PLANNED PARENTHOOD OF CENTRAL NORTH CAROLINA v. CANSLER
Filing
59
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE JAMES A. BEATY, JR on 6/28/2012; that Plaintiff's Motion for Summary Judgment and Permanent Injunction [Doc. # 42 ] is hereby GRANTED, and Defendant's Motion for Summary Judgment [Doc. # 46 ] is hereby DENIED. IT IS DECLARED that Section 10.19 of North 39 Carolina Session Law 2011-145 violates the United States Constitution, as set forth herein, and Defendant is hereby ENJOINED from any further enforcement o f or reliance on Section 10.19 of North Carolina Session Law 2011-145. FURTHER that Plaintiff's Motion for Leave to File an Amended Complaint for Injunctive and Declaratory Relief [Doc. # 41 ] is hereby DENIED. A Judgment will be filed contemporaneously herewith. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PLANNED PARENTHOOD OF
CENTRAL NORTH CAROLINA,
Plaintiff,
v.
LANIER CANSLER, in his official
capacity as the Secretary of the
North Carolina Department of
Health and Human Services,
Defendant.
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1:11CV531
MEMORANDUM OPINION AND ORDER
This matter is before the Court on a Motion for Summary Judgment and Permanent
Injunction [Doc. #42] filed by Plaintiff Planned Parenthood of Central North Carolina
(“Plaintiff” or “PPCNC”), and a Motion for Summary Judgment [Doc. #46] filed by Defendant
Lanier Cansler (“Defendant”), in his official capacity as the Secretary of the North Carolina
Department of Health and Human Services. The parties’ Motions follow this Court’s August
19, 2011, Order granting Plaintiff’s Motion for a Preliminary Injunction (“Preliminary Injunction
Order”), wherein the Court enjoined Defendant from further enforcement of or reliance on
Section 10.19 of North Carolina Session Law 2011-145 during the pendency of this suit. Section
10.19, discussed in more detail below, prohibits the North Carolina Department of Health and
Human Services (“DHHS”) from providing state or federal funds to Planned Parenthood, Inc.
and its affiliated organizations, including PPCNC. As noted in the Preliminary Injunction Order,
the Court reiterates at the outset that this case does not in any way involve funding for abortion
services, but rather involves state legislation that resulted in PPCNC being expressly excluded
from receiving otherwise available funding for contraceptive and teen pregnancy prevention
programs, as discussed in more detail below. For the reasons set forth herein, Plaintiff’s Motion
for Summary Judgment and Permanent Injunction will be granted, Defendant’s Motion for
Summary Judgment will be denied, and Defendant will be permanently enjoined from any
further enforcement of or reliance on Section 10.19 of North Carolina Session Law 2011-145.1
I.
FACTUAL AND PROCEDURAL BACKGROUND2
1
The Court notes that Plaintiff has also filed a Motion for Leave to File an Amended
Complaint for Injunctive and Declaratory Relief [Doc. #41]. In its Motion, Plaintiff seeks to
amend its Complaint to incorporate certain events that have occurred since filing the original
Complaint, namely, that the Court entered the Preliminary Injunction Order in this case, and
that Defendant thereafter tendered new family planning services contracts to Plaintiff. In
addition, Plaintiff seeks to amend its Complaint to clarify Claim I (“Supremacy Clause”) by
expressly adding reference to Plaintiff’s intent to pursue that claim both directly under the
Supremacy Clause and pursuant to 42 U.S.C. § 1983. In moving to amend the Complaint,
Plaintiff does not, however, seek to “raise any new claims, request any new relief, or advance any
new theories.” (Pl.’s Mot. at 1, [Doc. #41]). Defendant opposes Plaintiff’s Motion, contending
that the Motion is untimely and unnecessary given that “[t]here are no facts or laws different
now than they were at the time of the filing of the original Complaint.” (Def.’s Resp. at 2, [Doc.
#49]). In considering Plaintiff’s Motion, the Court notes that, with regard to incorporation of
the events that have transpired since filing the original Complaint, both the Court and
Defendant are fully aware of the contents of the Preliminary Injunction Order and the
circumstances under which that Order was entered by this Court. Furthermore, with regard to
Defendant’s actions following entry of the Preliminary Injunction Order, the Court notes that
Plaintiff has submitted evidence in that regard as part of its Motion for Summary Judgment and
Permanent Injunction, and need not amend its Complaint to include such additional facts at this
time. Finally, with regard to amending Claim I, the Court, in the Preliminary Injunction Order,
addressed the implications of Plaintiff’s Supremacy Clause claim both as a claim brought
pursuant to 42 U.S.C. § 1983 and as a claim brought directly under the Supremacy Clause. As
such, Defendant is on notice of the bases for Plaintiff’s Supremacy Clause claim at this time, and
further clarification of that matter is unnecessary to resolve the present Motions, as described
herein. As such, the Court will deny Plaintiff’s Motion for Leave to File an Amended Complaint
for Injunctive and Declaratory Relief [Doc. #41].
2
The facts in this section were previously set forth in the Preliminary Injunction Order.
Per their Joint Rule 26(f) Report, the parties agreed that discovery would be unnecessary, “as the
claims and defenses in this case are subject to resolution as a matter of law.” (Rule 26(f) Report
2
PPCNC operates three health clinics in North Carolina, located in Durham, Chapel Hill,
and Fayetteville. PPCNC provides abortion services at certain of its facilities, but also provides
non-abortion-related family planning health services as well. These non-abortion-related
services, which are provided at each of the clinics, include cancer screenings (pap smears and
breast exams); tests for diabetes, anemia, and high cholesterol; testing and treatment for
sexually-transmitted infections; colposcopies; and contraceptives. Since 2001, PPCNC has
received grants and contracts, administered through DHHS, for certain of these
non-abortion-related health services. Specifically, this funding includes Title X funding, which
is federal funding under 42 U.S.C. § 300 for family planning services for low-income women.
The Title X funding provides $125,000 annually for PPCNC’s Latino Family Planning Outreach
Project at the Durham clinic, a project designed to provide family planning services,
contraception, and similar health services to low-income, uninsured Latino clients. PPCNC has
also received $75,000 annually in funds under the Teen Pregnancy Prevention Initiative, which
includes federal block-grant funds as well as state funds earmarked for the State’s Adolescent
Pregnancy Prevention Project.
This funding supports PPCNC’s adolescent pregnancy
prevention program for residents of Cumberland County. Finally, PPCNC also receives $12,000
annually under a state-funded Women’s Health Service Fund Grant, which funds PPCNC’s
program to provide long-acting contraceptives to low-income women in Durham County,
at 1, [Doc. #36]). As a result, the facts underlying the present Motions are the same as the facts
relied upon by the Court in issuing the Preliminary Injunction Order, with the exception that,
following entry of the Preliminary Injunction Order, Defendant executed family planning
services contracts with Plaintiff, as described below.
3
Orange County, and Cumberland County who are not eligible for Medicaid.
In the present suit, PPCNC generally contends that as a result of recent state legislation,
PPCNC has been unconstitutionally excluded from receiving state and federal funds for nonabortion-related programs. The contested statutory provision is included in North Carolina
Session Law 2011-145, enacted into law on June 15, 2011, over the veto of North Carolina
Governor Beverly Perdue. The Session Law itself is an appropriations law for fiscal years
2011-2012 and 2012-2013. The Session Law included various budget provisions, and also
included a separate provision, Section 10.19, that did not reduce funding for any particular
program, but instead specifically prohibited only Planned Parenthood, Inc. and its affiliates from
receiving any funding for programs administered by DHHS. The entire provision reads as
follows:
PROHIBIT USE OF ALL FUNDS FOR PLANNED PARENTHOOD
ORGANIZATIONS - SECTION 10.19. For fiscal years 2011-2012 and 2012-2013,
the Department of Health and Human Services may not provide State funds or
other funds administered by the Department for contracts or grants to Planned
Parenthood, Inc., and affiliated organizations.
This Section did not cut funding across the board for certain women’s health or low-income
health services, and does not have any budgetary impact for the state. Moreover, Section 10.19
did not address funding for abortion services, as funding for abortion services is already limited
by state and federal law. See 42 U.S.C. § 300a-6 (prohibiting the use of Title X funds “in
programs where abortion is a method of family planning”); N.C. Sess. Laws 2011-145 § 29.23(a)
(prohibiting the use of state funds for most abortions). Instead, Section 10.19 provides that for
funding that will otherwise continue for certain non-abortion-related state and federal health
4
programs, Planned Parenthood is specifically prohibited from receiving that funding. Thus, any
other entity could still receive funding for these programs, but Planned Parenthood, Inc. and its
affiliated organizations cannot, solely because of the operation of Section 10.19.
