Planned Parenthood of Kansas and Mid-Missouri v. Brownback et al

Filing 39

MEMORANDUM AND ORDER granting 4 plaintiff's Motion for Preliminary Injunction. Signed by District Judge J. Thomas Marten on 8/1/2011. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

PLANNED PARENTHOOD
OF KANSAS AND MID -MISSOURI,
Plaintiff,

vs.

Case No. 11-2357-JTM

SAM BROWNBACK , GOVERNOR OF KANSAS,
AND

ROBERT MOSER, M.D., SECRETARY ,
KANSAS DEPARTMENT OF HEALTH
AND ENVIRONMENT ,
Defendants.

MEMORANDUM AND ORDER

Plaintiff Planned Parenthood of Kansas and Mid-Missouri has filed the present
action seeking to prevent the application and enforcement of recent Kansas legislation
which has the effect of excluding Planned Parenthood from successfully applying with the
state Kansas Department of Health and Environment (KDHE) for federal Title X family
planning funding. The defendants in the action are Sam Brownback, Governor of Kansas,
and Dr. Robert Moser, the Secretary of KDHE.

The provision in question, Section 107(l) of H.B. 2014, 84th Leg. (Kan. 2011), provides
that KDHE subgrants are exclusively prioritized to public entities, and second, to hospitals
or federally-qualified health centers (FQHCs). As Planned Parenthood is a private entity
which is neither a hospital nor a FQHC, it cannot successfully apply with KDHE to receive
Title X funds. Planned Parenthood argues that the statute violates its rights under 42 U.S.C.
§ 1983 on two grounds. First, it argues that the provision is invalid under the Supremacy
Clause, as it creates an additional eligibility requirement which is inconsistent with federal
law. Second, it contends that the statute has the effect of violating its constitutional rights
by discriminating against it based upon its participation in protected activity.

Findings of Fact
Title X
Title X, 42 U.S.C. §§ 300 et seq., is a federal program that funds low-cost family
planning services. Title X was enacted in 1970 as part of the Public Health Service Act with
the specific intent of providing access to family planning services to low-income or
uninsured women and families, including those ineligible for Medicaid. Patients of Title X
providers make payments on a sliding fee scale, based on their resources. Family planning
projects are designed to provide “services necessary to aid individuals to determine freely
the number and spacing of their children.” 42 C.F.R. § 59.1. Under 42 C.F.R. § 59.3, “[a]ny

2

public or nonprofit entity in a State” is eligible to apply for Title X funds.
Title X funds are granted by the United States Department of Health and Human
Services to “public or nonprofit entities.” 42 U.S.C. § 300(a). The grantee for the State of
Kansas is the KDHE, which uses those funds for its Family Planning Services Program.
KDHE does not provide the clinical services itself, but subgrants those funds to providers
of family planning services, like Planned Parenthood.
Specifically, 42 U.S.C. § 300 provides:
(a) Authority of Secretary
The Secretary is authorized to make grants to and enter into contracts with
public or nonprofit private entities to assist in the establishment and
operation of voluntary family planning projects which shall offer a broad
range of acceptable and effective family planning methods and services
(including natural family planning methods, infertility services, and services
for adolescents). To the extent practical, entities which receive grants or
contracts under this subsection shall encourage familiy [sic] participation in
projects assisted under this subsection.
(b) Factors determining awards; establishment and preservation of rights
of local and regional entities.
In making grants and contracts under this section the Secretary shall take
into account the number of patients to be served, the extent to which family
planning services are needed locally, the relative need of the applicant, and
its capacity to make rapid and effective use of such assistance. Local and
regional entities shall be assured the right to apply for direct grants and
contracts under this section, and the Secretary shall by regulation fully
provide for and protect such right.

3

Under 42 C.F.R. § 59.3, in response to the question “Who is eligible to apply for a
family planning services grant?,” HHS regulations answer: “Any public or nonprofit
private entity in a State may apply for a grant under this subpart.” Further, HHS has
developed Program Guidelines Title X projects which provides that that services “may be
offered by grantees directly and/or by delegate/contract agencies operating under the
umbrella of the grantee.” Dept. of HHS, Office of Publ. Health & Sci., PROGRAM GUIDELINES
FOR

PROJECT GRANTS

FOR

FAMILY PLANNING SERVICES (2001), ¶ 6.1, p. 6 (2001). These

Program Guidelines also set forth broad eligibility standards similar to those in the Public
Health Service Act and HHS regulations, providing that “[a]ny public or nonprofit private
entity located in a state ... is eligible to apply for a Title X family planning services project
grant.” Id. at ¶ 3.1, p. 2.
Neither the Title X statute nor any federal regulation imposes any additional service
requirements on entities that receive Title X funds, including mandating the type of
provider that they must be, or the services that they provide outside of those offered as
part of the Title X program. 42 U.S.C. § 300(b) sets forth the factors which are to be used by
the Secretary of HHS in granting awards:
In making grants and contracts under this section the Secretary shall take
into account the number of patients to be served, the extent to which family
planning services are needed locally, the relative need of the applicant, and
its capacity to make rapid and effective use of such assistance. Local and
regional entities shall be assured the right to apply for direct grants and
contracts under this section, and the Secretary shall by regulation fully
4

provide for and protect such right to apply for direct grants and contracts
under this section, and the Secretary shall by regulation fully provide for and
protect such right.
These factors do not include whether the grant or contract applicant performs a widevariety of hosptital-type services not related to family planning.
Similarly, 42 C.F.R. § 59.5 sets the miniumum requirements for family planning
projects under Title X, in particular, mandating that a project must “[p]rovide a broad
range of acceptable and effective medically approved family planning methods (including
natural family planning methods) and services (including infertility services and services
for adolescents).” All of the standards set forth in § 59.5 focus on the nature of the family
planning services to be provided; they give no indication that projects must or should also
provide a range of other medical care such dental or emergency medical care services.
The Title X statute and regulations also make no mention of the ineligibility of
entities that provide abortions to receive Title X funds or operate Title X projects. To the
contrary, the Title X statute shows that Congress contemplated that abortion providers
would operate Title X projects, and required only that abortion services not be a part of the
Title X project. 42 U.S.C. § 300a-6 (no Title X funds “shall be used in programs where
abortion is a method of family planning”). In addition, 42 C.F.R. § 59.5(a)(5) excludes
funding for projects which use aboriton as a method of family planning. Thus, under
federal law, an entity may perform abortions with its own funds, outside of the Title X

