     Case: 12-50377       Document: 00511965051         Page: 1     Date Filed: 08/21/2012




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                                             FILED
                                                                           August 21, 2012

                                         No. 12-50377                       Lyle W. Cayce
                                                                                 Clerk

PLANNED PARENTHOOD ASSOCIATION OF HIDALGO COUNTY
TEXAS, INCORPORATED; PLANNED PARENTHOOD ASSOCIATION OF
LUBBOCK, INCORPORATED; PLANNED PARENTHOOD OF CAMERON
AND WILLACY COUNTIES; FAMILY PLANNING ASSOCIATES OF SAN
ANTONIO; PLANNED PARENTHOOD OF CENTRAL TEXAS; PLANNED
PARENTHOOD OF GULF COAST, INCORPORATED; PLANNED
PARENTHOOD OF NORTH TEXAS, INCORPORATED; PLANNED
PARENTHOOD OF WEST TEXAS, INCORPORATED; PLANNED
PARENTHOOD OF AUSTIN FAMILY PLANNING, INCORPORATED,

                                                    Plaintiffs - Appellees
v.

THOMAS M. SUEHS, Executive Commissioner, Texas Health and Human
Services Commission, in his Official Capacity,

                                                    Defendant - Appellant



                      Appeal from the United States District Court
                           for the Western District of Texas


Before JOLLY, DeMOSS, and STEWART, Circuit Judges.1
E. GRADY JOLLY, Circuit Judge:
        The appellees, nine Planned Parenthood organizations that operate health
clinics in Texas, obtained a preliminary injunction to block the enforcement of



        1
            Stewart, Circuit Judge, concurs in the judgment only.
   Case: 12-50377      Document: 00511965051        Page: 2     Date Filed: 08/21/2012



                                     No. 12-50377

Texas Health and Human Services Commission regulations. The regulations
state that health care providers participating in a Medicaid-like program must
not perform or promote elective abortions or be affiliates of entities that perform
or promote elective abortions. The district court preliminarily enjoined the
enforcement of these regulations against the appellees, reasoning that the
regulations likely violate the appellees’ rights to free speech and association, and
deny the appellees the equal protection of the laws.
       The district court issued the preliminary injunction based on a wholesale
assessment of the regulations’ constitutionality, which gave insufficient
attention to Texas’s authority to subsidize speech of its choosing within its
programs. Accordingly, the order of the district court granting a preliminary
injunction is VACATED and the case is REMANDED.
                                            I.
       In 2005 the Texas Legislature created the Women’s Health Program
(WHP) as a project to “expand access to preventative health and family planning
services for women.” Act effective Sept. 1, 2005, ch. 816, § 1(a), 2005 Tex. Gen.
Laws 2816, 2817. Under the WHP, Texas pays health care providers to provide
various services, including counseling about contraceptives, to women who meet
certain criteria. Id. § 1(a)-(b). The WHP is funded by both Texas and the federal
government as a demonstration project under Medicaid, pursuant to a waiver
issued by the United States Department of Health and Human Services.2 See
42 U.S.C. § 1315. Federal funding accounts for most of the WHP’s total cost.




      2
        Based on the information provided by the parties, we understand that the Department
of Health and Human Services intends to wind down federal funding for the WHP by
November 2012, at which time Texas intends to carry on the WHP with exclusively state
funds. Federal funding will, however, remain in place as long as the Texas Health and Human
Services Commission is enjoined from enforcing the regulations that are the subject of this
appeal.