Plaintiff contends that Section 10.19 affects PPCNC’s Title X funding, the Teen
Pregnancy Prevention Grant, and the Women’s Health Grant. Plaintiff has presented evidence
to establish that prior to the passage of Session Law 2011-145 containing Section 10.19, DHHS
had preliminarily approved funding for at least two of these programs to PPCNC. Specifically
with respect to Title X funding, Plaintiff has presented evidence to establish that in November
2010, as the result of a competitive contracting process, DHHS informed PPCNC that
PPCNC’s application was approved for funding in the amount of $125,000, effective July 1,
2011, for fiscal year 2011-2012. At the preliminary injunction hearing, counsel for Defendant
stated that funds, although available to Defendant, were not being provided to PPCNC due to
Section 10.19.
Shortly after passage of this legislation, Plaintiff filed the present suit, contending that
Section 10.19 is unconstitutional under the United States Constitution for multiple reasons,
including violation of the First Amendment and Due Process Clause of the Fourteenth
Amendment, violation of the prohibition against Bills of Attainder, violation of the Equal
Protection Clause, and violation of the Supremacy Clause. Plaintiff also filed a Motion for
Preliminary Injunction, contending that PPCNC would suffer irreparable harm unless
enforcement of Section 10.19 is enjoined. After a hearing on Plaintiff’s Motion for Preliminary
Injunction, the Court concluded that Plaintiff had shown a likelihood of success as to all of its
5
constitutional claims and a likelihood that Plaintiff would suffer irreparable harm in the absence
of an injunction. In addition, the Court concluded that Plaintiff had shown that the balance of
equities tipped in favor of granting preliminary injunctive relief and that the public interest
would be better served by enjoining Section 10.19. Based on these conclusions, the Court
enjoined Defendant from further enforcement of or reliance on Section 10.19 during the
pendency of this suit.
Following entry of the Preliminary Injunction Order, Defendant executed contracts with
PPCNC for the family planning services described herein in the following amounts: $125,000
in Title X funds, $75,000 in Teen Pregnancy Prevention Project funds, and $12,000 in Women’s
Health Grant funds. The parties then filed the present Motions for Summary Judgment, each
seeking judgment as a matter of law on the constitutional claims raised by Plaintiff in this case.
In addition, Plaintiff asks the Court to permanently enjoin any further enforcement of or
reliance on Section 10.19.
II.
DISCUSSION
Pursuant to Federal Rule of Civil Procedure 56, the court shall grant summary judgment
when there exists no genuine issue of material fact and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a); Zahodnick v. Int’l Bus. Machs. Corp., 135 F.3d 911, 913
(4th Cir. 1997). When making a summary judgment determination, the court must view the
evidence and all justifiable inferences from the evidence in the light most favorable to the
non-moving party. Zahodnick, 135 F.3d at 913. “‘[W]here the facts and the law will reasonably
support only one conclusion,’” summary judgment is appropriate. PSINet, Inc. v. Chapman,
6
362 F.3d 227, 233 (4th Cir. 2004) (quoting Hawkins v. PepsiCO, Inc., 203 F.3d 274, 279 (4th Cir.
2000)).
As noted above, in its present Motion for Summary Judgment and Permanent Injunction,
Plaintiff contends that Section 10.19 is unconstitutional under the United States Constitution
in violation of the First Amendment and Due Process Clause of the Fourteenth Amendment,
the prohibition against Bills of Attainder, the Equal Protection Clause, and the Supremacy
Clause. Based on its constitutional claims, Plaintiff seeks declaratory and permanent injunctive
relief against Defendant. In response to Plaintiff’s Motion, and in his own Motion for Summary
Judgment, Defendant contests the merits of each of Plaintiff’s constitutional claims, as discussed
in detail below. The Court notes, however, that Defendant first contends that, regardless of the
merits, Plaintiff’s claims are barred by the Eleventh Amendment to the United States
Constitution, and summary judgment should therefore be entered in favor of Defendant as to
all claims. As such, prior to discussing the merits of Plaintiff’s constitutional claims, the Court
will address Defendant’s Eleventh Amendment arguments.
A.
Eleventh Amendment Issues
The Eleventh Amendment bars damages actions against unconsenting states in federal
court. See U.S. Const. amend. XI (“The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”).
The Supreme Court, in Ex Parte Young, however, recognized an exception to the general
Eleventh Amendment rule in that the Eleventh Amendment does not bar actions against a state
7
official to enjoin future or ongoing violations of federal law. See Ex parte Young, 209 U.S. 123,
28 S. Ct. 441, 454, 52 L. Ed. 2d 714 (1908), Antrican v. Odom, 290 F.3d 178, 184 (4th Cir. 2002)
(noting that the Ex Parte Young exception “allows private citizens, in proper cases, to petition
a federal court to enjoin State officials in their official capacities from engaging in future conduct
that would violate the Constitution or a federal statute”). Although Defendant recognizes Ex
Parte Young as providing a valid exception to the general rule, Defendant contends that the Ex
Parte Young exception does not apply in this case because, according to Defendant, Plaintiff
seeks retroactive relief from the State in the form of funding contracts that did not previously
exist. As such, Defendant contends that the relief allegedly sought by Plaintiff, and preliminarily
granted by this Court, impermissibly mandates that the State enter into such funding contracts
in violation of the Eleventh Amendment.
In support of his contention, Defendant relies primarily on the language in footnote 7
of the Preliminary Injunction Order. Footnote 7 states in relevant part:
At the preliminary injunction hearing, counsel for Defendant Cansler noted that the
reason that the contracts had not been finalized and the funding had not been provided
was because of Section 10.19. Having now enjoined enforcement of Section 10.19, the
Court expects Defendant Cansler to follow all applicable state and federal laws and
regulations, without relying on the prohibition in Section 10.19. If Defendant Cansler
takes action that is still a result of reliance on or enforcement of Section 10.19, either
explicitly or implicitly, further proceedings would be appropriate to determine Defendant
Cansler’s compliance with the Court’s Order.
(Prelim. Inj. Order at 35 n.7, [Doc. #30]). Defendant contends that footnote 7 expressly
mandates that the State “enter into a contract not of its own making, and spend public money
in a certain way, not merely ancillary to the primary relief requested, but as the very object of the
relief requested.” (Def.’s Br. at 7-8, [Doc. #47]). In other words, Defendant contends that the
8
Preliminary Injunction Order required Defendant to “pay Plaintiff the money or come back to
Court.” (Def.’s Br. at 8, [Doc. #47]).
In considering Defendant’s Eleventh Amendment arguments, the Court notes that
Defendant mis-characterizes the relief sought by Plaintiff, and that preliminarily granted by the
Court, as mandatory injunctive relief requiring the State to enter into a contract with or
otherwise provide funding to Plaintiff. As the Court discussed in the Preliminary Injunction
Order, and as remains true at the present stage of this litigation, “Plaintiff has made it clear in
the present case that it seeks [prospective] injunctive relief . . . to prevent Defendant Cansler
from enforcing state legislation that violates the federal constitution” and does not seek
“retroactive injunctive or monetary relief.” (Prelim. Inj. Order at 13, 14, [Doc. #30]). In
preliminarily granting Plaintiff the prospective relief sought, the Court did not require Defendant
to enter into a contract with or provide funding to any party. Rather, the Court merely
prohibited Defendant from enforcing or relying on Section 10.19 in the course of choosing
whomever he intends to contract with going forward, and required nothing further from
Defendant.3 See Antrican, 290 F.3d at 186 (noting that “the proper focus must be directed at
3
At the preliminary injunction hearing, the Court expressly posed a question to counsel
for Defendant regarding the potential implications of granting the relief sought by Plaintiff in
this case. Specifically, the Court asked counsel for Defendant what course of action Defendant
would take if the Court granted Plaintiff’s request for a preliminary injunction. In response,
counsel for Defendant stated:
If [the Court] stopped the enforcement of [Section] 10.19 and said nothing further, then
it would be up to DHHS as to whether or not they presented those remaining funds to
the other delegates that had applied; but there would be a decision on the State making
that decision, not a decision by this Court ordering them to enter into a contract.
