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Media Alerts - Planned Parenthood of Kansas and Mid-Missouri v. Robert Moser - 10th Circuit
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April 4, 2014
  Planned Parenthood of Kansas and Mid-Missouri v. Robert Moser - 10th Circuit
Case Name: Planned Parenthood of Kansas and Mid-Missouri v. Robert Moser

Headline: The Tenth Circuit holds that private parties have no cause of action under the Supremacy Clause against state agencies that refuse to provide these private parties with federal funds under statutes passed under the Spending Clause.

Area(s) of Law: Public Health Law, Constitutional Law, Statutory Interpretation

Issue(s) Presented:

1. Does the Supremacy Clause provide a cause of action to private entities claiming that an act of state law is preempted by a federal statute passed under the Spending Clause?

2. Does the unconstitutional-conditions doctrine of the First Amendment prohibit adverse discretionary legislative action against a private entity based on the content of that entity's speech and/or association?

Brief Summary:

Section 107(l) of a Kansas appropriations bill imposed facially neutral conditions interfering with Planned Parenthood's ability to receive federal funding under Title X of the Public Health Service Act. Planned Parenthood sought an injunction, arguing that Section 107(l) contravened the broad legislative purposes of Title X and was preempted under the Supremacy Clause, and that it violated Planned Parenthood's rights to speech and association under the First Amendment. The district court granted the injunction.

The Tenth Circuit reversed. Although the issue had been explicitly waived by the defendant in briefing, the majority exercised its discretion to address issues sua sponte and held that the Supremacy Clause provided no cause of action to private entities claiming that an act of state law is preempted by federal legislation rooted in the Spending Clause. The majority also held that while the unconstitutional-conditions doctrine prohibited adverse discretionary executive action against private entities based on the content of their speech or association, there was no equivalent prohibition (under Supreme Court or Tenth Circuit caselaw) on adverse discretionary legislative action - even in the face of strong evidence that such discretionary legislative action had been taken in retaliation for a private entity's exercise of its rights of speech and association.

In a strong dissent, Judge Lucero criticized the majority for exercising its sua sponte discretion to effectively overrule prior Tenth Circuit holdings regarding the Supremacy Clause question.

Extended Summary:

Family-planning services for low-income individuals are subsidized through Title X of the Public Health Service Act ("Title X"). In May of 2011, Governor Sam Brownback of Kansas signed into law an appropriations bill containing a provision - Section 107(l) - that restricted Title X funds to public entities, hospitals, and federally qualified comprehensive health centers. Section 107(l) effectively denied Title X funding to two family-planning clinics operated by Planned Parenthood of Kansas and Mid-Missouri ("Planned Parenthood"). Planned Parenthood sued Robert Moser, Secretary of the Kansas Department of Health and the Environment, arguing that Section 107(l) 1) violated Title X and therefore the Supremacy Clause, and 2) violated Planned Parenthood's First Amendment rights.

The district court found that Planned Parenthood had established a likelihood of success on the merits on its first two claims, and granted a preliminary injunction prohibiting Moser from implementing Section 107(l). Moser appealed the injunction. The Tenth Circuit reviewed the district court's findings with regard to Planned Parenthood's Supremacy Clause claim and First Amendment claim.

In reviewing Planned Parenthood's Supremacy Clause claim, the Tenth Circuit began by acknowledging that Planned Parenthood was eligible to receive funds under Title X, and had in fact received Title X funds for over 25 years prior to the passage of the Section 107(l) in May of 2011. Similarly, the court noted the agreement of the parties that Planned Parenthood was not eligible for Title X funding under Section 107(l).

Setting aside a number of arguments by the plaintiffs and defendants, the court began its analysis by asking a simple question: does Planned Parenthood, as a private entity, have a cause of action to assert a claim for injunctive relief? Eschewing the opportunity to claim a cause of action under either 42 U.S.C. ยง 1983 or the language of Title X, Planned Parenthood restricted itself to the claim that the Supremacy Clause itself gives private parties the right to seek injunctions against state or local laws inconsistent with federal law.

