A new state law denying sex education funding to Planned Parenthood will likely be found unconstitutional, a Polk County District Court has determined.

Judge Joseph Seidlin issued a temporary injunction to block new statutory restrictions on Planned Parenthood of the Heartland’s access to government sex education grants. His order, enclosed in full below, found Planned Parenthood would suffer “irreparable harm” if the law took effect. State agencies are due to announce fiscal year 2020 recipients for the Community Adolescent Pregnancy Prevention and Services Program (CAPP) and the Personal Responsibility Education Program (PREP) on May 31.

In addition, the court’s order stated Planned Parenthood was “likely to succeed on the merits of its equal protection claim” under the Iowa Constitution, since the law contains an exemption for a “nonprofit health care delivery system” that provides abortions in some locations.

The day before the Iowa legislature adjourned for the year, Republicans revealed a new version of the health and human services budget, House File 766. One of its most controversial provisions sought to deny Medicaid coverage for gender-conforming surgery.

Sections 99 and 100 targeted Planned Parenthood, stipulating that when awarding the CAPP and PREP grants, state agencies

shall exclude as an eligible applicant, any applicant entity that performs abortions, promotes abortions, maintains or operates a facility where abortions are performed or promoted, contracts or subcontracts with an entity that performs or promotes abortions, becomes or continues to be an affiliate of any entity that performs or promotes abortions, or regularly makes referrals to an entity that provides or promotes abortions or maintains or operates a facility where abortions are performed. However, the prohibition specified in this section shall not be interpreted to include a nonpublic entity that is a distinct location of a nonprofit health care delivery system, if the distinct location provides personal responsibility education program or sexual risk avoidance education grant program services but does not perform abortions or maintain or operate as a facility where abortions are performed.

UnityPoint was the “nonprofit health care delivery system” exempted under this section, Republican State Senator Mark Costello made clear during Iowa Senate debate on April 26. You can watch his full exchange with Democratic State Senator Janet Petersen here, beginning around the 4:00:00 mark. I pulled the clip most relevant to today’s ruling.

My transcript:

Petersen: Senator Costello, could you explain why you’re targeting only one organization by cutting off Planned Parenthood from the program?

Costello: Um, we are not targeting Planned Parenthood by name, but the fact that they provide abortions is the criteria that we’re setting up to not be able to participate in this program.

Petersen: If I read correctly, it looks like UnityPoint is being allowed to participate in the program.

Costello: I believe that’s correct, yes.

Petersen: Would University of Iowa Hospitals and Clinics be allowed to participate in the program?

Costello: I’m not so sure about that. [checks with colleague] I don’t think so.

Petersen: Why would you not let University of Iowa Hospitals and Clinics participate in the program?

Costello: Well, again, it’s the abortion issue. We don’t feel that the people of Iowa should be required to do business with people that provide abortions.

Planned Parenthood filed suit on May 15, shortly after Governor Kim Reynolds signed House File 766. I enclose below the plaintiff’s petition and supporting brief. The lawsuit makes five claims under the Iowa Constitution:

Free speech: the law violates Article I, Section 7 “by denying government funds to PPH because of—and in retaliation for—its constitutionally protected advocacy for abortion rights and referrals for abortion.”

Free association: the law violates the same section of the constitution “because of—and in retaliation for—its constitutionally protected right to associate with other organizations that also advocate for abortion rights and/or provide abortion services.”

Due process: the law violates Article I, Section 9 “by denying government funds to PPH because of—and in retaliation for—its exercise of its own constitutionally protected right to provide abortions and its patients’ exercise of the constitutional right to choose to have an abortion.”

Equal protection: the law violates Article I, Sections 1 and 6 “by singling out abortion providers and those who ‘promote’ abortions, including PPH, for unfavorable treatment without a constitutionally sufficient justification.”

Bill of attainder: the law violates Article I, Section 21 “by targeting PPH as an abortion provider and advocate for abortion access for punishment without a judicial trial.”

Here’s the full text of Judge Seidlin’s order, published on May 29:

At this stage of litigation, the judge was not ruling on all of Planned Parenthood’s claims. The court was considering whether 1) plaintiffs would suffer irreparable harm if the law took effect, 2) plaintiffs would be likely to succeed when a court considers the merits, and 3) a temporary injunction would appropriately balance harms potentially suffered by each party.

Planned Parenthood applied earlier this year to extend its contracts with the Iowa Department of Human Services to provide services under CAPP in Des Moines, Henry, Jasper, Lee, Linn, Polk, Plymouth, and Woodbury Counties. The organization is being paid $182,797 during the current fiscal year for that programming. Planned Parenthood also has a contract with the Iowa Department of Public Health worth $85,000 to provide PREP services in Polk, Pottawattamie, and Woodbury Counties.

