Fifth Circuit Blocks WHP Ruling in Favor of Planned Parenthood

Illustration by Jason Stout

In a late-night ruling, a single judge of the 5th U.S. Circuit Court of Appeals, Jerry Smith, issued an emergency stay of yesterday's ruling in federal district court that the state would not be allowed, at least for the time being, to exclude Planned Parenthood from participation in the Women's Health Program.

Indeed, according to a filing by Texas Attorney General Greg Abbott (signed by Solicitor General Jonathan Mitchell), women enrolled in the WHP will face irreparable harm if the temporary injunction blocking the state from banning PP from the WHP, issued by Judge Lee Yeakel on Monday, is allowed to stand. According to the AG's office, unless it can ban PP from serving clients under the program, the program must be dismantled. "Absent a stay pending appeal, the State of Texas – and the women of Texas who depend on the [WHP] – will be irreparably harmed because state law prohibits Texas from continuing to operate the Texas Women's Program [sic] if taxpayer money must be provided to entities that affiliate with abortion-promoting entities," reads the application for a stay, filed last night with the appeals court. Smith approved the stay late last night, blocking the injunction and giving PP's lawyers until 5pm today to respond. PP opposed the stay application and will file a response with the court today. How quickly the court will then rule – perhaps another midnight order? – is unclear.

According to the state, Texas law requires PP to be excluded or for the state to shut down the successful program that began as a Medicaid-waiver project, passed by state lawmakers in 2005. Devised as a federal-state partnership, aimed at expanding healthcare access and decreasing unplanned pregnancies and abortion, the WHP offered basic healthcare and family planning services for low-income, uninsured women 18-44 who would not be eligible for government-subsidized healthcare unless pregnant. That's no small issue in Texas where more than half of all pregnancies and births are paid for by Medicaid. By all counts, the program has been a success, saving millions for the state – for every $1 the state put into the program, the feds kicked in $9 – and preventing thousands of unplanned pregnancies. And although PP makes up just 2% of WHP providers, in 2010 it served nearly half of all WHP clients, meaning tens of thousands of women would be left without access to their provider of choice should the PP clinics be excluded from the program.

While the program always included a prohibition on participation by abortion providers, the rules were never before used as a wedge to exclude PP until last year, when lawmakers decided that should be a goal. Indeed, the 49 PP clinics that participate in the program do not provide abortion, and yet they do share the name PP with clinics that do – and to the state, that contravenes the mission of the program, which its lawyers have told the federal court is to increase access to subsidize "nonabortion methods of family planning" as well as to reduce the number of abortions performed in the state.

As such, the state last year devised a new "rule" that redefines the term "affiliate" in order to block PP from participation in the program. When the feds balked, and said it could not renew the partnership with the new language included, which would violate long-standing federal law that ensures women have access to providers of choice, Gov. Rick Perry blamed the breakup of the popular program that served more than 100,000 women in 2010 (and had more than 183,000 enrolled and eligible for services) on the "pro-abortion" agenda of the Obama Administration, and said the state would go it alone and fund the program as a Texas program.

That decision is what prompted PP to sue, arguing that the state's plan to block its healthcare clinics' participation violates First Amendment free speech and free association protections as well as 14th Amendment equal protection rights. The state and PP were in court for hearing on the issue April 19, and Yeakel then said he would rule before May 1, the date by which WHP provider participants would be required to certify that they are not affiliates of abortion providers. Yeakel ruled April 30, issuing a temporary injunction blocking the state from going through with it's plan to bump PP from the WHP, on a finding that PP was likely to prevail on the merits of the case – which he set for expedited hearing.

That, apparently, isn't enough to satisfy Texas, which took the extraordinary step of applying to the Fifth Circuit for an emergency stay of that ruling. According to the state, Yeakel's reasoning is wrong: The state is not violating the clinics' right to speak out in support of reproductive choice, or to associate with clinics who advocate for reproductive choice. Instead, it is merely setting parameters for health providers to receive federal funds. Indeed, in court Solicitor General Mitchell argued that to allow PP to participate based on the First Amendment claim would open the program up to any provider who wanted in, including, for example, groups that promote eugenics, he said – an argument that the state reiterated in it's late Monday filing. The action to ban PP would not violate the constitution unless the penalty for its engaging in free speech or association was something "non-germane to the benefits provided by the government subsidy," reads the filing. "If, for example, the State of Texas decided to withhold police and fire protection for [PP] on account of its First Amendment activity, that would represent an unconstitutional 'penalty' because it is not related to the goals of police and fire protection and would be undertaken only to spite [PP] for it's abortion-related advocacy."

Clearly, that's not what's going on here, the state argues.

Find background on the dispute over the WHP here.

Coverage of the hearing before Yeakel is here.