5

project, and remain eligible for a Title X grant.
In their Response, defendants emphasize that Planned Parenthood is not a direct
grantee, as it has not directly applied with the Secretary of HHS for Title X funds. The
defendants note that in nine states Planned Parenthood affiliates are direct grantees of Title
X funds.
HHS guidelines authorize grantees to contract through a series of agreements,
including (a) a Universal Contract, (b) a Contractual Provisions Attachment to the
Universal Contract, (c) a Contract Attachment No. 5, and (d) a Notice of Grant Award
Amount & Summary of Program Objectives. The defendants stress that by its own terms
a Universal Contract may be non-renewed if “either of the parties notifies the other in
writing of its intent not to renew.” Further, the Universal Contract and Contract
Attachment No. 5 are terminable or modifiable if funding is not available. In addition, the
Notice of Grant Award, only becomes an agreement after the grantee’s first payment to the
contractor. Accordingly, the defendants contend that the Universal Contract between
KDHE and Planned Parenthood was comprehensively eliminated, as it “did not become
an agreement under the Contractual Provisions Attachment; it was not renewed; it was
cancelled pursuant to the June 14, 2011 letters.” (Dkt. 35, at 8).
Defendants stress that Planned Parenthood is only one part of the Title X universe
in Kansas. For State Fiscal year 2011 (which ended June 30, 2011), KDHE contracted with

6

56 entities to provide family planning services. Of these, 53 are public entities in the form
of local health departments. The remaining three are the two Planned Parenthood clinics
in Wichita and Hays, and the Dodge City Family Planning Clinic. The defendants thus
stress that the now-excluded providers are “only 5% of the entities” receiving Title X
subgrants. (Id. at 9).
But this gives a misleading impression of the state of Title X funding in Kansas, as
it assumes each subgrantee receives a similar amount of funding. In fact, Planned
Parenthood was the second-largest subgrantee in Kansas, receiving more than 12.5% of the
funds allocated by KDHE.

History of Planned Parenthood’s Title X Funding in Kansas
Planned Parenthood has been a Title X provider in Kansas for more than 25 years
at its two Kansas health centers, located in Wichita (Sedgwick County) and Hays (Ellis
County).
These two health centers have historically received approximately $330,000 through
contracts with KDHE to provide Title X family planning services to more than 5,700
individuals each year. Each year, Planned Parenthood provides receives some 9,000 birth
control visits, and conducts approximately 3,000 pap tests, 3,000 breast exams, and 18,000
STD tests. Planned Parenthood also provides education services through the Title X

7

program.
Planned Parenthood performs abortion services at two of its health centers in
Missouri and through an affiliate (Comprehensive Health of Planned Parenthood of Kansas
and Mid-Missouri) in Overland Park, Kansas. However, Planned Parenthood offers no
abortion services in either the Wichita or Hays health centers. Its affiliate Comprehensive
Health receives no Title X funds, and all abortion services at Planned Parenthood and
Comprehensive Health are financed entirely by private funds.
On February 22, 2010, KDHE submitted to HHS a competing continuation grant
application for Title X funds for the Kansas Family Planning Services Program, requesting
Title X funds for the first year of a five-year project period, beginning June 30, 2010 and
ending June 29, 2015. In its application, KDHE explained how it intended to perform its
proposed project and distribute its grant monies, and the number of patients who would
be covered by the grant monies. KDHE included Planned Parenthood’s Wichita and Hays
health centers as two of its 58 subgrantees and represented to HHS that Planned
Parenthood was its largest subgrantee, shown in the grant application as receiving 13% of
the Title X funds to be distributed to subgrantees and serving more patients than any other
subgrantee. KDHE also stated that Planned Parenthood
has been implementing the FP [Family Planning] Program Male Involvement
Information and Education Project focusing on African-American and
Hispanic young men ages 12-19 and addressing the Title X program priority
to more fully involve males in reproductive health, as well as the Healthy
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People 2010 FP goal to: “improve pregnancy planning and spacing and
prevent unintended pregnancy.” There has never been any allegation that
Planned Parenthood failed to provide the services required under its
agreements with KDHE, or that it ever misused Title X funds by allocating
such funds for abortion services.

Adoption of Section 107(l)
Section 107(l) of H.B. 2014, which took effect on July 1, 2011, provides:
During the fiscal year ending June 30, 2012, subject to any applicable
requirements of federal statutes, rules, regulations or guidelines, any
expenditures or grants of money by the department of health and
environment—division of health for family planning services financed in
whole or in part from federal title X moneys shall be made subject to the
following two priorities: First priority to public entities (state, county, local
health departments and health clinics) and, if any moneys remain, then,
Second priority to non-public entities which are hospitals or federally
qualified health centers that provide comprehensive primary and
preventative care in addition to family planning services: Provided, That, as
used in this subsection “hospitals” shall have the same meaning as defined
in K.S.A. 65-425, and amendments thereto, and “federally qualified health
center” shall have the same meaning as defined in K.S.A. 65-1669, and
amendments thereto.
Because it is not a public entity, hospital, or FQHC, the effect of Section 107(l), which took
effect on July 1, 2011, is to exclude Planned Parenthood from eligibility to continue
receiving Title X funding.1
1

Under K.S.A. 65-1669, a federally qualified health center is defined as “a center
which meets the requirements for federal funding under 42 U.S.C. section 1396d(l) of
the public health service act, and which has been designated as a ‘federally qualified
health center’ by the federal government.” 42 U.S.C. § 1396d(l)(2)(B) provides that a
“Federally-qualified health center” is an entity which is either has a grant as a health
center, or receives such funding as a subgrantee and otherwise meets the requirements
9