9
whether the injunctive relief sought is prospective or retroactive in nature”); see also Pinehurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-03, 104 S. Ct. 900, 909, 79 L. Ed. 2d 67
(1984) (noting that under Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662
(1974), “when a plaintiff sues a state official alleging a violation of federal law, the federal court
may award an injunction that governs the official’s future conduct, but not one that awards
retroactive monetary relief”). Therefore, the Court finds that the language in footnote 7 of the
Preliminary Injunction Order does not require anything of Defendant other than that he refrain
from enforcing or relying on Section 10.19 in the course of contracting for family planning
services. Furthermore, the Court finds that the fact that Defendant chose to execute contracts
with Plaintiff following entry of the Preliminary Injunction Order does not transform the
prospective injunctive relief sought by Plaintiff, and preliminarily granted by the Court, into
relief of a nature that would be barred by the Eleventh Amendment. As such, based on the
relief sought in this case, and that which the Court preliminary granted, the Court concludes that
Plaintiff’s claims are not barred by the Eleventh Amendment.
Having concluded that the Eleventh Amendment does not bar Plaintiff’s claims in this
case, the Court will now address the merits of those claims. As noted above, Plaintiff contends
that Section 10.19 is unconstitutional under the United States Constitution in violation of the
First Amendment and Due Process Clause of the Fourteenth Amendment, the prohibition
against Bills of Attainder, the Equal Protection Clause, and the Supremacy Clause. The Court
(August 10, 2011, Hr’g Tr. at 45-46, [Doc. #33]). In view of this statement, the Court notes that
the Preliminary Injunction Order comports with Defendant counsel’s understanding of the relief
sought by Plaintiff in this case.
10
will address each contention in turn.
B.
First Amendment and Due Process Clause
Plaintiff first contends that Section 10.19 violates the First Amendment and the Due
Process Clause of the Fourteenth Amendment by “target[ing] Planned Parenthood for
unfavorable treatment based on its constitutionally protected activity as an abortion rights
advocate and provider.” (Pl.’s Reply at 1, [Doc. #57]). Plaintiff contends that because the First
Amendment protects Plaintiff’s right to “advocate for reproductive choice and abortion rights,”
the State could not directly restrain Plaintiff’s pro-choice activities without violating the
Constitution. (Pl.’s Br. at 6, [Doc. #43] (citing Planned Parenthood of Cent. & N. Ariz. v.
Arizona, 718 F.2d 938, 942-44 (9th Cir. 1983), wherein the Ninth Circuit concluded that,
although the state need not fund abortions, the state “may not unreasonably interfere with the
right of Planned Parenthood to engage in abortion or abortion-related speech activities”)).
Plaintiff further contends that although it is not a direct restraint on speech, Section 10.19’s
categorical exclusion of Planned Parenthood from DHHS-administered grants and contracts
operates to interfere with Plaintiff’s First Amendment rights such that Section 10.19
impermissibly “allow[s] the government to ‘produce a result which [it] could not command
directly.’” Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 2697, 33 L. Ed. 2d 570 (1972)
(internal citation omitted). In addition, Plaintiff contends that Section 10.19 violates the Due
Process Clause of the Fourteenth Amendment because it “unconstitutionally penalizes PPCNC
for engaging in the constitutionally protected activity of providing abortion services.” (Pl.’s Br.
at 9, [Doc. #43] (citing Planned Parenthood of Cent. Tex. v. Sanchez, 280 F. Supp. 2d 590, 608
11
(W.D. Tex. 2003), as acknowledging that “abortion providers have some constitutionallyprotected right, derived from the patients’ rights, to perform the services that are necessary to
enable women to exercise their own constitutional rights”)).
In response, Defendant contends that, as a direct grantee of Title X funds, Defendant
has broad discretion to choose with whom it will contract regarding distribution of those funds.
Defendant contends that the prohibition in Section 10.19 is merely an exercise of that discretion,
based on the State’s objective in favoring childbirth over abortion, and is not a violation of any
constitutional rights. In addition, Defendant contends, as he does in response to several of
Plaintiff’s claims herein, that Section 10.19 does not completely bar Plaintiff from applying for
Title X funds, because Plaintiff can choose to apply directly to the federal government for such
funds. In that regard, Defendant contends that Plaintiff does not have a right to receive federal
funding, but rather only has a right to apply for federal funding as a direct grantee, which
Defendant contends Section 10.19 does not impede. As such, Defendant contends that Section
10.19 does not infringe any “constitutionally-protected activities under the First Amendment or
the Fourteenth Amendment Due Process Clause.” (Def.’s Resp. at 3, [Doc. #53]; Def.’s Br. at
13-14, [Doc. #47]).
In considering the parties’ contentions, the Court notes that the Supreme Court has
recognized an “unconstitutional conditions” doctrine whereby “even though a person has no
‘right’ to a valuable governmental benefit . . . . [the government] may not deny a benefit to a
person on a basis that infringes his constitutionally protected interests–especially, his interest in
freedom of speech. For if the government could deny a benefit to a person because of his
12
constitutionally protected speech or associations, his exercise of those freedoms would in effect
be penalized and inhibited.” Perry, 408 U.S. at 597, 92 S. Ct. at 2697; see also O’Hare Truck
Servs., Inc. v. City of Northlake, 518 U.S. 712, 725-26, 116 S. Ct. 2353, 2361, 135 L. Ed. 2d 874
(1996) (“Government officials may indeed terminate at-will relationships, unmodified by any
legal constraints, without cause; but it does not follow that this discretion can be exercised to
impose conditions on expressing, or not expressing, specific political views.”). In that regard,
the Supreme Court in Rust v. Sullivan recognized the distinction between conditions placed on
federally-funded programs and those placed on the recipients of federal funds. In doing so, the
Supreme Court noted that government action would violate the unconstitutional conditions
doctrine where it “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.” Rust v. Sullivan, 500 U.S. 173,
197, 111 S. Ct. 1759, 1774, 114 L. Ed. 2d 233 (1991). Therefore, as it relates to the present case,
although the State may choose not to fund abortions or abortion-related services, the State may
not “condition participation in a government program or receipt of a government benefit, [such
as DHHS-administered contracts and grants], upon an applicant’s exercise of protected rights,”
such as the right to advocate for and provide abortion-related services. Planned Parenthood
Ass’n. of Hidalgo County Tex., Inc. v. Suehs, 828 F. Supp. 2d 872, 882 (W.D. Tex. 2012); see
also Planned Parenthood of Mid-Missouri and E. Kan. v. Dempsey, 167 F.3d 458, 463-64 (8th
Cir. 1999) (holding that a state statute excluding abortion providers from receiving state family
planning funds would be an unconstitutional penalty under Rust, unless construed to allow
13
grantees to create independent affiliates that could perform abortions); Planned Parenthood of
Cent. and N. Ariz. v. Arizona, 718 F.2d 938, 945 (9th Cir. 1983) (holding that a state statute
could “forbid entities receiving state funds from using those funds for abortions and the related
activities,” but rejecting the contention that a state could refuse to fund otherwise eligible
activities “merely because they engage in abortion-related activities disfavored by the state,” and
remanding for a determination of whether withdrawal of all state funds was the only way to
ensure that state funds were not used for abortion-related activities); Planned Parenthood of
Kansas, Inc. v. City of Wichita, 729 F. Supp. 1282, 1287-88 (D. Kan. 1990) (holding that a local
government decision not to provide funding for family planning programs to Planned
Parenthood was unconstitutional “viewpoint based discrimination” that singled out Planned
Parenthood “on the basis of its advocacy of certain unpopular ideals” in violation of the First
Amendment).
In the present case, it is undisputed that only Planned Parenthood and its affiliates are
excluded from DHHS-administered contracts and grants under Section 10.19. It is also
undisputed that Planned Parenthood is an entity that would be otherwise eligible to receive
funding, but for Section 10.19. Moreover, although Defendant contends that Section 10.19
operates merely as an exercise of discretion with regard to funding decisions, based on the
State’s objective in favoring childbirth over abortion, it is undisputed that the government
funding at issue in this case would not be used to fund abortion-related services or advocacy.
