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Planned Parenthood Sues

Nine clinics claim violations of First and 14th Amendment rights

By Jordan Smith, Fri., April 20, 2012

Signs of support surrounded this Planned Parenthood clinic during the Legislature's budget cuts.
Signs of support surrounded this Planned Parenthood clinic during the Legislature's budget cuts.
Photo by Jana Birchum

Nine Texas Planned Parenthood affiliates filed suit in federal court in Austin on April 11, arguing that the state's plan to exclude them from participation in the Women's Health Program not only violates state law, but also runs afoul of First and 14th Amendment protections.

The WHP provides women with access to basic preventative and family planning health care – including cancer screenings, tests for sexually transmitted infections, and access to birth control. The program was originally created as a Medicaid-waiver program to provide low-income uninsured women with access to health care they wouldn't otherwise receive unless pregnant. The federal-state partnership saw the feds kicking in $9 for every $1 Texas put in and was intended in part to reduce the number of unintended and Medicaid-paid births in the state; more than 50% of Texas births are paid for by Medicaid. The program always included a prohibition on participation by abortion providers, but last year the state moved to redefine the term "affiliate" to exclude PP from participation, even though none of the clinics in the WHP actually provide abortion services.

The feds have said that this new rule violates a long-standing Medicaid law that ensures patients access to their provider of choice; in 2010, 46% of the more than 100,000 women who accessed services under the WHP sought care at one of the participating PP clinics. Unwilling to allow PP to continue participation, the state said it would discontinue the WHP as a partnership program and instead would refashion it as the Texas Women's Health Program, an exclusively state-run and -funded program. Where the state intends to find the roughly $67 million it will take to fund the program (at current participation levels, through 2013) is not clear. Ironically, that's roughly the same amount of money lawmakers cut from the state budget traditionally dedicated to funding women's health care.

The move has prompted PP clinics, including Austin's East Seventh Street clinic, to sue, claiming that the new scheme punishes PP clinics that provide only preventative health care and family planning because they share the PP name with other clinics that do provide abortion care. And that, the clinics argue, violates their free speech and free association rights. Moreover, the new rule and WHP scheme violate the equal protection guarantee of the 14th Amendment because the new rule does allow hospitals who provide elective abortion care to participate in the WHP. Texas' new rule "treats them differently from hospitals ... without adequate basis for the differential treatment," reads the lawsuit.

While the Health and Human Services Commission, which runs the program, and Gov. Rick Perry reportedly believe the clinics' lawsuit is meritless and that the state is on solid legal ground, there is precedent to suggest otherwise. Indeed, in 2003, in response to lawmakers' attempts to exclude PP from state funding, Texas' PP clinics created legal entities separate from those PP clinics that do provide abortions with unique and distinguishable names, as well as separate boards of directors and records. Now, however, the state is apparently saying the arrangement they agreed to in settling that Fifth Cir­cuit appeal nearly a decade ago is not enough to ensure that no abortion affiliates provide health care to the state's women in need. The new rule took effect in March, and providers must certify compliance with its requirements by April 30 or be kicked out of the program; the clinics' suit asks the court to void the new rule before that happens.


Download the lawsuit.

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