As originally introduced, H.B. 2014 contained no restrictions on eligibility for Title
X funds. Subsequently Representative Lance Kinzer offered, and the House adopted, an

of receiving such a grant, under 42 U.S.C. § 254b of the Public Health Service Act. 42
U.S.C. § 254b(a) defines a “health center” as “an entity that serves a population that is
medically underserved, or a special medically underserved population comprised of
migratory and seasonal agricultural workers, the homeless, and residents of public
housing.”
In addition, such centers must provide a minimum level of “basic health
services,” which includes:
(I)

health services related to family medicine, internal medicine,
pediatrics, obstetrics, or gynecology that are furnished by physicians
and where appropriate, physician assistants, nurse practitioners, and
nurse midwives;

(II) diagnostic laboratory and radiologic services;
(III) preventive health services, including —
(aa) prenatal and perinatal services;
(bb) appropriate cancer screening;
(cc) well-child services;
(dd) immunizations against vaccine-preventable diseases;
(ee) screenings for elevated blood lead levels, communicable
diseases, and cholesterol;
(ff) pediatric eye, ear, and dental screenings to determine the need
for vision and hearing correction and dental care;
(gg) voluntary family planning services; and
(hh) preventive dental services;
(IV) emergency medical services; and
(V) pharmaceutical services as may be appropriate for particular
centers....
42 U.S.C. § 254b(b)(1)(i).
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amendment to Section 57 of the bill imposing the same restrictions on Title X funding for
fiscal year 2011 that are also now found at Section 107(l) for fiscal year 2012.
According to an affidavit filed by Sarah Gillooly, an associate of Planned
Parenthood, she observed another House Representative directly ask Kinzer on the House
floor if the purpose of his amendment was to take funds away from Planned Parenthood.
Kinzer confirmed that it was. Kinzer subsequently issued a press release on a website
stating that an “amendment, offered by Representative Kinzer and approved by ninety-one
members, took all state funding away from Planned Parenthood to ensure that state dollars
are not used for abortion services.” Representative Kinzer also posted on his Facebook
page:
Delighted to announce that the KS House just approved my floor
amendment to deny Title X funding to Planned Parenthood for the balance
of FY2011. The vote was 91-26, a great victory on the first pro-life floor vote
of the session.
Christie Kriegshauser, the Communications Director for the Speaker of the Kansas House,
Representative Mike O’Neal, circulated a press release similar to Kinzer’s.
After a referral to Conference Committee, the Appropriations Bill emerged as the
Committee Report with language substantially similar to Representative Kinzer’s
amendment. In the Conference Committee, according to Gillooly, members of both the
House and the Senate referred to what became Section 107(l) as the “Planned Parenthood”
provision.
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Governor Brownback signed H.B. 2014 into law on May 28, 2011. The Lawrence,
Kansas Journal-World reported on May 13, 2001 that Governor Brownback “hailed” the
Kinzer amendment on the grounds that it would “zero out funding of Planned
Parenthood.”
On June 14, 2011, KDHE wrote to Planned Parenthood stating that its Wichita and
Hays health centers would not receive Title X funds for the 2012 fiscal year, and that
Planned Parenthood’s Universal Contract with KDHE was thereby cancelled. “Due to
recent legislative action,“ KDHE wrote, “funding is no longer available for your
organization.” Id.

Standard for Injunctive Relief
A preliminary injunction is an extraordinary equitable remedy which seeks to
“preserve the relative positions of the parties until a trial on the merits can be held.” Univ.
of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). A party seeking injunctive relief must show
a substantial likelihood that it will prevail on the merits, that absent the injunction it was
suffer an irreparable injury, the threatened injury outweighs the cost to its opponent, and
the injunction is not against the public interest. See Westar Energy v. Lake, 552 F.3d 1215,
1224 (10th Cir. 2009); Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246 (10th
Cir. 2001).

12

The defendants contend that Planned Parenthood must meet the heightened burden
of O Centro Espirita Beneficente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975-76 (10th Cir.
2004) (en banc), as it is seeking mandatory action (compelling a recontracting of family
planning services), is seeking revision of a governmental action adopted in the public
interest, and is essentially seeking its final relief by the present injunction. As such, they
contend, the court must closely scrutinize the plaintiff’s arguments to determine if it has
made a strong showing of likely success on the merits and the balance of harms. Further,
it must show injuries that are certain, great, actual, and not theoretical. See Heideman v. S.
Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003).
In O Centro Espirita, the Tenth Circuit held that injunctions which fall within one (or
more) of the three “disfavored categories” of injunctive relief (injunctions which alter the
status quo, require mandatory action, or which grant the movant all the relief that it could
recover at trial) must be predicated on a stronger showing of need, and such injunctions
must be more closely scrutinized to assure that the exigencies of the case
support the granting of a remedy that is extraordinary even in the normal
course. Furthermore, because a historically disfavored preliminary injunction
operates outside of the normal parameters for interim relief, movants seeking
such an injunction are not entitled to rely on this Circuit's
modified-likelihood-of-success-on-the-merits standard. Instead, a party
seeking such an injunction must make a strong showing both with regard to
the likelihood of success on the merits and with regard to the balance of
harms, and may not rely on our modified likelihood-of-success-on-the-merits
standard.
389 F.3d at 975-76.
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The court finds that the heightened standard recognized in O Centro Espirita is not
applicable here. Although the defendants have moved to replace Planned Parenthood as
a subgrantee by finding other replacements to fulfill its historical role, they have done so
with the knowledge that Planned Parenthood is actively contesting the legality of their
actions.
Planned Parenthood filed the present action, and filed its Motion for Preliminary
Injunction, shortly after receiving KDHE’s letter informing it that it was effectively barred
from Title X funding “[d]ue to recent legislative action” — that is, Section 107(l). This
lawsuit, and the Motion for Preliminary Injunction, were filed prior to the end of the 2011
State Fiscal Year, and timely sought relief as to the continuation grant for the 2012 year.
After the filing of Planned Parenthood’s motion, the court initially scheduled a
hearing for July 8, 2011. Prior to the scheduled hearing, defendants filed their Emergency
Motion for Continuance of Hearing Date (Dkt. 19), seeking a 30 day extension of the
preliminary injunction hearing.
If the status quo has changed in the interim, it is because of defendants’s actions,
undertaken while Planned Parenthood’s motion was pending, to implement such changes.
For purposes of injunctive relief, the relevant status quo is the “last peaceable uncontested
status existing between the parties before the dispute developed.” Schrier v. University of
Co., 427 F.3d 1253, 1260 (10th Cir. 2005) (quoting 11A Charles Alan Wright, FED . PRAC . &