In that regard, the Court notes that Defendant has provided no evidence that the funding
prohibition in Section 10.19 is necessary to ensure that government funds are not used for
14
abortion-related services, as both federal and North Carolina legislation already exist to bar
government funds from being used for abortion-related services. Furthermore, Defendant has
presented no evidence or even allegation that Plaintiff would use, or has ever used, government
funds for abortion-related services. Rather, “there is no dispute that Section 10.19 prohibits
Planned Parenthood and its affiliated organizations, including PPCNC, from receiving funding
for non-abortion-related projects based on their other activities for which they have not sought
funding.” (Prelim. Inj. Order at 20, [Doc. #30]). Therefore, based on the evidence before the
Court, and the line of precedent described herein, the Court finds that Section 10.19 limits
access to government funding for Plaintiff, as a recipient4, in a manner that impedes Plaintiff’s
constitutional rights, and which is not necessary to serve a compelling government interest.
Dempsey, 167 F.3d at 461 (“[F]unding classifications that interfere with the exercise of
constitutional rights must be necessary to promote a compelling interest.” (internal quotations
and citations omitted)).
In so finding, the Court notes that Defendant contends that the “unconstitutional
condition” cases, such as Rust and Perry, do not apply in the instant case because Plaintiff is not
a true “beneficiary” of federal funding, but rather is merely a service provider with the right to
4
The Court notes that Defendant quotes Rust in an attempt to support its contention
that Section 10.19 is a constitutional measure implemented to forward the State’s interest in
favoring childbirth over abortion. (See Def.’s Resp. at 2-3, [Doc. #53] (quoting Rust, 500 U.S.
at 193, 111 S. Ct. at 1772 (“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.”))). However, in doing so, Defendant fails to recognize the very distinction at issue in this
case, that is, the distinction between placing conditions on a federally-funded program or project
and placing conditions or limits on a recipient of federal funding.
15
apply for funding. However, the Court finds that the Supreme Court has not so limited the
unconstitutional conditions doctrine. Rather, the Supreme Court has expressly recognized
constitutional protections for entities seeking federal contracts or funding so that they may
provide various services to others. See, e.g., O’Hare, 518 U.S. at 725-26, 116 S. Ct. at 2360-61
(recognizing First Amendment protections for the plaintiff, a private towing service seeking to
maintain government contracts to provide that service to the community); Bd. of County
Comm’rs v. Umbehr, 518 U.S. 668, 686, 116 S. Ct 2342, 2352, 135 L. Ed. 2d 843 (1996)
(recognizing First Amendment protections for the plaintiff, an independent contractor who
provided trash hauling services and was seeking to maintain his government contracts to
continue providing that service); see also Rust, 500 U.S. 173, 111 S. Ct. 1759 (addressing First
Amendment challenges by a group of plaintiffs that included family planing services providers
seeking to continue providing such services to others). As such, based on all of the information
before the Court, the Court concludes that Section 10.19 violates Plaintiff’s constitutional rights
under the First Amendment and Due Process Clause of the Fourteenth Amendment, and
Plaintiff is entitled to judgment as a matter of law on this claim.
C.
Bills of Attainder
Plaintiff next contends that Section 10.19 violates the prohibition against Bills of
Attainder in that it singles out Plaintiff for punishment based on its position as a an advocate
for reproductive rights and provider of abortion services.
“A legislative act is an
unconstitutional bill of attainder if it singles out an individual or narrow class of persons for
punishment without a judicial proceeding.” Lynn v. West, 134 F.3d 582, 594 n.11 (4th Cir.
16
1998); see also U.S. Const. art. I, § 10 (“No State shall . . . pass any Bill of Attainder.”). The
Supreme Court has held that “the Bill of Attainder Clause was intended not as a narrow,
technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of
the separation of powers, a general safeguard against legislative exercise of the judicial function,
or more simply - trial by legislature.” United States v. Brown, 381 U.S. 437, 442, 85 S. Ct. 1707,
1711-12, 14 L. Ed. 2d 484 (1965). Thus, legislative bodies must accomplish their objectives by
“rules of general applicability” and “cannot specify the people upon whom the sanction it
prescribes is to be levied.” Id. at 461, 85 S. Ct. at 1722; see also Communist Party of the United
States v. Subversive Activities Control Bd., 367 U.S. 1, 86, 81 S. Ct. 1357, 1405, 6 L. Ed. 2d 625
(1961) (“The singling out of an individual for legislatively prescribed punishment constitutes an
attainder whether the individual is called by name or described in terms of conduct which,
because it is past conduct, operates only as a designation of particular persons.”). “To constitute
a bill of attainder, the statute must (1) specify affected persons, (2) impose punishment, and (3)
fail to provide for a judicial trial.” Dempsey, 167 F.3d at 465. “To rise to the level of
‘punishment’ under the Bill of Attainder Clause, harm must fall within the traditional meaning
of legislative punishment, fail to further a nonpunitive purpose, or be based on a congressional
intent to punish.” Id. (citing Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S.
841, 852, 104 S. Ct. 3348, 3355, 82 L. Ed. 2d 632 (1984) and Nixon v. Adm’r of Gen. Servs., 433
U.S. 425, 473-76, 97 S. Ct. 2777, 2805-07, 53 L. Ed. 2d 867 (1977)).5
5
This overview of the prohibition against Bills of Attainder is taken from the Preliminary
Injunction Order. The law set forth in the overview has not changed since entry of the
Preliminary Injunction Order and remain valid with regard to the Court’s analysis of the parties’
17
In support of its claim, Plaintiff contends that Section 10.19 fits all three definitions of
“punishment,” as set forth above. With regard to whether Section 10.19 falls within the
traditional meaning of legislative punishment, Plaintiff contends that historically, legislation
which excludes the affected person or entity from certain employment or vocations has been
associated with punishment. (Pl.’s Br. at 12 , [Doc. #43] (citing Nixon v. Adm’r of Gen. Servs.,
433 U.S. 425, 474-75, 97 S. Ct. 2777, 2806, 53 L. Ed. 2d 867 (1977)). In that regard, Plaintiff
contends that Section 10.19’s categorical disqualification of Planned Parenthood and its affiliates
from receiving DHHS-administered contracts and grants effectively amounts to a “‘proscription
from any opportunity to serve’ the public,” and is therefore punitive in nature. (Pl.’s Reply at
5, [Doc. #57] (quoting United States v. Lovett, 328 U.S. 303, 316, 66 S. Ct. 1073, 1079, 90 L. Ed.
2d 1252 (1946)). Plaintiff further contends that, even if Section 10.19 does not comport with
a traditional understanding of punishment, it fails to further a nonpunitive purpose, and imposes
burdens on Plaintiff that are “‘extraordinar[ily] imbalance[d]’” with any alleged nonpunitive
objective. (Pl.’s Br. at 13 [Doc. #43] (quoting Foretich v. United States, 351 F.3d 1198, 1223-24
(D.C. Cir. 2003)). Specifically, Plaintiff contends that the objective allegedly furthered by Section
10.19, that is, the State’s proffered interest in favoring childbirth over abortion, “bears no
rational relationship to legislation that strips one specific provider of access to funds earmarked
for non-abortion services,” particularly because “PPCNC would continue to be excluded from
funds administered by DHHS, even were it to discontinue providing abortions.” (Pl.’s Br. at 13,
[Doc. #43]) (emphasis in original)). Finally, Plaintiff contends that the legislative history
present Motions.
18
surrounding the passage of Section 10.19 evidences a punitive legislative intent, based on
statements made by supporters of Section 10.19. Specifically, Plaintiff contends that supporters
of Section 10.19 “assailed [Planned Parenthood] as ‘unsavory’” and “invoked the supposed
wrongdoing that Planned Parenthood and its founder, Margaret Sanger, allegedly engaged in
decades ago.” (Pl.’s Br. at 14, [Doc. #43]).
In response, Defendant contends that Section 10.19 does not meet the traditional
definitions of punishment, in that Section 10.19 does not exclude Plaintiff from engaging in its
choice of employment or vocation. Specifically, Defendant contends that Section 10.19 does
not prohibit Plaintiff from continuing to provide abortion services and, as Defendant contends
throughout its briefing on the present Motions, that nothing in Section 10.19 prohibits Plaintiff
from applying directly to the federal government for Title X funds. Defendant raises those same
contentions in support of its position that Section 10.19 furthers “the legislature’s nonpunitive
purpose of favoring childbirth over abortion,” and that Section 10.19 does not inordinately
burden Plaintiff with regard to reaching the stated objective. (Def.’s Resp. at 9, [Doc. #53]).
