The American Center for Law and Justice (ACLJ) has filed an amicus brief with the Court of Appeals for the Sixth Circuit defending an Ohio law that prohibited taxpayer dollars from flowing to abortion providers.
The law bars organizations that provide and advocate for abortion from participating in six state health education programs related to pregnancy support, maternal health and STD/HIV prevention. Planned Parenthood filed a lawsuit in federal court, claiming the law violated its constitutional right to perform and advocate for abortion.
The district court ruled for Planned Parenthood and a Sixth Circuit three-judge panel affirmed. Both courts held that because the Ohio law conditioned funding on Planned Parenthood’s forfeiture of its right to promote and perform abortion outside the scope of the state health programs, it violated the First Amendment and the Due Process Clause. Ohio asked the entire Sixth Circuit to rehear the case, and although such rehearings are rarely granted, the Sixth Circuit judges agreed to rehear the case.
We filed an amicus brief urging the full Sixth Circuit to reverse the lower court. We argued that the First Amendment doctrine does not require Ohio to allocate taxpayer funds to an organization that promotes an unrestricted abortion license, where that promotion is contradictory to Ohio’s policy favoring childbirth.
The government’s prerogative to discourage abortion through the allocation of taxpayer dollars encompasses the power to establish health program selection criteria that ensure that the contracting entities will credibly promote the state’s policy favoring childbirth. Criteria which result in the exclusion of a preeminent national opponent of a state’s policy constitutionally prevent the state’s policy and message from being undermined.
The First Amendment protects the rights of all organizations to advocate for any policy they choose. It does not require the government to contract with those organizations, or their affiliates, to deliver government services when the organization’s status as a national opponent of a state’s policy will undermine its affiliates’ ability to promote the pertinent government policy.
Oral argument is scheduled before the full Sixth Circuit on October 3, 2018.
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