                                            2
   Case: 12-50377      Document: 00511965051         Page: 3     Date Filed: 08/21/2012



                                      No. 12-50377

       Since the WHP’s inception, the Texas Legislature has prohibited the Texas
Health and Human Services Commission (THHSC), which is charged with
administering the WHP, from contracting with “entities that perform or promote
elective abortions or are affiliates of entities that perform or promote elective
abortions.” § 1(h), 2005 Tex. Gen. Laws at 2818. Until recently, however,
THHSC had never formally interpreted this restriction on abortion-related
activity, and the restriction had not been used to exclude the appellees from
receiving WHP funds. Throughout the WHP’s existence, THHSC has paid the
appellees for their provision of WHP services, even though the appellees engage
in abortion advocacy and have some legal relationship with Planned Parenthood
Federation of America.         The appellees have understood the restriction on
abortion-related activity to mean that if they do not recommend abortion as a
health procedure, and if they maintain a separate legal identity from abortion-
providing clinics, then they can receive WHP funds.3
       Recent developments unsettled the appellees’ understanding and gave rise
to the instant controversy. In 2011 the Texas Legislature re-authorized the
WHP, and again prohibited THHSC from contracting with “entities that perform
or promote elective abortions or affiliate with entities that perform or promote
elective abortions.” Act effective Sept.1, 2011, ch. 1355, Rider 62, 2011 Tex. Gen.
Laws 4025, 4228; Act effective Sept. 28, 2011, ch. 7, § 1.19(b), 2011 Tex. Gen.
Laws 300, 335.        After the WHP’s re-authorization, THHSC promulgated
regulations interpreting the WHP’s restriction on abortion-related activity. The
regulations, like the statute, deny WHP funding for entities that perform or
promote elective abortions or are affiliates of entities that perform or promote
elective abortions. 1 Tex. Admin. Code § 354.1363(a). Under a limited exception


       3
          The appellees maintain a separate legal identity from abortion-providing clinics as
a result of Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324 (5th
Cir. 2005).

                                             3
   Case: 12-50377    Document: 00511965051    Page: 4    Date Filed: 08/21/2012



                                 No. 12-50377

within the regulations, however, a clinic receiving WHP funds may affiliate with
a hospital that performs or promotes elective abortions. Id.
      Unlike the statute, and importantly for this case, the regulations also
define “promote” and “affiliate.”    The regulations define “promote” as to
“[a]dvocate[] or popularize[] by, for example, advertising or publicity.” Id. §
354.1362(6). They define “affiliate” as:
         (A) An individual or entity that has a legal relationship with
         another entity, which relationship is created or governed by
         at least one written instrument that demonstrates:
         (i) common ownership, management, or control;
         (ii) a franchise; or
         (iii) the granting or extension of a license or other agreement
         that authorizes the affiliate to use the other entity’s brand
         name, trademark, service mark, or other registered
         identification mark.
Id. § 354.1362(1).
      THHSC mandated that recipients of WHP funds, including the appellees,
certify their compliance with the new regulations. Believing compliance to be
impossible, the appellees instead filed a federal lawsuit against THHSC
Commissioner Thomas Suehs in his official capacity (“Texas”) in the Western
District of Texas, seeking declaratory and injunctive relief, including a
preliminary injunction.
      The appellees’ complaint alleges that the THHSC regulations violate their
constitutional rights of free speech and association, and deny them the equal
protection of the laws. Underlying this claim—for purposes of standing to attack
these regulations—is the appellees’ implicit concession that, based on the new
definitions furnished by the THHSC regulations, they promote elective abortions
and are affiliates of entities that promote elective abortions, and therefore
cannot receive WHP funds.




                                       4
   Case: 12-50377    Document: 00511965051      Page: 5    Date Filed: 08/21/2012



                                  No. 12-50377

      On April 30, 2012, the district court granted the appellees’ requested
preliminary injunction, blocking THHSC from enforcing the regulations. The
court reasoned that the appellees had a substantial likelihood of succeeding on
the merits of their lawsuit because the regulations impermissibly require the
appellees to forego certain of their constitutional rights of free speech and
association in order to receive WHP funds. The court also reasoned that the
appellees had a substantial likelihood of succeeding on their equal protection
claim because the regulations treat clinics and hospitals unequally. Texas
appeals.
                                        II.
      To obtain a preliminary injunction, the appellees were required to
demonstrate (1) a substantial likelihood of success on the merits, (2) a
substantial threat of irreparable injury if the injunction were not granted, (3)
that their substantial injury outweighed the threatened harm to the party whom
they sought to enjoin, and (4) that granting the preliminary injunction would not
disserve the public interest. Tex. Med. Providers Performing Abortion Servs. v.
Lakey, 667 F.3d 570, 574 (5th Cir. 2012).
      “[A] preliminary injunction is an extraordinary remedy which should not
be granted unless the party seeking it has clearly carried the burden of
persuasion on all four requirements.” Id. (internal marks omitted). In reviewing
the issuance of a preliminary injunction, we review the district court’s findings
of fact for clear error, its legal conclusions de novo, and the ultimate decision to
issue the injunction for abuse of discretion. Bluefield Water Ass’n, Inc. v. City of
Starkville, Miss., 577 F.3d 250, 253 (5th Cir. 2009) (quoting Guy Carpenter & Co.
v. Provenzale, 334 F.3d 459, 463 (5th Cir.2003)).
                                        III.
      To focus our review of the district court’s order, we will first identify the
merits of the appellees’ lawsuit on which the preliminary injunction is based.

