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Planned Parenthood wins preliminary injunction in lawsuit against Herbert

SALT LAKE CITY — The 10th Circuit Court of Appeals granted Planned Parenthood Association of Utah a preliminary injunction Tuesday in the reproductive health organization's lawsuit against Gov. Gary Herbert and the Utah Department of Health.

The ruling blocks Herbert's directive last September to stop passing federal funds to the reproductive health organization while the lawsuit moves forward.

At a news conference Tuesday, Planned Parenthood Association of Utah CEO Karrie Galloway said the group considers the lawsuit all but over.

“He abused our First and 14th Amendment (rights), and the court saw through it,” Galloway said.

Flanked by the organization’s attorney, Peggy Tomsic, and strategic advocacy and policy counsel Kate Kelly, Galloway called the governor's directive a "misguided" attempt to "humiliate and defund" the local Planned Parenthood affiliate.

“We have won at this point, as far as we’re concerned,” Galloway said. “The lawsuit is over.”

Tomsic, who argued the case for Planned Parenthood Association of Utah in Denver, called on the governor to drop his directive.

“The state should stop wasting taxpayers' money,” she said. “Really, the ball is in their court. Are they going to say, ‘Look, we pushed this as far as we can, it’s clear that we can’t do anything we want to do, (and) that there are constitutional bounds?’… We believe the state should say, 'We’re done.'"

In a statement, Herbert spokesman Jon Cox said the governor is "disappointed" with the court’s decision.

"He believes that it is in the public’s best interest to allow state officials to make contract decisions on behalf of the state, rather than a distant federal court," Cox said, adding that the governor will work with the attorney general to determine how to move forward.

Dan Burton, a spokesman for the Utah Attorney General’s Office, said the lawsuit is being handled in-house by attorneys from the office at no additional cost to taxpayers.

Planned Parenthood Association of Utah sued Herbert and Utah Department of Health Executive Director Dr. Joseph Miner in September after the governor ordered the department to stop disbursing funds to the organization.

Herbert made the order after the release of several secretly recorded videos purporting to show Planned Parenthood officials bargaining over the price of fetal tissue.

The funds in question total about $374,000 in grants from the federal government for two sex education programs, a sexually transmitted diseases testing program, and an STD tracking database over fiscal years 2015 and 2016.

By law, state funds cannot be used for abortions.

In the 10th Circuit Court's statement, the three-judge panel said Herbert "more likely than not" issued the directive "to punish (Planned Parenthood Association of Utah) for the First and Fourteenth Amendment rights it has identified in this litigation."

The statement added that "a reasonable finder of fact is more likely than not to find that Herbert, a politician and admitted opponent of abortion, viewed the situation that presented itself by release of the (Center for Medical Progress) videos as an opportunity to take public action against (Planned Parenthood)."

"This seems especially true given Herbert's concession that the allegations made by (the Center for Medical Progress) are unproven and in fact false, and in light of the current political climate," the court said.

One judge dissented from the majority opinion, writing that “the district court could easily conclude that Gov. Herbert believed the allegations of illegality from the videos, just as he said he did.”

The decision from the Denver court is a reversal of a lower U.S. District Court's decision in Salt Lake City last December.

In that ruling, Judge Clark Waddoups said Planned Parenthood Association of Utah did not meet its burden of proof in its appeal to the courts to halt Herbert's directive.

Although the state was given the OK in that decision to redirect the federal grants away from the group while the lawsuit made its way through the courts, the health department has continued to fund the programs through short-term contract extensions, Utah Department of Health spokesman Tom Hudachko said.

"If you look forward and think, anticipating that you possibly have an injunction issued, you are then in the position of having to take money back from those organizations to redisperse it back to (Planned Parenthood Association of Utah)," Hudachko said. "So it seemed like the most reasonable thing to do was maintain the status quo."

The health department has signed contracts with the reproductive health organization through September, according to Hudachko, and will extend those contracts on a short-term basis until the lawsuit is resolved.


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