In arguing that Section 10.19 furthers a nonpunitive state interest, Defendant analogizes Section
10.19 to the legislation upheld in Dempsey, contending that the Eighth Circuit found therein
that a “State’s nonpunitive interest of removing [the] State’s imprimatur from abortion services
and encouraging childbirth over abortion was served by a statute that prohibited organizations
or affiliates which provided or promoted abortions from receiving family planning funds, and
conclud[ed] that [the] statute was not intended to punish Planned Parenthood for its abortion
activities.” (Def.’s Resp. at 9, [Doc. #53] (citing Dempsey, 167 F.3d at 463-65)). Furthermore,
19
Defendant contends that the legislative history of Section 10.19 does not evidence a legislative
intent to punish Planned Parenthood. Rather, Defendant contends that statements made in
support of Section 10.19 “simply reflect an interest in ensuring that funding was available for
needed services and that the funding was provided to entities that could carry out those
services.” (Def’s Resp. at 10-11, [Doc. #53]).
In considering the parties’ contentions on Plaintiff’s Bill of Attainder claim, the Court
notes once again that this case does not in any way involve funding for abortion services. In that
regard, the Court notes that the present issue before the Court is not whether Section 10.19
impermissibly excludes Planned Parenthood and its affiliates from government grants or
contracts for funding to continue providing abortions. Rather, the issue before the Court is
whether Section 10.19 impermissibly excludes Planned Parenthood and its affiliates from
government grants or contracts that would necessarily be used to continue providing non-abortionrelated services. It is the non-abortion-related services that Plaintiff seeks the opportunity to
provide to the community and which it contends are threatened by Planned Parenthood’s
categorical exclusion from DHHS-administered grants and contracts under Section 10.19. As
such, the Court finds Defendant’s repeated assertions that Section 10.19 is not punitive in nature
because it does not prohibit Plaintiff from continuing to provide abortions, inapposite to the
discussion herein, and the Court will not consider those assertions further.
With regard to whether Section 10.19 is punitive under any of the aforementioned tests,
the Court turns first to a discussion of Dempsey, as the Eighth Circuit’s opinion provides a
pertinent distinction to the present case which warrants elaboration. As the Court expressly
20
noted in the Preliminary Injunction Order, and reiterates here, “[t]he Eighth Circuit held that
the denial of a noncontractual government benefit will not be deemed punishment if the statute
leaves open perpetually the possibility of qualifying for aid. The Eighth Circuit construed the
statute in Dempsey to allow Planned Parenthood to qualify for family planning funds by
establishing an independent affiliate to perform abortion services. However, in the present case,
Section 10.19 does not allow Planned Parenthood to qualify for family planning funds by
establishing an independent affiliate to perform abortion services. Instead, as noted above,
Section 10.19 explicitly excludes Planned Parenthood, Inc. and its affiliated organizations from any
funding administered by DHHS.” (Prelim. Inj. Order at 24, [Doc. #30] (internal citations and
quotations omitted)). Therefore, although, as Defendant notes, the Eighth Circuit found that
the statute in Dempsey was not a Bill of Attainder, Dempsey would not support a similar finding
in this case with regard to Section 10.19’s effect on Planned Parenthood, because Section 10.19
fails to meet the primary criterion on which the Eighth Circuit based its decision. Dempsey, 167
F.3d at 465 (“[The statute] allows Planned Parenthood to qualify for family-planning funds by
establishing an independent affiliate to perform its abortion services. Accordingly, it does not fall
within the traditional meaning of legislative punishment.” (emphasis added)).
Rather, the evidence in this case establishes that Section 10.19 singles out and excludes
Planned Parenthood, and its affiliates, from any opportunity to apply for and/or receive DHHSadministered grants and contracts for non-abortion-related services, which Planned Parenthood
had effectively provided to the public in the past. See Florida Youth Conservation Corps. v.
Stutler, No. 4:06CV275, 2006 WL 1835967, at *1 (N.D. Fla. June 30, 2006) (noting that the
21
effect of the unconstitutional legislation “would be to put plaintiff out of business, or at least
to put plaintiff out of the business in which it has been engaged to date”). The Court finds that
such a categorical exclusion is analogous to legislation that prohibits a person or entity from
engaging in certain employment, which courts have historically found to be associated with
punishment. See Nixon, 433 U.S. at 474-75, 97 S. Ct. at 2806; see also Florida Youth
Conservation Corps., 2006 WL 1835967, at *2 (noting that “plaintiff has in effect been found
guilty of an unspecified charge and, as its sentence, has been barred from state contracting” and
that “this legislative action is very much akin to the enactments that prompted the framers to
include in the Constitution a prohibition on bills of attainder”). As such, the Court concludes
that Section 10.19 is punitive in nature based on a traditional understanding of punishment.
In addition, with regard to whether Section 10.19 furthers a nonpunitive interest, the
Court notes that, given that the only alleged nonpunitive interest is the State’s interest in
favoring childbirth over abortion, Defendant fails to explain how categorically excluding Planned
Parenthood from applying for or receiving DHHS-administered contracts or grants for nonabortion-related services furthers that interest. As noted above, none of the contracts or associated
funding from which Planned Parenthood is excluded have anything to do with funding
abortions. In addition, as noted above, Defendant does not contend that PPCNC has
improperly used any state funds for abortions or that a total contracting ban against Planned
Parenthood and its affiliates is needed to ensure that funds administered by DHHS are not used
for abortion services. Therefore, the Court concludes that Section 10.19 does not further the
State’s asserted nonpunitive interest of favoring childbirth over abortions, and the State has
22
provided no other purportedly nonpunitive basis for the application of Section 10.19.
Moreover, as noted in the Preliminary Injunction, and based on facts which have not
changed, the Court finds that the legislative history supports the conclusion that Section 10.19
was intended to single out and punish Planned Parenthood and its affiliated organizations.
Specifically, the legislative history establishes that Representative Paul Stam, the Majority Leader
in the North Carolina House of Representatives, spoke in support of Section 10.19 during
legislative debate, asserting that Section 10.19 was appropriate because Planned Parenthood had
“particularly unsavory origins in the eugenics movement which was so deleterious in North
Carolina” and because of “the connection of Margaret Sanger, the founder of Planned
Parenthood, with the eugenics movement.” (Pl.’s Br. Ex. 3G, at 5-6, [Doc. #43-5]).
Representative Stam further stated that Section 10.19 was appropriate because “Planned
Parenthood in general, and Margaret Sanger in particular, its founders, were the driving force
behind that [eugenics] effort” and “we should not be rewarding the perpetrators of that
program.” (Pl.’s Br. Ex. 3J, at 4-5, [Doc. #43-7]). Senator Warren Daniel also spoke in support
of Section 10.19 in the North Carolina Senate, stating that “I just point out to this body that 97
percent of the pregnant women that go to a Planned Parenthood clinic are sold an abortion.
Recent year’s statistics show 332,227 abortions were performed by Planned Parenthood. Only
977 adoption referrals. I think that’s an appalling statistic, and I’m not interested in the
constituents in my district funding an organization with these kind of numbers.” (Pl.’s Br. Ex.
3H, at 4, [Doc. #43-6]).
Although Defendant contends that certain statements made in support of Section 10.19
23
reflect the purportedly nonpunitive interest of “ensuring that funding was available for needed
services and that the funding was provided to entities that could carry out those services,” the
Court does not find such an argument persuasive. Rather, the Court notes that Defendant has
failed to legitimately explain why, if the stated nonpunitive interest were the true basis for
enforcing Section 10.19, the legislation would exclude Planned Parenthood from applying to
DHHS for the funding necessary to provide those services, where Planned Parenthood is
undisputedly an entity that had capably provided the “needed services” for many years in the
past, and is an entity that DHHS had chosen to continue providing such services prior to the
passage of Section 10.19. Therefore, based on all of the information before the Court, the Court
finds that Section 10.19 was adopted specifically to penalize Planned Parenthood and its
affiliated organizations for its separate abortion-related activities. As such the Court concludes
that Section 10.19 is an unconstitutional Bill of Attainder, and Plaintiff is entitled to judgment
as a matter of law on its claim.
D.
Equal Protection Clause
Based on similar contentions as those set forth in its Bill of Attainder claim, Plaintiff
contends that Section 10.19 violates the Equal Protection Clause of the Fourteenth Amendment.
