What's in a Name?

According to state Assistant Solicitor General Kristofer Monson, Texas' Planned Parenthood clinics may continue on as providers in the Women's Health Program so long as they complete two steps: 1) "stop promoting abortion," and farm out all First Amend­ment free speech activities regarding reproductive choice to some other entity; and, 2) get a new name. If the clinics now participating in the WHP would "comply" with those two simple requirements, then it would be "possible" for PP clinics across the state to "continue to affiliate" with the WHP program, Monson told a three-judge panel of the 5th U.S. Circuit Court of Appeals during oral arguments on June 7 in New Orleans.

At issue is whether the state can block PP from participation in the WHP, a basic health care and family-planning program begun in 2005. The original program was developed as a Medicaid-waiver program, open to low-income and uninsured women who would otherwise be ineligible for Medicaid services (unless pregnant). The program is designed to reduce the number of unplanned births paid for by the government – no small issue in Texas where the majority of births are paid for by Medicaid.

Since the program's inception, PP has been the state's largest provider of WHP services; in 2010, it served more than half of the more than 106,000 clients receiving services. Last year, however, lawmakers moved to push PP out of the program, rewriting a definition of the word "affiliate" that would label all PP clinics in the WHP – which do not provide abortion services – as affiliates of clinics that do provide abortion services (but that receive no government funding and are not providers in the WHP). The move to block PP from the WHP caused the feds to deny the state the Medicaid waiver, which means the federal matching funds – $9 for every $1 the state kicks in – will dry up later this year. Undeterred by the funding quandary facing the state, which last year also slashed roughly two-thirds of funding for family planning across the state, Gov. Rick Perry said he would direct the Health and Human Services Commission to press forward in implementing a new state-paid WHP that would exclude PP clinics.

That led PP to sue in an effort to block enforcement of the rule; Federal District Judge Lee Yeakel agreed that the rule as written would violate PP's right to free speech and association, and he has enjoined the state from enforcing the rule until a trial on the merits of the case can be heard this fall. The state appealed that ruling, and argued last week to the 5th Circuit panel that the state has a right to cut PP out of the WHP because it disagrees with PP's support of reproductive choice and therefore must protect against any suggestion that the state's "imprimatur" is on that message. "So, if that rule [took effect]," one of the judges asked, "they'd have to delete any reference to 'Planned Parenthood'" in literature, signage, and more? "That's right," Monson answered – nor would they be allowed to have the name on "posters or materials out in their waiting room."

Although Monson made changing the name of the nearly 100-year-old nonprofit women's health provider seem like an easy remedy, that's not how Helene Krasnoff, who is representing the nine Texas PP entities suing the state, sees things – nor does she agree with Monson's contention that giving up the name alone would allow the clinics to stay in the WHP.

"The state has stood here today and rewritten the rule," she said – apparently in order to make it appear there is less in conflict here than there really is. The actual rule, as written into state law, would require the clinics to give up all right to use the PP name for any reason – and that, Krasnoff said, is a clear violation of the First Amend­ment. The state sets up rules for the WHP, which all of the participating PP clinics follow – including that they do not provide referrals for abortion by WHP clients. "There is no question they can set rules for their program," she said. And the PP clinics in Texas "follow the rules of the program."

The state is not bound to "fund speech it disfavors," she said, but it cannot ban PP clinics from the program based on the protected speech of its sister entities, umbrellaed under the Planned Parenthood Feder­a­tion of America. To do so "closes the Con­sti­tutional safety valve," she said.

The panel – Judges E. Grady Jolly, Har­old DeMoss, and Carl Stewart – have no deadline to rule, but a trial on the merits of the case is scheduled to begin Oct. 19.