14

PROC . § 2948 (2d ed.1995)). In the present case, the status quo would be prior to KDHE’s
application of Section 107(l) and resulting determination that the statute precluded further
grants to Planned Parenthood.
Further, the court does not find that the passage of time has created a fundamental
change in the status quo. In their motion to continue the preliminary injunction hearing,
defendants affirmatively stated:
Nor should the Court be concerned about the impact of these efforts on the
ultimate resolution of Plaintiff’s Motion for Preliminary Injunction. Should
the Court determine that Plaintiff should continue to receive funds as a Title
X provider in Sedgwick and Ellis County, the new arrangement with the
Sedgwick County Health Department and the Ellis County FQHC may be
cancelled on 30 days notice to the provider.
(Dkt. 19, at 4).
Nor does the court believe that the present motion reflects a request for mandatory
injunctive relief, to the extent that it would require extensive, court-supervised positive
action by the defendants.
Mandatory injunctions are more burdensome than prohibitory injunctions
because they affirmatively require the nonmovant to act in a particular way,
and as a result they place the issuing court in a position where it may have
to provide ongoing supervision to assure that the nonmovant is abiding by
the injunction. See Note, 78 Harv.L.Rev. 994, 1062-63 (1965).
SCFC ILC, Inc., v. Visa UNITED STATES, 936 F.2d 1096, 1099 (10th cir. 1991), overruled on
other gds., O Centro Espirita, 389 F.3d 973, 975 (10th Cir. 2004). In the present case, the
injunctive relief sought by Planned Parenthood is primarily negative in character, seeking
15

to require the defendants to prospectively act with respect to Title X funding without
reference to or reliance on the allegedly unconstitutional standards created by Section
107(l).
Finally, the relief sought by Planned Parenthood does not grant the plaintiff all the
relief it may obtain at a full trial on the merits. Motions effectively granting complete relief
are disfavored based on the preference for full trial on the merits, since such motions are
“similar to the ‘Sentence first-Verdict Afterwards’ type of procedure parodied in Alice in
Wonderland, which is an anathema to our system of jurisprudence,” 936 F.2d at 1099
(footnote omitted)
“[T]he terms ‘all the relief to which the movant would be entitled’ or ‘all the
relief sought’ have ... been the source of confusion because, read literally,
they appear to describe any injunction where the final relief for the plaintiff
would simply be a continuation of the preliminary relief.” Tom Doherty
Assoc., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir.1995). There is no
reason, however, to disfavor a preliminary injunction simply because “the
plaintiff would get no additional relief if he prevailed at the trial on the
merits.” Id. (internal quotation marks omitted). The only reason to disfavor
a preliminary injunction that grants substantially all the relief sought is if it
would “render a trial on the merits largely or completely meaningless.” Id.
at 35. Therefore, “‘all the relief to which a plaintiff may be entitled’ must be
supplemented by a further requirement that the effect of the order, once
complied with, cannot be undone.” Id.; see also id. (giving examples of
preliminary relief that cannot be undone — for instance, “a case involving
the live televising of an event scheduled for the day on which preliminary
relief is granted” or “a case involving the disclosure of confidential
information”).
Prairie Band, 253 F.3d at 1247-48 (citations and internal quotations omitted). There is

16

nothing in the present action which suggests that the preliminary relief sought by Planned
Parenthood, if granted, could not be undone. Moreover, the plaintiff by its motion seeks
a continuation of payments under the 2012 State Fiscal Year. It does not seek all the relief
which it might obtain by the way of a permanent injunction following a trial.
Accordingly, the court finds that the plaintiff need not meet the heightened, “strong
showing” standard applicable to disfavored injunctions. Instead, the plaintiff may obtain
relief if it establishes the normal standard of showing a likelihood of success on the merits.
However, as discussed below, the court finds that the issue is not decisive, as the plaintiff
satisfies the requirements for injunctive relief under either standard.

Eleventh Amendment
The defendants contend in their response that this action is precluded by the
Eleventh Amendment, which bars actions against unconsenting States in federal courts. See
Edelman v. Jordan, 415 U.S. 651, 663 (1974); Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89 (1984). Nor, the defendants contend (Dkt. 35, at 20), can the action be maintained
pursuant to Ex Parte Young, 209 U.S. 123, 160 (1908), as the doctrine originating in that case
only permits prospective relief for ongoing violations of federal law. Here, they emphasize,
they have already fundamentally altered the status quo.
The State has entered into a contract with the Sedgwick County Health
Department, and is in negotiations with at least one other entity to provide
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family planning services. The State has discretion as to whether it will
provide family planning services itself, or contract with others to do so. And
it has discretion as to the providers with whom it chooses to enter into
contracts. Even if Section 107(l) had never been passed, the State could have
chosen not to contract with Planned Parenthood. Planned Parenthood’s
requested relief therefore must include an order for the State to sign a
contract with and pay money to Planned Parenthood, thereby violating the
State’s sovereign immunity.
(Dkt. 35, at 18-19).
But, as noted earlier, these changes occurred only after Planned Parenthood’s
motion for injunctive for relief. Further, in obtaining the continuance of the hearing on
Planned Parenthood’s motion, the defendants have affirmatively represented that any
contracts with alternative providers can be terminated upon notice to the contracting
entity. Finally, the argument that the State has discretion in awarding Title X subgrants and
“could” have decided to independently discontinue grants to Planned Parenthood is
contrary to the facts, which establish that KDHE decided not to issue grants to Planned
Parenthood, as it stated in its letters of June 14, 2011, not because of some independent
exercise of discretion or hypothetical reevaluation of the merits of Planned Parenthood’s
application, but simply “[d]ue to recent legislative action.”
The court finds that the injunctive relief sought by Planned Parenthood will not
violate the Eleventh Amendment, as it seeks an order which would simply preclude the
defendants from any decision allocating Title X funding on the basis of the allegedly
unconstitutional Section 107(l). While such an order may have an effect on the allocation
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of state funds, it reflects a proper application of Ex Parte Young to correct prospectively an
ongoing violation of federal law, and is not invalid under the Eleventh Amendment. See
Planned Parenthood of Indiana v. Commissioner of Indiana St. Dep’t of Health, ___ F. Supp. 2d
___, No. 11-630-TWP, 2011 WL 2532921, at *25 (S.D. Ind. 2011) (finding invalid state Title
X funding restriction and “enjoin[ing defendants] to take all steps to insure that all monies
are paid”).

