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Fate of Women's Health Care in Court's – and Perry's – Hands

State hangs fire on Women's Health Program, awaits court decision

By Jordan Smith, Fri., Nov. 9, 2012

Rick Perry
Rick Perry
Photo by John Anderson

Two facts about Texas' Women's Health Program have remained constant. First, abortion care is not provided in the WHP; second, pregnant women are not even eligible for the WHP. Nonetheless, an ongoing dispute over what constitutes an abortion provider or an "affiliate" of an abortion provider continues to threaten the program's future.

On Oct. 31, the eve of the state's self-imposed deadline for ousting Planned Par­enthood from a revamped, state-run WHP, Gov. Rick Perry insisted during a George­town press conference that the state does not need the nonprofit provider in order to run a successful reproductive health services program for low-income and uninsured Texas women. Newly appointed Health and Human Services Executive Commissioner Kyle Janek insisted that there are plenty of providers ready to serve the more than 111,000 women currently enrolled in the program, and Perry warned that should any court ruling force the state to include the nonprofit's clinics in the WHP, the program will be completely dismantled, and the fault would be Planned Parenthood's. "If they file a lawsuit challenging the Texas program, and were they to prevail, they would kill this program," Perry said, "and they would be responsible for denying these important health services to the low-income women of Texas."

But by banning Planned Parenthood from participation, and by threatening to end the program altogether should PP be allowed to continue to serve nearly half of all women enrolled, state health officials and Perry may have actually exceeded state lawmakers' intentions for the WHP. That is the issue now in civil district court, where arguments will be heard this morning, Nov. 8 – and that decision could decide the fate of the WHP.

According to a lawsuit filed Oct. 26 on behalf of Texas's seven Planned Parenthood affiliates, lawmakers last year tied reauthorization of the WHP to the receipt of federal funding to support it. Since its inception, the WHP has been a Medicaid-waiver program that provides family-planning and basic health care to women who wouldn't otherwise be eligible for Medicaid unless pregnant. Under the program, the feds paid 90% of the roughly $36 million yearly program cost. When the state announced that it would rework the rules of the WHP to exclude PP – arguing that to allow the clinics to remain in the program would be to "muddle" the state's pro-life message – the federal government balked. The U.S. Cen­ters for Medicare & Medicaid Services informed the state that it would not be able to continue financial support for the program on these terms, because the ban on PP violates federal law that guarantees women are afforded access to a Medicaid-eligible provider of their choice.

Because the feds have determined that the waiver will not be extended while the PP ban is in place, the affiliates' lawsuit argues that the new rules banning their participation should be voided in order to ensure the continued receipt of millions in federal funds. The state disagrees, noting that Chapter 32 of the Texas Human Resources Code, which contains the language in question, also requires that "affiliates" of abortion providers must be banned from the program. Planned Parent­hood clinics in the program do not provide abortion care, but state health officials have deemed they are affiliates of clinics that do, evidenced in part by the shared name, Planned Parenthood. The affiliates counter that the affiliate ban language has been part of the statute since 2005 – yet lawmakers have declined to define what it means and, more importantly, have not directed HHSC to do so for them. It was in fact Gov. Perry who insisted on the ban, in the run-up to his disastrous presidential campaign.

Removing PP from the WHP leaves nearly 50,000 women without access to their providers of choice, and critics of the state's move to ban PP say there's no way there will be enough providers left to serve the women medically orphaned by the ban. Janek disagrees and insists there are 3,000 providers ready to serve WHP clients. Feed­back to the renewed program has been "tremendous," he said at the press conference. "We have a program that's ready to go."

Whether that's true remains to be seen, and what will happen should the court block the state from dropping PP clinics as providers is still unclear. Perry and Janek say the program will be ended if that happens, but the poison-pill clause that would require such an outcome was specifically rejected last spring by state lawmakers. The ultimate fate of the WHP very well may hinge not on what Perry wants, but on what lawmakers, who will come to the Capitol in January facing a Medicaid shortfall, decide to do in the 83rd Legislative session.

Yet Perry and his appointees at the HHSC not only believe that their PP ban complies with state law, but also that ultimately the WHP will be able to ban the clinics and still receive federal Medicaid money. The August ruling by a three-judge panel of the 5th U.S. Circuit Court of Appeals that blessed the ban and the full panel's refusal to reconsider give the state "great hope that we'll be able to maintain the federal dollars and fully enforce state law," HHSC spokeswoman Stephanie Goodman wrote in an email.

Yet on Oct. 23, the 7th Circuit ruled in a similar case that the Indiana State Depart­ment of Health could not strip Medicaid funding from PP solely because certain of its clinics use private funds to provide abortion care. While the state has "broad authority" to exclude unqualified providers from its Medicaid program, the court ruled, "the state does not have plenary authority to exclude a class of providers for any reason – more particularly, for a reason unrelated to provider qualifications" to provide medical services.

Nevertheless, defunding PP while retaining federal Medicaid funding for the WHP remains the state's expressed goal. "That's been the goal from the start, and we're going to continue to push for that," Good­man wrote.

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