Judge Seidlin noted on page 7,

No theory has been put forth as to how PPH could seek to recover money damages from the State once the grant application period has expired, or how the grants could be awarded after-the fact should PPH provide the services covered by the grants on its own. Further, this request for an injunction involves an alleged deprivation of Constitutional rights. Should the court find that to be the case, no further showing of irreparable harm is necessary.

The order did not consider several of the constitutional claims at hand, “because the court believes that the issue of whether to grant a temporary injunction can be resolved through addressing the equal protection argument.” From pages 9 and 10:

Here, a provider of legal abortions is similarly situated to non-abortion providers who seek government funds having nothing to do with abortion. Both CAPP and PREP grantees are required to rely on existing curricula selected by the respective state agencies administering the programs, and must follow reporting and documentation requirements. Permitted purposes of the CAPP and PREP grants do not include performing or promoting abortion.

Specifically excepted from the classification are any “nonpublic entity that is a distinct location of a nonprofit health care delivery system, if the distinct location provides personal responsibility education program or sexual risk avoidance education grant program services but does not perform abortions or maintain or operate as a facility where abortions are performed.” Under the Act, such location of a “nonprofit health care delivery system” can otherwise promote abortions, contract or subcontract with an entity that performs or promotes abortions, become or continue to be an affiliate of any entity that performs or promotes abortions, and/or regularly make referrals to an entity that provides or promotes abortions or maintains or operates a facility where abortions are performed, and still be eligible for CAPP and PREP funding.

The judge found that the law would not survive even the most deferential “rational basis” standard courts could apply.

Defending the law, the state argued in a motion enclosed below that the legislature had two possible “legitimate state interests”: a value judgment favoring childbirth over abortion, and a preference for teens not to receive services from entities that rely on abortion for a significant revenue stream. “Even if that does not describe Planned Parenthood of the Heartland, the legislature is entitled to prevent some less scrupulous provider from applying for grant money under the CAPP and PREP programs.”

Judge Seidlin dismantled those arguments on pages 11 to 14. “CAPP and PREP programming have nothing to do with the issue of live birth or abortion.” Furthermore, the law singles out Planned Parenthood while making an exception for UnityPoint, which also provides abortion-related services.

As for the second point,

One is left to wonder how an eligible nonprofit healthcare delivery system facility that under this legislation is allowed to receive grants while also promoting abortions; contracting, subcontracting or affiliating with an entity that performs or promotes abortions; and/or regularly making referrals to an entity that provides or promotes abortions would be any more scrupulous than the intended target of this legislation. For that matter, what basis in fact could there be that providers of legal abortions have less scruples than anyone else?

Even if Planned Parenthood were unable to prove its other constitutional claims, the law would likely fail on equal protection grounds.

Finally, the order noted,

The State has made no argument that it would be harmed by the award of temporary injunctive relief. PPH, on the other hand, would lose the opportunity to obtain substantial annual grant money to continue to provide sexual education and teen pregnancy prevention programs under CAPP and PREP funding that it has been participating in for some time.

For those reasons, the contested portions of House File 766 are on hold as the lawsuit works its way through the courts.

The Iowa Department of Public Health confirmed by e-mail that the agency will comply with the court ruling. If Judge Seidlin’s decision is not stayed or reversed, Planned Parenthood will be eligible for PREP grants. Staff for the Iowa Department of Human Services did not respond to Bleeding Heartland’s inquiry about the CAPP grants.

In a May 29 news release, the ACLU of Iowa’s legal director Rita Bettis Austen said, “Today’s decision is an important step to protect the Iowa teens who rely on Planned Parenthood of the Heartland to provide sex education and teen pregnancy prevention programming in our state. It’s also an important step to protect the important fundamental abortion, free speech, and free association rights that are at stake.”

Planned Parenthood’s state executive director Erin Davison-Rippey added,

“We are pleased and relieved by today’s ruling, which means young Iowans can still get accurate, reliable information about their bodies and their relationships. Planned Parenthood provides state-approved curricula in the very communities where the rates of unintended pregnancy and STDs are among the highest in the state. We cannot put the health of our future generations at risk. It’s essential that Planned Parenthood, the trusted provider of comprehensive sex education in Iowa for decades, can continue to provide these important programs.”

Final note: When Republicans created a new family planning program in 2017 in order to deny funding to Planned Parenthood, they wrote the law in a way that also disqualified UnityPoint. The legislature amended the statute last year to fix that problem. In their desire not to deprive UnityPoint affiliates of sex education funding, Republicans structured this year’s last-minute provisions in an unconstitutional way. Maybe they shouldn’t have rushed a major policy change through with no hearings and only 24 hours notice.

Appendix 1: First petition filed in Planned Parenthood lawsuit over sex education funding

Appendix 2: Brief supporting Planned Parenthood petition:

Appendix 3: State’s resistance to the plaintiff’s motion for an injunction