Court strikes down Iowa law denying sex ed funding to Planned Parenthood

Iowa Republicans were too clever by half when they slipped language targeting Planned Parenthood into a budget bill last year. Instead of prohibiting state agencies from awarding sex education grants to all entities that provide abortions, GOP lawmakers wrote an exception into the law so that UnityPoint facilities could remain eligible for the funding.

For that reason, a Polk County District Court determined this week that the prohibition violated the Iowa Constitution's equal protection guarantee.

Two paragraphs added to the health and human services budget the day before the Iowa legislature adjourned in 2019 stipulated that when awarding funding under the Community Adolescent Pregnancy Prevention and Services Program (CAPP) and the Personal Responsibility Education Program (PREP), 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.

During Iowa Senate debate, the bill's floor manager admitted the passage was designed to preserve UnityPoint's eligibility. Republicans didn't want to repeat a mistake made in 2017 when GOP lawmakers stripped family planning funding from abortion providers. The Iowa Department of Human Services later interpreted that law as applying to UnityPoint facilities as well as to clinics operated by Planned Parenthood of the Heartland. The legislature cleaned that up with a budget provision the following year.

Shortly after Governor Kim Reynolds signed the 2019 bill into law, Planned Parenthood of the Heartland filed suit, charging the effort to deny sex education grants violated the Iowa Constitution in five ways.

Polk County District Court Judge Joseph Seidlin temporarily enjoined the law after finding Planned Parenthood would suffer “irreparable harm” if the law took effect and was “likely to succeed on the merits of its equal protection claim” under the Iowa Constitution. He noted the law's exemption for a “nonprofit health care delivery system” that provides abortions in some locations. His order, which Bleeding Heartland published here, foreshadowed Judge Paul Scott's granting summary judgment to Planned Parenthood, which permanently blocks the language from taking effect.

Here's the full text of that May 7 ruling.

Scott did not rule on Planned Parenthood's free speech, free association, due process, or bill of attainder claims, after finding that the law violated the organization's right to equal treatment under Article I, Section 6 of the state constitution.

The judge evaluated the law using a "rational basis" standard, which is the easiest bar for a government to clear. The state only had to prove the legislature had some "plausible policy reason" for blocking sex ed funding to Planned Parenthood.

Attorneys representing the state suggested several reasons the law might serve some "legitimate government interest." Perhaps legislators wanted to make "a value judgment favoring childbirth over abortion."

This potentially is a legitimate government interest. However, this legislation does nothing to serve that interest. Neither PREP nor CAPP have anything to do with abortion or childbirth. The classification the legislation makes here makes no difference as to grants having nothing to do withfavoring childbirth over abortion. All grant recipients are required to rely on the curricula that the state provides. The grant money cannot be used for any abortion-related services.

Or perhaps "the legislature concluded that it does not want organizations for whom abortion represents a significant revenue stream to receive government funds to provide sex education and pregnancy prevention programming to Iowa teens," on the grounds that the abortion provider may encourage youth to have abortions. Or maybe the state "simply does not want to indirectly subsidize the work of organizations who perform or promote abortions."

On all of those grounds, the law fails a rational basis test because of the exemption for UnityPoint.

It is under-inclusive because state funds could still subsidize an eligible “nonprofit healthcare delivery system” facility that promotes abortions; contracts or subcontract or affiliates with an entity that performs or promotes abortions; and/or regularly makes referrals to an entity that provides or promotes abortions. It is over-inclusive, yet again, because even if PPH did not do any abortion-related activity in Iowa, it could not receive this grant money under the Act because it affiliates with out-of-state entities that perform abortion- related activities. Meanwhile, other possible recipients of the grants that are “nonprofit healthcare delivery system” facilities could still promote or refer patients for abortions in Iowa.

Judge Scott concluded, "The carved out exception for the 'nonprofit healthcare delivery system' facilities undermines any rationale the State produces of not wanting to be affiliated with or provide funds to organizations that partake in any abortion-related activity."

Following the temporary injunction, Planned Parenthood was awarded PREP and CAPP grants for the current year and has continued to provide sex education programming in several Iowa counties. The organization praised the permanent injunction in a statement released on May 7. Excerpt:

Erin Davison-Rippey, Iowa Executive Director of Planned Parenthood North Central States, said, “Young Iowans deserve the information and education they need in order to make healthy decisions. And we know comprehensive sex education leads to fewer unintended teen pregnancies and decreases sexually transmitted infection rates, which are skyrocketing across the state. Today’s decision ensures that teens and young adults across Iowa will continue to have access to medically accurate sex education programs, despite the narrow and reckless policies of anti-abortion lawmakers.”

Since 2005, Planned Parenthood has used Iowa’s state-approved sex education curriculum to provide sex education to tens of thousands of Iowa youth. Planned Parenthood provides age-appropriate, medically accurate sex education at 31 schools and 12 community-based youth-serving organizations across Iowa, with a focus on areas with the highest rates of unintended pregnancies and STIs [sexually transmitted infections].

I'm seeking comment on whether the state will appeal this decision and will update this post as needed. UPDATE: Speaking on behalf of the Iowa Attorney General's office, Lynn Hicks told Bleeding Heartland on May 8, "We’re reviewing and discussing the next steps with the governor’s office."

Final note: the other controversial provision Republicans added at the last minute to the fiscal year 2020 health and human services budget has also been challenged in court. That language was designed to prevent Iowa Medicaid from covering gender-affirming surgeries. A Polk County District Court dismissed that challenge last year, but plaintiffs appealed the decision. The case is pending with the Iowa Court of Appeals.

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