Tenth Circuit Requires Funding of Planned Parenthood—Part 2

by Ed Whelan

Let’s move past Judge Mary Beck Briscoe’s Huffington Post flacking for Planned Parenthood and turn to the reasoning in her majority opinion.

In order to obtain a preliminary injunction, a plaintiff must establish (among other things) that it is likely to succeed on the merits of its complaint. Briscoe’s majority opinion concludes that PPAU is likely to succeed on its two “unconstitutional conditions” claims—its claims that Utah’s termination of funding improperly penalized its exercise of its (1) First Amendment free-speech and associational rights, and (2) Fourteenth Amendment right to provide abortion services.

The central question, as the majority opinion puts it, is “whether PPAU can establish that [Utah governor] Herbert issued the Directive [to terminate funding] in retaliation for PPAU’s exercise of those rights.” (Slip op. at 31 (emphasis added).) The majority acknowledges that there’s ample evidence on which a jury could find that Herbert did not act in retaliation for PPAU’s exercise of its constitutional rights but instead issued the Directive because he “mistakenly believed that PPAU [as distinct from other Planned Parenthood affiliates] was implicated in the CMP videos and deserved to be punished for its apparent misconduct.” (Pp. 32-33.) But the majority concludes that on the totality of the evidence—including the governor’s participation in a pro-life event—a jury “is more likely than not” to find that Herbert did act “to punish PPAU for [exercise of its] First and Fourteenth Amendment rights.” (P. 35.)

The majority’s reasoning about how a jury would assess the evidence is highly speculative and hardly seems the stuff of which preliminary injunctive relief is made. Can a plaintiff really establish a likelihood of success on the merits when a jury has ample discretion to read the evidence in various ways? And how does the “abuse of discretion” standard of review entitle the Tenth Circuit majority to override the district court’s assessment that the evidence fell short?

The majority’s reasoning about the evidence also makes little sense. PPAU exercised those same First and Fourteenth Amendment rights for the first six years of Herbert’s time as governor, and he never took any action against it. It was only after the CMP videos were released that he canceled the contracts. Further, his contemporaneous statement to the press about the Directive refers specifically to the videos: “[w]e now have video where they’re selling fetus body parts for money and it’s an outrage.” If a court, at the preliminary-injunction stage, has any business concluding that a jury is merely “more likely” to adopt one reading of the evidence rather than another, how is the Tenth Circuit’s judgment about which is “more likely” at all sensible?

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