By Jonathan Stempel
(Reuters) – A divided federal appeals court on Tuesday rejected Planned Parenthood’s constitutional challenge to an Ohio law depriving the organization of state funding because it performs abortions, handing a victory to anti-abortion advocates.
In an 11-6 vote, the 6th U.S. Circuit Court of Appeals in Cincinnati overturned a ruling last year by a three-judge panel of the court that the funding ban violated the due process rights of Planned Parenthood affiliates.
“The affiliates are correct that the Ohio law imposes a condition on the continued receipt of state funds,” Circuit Judge Jeffrey Sutton wrote for the majority. “But that condition does not violate the Constitution because the affiliates do not have a due process right to perform abortions.”
Sutton also found no proof the ban posed an undue burden on a woman’s right to abortion, a right he said belonged to women, not to Planned Parenthood.
Tuesday’s decision voided a lower court injunction against enforcing the 2016 law, which had been signed by then-Republican Governor John Kasich. The appeals court upheld the injunction last April 18.
Planned Parenthood said the law strips funding that helps it test for HIV and other sexually transmitted diseases, conduct cancer screenings, and offer programs to reduce infant mortality and address domestic violence.
“It is unconscionable that politicians continue seeking to restrict people from accessing essential health care – which is a human right,” Chief Executive Leana Wen said in a statement.
Planned Parenthood did not say whether it might appeal to the U.S. Supreme Court.
Ohio’s defense of the law was long led by then-Republican Attorney General Mike DeWine, who is now governor.
“Governor DeWine is pleased by today’s decision as he has long believed that the people of Ohio, through its state legislature, have the right to decide what it funds and what it doesn’t fund,” spokesman Dan Tierney said.
The Ohio law is one of many in recent years from Republican-led states to restrict abortion providers, as President Donald Trump appoints more conservatives to the federal bench.
All 11 judges in Tuesday’s majority are Republican appointees, including four named by Trump, while five of the six dissenting judges were appointed by Democratic presidents.
Eric Murphy, who argued Ohio’s original appeal for ending funding, won U.S. Senate approval this month to join the appeals court after being appointed by Trump.
The Ohio law targeted nearly $1.5 million of annual Planned Parenthood funding from the state health department.
It required the department to ensure that funds it received through six non-abortion-related federal programs were not used to fund providers of non-therapeutic abortions.
Planned Parenthood of Greater Ohio said it runs 19 centers, most of which do not perform abortions.
Circuit Judge Helene White, who wrote the April 2018 ruling, in a dissenting opinion accused the majority of trying to force Planned Parenthood to “cry uncle” and lose funding as a condition of performing abortions.
“The Constitution prohibits unduly burdening a woman’s abortion right, even in the form of laws that directly target only the gatekeeper to a woman’s abortion right – the provider,” White wrote.
The case is Planned Parenthood of Greater Ohio et al v Hodges, 6th U.S. Circuit Court of Appeals, No. 16-4027.
(Reporting by Jonathan Stempel in New York; Editing by Grant McCool and Sonya Hepinstall)