Directing the Flow of Funds

Colorado Supreme Court rules on meaning of ‘indirect’ use of state funds to abortion providers

The Colorado Supreme Court last week gave the final word in a case involving Planned Parenthood, which questioned whether the state “indirectly” funded abortion services.

In Norton v. Rocky Mountain Planned Parenthood, the court affirmed the dismissal by two lower courts of a claim that the state and Rocky Mountain Planned Parenthood violated Section 50 of the Colorado Constitution, which prohibits the use of state funds for abortions. The court deemed the claim insufficient for relief and instead ruled that a claim under Section 50 has to allege the state directly or indirectly paid a person or entity for the purpose of compensation for performing an abortion, and that the abortion was performed.

In the underlying case, Jane Norton sued Rocky Mountain Planned Parenthood and several Colorado officials, including Gov. John Hickenlooper, for violating Section 50. The claim alleged the Colorado Department of Public Health and Environment indirectly subsidized the abortion operations of Planned Parenthood of the Rocky Mountains Services Corp. by contracting with its affiliate Rocky Mountain Planned Parenthood to provide various services, because RMPP provided funds to subsidize the rent of Services Corp. In doing so, according to the claim, CDPHE violated Section 50 because giving state funds to RMPP allowed the organization to charge below-market rent to Services Corp.

However, Norton did not allege the state used public funds to pay either RMPP or Services Corp. for actually performing abortions.

Kevin Paul, an attorney who represented RMPP, declined to comment on the record about the case. Other attorneys for the parties did not respond to requests for comment.

The Supreme Court’s decision hinted at the effort to contain the effects of an opposite ruling that might have opened up interpretation for the definition of paying for abortion services. It referenced reasoning from the Court of Appeals, which ruled on the case in 2016, that concluded “if it were to adopt Norton’s interpretation of ‘directly or indirectly’ to refer to how the funds ultimately are used by the payee, it would lead to an absurd result.”

According to the Court of Appeals, under Norton’s interpretation, should a state employee donate his or her own money to Services Corp., the payment of the employee’s salary could be construed as indirect funding of an abortion and a violation of Section 50.

“The Court of Appeals held that this result cannot have been intended by the electorate when it enacted section 50 because the connection to an induced abortion is too attenuated from the reason for the initial payment of salary to the employee,” continued the opinion, written by Chief Justice Nancy Rice.

The Supreme Court’s analysis turned on the terms “pay for” and “indirectly” in Section 50, and the court took the terms as having clear meaning. “Consistent with the unambiguous meaning of those terms, we hold that, to state a claim for relief under section 50, a plaintiff must allege that the State paid or reimbursed some entity, either directly or indirectly (i.e., through an intermediary), in exchange for that entity’s performance of an induced abortion,” the opinion read. It explained Section 50 focuses on the service funded by the state’s money and continued that the provision does not ban the state from contracting with a whole class of health care providers.

The court referenced one of its previous decisions, Keim v. Douglas County School District, in which it interpreted the phrase “directly or indirectly” in the Fair Campaign Practices Act. The Court found that the wording modifies the contributor’s act of giving to the candidate, meaning a candidate can receive something of value either directly from the contributor or indirectly through an intermediary. 

“In either case, we held, the candidate must ultimately receive the thing of value given by the contributor,” said the court in People v. Rocky Mountain Planned Parenthood. “Thus, in the FCPA context, ‘indirectly’ refers to contributions that are actually received by the candidate, but arrive to that candidate through an intermediary.”

Two Justices Dissent

Justices Brian Boatright and Nathan Coats disagreed with the majority’s conclusion that a claim under Section 50 has to allege that funds provided by the state had the purpose of compensation for a performed abortion, whether directly or indirectly. Boatright wrote the dissent.

The dissent argued that Section 50 does not contain either of the words “purpose” or “intent,” and that the majority should not have projected a purpose requirement onto the amendment.

“When interpreting a constitutional amendment, we must not add words that the amendment does not contain … and we must avoid unreasonable interpretations that lead to absurd results,” continued the opinion.

The dissent argued that the statutes at issue in Keim v. Douglas County School District and this case are fundamentally different. 

The FCPA specifically focuses on a prohibited purpose for funds, it argued, while Section 50 covers a prohibited use of state-provided money.

Boatright took his dissent even further to say that focusing on the purpose for providing funds makes Section 50 almost impossible to enforce. He wrote that under the majority’s interpretation, the state can give funds to any facility providing abortion services, as long as the money is not specifically marked for performed abortions, and remain within the boundaries of the Colorado Constitution.

“In my view, that is not what the voters intended in enacting this constitutional amendment,” stated the dissent. “They intended that no taxpayer dollars be used to fund abortion services.”

According to the dissent, Norton should be allowed to go forward with her claim. “Only a complaint and a motion to dismiss have been filed. … At the very least, the majority should remand this case with instructions to allow Norton to amend her complaint if she so chooses, so that she may plead facts to meet this new purpose requirement.”

— Julia Cardi

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