                                         5
     Case: 12-50377   Document: 00511965051      Page: 6   Date Filed: 08/21/2012



                                   No. 12-50377

The district court did not determine that the appellees are likely to prove that
the regulations violate their right to perform abortions or to affiliate with
entities that perform abortions.      The right to obtain an abortion and any
accompanying right to perform an abortion are not at issue in this appeal.
        Instead, the district court held that the appellees are likely to prove that
the regulations violate their right to promote abortion or to affiliate with entities
that promote abortion. Put another way, the court held that the regulations
likely abridge free speech. Specifically, the district court relied on a principle of
constitutional law known as the “unconstitutional conditions doctrine,” which we
will briefly describe before moving forward.
                                         A.
        We start with the given premise that the First Amendment to the United
States Constitution, as incorporated by the Fourteenth Amendment, prohibits
states from enacting laws “abridging the freedom of speech.” U.S. Const. amend.
I.   The United States Supreme Court has long recognized that the First
Amendment prohibits not only direct burdens on speech, but also indirect
burdens that are created when the government conditions receipt of a benefit on
foregoing constitutionally-protected speech. Perry v. Sindermann, 408 U.S. 593,
597 (1972); Speiser v. Randall, 357 U.S. 513, 518-19 (1958). This principle,
known as the unconstitutional conditions doctrine, acknowledges that the
government, having no obligation to furnish a benefit, nevertheless cannot force
a citizen to choose between a benefit and free speech. Rumsfeld v. Forum for
Academic & Institutional Rights, Inc., 547 U.S. 47, 59-60 (2006); Perry, 408 U.S.
at 597. Such a choice will tend to penalize a constitutionally-protected right.
        Courts often struggle with when to apply the unconstitutional conditions
doctrine, and the doctrine’s contours remain unclear despite its long history. See
Dolan v. City of Tigard, 512 U.S. 374, 407 n.12 (1994) (Stevens, J., dissenting).
Despite this unfortunate lack of clarity, the unconstitutional conditions doctrine

                                          6
   Case: 12-50377     Document: 00511965051     Page: 7    Date Filed: 08/21/2012



                                  No. 12-50377

does involve a clear threshold premise: “[A] funding condition cannot be
unconstitutional if it could be constitutionally imposed directly.” Rumsfeld, 547
U.S. at 59-60 (citing Speiser, 357 U.S. at 526). Thus, if the government could
directly achieve the result in question, then it is unnecessary to assess the result
within the unclear framework of the unconstitutional conditions doctrine. Id.
at 60.
                                        B.
         The district court relied on the unconstitutional conditions doctrine
without questioning whether any aspects of the THHSC regulations achieve a
direct result permitted by the First Amendment. Particularly, the district court
analyzed the regulations as a whole, instead of separately parsing the restriction
on promoting elective abortions, and then the restriction on affiliating with
entities that promote elective abortions. Because the legal principles applicable
to promotion and affiliation differ, it is important to assess these restrictions
separately. This separate assessment results in both a clear consideration of the
threshold premise of the unconstitutional conditions doctrine and restraint,
which should always accompany a remedy as extraordinary as a preliminary
injunction. Lakey, 667 F.3d at 574.
                                         1.
         We begin with the restriction on promoting elective abortions.        The
THHSC regulations exclude health care providers from the WHP who “promote[]
elective abortions as . . . abortion facilit[ies] licensed under [the] Health and
Safety Code.” 1 Tex. Admin. Code § 354.1363(a)(2)(A). This restriction, in a
sense, imposes a speech-based condition on organizations receiving the benefit
of WHP funding. If an organization wishes to receive WHP funding, it may not
“[a]dvocate[] or popularize[] [elective abortions] by, for example, advertising or
publicity” as a licensed abortion facility. Id. § 354.1362(6).