The Equal Protection Clause of the Fourteenth Amendment provides that “no State shall ‘deny
to any person within its jurisdiction the equal protection of the laws,’” thereby directing “that
all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living
Center, 473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985) (quoting U.S. Const.
amend. XIV). Where legislation creates distinctions among groups, that legislation must, at a
24
minimum, “bear a rational relationship to an independent and legitimate legislative end” in order
to “ensure that classifications are not drawn for the purpose of disadvantaging the group
burdened by the law.” Romer v. Evans, 517 U.S. 620, 632-33, 116 S. Ct. 1620, 1627, 134 L. Ed.
2d 855 (1996) (finding that “even in the ordinary equal protection case calling for the most
deferential of standards, we insist on knowing the relation between the classification adopted
and the object to be attained”). In that regard, “[t]he State may not rely on a classification whose
relationship to an asserted goal is so attenuated as to render the distinction arbitrary or
irrational.” City of Cleburne, 473 U.S. at 446-47, 105 S. Ct. at 3258 (internal quotations and
citations omitted) (noting that “objectives–such as ‘a bare . . . desire to harm a politically
unpopular group’–are not legitimate state interests” (internal citations omitted)).
In the present case, Plaintiff contends that Section 10.19 singles out Planned Parenthood
for unfavorable treatment because of its status as a pro-choice organization. Plaintiff contends
that Section 10.19’s exclusion of Planned Parenthood from DHHS-administered grants and
contracts fails to rationally relate to the State’s asserted interest of favoring child birth over
abortion. Specifically, Plaintiff contends, as it did in its Bill of Attainder claim, that the funding
that Plaintiff is excluded from receiving has nothing to do with abortions or abortion-related
services. Rather, the funding at issue could and would only ever be used for non-abortionrelated family planning services. As such, Plaintiff contends that excluding Plaintiff from nonabortion-related funding cannot rationally relate to the State’s interest in favoring childbirth over
abortion.
In response, Defendant contends, without explanation, that Section 10.19 does advance
25
the legitimate state interest in favoring child birth over abortion. In addition, Defendant
contends that Plaintiff has failed to “demonstrate that [it] has been treated differently from
others with whom [it] is similarly situated,” because Plaintiff cannot point to any other abortion
providers that currently receive Title X funds as administered by DHHS. (Def.’s Resp. at 11-13,
[Doc. #53] (internal quotations and citations omitted)). Therefore, Defendant contends that
Section 10.19 meets constitutional muster under the rational basis test and does not violate the
Equal Protection Clause. As such, Defendant contends that “Plaintiff’s proper mode of redress
for this kind of grievance would be to challenge the General Assembly’s policy by engaging the
political process, not by filing an equal protection law suit in federal court.” (Def.’s Resp. at 1516, [Doc. #53]).
In considering this claim, the Court first notes that neither party disputes that Planned
Parenthood would be an entity eligible for DHHS-administered grants and contracts but for
Section 10.19. In fact, the parties do not dispute that prior to the passage of Section 10.19,
PPCNC was selected through a competitive bidding process involving other eligible entities to
enter into family planning contracts with DHHS, as it had been selected in years past.
Therefore, because Section 10.19 excludes, by name, only Planned Parenthood and its affiliated
organizations, the Court finds that the comparison group of those “similarly situated” to
Planned Parenthood encompasses all other persons or entities that might be eligible for DHHSadministered grants or contracts. With that comparison group in mind, the Court turns to
whether Section 10.19’s exclusion of Planned Parenthood, only, from DHHS-administered
26
grants and contracts rationally relates to a legitimate government interest.6 As stated throughout
this Memorandum Opinion, the State contends that Section 10.19 furthers the State’s interest
of favoring childbirth over abortion. In that regard, the Court notes that the State may
legitimately preference child birth over abortion in certain circumstances. For example, the State
may choose to fund childbirth services and choose not to fund abortion services. See Maher
v. Roe, 432 U.S. 464, 478, 97 S. Ct. 2376, 2385, 53 L. Ed. 2d 484 (1977) (noting that in choosing
to fund childbirth services but not abortion services, the state was furthering its “legitimate
interest in encouraging normal childbirth”). As such, the State’s interest in favoring childbirth
over abortion would indeed provide a basis for prohibiting state funds from being used for
abortion services, and there is no dispute that North Carolina has already prohibited state
funding of abortions. However, as was the case at the preliminary injunction stage of these
proceedings, Defendant has not presented any grounds to conclude that the State’s interest in
favoring childbirth over abortions would provide a basis for the complete contracting ban
contained in Section 10.19, which prohibits PPCNC from receiving funding for non-abortionrelated services for which PPCNC would otherwise be eligible. In this regard, as was noted in
the prior section of this Memorandum Opinion, the Court notes that there is no evidence or
contention that such a complete ban is necessary to prevent state funds from being used to fund
abortion services, since Defendant concedes that there is no evidence or even allegation that
6
The Court notes that Plaintiff initially argues that the Court should apply a strict
scrutiny analysis to determine whether Section 10.19 violates the Equal Protection Clause.
However, because the Court finds, as discussed herein, that Section 10.19 does not meet
constitutional muster under even the rational basis test, the Court need not address the outcome
under a strict scrutiny analysis.
27
PPCNC has improperly used any state or federal funding for abortion services. Thus,
Defendant has not presented any evidence or even contention to establish how Section 10.19’s
ban on using PPCNC for non-abortion-related projects is rationally related to a legislative policy
of funding childbirth services over abortion services. See Planned Parenthood of Kansas, Inc.,
729 F. Supp. at 1290-91 (concluding that legislation precluding the City from contracting with
Planned Parenthood violated the Equal Protection Clause because “[t]he resolution was adopted
in retaliation for the plaintiffs’ pursuit of constitutionally-protected activities, and the record is
devoid of a legitimate rationale which would justify the distinction between Planned Parenthood
and other family planning organizations”); Planned Parenthood of Minnesota v. Minnesota, 612
F.2d 359, 360-61 (8th Cir. 1980) (concluding that legislation prohibiting family planning grants
to “any nonprofit corporation which performs abortions” violated the Equal Protection Clause
where there was no evidence that Planned Parenthood improperly used federal or state funding
for abortion services and there was “no rational distinction between [Planned Parenthood] and
any other non-profit corporation with respect to the providing of pre-pregnancy family planning
services”). Moreover, as noted above, the legislative history provides further evidence that
Section 10.19 was passed for the purpose of penalizing Planned Parenthood and its affiliates.
See Romer, 517 U.S. at 634, 116 S. Ct. at 1628 (“‘[I]f the constitutional conception of ‘equal
protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to
harm a politically unpopular group cannot constitute a legitimate governmental interest.’”
(quoting Dep’t of Agric. v. Moreno, 413 U.S. 528, 534, 93 S. Ct. 2821, 2826, 37 L. Ed. 2d 782
(1973)). Therefore, based on all of the evidence before the Court, the Court concludes that
28
Section 10.19 is unconstitutional in violation of the Equal Protection Clause, and Plaintiff is
entitled to judgment as a matter of law on its Equal Protection claim.
E.
Supremacy Clause
Finally, Plaintiff contends that Section 10.19 violates the Supremacy Clause in that it
conflicts with and is therefore preempted by Title X. Plaintiff asserts its Supremacy Clause claim
both pursuant to 42 U.S.C. § 1983 and directly under the Supremacy Clause.7 The Supremacy
Clause, Article VI, cl. 2 of the United States Constitution, provides that the Constitution and
laws of the United States “shall be the supreme Law of the Land” notwithstanding any contrary
state law. In this case, Plaintiff contends that Section 10.19 is contrary to and in conflict with
the provisions of Title X and is therefore invalid under the Supremacy Clause. As noted above,
Title X of the Public Health Service Act is a federal program providing funds for family planning
services for low-income or uninsured women and families. Under 42 U.S.C. § 300(a), the federal
Department of Health and Human Services provides grants and enters into contracts with
“public or nonprofit private entities” to establish and operate family planning projects. The
criteria are set out in 42 U.S.C. § 300(b):
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.
7
As noted in footnote 1, supra, Plaintiff has filed a Motion to amend its Complaint to
include more specific language regarding the bases on which it brings the Supremacy Clause
challenge. However, as concluded in footnote 1, Plaintiff need not amend its Complaint for the
Court to consider and resolve Plaintiff’s Supremacy Clause challenge both pursuant to 42 U.S.C.
§ 1983 and as brought directly under the Supremacy Clause.
