FIfth Circuit Lifts Stay, Planned Parenthood Remains in WHP...For Now

A three-judge panel of the 5th U.S. Circuit Court of Appeals this afternoon lifted the stay imposed by Judge Jerry Smith, which would ban Planned Parenthood from participation in the Women's Health Program. Thus, the injunction granted Monday is now back in effect and blocks, for now, the state's plan to ditch PP from the program.

The state has been trying to block PP clinics that do not perform abortions from participation in the WHP, which provides uninsured low-income women with access to basic health care and family planning, because it insists that the clinics are nothing more than affiliates of PP clinics that do provide legal abortion care.

District Judge Lee Yeakel on Monday issued an injunction, blocking the state from banning the clinics – which in 2010 served nearly half of the more than 100,000 women who sought WHP services that year – until a trial on the merits of the suit could be heard. The clinics are arguing that Texas is violating their First Amendment right of free speech and association and their Fourteenth Amendment right to equal protection. The state immediately sought a stay of the injunction from the Fifth Circuit, which Smith granted in a midnight order. PP responded in opposition, and today a three-judge panel, which included Smith, reversed the stay, remarking in an order that the state's characterization of the facts at issue wasn't entirely accurate, and certainly did not warrant a continuation of the emergency stay.

Indeed, in the four-page ruling, the court noted that the state has yet to address a Fifth Circuit precedent that had the state's PP clinics create separate legal entities in order to distinguish between clinics that do, and those that do not, provide abortion services. "Our conclusion [to lift the stay] rests in part on the State's continuing reluctance to address the obviously relevant opinion in [Planned Parenthood of Houston & Southeast Texas v.]Sanchez," reads the ruling. "Despite the [clinics'] and the district court's having relied extensively on that authority" in granting the temporary injunction, "which binds this panel to the extent it is applicable, the State never mentioned it (as far as we can tell from the record) in the district court and did not refer to it in any way in its motion for a stay pending appeal."

Background on the lawsuit, and the Sanchez issue, is here.

More information on Yeakel's injunction, and Smith's emergency stay, is here.

The panel's Friday ruling is here.