The majority agreed with Planned Parenthood that the Supremacy Clause "declares that when state or local law conflicts with federal law, federal law prevails." However, the majority disagreed with Planned Parenthood that the availability of an injunctive remedy to private parties under Title X was clearly established by "federal law." Simply put, the Tenth Circuit held that "whether to recognize a private cause of action for injunctive relief is a matter of statutory interpretation," and that proper statutory interpretation did not indicate the availability of a private injunctive remedy under Title X.

The majority began its analysis by noting that any potential conflict between Title X and Section 107(l) could be resolved by the initiation of a public action by the Department of Health and Human Services (HHS) - the agency responsible for initial federal grants of Title X funds to states. The majority added that permitting private parties to seek injunctive relief for alleged Title X violations "would substantially interfere with the administration of the program by HHS" by opening the door to the possibility of different courts imposing different rules under the same statute. The majority also stated that the Supremacy Clause creates no individual federal rights and therefore provides no individual remedy to be enforced by private parties. The statutory language of Title X clearly contemplates that the distribution of Title X funds be administered and supervised by HHS.

Throughout its opinion, the majority relied heavily on the idea that Spending Clause legislation (like Title X) rarely required the provision of a private injunctive remedy due to the fact that "the federal government's power of the purse gives it a very effective means for ensuring that federal law is honored." The majority also suggested that the potential availability of a remedy under the Administrative Procedures Act indicated that a private injunctive remedy under the Supremacy Clause was potentially unnecessary.

The majority went on to address a large number of cases offered by Planned Parenthood as precedential support for the notion that Moser's implementation of Section 107(l) could be privately enjoined under the Supremacy Clause. The majority rather summarily distinguished each of these cases by noting that none of the opinions addressed the particular root of private injunctive remedies in the Supremacy Clause itself.

The majority then addressed Planned Parenthood's primary reliance on Tenth Circuit holdings in Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742 (10th Cir. 2010), and Qwest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th Cir. 2004). In these two cases, the Tenth Circuit held that "party may bring a claim under the Supremacy Clause that a local enactment is preempted even if the federal law at issue does not create a private right of action." After a brief discussion of the dangers of an overly formalistic approach to questions of precedent and stare decisis, the majority disregarded the holdings in Edmondson and Qwest due to the fact that neither dealt with a situation where the allegedly preempting statue (cf. Title X) was Spending Clause legislation and the injunction was not to halt enforcement action.

The majority then turned to an analysis of the likelihood of Planned Parenthood's success on the merits of its First Amendment claim. Planned Parenthood's claim was that Section 107(l) violated the "unconstitutional-conditions doctrine" by imposing conditions on Planned Parenthood because of the particular content of the organization's speech and/or association. Under Supreme Court caselaw, violations of the unconstitutional-conditions doctrine occur in two contexts: where a condition imposed by statute or regulation prospectively limits or denies a government benefit to organization due to the content of the organization's speech and/or association, or where a condition imposed by discretionary executive action retrospectively terminates a government benefit to an organization due to the content of the organization's speech and/or association.

The majority agreed with Moser that Section 107(l) "neither conditions eligibility for a Title X sub-grant on the relinquishment of First Amendment rights, nor punishes entities for exercising such rights." Section 107(l) did not prevent sub-grantees from providing abortion services, from advocating for abortion rights, or from associating with abortion providers; at most, it required that organizations like Planned Parenthood to provide addition health services if they wished to continue providing their family planning services. As such, the legislation did not prospectively deny benefits to Planned Parenthood on the basis of its speech and/or association.

Planned Parenthood argued that Section 107(l) violated the second prong of the unconstitutional-conditions doctrine. In support of this contention, Planned Parenthood introduced evidence showing that Kansas legislators designed Section 107(l) for the specific purpose of defunding Planned Parenthood.