29
The federal regulations likewise provide that “[a]ny public or nonprofit private entity in a State
may apply for a grant under this subpart” and specifically require only 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).” 42 C.F.R. §§ 59.3, 59.5. Title X funds, however, may not be used
to fund abortion services. See 42 U.S.C. § 300a-6; 42 C.F.R. § 59.5(a)(5). But Title X does not
contain any provision that would prohibit entities that provide abortions from receiving Title
X funds for non-abortion-related services. See Planned Parenthood of Houston and Southeast
Texas v. Sanchez, 403 F.3d 324, 340 (5th Cir. 2005) (“Under Title X, then, abortion providers
are eligible to receive family planning funding; Title X requires only that they use that funding
for legitimate Title X purposes.”). Title X funds may be provided directly from the federal
Department of Health and Human Services to a service provider, or may be provided to a
grantee who contracts with service providers. North Carolina is a Title X grantee, and North
Carolina has previously contracted with service providers, including Plaintiff PPCNC, to provide
non-abortion-related family planning services under Title X.8
Plaintiff contends that Section 10.19 conflicts with the Supremacy Clause because Section
10.19 adds an additional eligibility criteria for receiving Title X funding, to the extent that it
singles out and excludes Planned Parenthood and its affiliates from receiving Title X funding
8
This overview of the Supremacy Clause and the provisions of Title X is taken from the
Preliminary Injunction Order. The facts and law set forth in the overview have not changed
since entry of the Preliminary Injunction Order and remain valid with regard to the Court’s
analysis of the parties’ present Motions.
30
administered by DHHS. In response to Plaintiff’s position, and in his own Motion for Summary
Judgment, Defendant contends that Plaintiff cannot bring the present Supremacy Clause claim
either pursuant to 42 U.S.C. § 1983 or directly under the Supremacy Clause. In addition,
Defendant contends that even if Plaintiff could bring a Supremacy Clause challenge in this case,
such a challenge would fail, as Section 10.19 does not conflict with and is not preempted by Title
X. The Court will consider the parties contentions herein.
i.
Availability of a Claim pursuant to 42 U.S.C. § 1983 or directly under the
Supremacy Clause
With regard to whether Plaintiff may bring the present Supremacy Clause challenge
pursuant to 42 U.S.C. § 1983 or directly under the Supremacy Clause, the Court first notes that
the briefing for both parties on this subject is nearly identical to that at the preliminary injunction
stage. Moreover, based on a review of the relevant legal principles, and the unchanged factual
circumstances of this case, the Court notes that the analysis of the parties’ contentions on
summary judgment would be substantially similar to that set forth in the Preliminary Injunction
Order. As such, the Court finds no need to reiterate the entire analysis in full within this
Memorandum Opinion, and will instead incorporate by reference that analysis herein. (See
Prelim. Inj. Order at 8-12, [Doc. #30]).
The Court will, however, expand on the analysis set forth in the Preliminary Injunction
Order as follows. The Court notes that, based on the case law set forth in the Preliminary
Injunction Order, the Court found that “the present weight of authority and the current law of
the Fourth Circuit would support the conclusion that Plaintiff in the present case can raise a
claim under the Supremacy Clause for declaratory and injunctive relief based on the contention
31
that a state statute, here Section 10.19, is preempted by Title X, even if Plaintiff could not assert
a claim under 42 U.S.C. § 1983.” (Prelim. Inj. Order at 12, [Doc. #30]). In so finding, the Court
recognized that the Supreme Court had granted certiorari in the case then entitled Maxwell-Jolly
v. Independent Living Center of Southern California, Inc., 131 S. Ct. 992, 178 L. Ed. 2d 824
(2011), “to resolve the question of whether individuals may assert a direct cause of action under
the Supremacy Clause to enforce federal Spending Clause statutes against states under a
preemption theory.” (Prelim. Inj. Order at 12, [Doc. #30]). Following the parties’ briefing on
the present Motions, the Supreme Court issued its opinion in that case, now entitled Douglas
v. Independent Living Center of Southern California, Inc.,132 S. Ct. 1204, 182 L. Ed. 2d 101
(2012). However, because the federal agency issued an approval as to certain of the underlying
state statutes after the Supreme Court heard oral arguments, the Supreme Court remanded the
case to the Ninth Circuit for further proceedings in light of the changed factual circumstances.
As such, the opinion in Douglas neither provides additional support for nor undermines the
precedent used as a part of this Court’s Supremacy Clause analysis in the Preliminary Injunction
Order. Therefore, absent a Supreme Court decision to the contrary, the Court finds no reason
to disturb the Court’s previous finding that “Plaintiff in the present case can raise a claim under
the Supremacy Clause for declaratory and injunctive relief based on the contention that a state
statute, here Section 10.19, is preempted by Title X, even if Plaintiff could not assert a claim
under 42 U.S.C. § 1983.” (Prelim. Inj. Order at 12, [Doc.#30]). As such, the Court concludes
that Plaintiff may bring, and has properly brought, a claim alleging that Section 10.19 violates
the Supremacy Clause in this case.
32
ii.
Preemption of Section 10.19 by Title X
Concluding that Plaintiff may bring its Supremacy Clause claim in this case, the Court
will now address whether Section 10.19 conflicts with and is preempted by Title X. As noted
above, Plaintiff contends that because under Title X, “‘[a]ny public or nonprofit private entity
in a State may apply for a grant,’” Section 10.19’s categorical exclusion of Planned Parenthood
and affiliates, which are entities otherwise eligible for Title X funds, from DHHS-administered
Title X funds, impermissibly adds an eligibility criteria for federal family planning services grants.
(Pl.’s Br. at 17, [Doc. #43] (quoting 42 C.F.R. § 59.3 (emphasis added))). In support of its
contention, Plaintiff notes that multiple other courts, such as the Fifth Circuit in Planned
Parenthood of Houston and Southeast Texas v. Sanchez, have found that “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 324, 336-42 (5th Cir. 2005) (holding
that a state statute that prohibited distribution of family planning funds to entities that perform
abortions would be inconsistent with Title X and in violation of the Supremacy Clause to the
extent that the state statute excluded otherwise eligible entities from receiving funding for family
planning programs, but the state statute would be constitutional if the state statute were
construed to authorize entities to receive family planning funding if the entities created
“affiliates” that provided the abortion services, in order to keep the family planning programs
separated from the abortion services); see also Valley Family Planning v. North Dakota, 661
F.2d 99, 100 (8th Cir. 1981) (holding that a state statute withholding Title X funds from any
entity that performs, refers or encourages abortions was in conflict with Title X and was
33
therefore invalid under the Supremacy Clause); Planned Parenthood of Kansas and MidMissouri v. Brownback, 799 F. Supp. 2d 1218, 1232 (D. Kan. 2011) (holding that a state statute
that operated to exclude Planned Parenthood from receiving federal Title X funding
administered by the state was invalid under the Supremacy Clause); Planned Parenthood of
Billings, Inc. v. Montana, 648 F. Supp. 47, 51 (D. Mont. 1986) (striking down a state law which
added a requirement that for any Title X funds distributed by the state, any abortions must occur
in a physically separate facility from the family planning services funded by Title X). Based on
these, and other, cases, Plaintiff contends that courts that have “consider[ed] legislation like
Section 10.19[,] which bars otherwise eligible entities from becoming Title X subgrantees[, have]
ruled that [such legislation] violates the Supremacy Clause.” (Pl.’s Reply at 10, [Doc. #57]). As
such, Plaintiff asks that the Court “follow that unbroken line of precedent and invalidate Section
10.19.” (Pl.’s Reply at 10, [Doc. #57]).
In response, although Defendant agrees that “states are not permitted to establish
eligibility standards for federal assistance programs that conflict with the existing federal
statutory or regulatory scheme,” Defendant contends that Section 10.19 does not impose
additional eligibility standards, and therefore is neither in conflict with nor preempted by Title
X. (Def.’s Resp. at 16, [Doc. #53]). Specifically, Defendant contends, as he has throughout the
briefing on the present Motions, that Section 10.19 does not conflict with Title X because
Plaintiff remains able to apply directly to the federal government for family planning funding.
In that regard, Defendant contends that Plaintiff’s decision not to “undertake [the] legal and
financial responsibility of being a [direct] Grantee in North Carolina does not make it ‘ineligible’
34
to apply for [Title X] funds.” (Def.’s Resp. at 18, [Doc. #53]). Moreover, Defendant contends
that nothing in Section 10.19 undermines Congress’s objective under Title X to provide family
planning services to low income beneficiaries because such services will continue to be provided.