                                         7
   Case: 12-50377   Document: 00511965051      Page: 8   Date Filed: 08/21/2012



                                  No. 12-50377

      Although this restriction functions as a speech-based funding condition,
it also functions as a direct regulation of the content of a state program, and is
therefore constitutional under the reasoning of Rust v. Sullivan, 500 U.S. 173
(1991). In Rust v. Sullivan, the Supreme Court considered federal regulations
limiting the abortion-related speech of clinics receiving funds under Title X of
the Public Health Service Act. 500 U.S. at 178. The disputed regulations
broadly prohibited a Title X project from promoting or advocating abortion as a
method of family planning, including advocating abortion in the political arena.
Id. at 180. The Court upheld the regulations, reasoning that the government
could disfavor abortion within its own subsidized program, and that exclusively
subsidizing non-abortion family planning speech did not penalize abortion
speech. Id. at 192-93. Subsequent opinions have recognized Rust as affirming
the government’s authority to enact viewpoint-based restrictions on speech when
the government is, in effect, the speaker. Legal Servs. Corp. v. Velazquez, 531
U.S. 533, 540-41 (2001); Rosenberger v. Rector and Visitors of Univ. of Va., 515
U.S. 819, 833 (1995). “[W]hen the government appropriates public funds to
promote a particular policy of its own it is entitled to say what it wishes.”
Rosenberger, 515 U.S. at 833 (citing Rust, 500 U.S. at 194).
      Texas’s restriction on promoting elective abortions directly regulates the
content of the WHP as a state program. The policy expressed in the WHP is for
public funds to subsidize non-abortion family planning speech to the exclusion
of abortion speech. § 1.19(b), 2011 Tex. Gen. Laws at 335. Texas’s authority to
promote that policy would be meaningless if it were forced to enlist organizations
as health care providers and message-bearers that were also abortion advocates.
The authority of Texas to disfavor abortion within its own subsidized program
is not violative of the First Amendment right, as interpreted by Rust v. Sullivan.
Consequently, Texas’s choice to disfavor abortion does not unconstitutionally
penalize the appellees’ speech.

                                        8
   Case: 12-50377       Document: 00511965051          Page: 9    Date Filed: 08/21/2012



                                       No. 12-50377

       We hold that Texas may deny WHP funds from organizations that promote
elective abortions.4 This specific restriction on the breadth of the program
functions as a direct regulation of the definitional content of a state program,
and it is therefore unnecessary to examine it within the framework of the
unconstitutional conditions doctrine. The district court erred in enjoining this
provision of the regulations.
                                               2.
       We now briefly turn to the restriction on affiliating with entities that
promote elective abortions.          The THHSC regulations exclude health care
providers from the WHP who are “affiliate[s] of . . . corporate entit[ies] that . . .
promote[] elective abortions.” 1 Tex. Admin. Code § 354.1363(a)(2)(B). Under
the regulations’ definitions, affiliation results from common ownership,
management, or control; franchise; or authorization to use identifying marks.
Id. § 354.1362(1).
       We will only address one prong of the definition of affiliate: the
authorization to use identifying marks. We address this prong because it
implicates the same conduct as the restriction on promoting elective abortions,
which we have already addressed. Using a pro-abortion mark is, after all, a way
of promoting abortion.5
       Texas’s authority to directly regulate the content of its own program
necessarily includes the power to limit the identifying marks that program
grantees are authorized to use. Identifying marks represent messages, and


       4
        To be clear, our holding is limited to the organizations that are the appellees in this
appeal and the individuals working for the organizations when they are acting for the
organizations. Our holding does not address the speech of the individuals that make up those
organizations when they are engaging in speech and other conduct outside their duties with
the organizations.
       5
        It is beyond question that identifying marks are a form of speech. See Seven-Up Co.
v. Coca-Cola Co., 86 F.3d 1379, 1383 n.6 (5th Cir. 1996).

