May 25, 2019

Colorado Court of Appeals: State Payments Were Not Made for Purpose of Funding or Reimbursing Abortion Services

The Colorado Court of Appeals issued its opinion in Norton v. Rocky Mountain Planned Parenthood, Inc. on Thursday, January 14, 2016.

Jane Norton, in her capacity as former executive director of the Colorado Department of Public Health & Environment, instigated an audit to determine whether Rocky Mountain Planned Parenthood, Inc. (Planned Parenthood) was separately incorporated, maintained separate facilities, and maintained financial independence from Planned Parenthood of the Rocky Mountains Services Corporation (Services). Because the audit showed Planned Parenthood was charging below-market rent to Services, Norton concluded Planned Parenthood was subsidizing Services and therefore, because Services performed abortions, the state had been indirectly subsidizing abortions in violation of Colorado Constitution article V, section 50. After Norton’s audit and at her instigation, the state terminated its contractual relationship with Planned Parenthood and ceased all taxpayer funding of the organization.

Norton sued Planned Parenthood, the governor, and the directors of the Department of Health Care Policy & Financing and Department of Public Health & Environment on her own behalf as a taxpayer. In her complaint, Norton alleged that the state resumed making payments to Planned Parenthood in 2009 in violation of section 50. She asserted claims for declaratory and injunctive relief against the government defendants, unjust enrichment against Planned Parenthood for allegedly receiving unlawful payments of public funds, and the imposition of a constructive trust against Planned Parenthood.

The Colorado Court of Appeals held that, even read broadly, Norton’s complaint failed to allege that defendants made payments for the purpose of paying for any induced abortion. The court emphasized that the focus of section 50 is on the purpose of the payment as asserted by the payor, not the ultimate distribution of funds by the payee. The court noted that under Norton’s broad reading of section 50, if a state issued a paycheck to an employee and that employee then donated funds to Services, it would violate section 50, finding this an illogical and unsupportable construction of the section. The court rejected Norton’s interpretation as exceeding the plain language of section 50, noting the section cannot rationally be read to prohibit the state from paying money that may eventually end up in the hands of someone who performs abortions.

The court affirmed the district court’s order dismissing Norton’s complaint for failure to state a viable claim of violation of section 50.

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