Supremacy Clause
Planned Parenthood argues that Section 107(l) creates a direct conflict between
federal and state law, by generating additional eligibility requirements not contained in
Title X. (Dkt. 5, at 10). It contends that, as a result of this conflict, the legislation is invalid
under the Supremacy Clause, citing a variety of cases which have held that additional state
eligibility requirements are inconsistent with Title X’s broad application, and are therefore
constitutionally invalid. See Planned Parenthood of Houston & S.E. Tex. v. Sanchez, 403 F.3d
324, 336-37 (5th Cir. 2005); Planned Parenthood of Minn. v. Minnesota, 612 F.2d 359, 363 (8th
Cir. 1980). See also Planned Parenthood of Ind. v. Comm’r of Ind. State Dep’t of Health, 2011 WL
2532921; Planned Parenthood of Billiings v. Montana, 648 F.Supp. 47 (D. Mont. 1986).2
2

Defendants suggest that Planned Parenthood’s claim is properly evaluated as a
Spending Clause claim, (Dkt. 35, at 24), noting that the Supreme Court has recently
granted certiorari in Maxwell-Jolly v. Independent Living Ctr. of S. Cal., 131 S.Ct. 992, 178
L.Ed.2d 824 (2011) on the issue of whether Medicaid recipients and providers may
19

By participating in Title X, the state is obliged to forgo seeking to implement policies
contrary to Title X. Planned Parenthood Ass'n of Utah v. Dandoy, 810 F.2d 984 (10th Cir. 1987).
As a result, “a state eligibility standard that altogether excludes entities that might
otherwise be eligible for federal funds is invalid under the Supremacy Clause.” Sanchez,
403 F.3d at 336-37. See also Planned Parenthood Fed. of Am. v. Heckler, 712 F.2d 650, 663 (D.C.
Cir. 1983) (“Title X does not provide, or suggest, that states are permitted to determine
eligibility criteria for participants in Title X programs”); Hern v. Beye, 57 F.3d 906, 913 (10th
Cir. 1995) (reaching similar conclusion as to Title XIX funding).
In Sanchez, the Fifth Circuit agreed that a state law which added eligibility
requirements which would effectively exclude abortion providers from participating in
Title X “would seriously undermine and obstruct Congress's intent.” 403 F.3d at 341.
Similarly, in Planned Parenthood of Billings, the court struck down a state law which added

maintain a cause of action under the Supremacy Clause to enforce § 1396a(a)(30)(A) of
the Medicaid Act. All existing cases treat claims similar to the plaintiff’s within the
context of the Supremacy Clause, however. Moreover, the issue is not decisive, as
defendants essentially agree that Section 107(l) cannot survive if there is a direct conflict
with federal law:
The State may not pass a statute in direct conflict with the federal statute
that defines the terms and conditions of the State’s receipt of the federal
money; nor may it pass a statute that ‘stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress.
(Dkt. 35, at 36). They simply argue that no conflict exists.
20

as an eligibility requirement for Title X funding that any abortions provided by the
recipient must occur in a physically separate facility from the family planning services. 648
F.Supp. at 51.
The defendants argue there is no conflict between Section 107(l) and federal law on
its face, and the court should not “speculate” as to the Legislature’s true intent “based upon
... a hearsay, side-bar question and answer between two House representatives” as
reflected in “a litigation-spawned affidavit of a lobbyist” for Planned Parenthood. (Dkt. 35,
at 26). In this vein, they cite decisions such as Bath Iron Works v. Director of Office of Workers’
Comp’n Prog., 506 U.S. 53, 166 (1993) (Court would give “no weight to a single reference by
a single Senator during floor debate in the Senate”) and Davis v. City of Leawood, 257 Kan.
512, 524-28 (1995), but the application of these cases is limited.
In Bath Iron Works, the Court held that a Senator’s “passing reference to [an
administrative decision] and suggest[ion] House and Senate conferees disagreed with the
Board’s decision.” was not controlling in the result. 506 U.S. at 166. In Davis, the Kansas
Supreme Court merely concluded that “the post-enactment statements of individual
legislators would not be reliable indicators of legislative intent,” 257 Kan. at 528.
Neither case stands for the proposition that the contemporaneous, pre-enactment
statements of the sponsor of legislation carry no weight in the assessment of legislative
intent. Indeed, Kansas v. Dickson, 275 Kan. 683, 689, 69 P.3d 549 (2003), another case relied

21

upon by defendants, recognizes that “[i]n ascertaining that intent, we are not limited to
consideration of the language used but look to historical background of the enactment, the
circumstances attending its passage, the purpose to be accomplished, and the effect the
statute may have under the various constructions suggested.”
Nor is Section 107(l) free from ambiguity. As defendants stress, the provision states
that the new funding priorities are “subject to any applicable requirements of federal
statutes, rules, regulations or guidelines.” But one of those federal requirements is the
provision in 42 U.S.C. § 300 that “any entity” may apply for a grant.
Given the obvious conflict between state and federal law, the court would be remiss
in ignoring the legislative history cited by the plaintiff. Further, it is important to stress that
plaintiff’s claim includes the allegation that Section 107(l) was passed for an improper
purpose, that of punishing Planned Parenthood for its association with abortion. The court
accordingly considers the contemporaneous floor statements of the author of the
challenged legislation as highly probative of legislative intent.
If anything, it is the defendants’ suggestion that the statute was simply designed to
prioritize funding to entities who have a higher percentage of poor clients which appears
to be a post-hoc, “litigation-spawned” attempt to find some alternative, benign rationale for
Section 107(l). (Dkt. 35, at 9-10). For example, defendants cite various other subgrantees
who have a higher percentage of indigent users than Planned Parenthood. But the

