By Jonathan Stempel
(Reuters) - A divided federal appeals court on Tuesday ordered Utah to continue providing federal funds to the state branch of Planned Parenthood, handing a defeat to Republican Governor Gary Herbert, who had ordered a cutoff last August.
By a 2-1 vote, the 10th U.S. Circuit Court of Appeals said the cutoff may have violated Planned Parenthood Association of Utah's constitutional rights to free speech and to provide facilities for women seeking legal abortions.
The Denver-based appeals court ordered U.S. District Judge Clark Waddoups in Salt Lake City to issue a preliminary injunction to keep money flowing while the Planned Parenthood branch continues its lawsuit for a permanent injunction.
Tuesday's decision extended an emergency order the court issued last Dec. 30, a day before funding was to expire. Waddoups previously refused to issue an injunction.
Jon Cox, a spokesman for Herbert, said the governor was disappointed with the decision and would work with state Attorney General Sean Reyes to decide the best course of action.
Karrie Galloway, chief executive of the Planned Parenthood branch, called the decision a "major victory" for patients and healthcare providers in Utah.
While federal funds cannot be used for abortions, Herbert's order would have also blocked Utah from giving Planned Parenthood "pass-through" funds that could be used for sex education and testing for sexually transmitted diseases.
In ordering the cutoff, Herbert, an abortion opponent, cited secretly recorded videos provided by the Center for Medical Progress that allegedly showed out-of-state Planned Parenthood officials discussing the sale of aborted fetal tissue.
Planned Parenthood has said it did nothing wrong and that the videos were heavily edited to distort their content.
Circuit Judge Mary Beck Briscoe wrote for the appeals court that a reasonable jury would find it more likely than not that the branch would suffer irreparable harm absent an injunction, and that Herbert saw the videos as an opportunity to punish the branch and hamper its ability to provide abortion services.
"This seems especially true given Herbert's concession that the allegations made by CMP are unproven and in fact false, and in light of the current political climate," Briscoe wrote.
Several other U.S. states have sought to curb Planned Parenthood funding. Within the past two months, federal judges have rejected attempted restrictions in Kansas and Ohio, both led by Republican governors.
Circuit Judge Robert Bacharach dissented from Tuesday's decision, saying the Planned Parenthood branch was unlikely to show that Herbert acted with an improper motive.
The case is Planned Parenthood Association of Utah et al v. Herbert et al, 10th U.S. Circuit Court of Appeals, No. 15-4189.
(Reporting by Jonathan Stempel in New York; Editing by David Gregorio and Peter Cooney)