different

When asked for comment just off the floor of state House chamber on Thursday, Matlock instead sent an emailed statement to the USA TODAY NETWORK - Tennessee. 

In the statement, Matlock said there were differences between the Ohio and Tennessee versions of the law. He did not cite any legal cases or legal authority to support that conclusion.

“The law I just passed is based on new federal regulations passed under the Trump Administration. The two laws were passed under totally different federal regulatory environments,” the statement read.

The Tennessee Attorney General’s office said Thursday Attorney General Herbert S. Slatery III had not been asked to issue an opinion on whether the bill sponsored by Matlock was constitutionally sound. The office declined to say whether Slatery is reviewing the 6th Circuit’s ruling to determine if it affects the validity of Tennessee’s law.

Spokeswoman Leigh Ann Apple Jones cited “attorney-client privilege and/or legal strategy” as cause for Slatery’s silence on the ruling.

Jennifer Donnals, spokeswoman for Gov. Haslam, pointed out that the Tennessee law itself does not — despite claims to the contrary by the bill’s sponsor — bar Planned Parenthood or other similar health care providers from getting state money. She said the governor is reviewing the decision.

“We are still reviewing the 6th Circuit’s decision but note that the Ohio law in that case is different than HB2251, which just directs the state to submit a waiver to the federal government for approval,” she said.

Politics of abortion:Diane Black vs. Planned Parenthood: Congresswoman's record is complicated

'Breaking' news

Matlock is running for the 2nd Congressional District seat currently held by U.S. Rep. John J. Duncan Jr., R-Knoxville, who has decided to step down. He said on his campaign website the law defunded Planned Parenthood.

“Breaking: Jimmy Matlock defunds Planned Parenthood in Tennessee,” the website stated.

The website later clarified Matlock's bill only sought a waiver to try to ban Planned Parenthood from being a TennCare provider.

According to the website, Matlock received political support from an anti-abortion group after sponsoring the bill.

“Matlock just received the first major endorsement in the race for United States Congress from the nation’s top conservative family values, religious liberty and pro-life group, Family Research Council Action PAC,” the website stated.

Ohio officials said they may ask for another shot at arguing their case via what’s known as an en banc hearing, in which the full panel of justices weigh the arguments rather than the traditional three-judge panel.

Jordan Buie contributed to this report.