22

defendants offer no support for the idea that any of these considerations played even the
slightest role in the adoption of Section 107(l). Further, the “prioritization” language
actually employed by Section 107(l) — requiring applicants to be either public entities,
hospitals, or FQHCs — has no direct or logical connection with such a hypothetical policy
of ensuring greater service to the poor. Section 107(l) acts by requiring non-governmental
applicants to be either a hospital or FQHC, thus requiring the applicant to provide a widerange of services such as emergency medical services and preventive dental care, which are
wholly unrelated to family planning services. The defendants have made no showing as
to how this requirement of expanded services in Section 107(l) has any logical connection
to making more effective family planning services available to the poor.
In addition, the history of Title X funding in Kansas demonstrates no prior concern
by the State with Planned Parenthood’s level of service to the poor. In fact, as late as the
March 31, 2001 continuation grant application, the KDHE explicitly cited Planned
Parenthood as one of its subgrantees that was helping to “assure delivery of quality family
planning and related preventive health services with priority to individuals from lowincome families.”
Finally, even if this post-hoc rationale was legitimate and not, as is apparent, simply
a mask for discrimination against Planned Parenthood, Section 107(l) is still be invalid
under the Supremacy Clause as an additional eligibility requirement beyond the scope of

23

what has been adopted by Congress. Federal law broadly provides that “[a]ny public or
nonprofit entity in a State” may apply for Title X funds, and State grantees may not
substitute their own eligibility requirements for successful application. Even if the
purported rationale was one of the motives for the adoption of Section 107(l), it would not
entitle the State to create a conflict with federal law by narrowing eligibility requirements
for successful subgrantee applicants.
With respect to Kinzer’s floor statement, notwithstanding the additional time
allowed defendant to prepare their Response, they make no attempt to offer any affidavit
by either Representative that the statement was not made. Nor does defendant Brownback
make any attempt to disavow his statement indicating that his understanding of the
purpose of Section 107(l) was to “zero out” Planned Parenthood from Title X funding.
Citing Planned Parenthood Ass’n of Utah v. Schweiker, 700 F.2d 710 (D.C.Cir. 1983), the
defendants next argue that Planned Parenthood “is still eligible to apply for Title X grants.”
Schweiker held, they stress, that Title X protects “only the right to apply for direct grants,”
and is not a guaranty of receiving funds. 700 F.2d at 723 (emphasis in original).
But Section 107(l) does more that simply render uncertain Planned Parenthood’s
ability to receive Title X funds. By the adoption of priorities which effectively block Planned
Parenthood from successfully applying for funding, the statute actually makes it certain
that Planned Parenthood cannot successfully participate in Title X funds. Any application

24

is automatically futile. The defendants may call this prioritization, but in form and intent
it is exclusion.
The defendants’ action in barring Planned Parenthood, whether as a grantee or
contractee, is in direct conflict with federal law. As noted earlier, both the statute and the
implementing regulations specify that “any entity” is allowed to apply for Title X grants.
The statute and regulations also set forth a variety of criteria for the evaluation of project
applications, all of which relate to nature of the family planning services. None of these
criteria include the required provision of other medical services unrelated to family
planning.
It is irrelevant that Planned Parenthood might – after considerable delay and
damage — obtain a direct grant of funding from HHS in some future year. Section 107(l)’s
requirement of unrelated medical services is in direct conflict with the standards of Title
X. The court rejects the argument that Title X’s broad “all entities” eligibility standard only
applies to direct grantees. The statute explicitly provides that “[l]ocal and regional entities
shall be assured the right to apply for direct grants and contracts under this section, and the
Secretary shall by regulation fully provide for and protect such right.” 42 U.S.C. § 300(b)
(emphasis added).
The defendants in their Response distinguish Planned Parenthood of Indiana on the
grounds that the funding statute in that case, the Preventative Health Services Block Grant

25

Program, 42 U.S.C. § 274c(c), did not allow prospective grantees to seek grants directly
from the federal government. (Dkt. 35, at 34-35). In addition, defendants criticize the Fifth
Circuit’s “fundamentally flawed” decision in Sanchez for failing to recognize the same point
— that the Texas prohibition of funding to entities associated with abortion services “did
not prevent Planned Parenthood from applying for or receive Title X money from the
federal government.” (Id. at 32, 33).
In addition, the defendants also seek to distinguish other cases cited by Planned
Parenthood. King v. Smith, 392 U.S. 309 (1968), Herne v. Beye, 57 F.3d 906, 910 (10th Cir.
1995), and Planned Parenthood Ass’n of Utah v. Dandoy, 810 F.2d 984 (10th Cir. 1987), they
contend, are inapplicable because in those cases there was a direct conflict between state
and federal provisions.3 (Dkt. 35, at 36-38). Further, they argue, Planned Parenthood of
Minnesota v. Minnesota, 612 F.2d 359 (8th Cir. 1980) is unhelpful, as that was an equal
protection case, an argument which the plaintiff has not raised here. (Id. at 38). Finally,
defendants stress that decisions such as Dandoy and Planned Parenthood Fed. of America v.
Heckler, 712 F.2d 650, 663 (D.C. Cir. 1983) involved questions of eligibility of the end user
of medical services. Section 107(l) is not a direct conflict with federal law, they contend,