                                              9
  Case: 12-50377     Document: 00511965051      Page: 10    Date Filed: 08/21/2012



                                   No. 12-50377

authorization to use a particular mark is authorization to promote that mark’s
message. If the organizations participating in the WHP are authorized to use
marks associated with the pro-abortion point of view—like the Planned
Parenthood mark—Texas’s choice to disfavor abortion is eviscerated, just as it
would be if the organizations promoted abortion through pamphlets or video
presentations.
      Whether an identifying mark communicates a pro-abortion message as
clearly as other speech is not a controlling factor for the purposes of this
analysis. “When the government disburses public funds to private entities to
convey a governmental message, it may take legitimate and appropriate steps
to ensure that its message is neither garbled nor distorted by the grantee.”
Rosenberger, 515 U.S. at 833. It takes no expansion of the mind to understand
how Texas’s message disfavoring abortion would be garbled if health care
providers participating in the WHP could identify and poster their clinics with
abortion-related identifying marks.
      We therefore hold that Texas may deny WHP funds from organizations
that promote elective abortions through identifying marks. The restriction on
identifying marks is really a limit on promoting elective abortions, and it is
therefore valid as a direct regulation of the content of a state program. Again,
because this restriction is lawful as a direct regulation of speech, we have no
reason to examine it within the framework of the unconstitutional conditions
doctrine. The district court erred in enjoining this provision of the regulations.
      The other prongs of the THHSC regulations’ definition of affiliate—read
in conjunction with the regulations’ restriction on affiliating with entities that
promote elective abortions—do more than limit the promotion of abortion. They
limit affiliation in a more conventional sense. 1 Tex. Admin. Code § 354.1362(1).
The regulations’ restriction on affiliation is problematic because it is not a direct
regulation of the content of a government program. Speech that organizations

                                         10
  Case: 12-50377    Document: 00511965051      Page: 11   Date Filed: 08/21/2012



                                  No. 12-50377

carry on in other capacities through affiliated entities is not speech within a
government program in which the government has a direct say. See Rust, 500
U.S. at 196.
      For now, however, we decline to examine the restriction on affiliation and
its potential constitutional infirmities. As stated above, the district court
assessed the regulations as a whole, making no distinction between promoting
and affiliating, and its assessment resulted in an erroneous application of the
unconstitutional conditions doctrine. It is not clear whether the district court
would have preliminarily enjoined select provisions of the regulations or not, and
we think it better simply to vacate the injunction in its entirety in this respect
and, on remand, allow the district court to decide that question for itself.
                                        C.
      Before concluding, we must briefly address the district court’s holding that
the THHSC regulations likely deny the appellees the equal protection of the
laws. The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution provides that “[n]o State shall . . . deny to any person within
its jurisdiction the equal protection of the laws.” U.S. Const. amend XIV, § 1.
The district court reasoned that the regulations likely violate equal protection
because they allow affiliation with abortion-promoting hospitals, but not with
abortion-promoting clinics, and therefore do not treat all health care providers
equally. 1 Tex. Admin. Code § 354.1363(a).
      Within its equal protection analysis, the district court assumed that the
regulations abridge free speech, and that because the regulations abridge free
speech, all classifications within them should be subject to heightened
constitutional scrutiny. Regan v. Taxation with Representation of Wash., 461
U.S. 540, 547 (1983) (“Statutes are subjected to a higher level of scrutiny if they
interfere with the exercise of a fundamental right, such as freedom of



                                        11
  Case: 12-50377     Document: 00511965051       Page: 12    Date Filed: 08/21/2012



                                   No. 12-50377

speech . . . .”). The district court’s free speech holding therefore influenced its
equal protection holding.
      Because the free speech holding was in error for the reasons explained
above, we cannot assume that strict scrutiny should apply to the classifications
contained within the regulations. Nor can we assume that the district court
would reach the same conclusion on equal protection applying some lesser tier
of constitutional scrutiny.
                                         IV.
      The appellees administer a Texas program under the authority of a Texas
statute and its regulations, and they receive public funds in return. Texas may
limit what the appellees communicate in this capacity. The appellees have not
made a clear showing that they are likely to succeed in demonstrating that the
THHSC regulations’ restriction on promoting elective abortions violates their
First Amendment rights. Because we have determined that the appellees failed
to demonstrate a substantial likelihood of success on the merits, we do not need
to address the remaining elements necessary for preliminary injunctive relief.
La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency, 608 F.3d 217, 225
(5th Cir. 2010).
      On remand, the district court is to reconsider the constitutionality of the
restriction on affiliating with entities that perform elective abortions, specifically
the prongs defining affiliation based on franchise and common ownership,
management, or control, and to rule accordingly.
      We VACATE the preliminary injunction and REMAND for further
consideration not inconsistent with this opinion.
                                                     VACATED and REMANDED.




                                         12