As a corollary to that argument, Defendant contends, as it did in opposition to Plaintiff’s First
Amendment claim, that although Plaintiff may have a right to apply for funding as a direct
grantee, it has no right to receive such funding, as it is not a “beneficiary” of a federal program
with a right to receive a federal benefit.
In support of its contention that Section 10.19 does not violate the Supremacy Clause,
Defendant does not point to any cases in which a provision similar to Section 10.19 was upheld
as being constitutional. Rather, Defendant attempts to distinguish certain cases where the court
invalidated a state statute under the Supremacy Clause by contending that each of those cases
involved legislation that added eligibility requirements with regard to the individual recipients
of the government services, or the ultimate “beneficiaries”, and not with regard to the service
provider entity seeking the funding as grantees or subgrantees. However, the Court notes that
Defendant does not distinguish the cases noted above, or any others, where courts do address
the Supremacy Clause preemption question with regard to state statutes that exclude entities
seeking Title X funds as grantees or subgrantees.9 In addition, with regard to Defendant’s
9
The Court notes that Defendant does cite to Sanchez in support of its contention that
Section 10.19 does not violate the Supremacy Clause in this case. However, although the Fifth
circuit in Sanchez concluded that the statutes at issue in that case could be rendered
constitutional if the statute was interpreted to allow the creation of affiliates to perform the
abortion services, in the present case Defendant has not argued that Section 10.19 can be
construed in that manner. Indeed, as noted above, Section 10.19 by its very language prohibits
funding for Planned Parenthood and its affiliated organizations. Thus, Section 10.19 directly
35
contention that because Plaintiff can apply directly to the federal government for Title X funds,
Section 10.19 does not render Plaintiff “ineligible”, the Court notes first that at the time this
action was filed, the process for applying for and obtaining funding for the 2011-2012 fiscal year
had already passed. As noted above, for the 2011-2012 fiscal year, Plaintiff applied for Title X
funding through DHHS and was successful in that process and was awarded funds through the
state’s Title X grant. It is those funds that were initially withheld pursuant to Section 10.19, and
Plaintiff would not have had the opportunity to obtain Title X funds directly from the federal
government for the 2011-2012 fiscal year.10 Moreover, even if Plaintiff could apply directly to
the federal government in future years, the state still would not be free to add additional criteria
for Title X funding administered by the state. See Planned Parenthood of Kansas, 799 F. Supp.
2d at 1231 (concluding that “[i]t is irrelevant that Planned Parenthood might—after considerable
delay and damage—obtain a direct grant of funding from HHS in some future year” because the
Title X eligibility standards apply not just to direct grantees, but also to subgrantees of a state).
Therefore, the Court concludes once again that the fact that Plaintiff may, at some point in the
future, be able to apply directly for Title X funding does not mean that the state may now or in
the future impose additional eligibility criteria or exclusions with respect to the Title X funding
administered by the state. Therefore, based on the foregoing, the Court finds that Section 10.19
forecloses the one distinguishing basis that Sanchez suggested for construing a provision such
as Section 10.19 to render it constitutional.
10
As noted above, Section 10.19, were it not preliminarily enjoined, would have applied
to the 2012-2013 fiscal year as well. However, the Court does not presently have before it any
information regarding contracts or grants sought by or provided to any entity for the 2012-2013
fiscal year.
36
violates the Supremacy Clause, in that it impermissibly limits the distribution of federal Title X
funds administered by DHHS. As such, the Court concludes Plaintiff is entitled to judgment
as a matter of law on this claim.
Based on the foregoing discussion, the Court concludes that Plaintiff is entitled to
judgment as a matter of law on all of its claims, as set forth herein. As such, the Court will now
address Plaintiff’s request for a permanent injunction in this case.
III.
PERMANENT INJUNCTION
A party seeking permanent injunction must demonstrate “‘(1) that it has suffered an
irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate
to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted; and (4) that the public interest would not be
disserved by a permanent injunction.’” Christopher Phelps & Assocs., LLC v. Galloway, 492
F.3d 532, 543 (4th Cir. 2007) (quoting eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391, 126
S. Ct. 1837, 1839, 164 L. Ed. 2d 641 (2006)). As discussed below, Plaintiff correctly contends
that all four factors favor granting permanent injunctive relief in this case.
With regard to the question of irreparable harm, Plaintiff has provided undisputed
evidence that, prior to the execution of the family planning contracts in August of 2011, Plaintiff
was forced to stop providing free long-lasting contraceptives to low-income women as a result
of Section 10.19. In addition, Plaintiff has presented evidence that any continued enforcement
of Section 10.19 will force Plaintiff to close its Durham clinic thereby laying off staff members
and making it more difficult for women in need of the medical services provided by Plaintiff to
37
obtain that care promptly.
Based on the evidence presented in this case, Plaintiff has
undisputedly shown that it has suffered, and will continue to suffer, irreparable harm in the
absence of an injunction in this case. Furthermore, remedies at law would not serve to
compensate Plaintiff, as Plaintiff would remain ineligible to apply for DHHS-administered grants
and contracts should application of Section 10.19 be allowed.
In addition, although Plaintiff has and will continue to suffer irreparable harm in the
absence of an injunction, Defendant will suffer no such harm upon entry of permanent injunctive
relief in this case. As noted above, the injunctive relief sought by Plaintiff, and preliminarily
granted by the Court, is not mandatory in nature, and would not require the State, or any agency
within the State, to enter into contracts with Plaintiff or any other entity. Furthermore,
Defendant has provided no evidence that Section 10.19 provides any budgetary effect such that
enjoining Section 10.19 would result in straining the state budget in any way. Rather, a
permanent injunction of Section 10.19 would simply place Planned Parenthood, and its affiliated
organizations, on the same footing as all other eligible entities who seek to apply for DHHSadministered grants and contracts. As such, the Court finds that the balance of hardships favors
permanently enjoining Section 10.19 in this case.
Finally, the Court finds that the public interest would not be disserved by permanently
enjoining Section 10.19. As noted in the Preliminary Injunction Order, and based on factual
circumstances that have not changed, “Plaintiff is providing women’s health and teen pregnancy
prevention services already funded by the state and the federal government, separate from any
abortion services. If Section 10.19 is enforced, Plaintiff would have to cease providing those
38
non-abortion-related health services. Such action would result in the public having less access
to health services, including family planning services, particularly for low income women.”
(Prelim. Inj. Order at 33-34, [Doc. #30]). In addition, as counsel for Defendant agreed with
Plaintiff at the Preliminary Injunction hearing, and has not effectively disputed for purposes of
the present Motions, that it may be more difficult for individuals to obtain health services if
PPCNC is forced to close its Durham clinic as a result of Section 10.19. Therefore, based on the
foregoing, the Court concludes that Plaintiff has demonstrated that all four factors noted above
favor entry of a permanent injunction in this case. As such, the Court will grant Plaintiff’s
request for a permanent injunction and will, therefore, permanently enjoin Defendant from any
further enforcement of or reliance on Section 10.19 of North Carolina Session Law 2011-145.
IV.
CONCLUSION
Based on these determinations, the Court concludes that Plaintiff’s Motion for Summary
Judgment and Permanent Injunction should be granted and Defendant’s Motion for Summary
Judgment should be denied. As such, the Court will issue a Declaratory Judgment declaring that
Section 10.19 of North Carolina Session Law 2011-145 violates the United States Constitution,
as set forth herein, and enjoin Defendant from any further enforcement of or reliance on Section
10.19. As a result, Defendant Cansler may not enforce Section 10.19 by singling out Planned
Parenthood, Inc. and its affiliated organizations for exclusion from programs funded by the state
or funded by the federal government and administered by DHHS for non-abortion related
services.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Summary Judgment and
Permanent Injunction [Doc. #42] is hereby GRANTED, and Defendant’s Motion for Summary
Judgment [Doc. #46] is hereby DENIED. IT IS DECLARED that Section 10.19 of North
39
Carolina Session Law 2011-145 violates the United States Constitution, as set forth herein, and
Defendant is hereby ENJOINED from any further enforcement of or reliance on Section 10.19
of North Carolina Session Law 2011-145.
FINALLY, IT IS ORDERED that Plaintiff’s Motion for Leave to File an Amended
Complaint for Injunctive and Declaratory Relief [Doc. #41] is hereby DENIED.
A Judgment will be filed contemporaneously herewith.
This the 28th day of June, 2012.
United States District Judge
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