3

In King, a conflict existed between Alabama federal law as to eligibility for
AFDC payments. Hern involved a conflict between state and federal law as to the
eligibility for Medicaid payments for abortions in the case of rape or incest. In Dandoy,
Utah’s parental consent statute was in conflict with a Medicaid provision, 42 U.S.C. §
1396d(a)(4)(C)).
26

because “[i]t merely prioritizes state funding into more comprehensive primary care and
preventative health hospitals and clinics, and does not prevent those entities from
performing abortions, counseling or referring for abortion, or locating with or next to an
abortion provider.” (Id. at 40-41).
The court finds that the proffered rationales create no valid cause to ignore the
consistent conclusions of other courts that state legislation which effectively narrows the
eligibility requirements for Title X recipients is invalid under the Supremacy Clause. That
some of these decisions involved restrictions on the eligibility of patients as opposed to
grant applicants has no bearing on the relevance of those cases. By adopting broad
eligibility standards for grantees — that “any entity” may apply for Title X funds —
Congress foreclosed states participating in Title X from creating additional, narrower
standards for application. That broad standard is not restricted, as defendants suggest, to
direct applications with HHS, but to any party seeking Title X funds.
In addition, it may be noted that defendants offer not a single case in support of their
argument that it may effectively exclude Planned Parenthood as a subgrantee, on the
grounds that it is free to seek a direct grant from HHS. Indeed, in their lengthy argument
on the subject, the only case cited by the defendants which reached a putatively favorable
result, Planned Parenthood Ass’n of Utah v. Schweiker, merely established the now
unexceptional (and here irrelevant) conclusion that Title X applicants are not guaranteed

27

funding. But, as noted earlier, Planned Parenthood’s complaint is not that Section 107(l)
fails to guarantee it a successful result, but that it guarantees an unsuccessful one.
The court holds that Section 107(l) serves to create an additional condition for a
successful subgrant application, completely excluding a class of entities who are otherwise
qualified under federal law for Title X participation. As a result, the statute is in direct
conflict with federal law and is unconstitutional See Sanchez, 403 F.3d at 340-41; Planned
Parenthood of Billings, 648 F. Supp. at 51. The plaintiff has demonstrated a strong likelihood
of success on the merits of its Supremacy Clause claim.

First and Fourteenth Amendment Claim
In addition to its Supremacy Clause claim, the plaintiff also contends that Section
107(l) is unconstitutional as an attempt to punish the plaintiff for its support for abortion
rights and its association with abortion services providers. The statute reflects, it contends,
an illegal “disqualification from receipt of public benefits” based upon its protected
activities. See Harris v. McRae, 448 U.S. 297 (1980).
The defendants contend that Planned Parenthood’s argument must fail because, as
a facial challenge to the validity of Section 107(l), the statute is valid if there are any set of
circumstances under which it might be valid, citing Rust v. Sullivan , 500 U.S. 173, 183
(1991). The Kansas statute, they contend, “merely establishes priorities for various kinds

28

of comprehensive health care providers, completely unrelated to their counseling or
referral for abortion.” (Dkt. 35, at 42). No facial claim exists because
Section 107(l) does not mention Planned Parenthood; it does not mention
abortion; on its face it has no constraints on abortion, on abortion speech, on
abortion counseling, on parental consent for abortion, on those who might
associate or affiliate with abortion providers, or any other language that in
any respect relates to or touches upon abortion speech, counseling, or
association.
(Id. at 41).
The defendants argue (Dkt. 35, at 46-47) there is no independent First Amendment
claim since, even if there were a conflict between Section 107(l) and federal law, it would
not implicate a constitutional violation under Rust, as that Court held that “[t]he recipient
[of federal funds] is in no way compelled to operate a Title X project; to avoid the force of
the regulations, it can simply decline the subsidy,” and observed: “We have never held that
the Government violates the First Amendment simply by offering that choice.” 500 U.S. at
199 n. 5. The defendants also argue that Section 107(l) is valid because nothing on the face
of the statute illustrates any discriminatory intent.
Rust provides little support for defendants’ argument. In that case the court dealt
with regulations implementing 42 U.S.C. § 300a-6, which expressly provided that no Title
X funds “shall be used in programs where abortion is a method of family planning.” The
regulations required that Title X projects refrain from counseling on abortion as a method
of family planning, from lobbying for or encouraging abortion, and must conduct their
29

activities separate (financially and physically) from any abortion services. 500 U.S. at 17980. The court ultimately concluded that “refusal to fund protected activity, without more,
cannot be equated with the imposition of a penalty on that activity.” 500 U.S. at 193
(internal quotation omitted).
The Court prefaced its analysis with the observation that there was “no question but
that the statutory prohibition ... is constitutional.” Id. at 192. In the earlier case of Maher v.
Roe, 432 U.S. 464 (1977), the Court noted
we upheld a state welfare regulation under which Medicaid recipients
received payments for services related to childbirth, but not for
nontherapeutic abortions. The Court rejected the claim that this unequal
subsidization worked a violation of the Constitution. ... The Government can,
without violating the Constitution, selectively fund a program to encourage
certain activities it believes to be in the public interest, without at the same
time funding an alternative program which seeks to deal with the problem
in another way. In so doing, the Government has not discriminated on the
basis of viewpoint; it has merely chosen to fund one activity to the exclusion
of the other. A legislature's decision not to subsidize the exercise of a
fundamental right does not infringe the right. ... There is a basic difference
between direct state interference with a protected activity and state
encouragement of an alternative activity consonant with legislative policy.
500 U.S. at 192-193 (internal citations and quotations omitted).
The Court distinguished its “unconstitutional conditions” cases such as Perry v.
Sindermann, 408 U.S. 593, 597 (1972) on the grounds that the regulations restricted were
directed at the Title X project itself, not a restriction the independent activities of the
recipient.

30

The Secretary's regulations do not force the Title X grantee to give up
abortion-related speech; they merely require that the grantee keep such
activities separate and distinct from Title X activities. Title X expressly
distinguishes between a Title X grantee and a Title X project. The grantee,
which normally is a health-care organization, may receive funds from a
variety of sources for a variety of purposes. The grantee receives Title X
funds, however, for the specific and limited purpose of establishing and
operating a Title X project. The regulations govern the scope of the Title X
project's activities, and leave the grantee unfettered in its other activities. The
Title X grantee can continue to perform abortions, provide abortion-related
services, and engage in abortion advocacy; it simply is required to conduct
those activities through programs that are separate and independent from
the project that receives Title X funds.
In contrast, our “unconstitutional conditions” cases involve situations
in which the Government has placed a condition on the recipient of the
subsidy rather than on a particular program or service, thus effectively
prohibiting the recipient from engaging in the protected conduct outside the
scope of the federally funded program.

