Planned Parenthood of the Heartland faced pointed questions from Iowa Supreme Court justices on Tuesday as the court considered a law barring the organization from receiving state funds for sex education programming.
Although the 2019 law itself is narrowly written, the court’s decision could have far-reaching implications as to whether the state can refuse to hire people or businesses based on speech or advocacy that is arguably unrelated to the work they might do for the state.
In May 2020, an Iowa district judge struck down the controversial state law, ruling that it was unconstitutional in that it violated Planned Parenthood’s right to equal protection under the law. The state appealed that ruling, sending the case to the Iowa Supreme Court.
The dispute centers on the eligibility for two state grant programs aimed at educating Iowa teens about sex, pregnancy and related topics. The curricula for the two grant programs is specified by the state, and does not include any materials concerning abortion.
But conservative state lawmakers, concerned that any money flowing into Planned Parenthood could be considered an indirect subsidy of abortion, approved the 2019 bill amending the eligibility requirements for grantees so as to exclude those who performed or promoted abortions.
Attorney Thomas J. Ogden, representing the state, told the justices on Tuesday that although the grant money is not used to pay for abortions or to promote abortions, the mere fact that the state would contract with Planned Parenthood might send the message that the state approves of Planned Parenthood’s advocacy of abortion rights.
“If you’re a parent or, you know, a citizen of the state and you find out that Planned Parenthood is providing sex education under these programs for Iowa teens, I think that you, there’s a risk that you would react to that differently than you would react to somebody who is not engaged in extracurricular, for lack of a better phrase, performance of abortions or advocacy in favor of access to abortion,” Ogden argued.
He said that while the state generally can’t attempt to regulate the speech of people outside the scope of the programs they’ve been chosen to handle at state expense, it can do so when that speech threatens to “undermine or confuse” the message the state is attempting to deliver through the program.
In response, Chief Justice Susan Christensen noted that Planned Parenthood has been delivering services under one of the two state programs for 12 years, and asked Ogden whether there was “any evidence or data to show” that the people of Iowa were left confused had been “misguided” as to the intent of the program.
“Not on this record, no,” Ogden conceded, adding that members of any particular legislative session are allowed to change direction from the course charted by past legislatures and can pass laws to address new concerns. “While I would agree with you this record is devoid of any evidence of that kind of confusion in the past, I don’t think that under the rational-basis test that this prevents them from acting in the future,” he said.
Justice Christopher McDonald asked Planned Parenthood’s attorney, Julie Murray, about the state’s claim that as the entity paying for sex-education instruction, which represents its own form of speech, the state has a legitimate interest in selecting those who will deliver that speech. McDonald asked Murray for her take on other, theoretical limitations of that kind.
“Let’s assume the government wanted to fund an anti-racist curriculum for teenagers,” McDonald said, “and that as a provision of the statute it excludes any organization that engages in racist speech that might be protected speech, as well. Tell me why that’s not a legitimate interest for the government to exclude that speaker from delivering that curriculum.”
“What you are describing in your hypothetical is a situation in which the message to which the government is objecting to outside of the program is directly antithetical to the message that the government wants to fund in the program,” Murray said. “That is not the case here, where the government has conceded … that these programs do not have an abortion-related message.”
Another of the justices asked whether the government couldn’t, as part of an effort to promote ethanol, choose to hire only ad agencies that don’t work for oil companies.
“Here, the rights at issue are fundamental — the right to abortion, the right to speech, the right to association,” Murray said. She posed a hypothetical of her own in which the state of Iowa chose to prohibit organizations that have an anti-abortion message from providing sex education instruction. “That would be equally unconstitutional,” she said.
In filings with the court, Planned Parenthood claims the law was passed for the sole purpose of “penalizing Planned Parenthood” for its abortion-related activities.
“A law based on sheer animus cannot survive any level of review,” the organization argues. “A bare desire to harm a group of which the government disapproves is precisely the type of invidious discrimination prohibited by the equal-protection guarantee.”
In support of its “punishment” theory, Planned Parenthood notes that state lawmakers singled out the organization by their decision to include in the law an exemption that ensured continued grant funding for Trinity Muscatine, which is part of UnityPoint Health, a health network that performs abortions.
In countering that argument, the state says hospital systems like UnityPoint Health are “not associated with the performance of or advocacy for abortions in the same way as Planned Parenthood, even though they may perform a small number of abortions or refer a small number of patients for them.”