The majority quickly noted that Planned Parenthood cited "no Supreme Court or Tenth Circuit authority" for expanding the second prong of the unconstitutional-conditions doctrine to include adverse discretionary legislative actions in addition to adverse discretionary executive actions. To the contrary, the majority reminded Planned Parenthood that under United States v. O'Brien, federal courts "will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." Although the majority acknowledged the propriety of examining legislative motives in the context of Establishment Clause claims, Equal Protection claims, and in the context of statutory interpretation, the majority listed a number of policy reasons for not examining legislative motives in the context of statutory creation. Having distinguished Planned Parenthood's First Amendment claim from a claim of adverse discretionary executive action under the unconstitutional-conditions doctrine, the majority found that claim unsupported by law and lacking merit. As such, the majority reversed the decision of the district court and remanded with instructions.

Judge Lucero offered a detailed dissent, focusing in large part on the majority's departure from what he viewed to be clear precedent established in Edmondson and Qwest. As a starting point, Judge Lucero noted that under the law set forth in those cases, both Moser and Planned Parenthood agreed in their respective briefs that the Planned Parenthood "possesse[d] a cause of action under the Supremacy Clause." (The majority opinion addressed this issue summarily, noting that even if Moser had waived his right to contest the matter, the court had discretion to address it sua sponte). Judge Lucero heavily criticized the majority for exercising that discretion in this case, to the effect (in his opinion) of "overruling the decisions of prior [Tenth Circuit] panels" in an improper manner.

After arguing that Planned Parenthood's cause of action under the Supremacy Clause was clearly established by Tenth Circuit caselaw, Judge Lucero went on to address the merits of Planned Parenthood's claim (which the majority opinion never reached). Finding that the loss of funding under Section 107(l) wrought sufficient injury to Planned Parenthood to justify Article III and prudential standing, and that Title X's contemplation of a broad eligibility standard for grantees was thwarted by Section 107(l)'s restrictions, Judge Lucero argued that Planned Parenthood was likely to succeed on the merits of its Supremacy Clause claim and that the preliminary injunction of the district court should be affirmed.

Finally, Judge Lucero took the majority to task for its heavy reliance on the Spending Clause characterization to distinguish Title X from the legislation at issue in Edmondson and Qwest. "Four circuits have considered the argument that Spending Clause legislation is fundamentally different than other legislation for Supremacy Clause purposes," he wrote: "None found any merit in the argument." Judge Lucero stated that the majority's reliance on the availability of an alternative remedy in the Administrative Procedures Act was "an invented claim that finds no support in precedent or practice," and noted that the same availability did not stop the Tenth Circuit from holding as it held in Qwest.

In summarizing his dismay at the majority's exercise of its sua sponte discretion, and concluding his argument that the majority opinion damaged the principle of stare decisis, Judge Lucero made the following statement: "When a panel of this court writes 'a party may bring a claim under the Supremacy Clause that a local enactment is preempted even if the federal law at issue does not create a private right of action'... it should not be necessary to look past that statement and decide whether that issue was sufficiently 'disputed' to make that statement by this court binding law."

To read the full opinion, please visit:

Panel: Lucero, Hartz, O'Brien

Date of Issued Opinion: March 25, 2014

Docket Number: 11-3235, 12-3178, 13-3175

Decided: Preliminary injunction of the district court vacated, reversed, and remanded to the district court for further proceedings.


James M. Armstrong, Foulston Siefkin LLP, Wichita, Kansas, for Defendant -

Elissa Joy Preheim, Arnold & Porter LLP, Washington, D.C. (Lee Thompson and
Erin C. Thompson, Thompson Law Firm, LLC, Wichita, Kansas; Roger K. Evans
and Helene T. Krasnoff, Planned Parenthood Federation of America, New York,
New York and Washington, D.C., with her on the briefs), for Plaintiff - Appellee.

Lawrence J. Joseph, Washington, D.C., for Amicus Curiae.

Author: Hartz

Case Alert Author: Levi A. Monagle

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 04/04/2014 01:18 PM     10th Circuit  

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