500 U.S. 196-97 (citations omitted) (bold emphasis added, italic emphasis in original).
Here, the purpose and effect of Section 107(l) is precisely to bar Planned Parenthood
as a recipient of any Title X subgrants in Kansas. This bar does not reflect merely a desire to
avoid “funding [abortion related] activities out of the public fisc,” id. at 198, but to bar an
entity associated with abortion from the benefit of federal funding for which it would be
otherwise eligible. The bar is applied under the statute despite the fact that Planned
Parenthood has undertaken to, in the words of Rust, “conduct [its abortion-related]
activities through programs that are separate and independent projects.” Indeed, the bar
has been applied precisely because of Planned Parenthood’s otherwise legal and
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constitutionally-protected conduct.
Section 107(l) reflects not simply a refusal to fund a given activity, but serves to
entirely deny the plaintiff access to Title X subgrant funding, based entirely upon the
plaintiff’s participation in unrelated political conduct. This punitive aspect of the statute,
arising from the plaintiff’s protected association with abortion related services, renders the
statute unconstitutional. Planned Parenthood of Kansas v. Wichita, 729 F. Supp. 1282 (D. Kan.
1990).
While the face of Section 107(l) may not appear to directly infringe any constitutional
rights, the statute is nonetheless invalid if it was enacted for an improper, discriminatory
purpose. Hunter v. Underwood, 471 U.S. 222, 233 (1985). The evidence before the court
demonstrates that the statute was enacted with precisely this purpose. See Planned
Parenthood of Mid-Missouri and Eastern Kansas v. Dempsey, 167 F.3d 458, 463 (8th Cir. 1999)
(holding that state statute excluding abortion providers from receiving state family
planning funds was an unconstitutional penalty under Rust).
As discussed earlier, the circumstances surrounding the passage of Section 107(l)
convince the court that the purpose of the statute was to single out, punish, and exclude
Planned Parenthood, the only historical Kansas subgrantee which provides or associates
with a provider of abortion services, from receiving any further Title X subgrants. The court
finds that the plaintiff has demonstrated a strong likelihood of success on its claim that

32

Section 107(l) is an unconstitutional infringement of its rights of association under the First
and Fourteenth Amendments.

Elements of Injunctive Relief
Having determined that the plaintiff has shown a likelihood of success on the merits
of its claims, the right to injunctive relief accordingly depends upon whether Planned
Parenthood has demonstrated the existence of an irreparable injury, that this injury
outweighs the damages to the defendants from granting the injunction, and that the
injunction is not against the public interest. The court finds that plaintiff has met this
burden, and that it has made a strong showing that injunctive relief is appropriate. That is,
the court finds that the plaintiff has met its burden of demonstrating its right to injunctive
relief whether or not the court imposes a heightened standard for relief.
Planned Parenthood has demonstrated convincingly the existence of an injury which
may be effectively addressed only by granting the injunction sought. See Planned Parenthood
of Minn., 558 F.2d at 866-67 (finding irreparable injury arising from Title X exclusion, based
on “[t]he adverse effect on Planned Parenthood's business, coupled with the incalculable
loss of revenue”); Planned Parenthood of Indiana,

F.Supp.2d

, 2011 WL 2532921 at *17

(finding irreparable harm based on evidence showing plaintiff would be required to close
health centers and eliminate jobs).

33

Historically, Planned Parenthood has received over $300,000 in annual Title X
subgrants in Kansas, which it has used to provide family planning services for nearly six
thousand lower income persons. These services include contraception services, pregnancy
testing, HIV testing, treatment of sexually transmitted diseases (STDs), vaccinations for
hepatitis and cervical cancer, and testing for cervical, breast and testicular cancers.
Through its health centers in Wichita and Hays, Planned Parenthood annually provides
some 9,000 birth control visits, 3,000 pap tests, 3,000 breast exams, and 18,000 STD tests.
In the absence of Title X funding, Planned Parenthood will be required to either
increase its charges to clients, fire employees, close one or more of its health centers, or
engage in some combination of these responses. Further, the evidence establishes that the
drastic, eleventh hour change in family planning funding may cause significant harm to
persons seeking family planning services in the Wichita and Hays areas. The evidence does
not support any conclusion that the Sedgwick County Health Department will be able to
drastically increase its resources to the point that it will be able to provide services to the
level previously provided by Planned Parenthood. And there is no evidence that any entity
will be able to replace Planned Parenthood as to the provision of family planning services
in Hays.
Further, plaintiff has made a strong showing that Section 107(l) is an
unconstitutional infringement of its rights of association. “The Supreme Court has made

34

clear that ‘the loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.’” Heideman v. South Salt Lake City, 348 F.3d
1182, 1190 (10thCir. 2003) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality op.)).
The court finds that the plaintiff will suffer an irreparable injury to its rights to freedom of
association in the absence of injunctive relief.
The potential damages to Planned Parenthood, and its clients, in the absence of an
injunction greatly outweigh any costs to the defendants by its award. The Title X funding
in question originated under the federal government’s Title X program. Granting the award
will simply require the defendants to refrain from relying upon the illegal “prioritization”
scheme of Section 107(l), and provide funding to Planned Parenthood — a provider of
family planning services which has never been the subject of any previous complaint or
criticism by the State. To the contrary, as noted above, the State (through the KDHE) has
previously favorably cited Planned Parenthood’s participation as a subgrantee in its
communications with HHS. The balance of interests between the parties strongly supports
an injunction.
Finally, the court finds that the public interest supports injunctive relief. The public
interest is advanced by the use of Title X funding consistent with the intent of Congress,
and free from punitive, view-point based or associational discrimination. The public
interest is advanced by allowing family planning services to be provided in a manner

35

consistent with uniform local history, avoiding disruptions in the provision of such
services.
IT IS ACCORDINGLY ORDERED this 1st day of August, 2011, that the plaintiff’s
Motion for Preliminary Injunction (Dkt. ) is hereby granted, and the defendants are hereby
enjoined from any further enforcement or reliance on Section 107(l) of H.B. 2014, 84th Leg.
(Kan. 2011), are ordered and directed to allocate all Title X funding for State Fiscal Year
2012 without reference to Section 107(l), and to provide continuation grant funding to the
plaintiff.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

36