When You Say 'Planned Parenthood' You Say 'Abortion,' Court Rules

State may regulate speech in Women's Health Program

When You Say 'Planned Parenthood' You Say 'Abortion,' Court Rules

Ruling that the district court "gave insufficient attention" to Texas' "authority to subsidize speech of its choosing" within the Women's Health Program, the 5th U.S. Circuit Court of Appeals on Tuesday overturned the lower court decision that banned the state from blocking Planned Parenthood as a participant in the health program for uninsured women.

The ruling overturns a previous decision by federal district Judge Lee Yeakel, who concluded in May that the state could not block Planned Parenthood clinics from participation in the Women's Health Program, until a trial on the merits of the case – wherein PP argued that the move to block it from the program violates their First Amendment right of free speech and association and Fourteenth Amendment right to equal protection under law.

The WHP was formerly a 90% federally-funded Medicaid-waiver program designed to provide preventive and reproductive health care and family-planning services to low income and uninsured women that would not otherwise be eligible for Medicaid unless pregnant. After the federal government refused to allow the state to bar PP, a qualified provider, to serve WHP patients, the state decided to reject the federal money – $9 for every $1 the state kicked in – and to run the program on its own, using only state money, in order to block PP from serving any WHP clients; in 2010 alone, PP served nearly half of the more than 100,000 women who sought WHP services that year.

A trial on the merits of the case to block PP from WHP participation was slated for this fall, but now the 5th Circuit has stepped in, ruling that, in granting the temporary injunction, Yeakel failed to consider Texas' right to regulate the content of the WHP and to "disfavor abortion." Indeed, although the WHP as a federal waiver program had included a ban on the inclusion of providers who perform or "promote" abortion, that restriction had never, until last year, been interpreted to mean all PP clinics – regardless of whether a particular clinic is also an abortion provider. In response to a previous lawsuit, PP clinics in the state had actually de-affiliated themselves, putting abortion care into clinics separate from those that provide family-planning and preventive health services with government money. As such, none of the PP clinics involved in the WHP actually provide abortion care.

Nonetheless, the decision of a three-judge panel of the 5th Circuit has ignored that history – which actually comes from a previous 5th Circuit ruling – and instead ruled that the state has a broad right to regulate "speech" when implementing government-funded programs. "The policy expressed in the WHP is for public funds to subsidize non-abortion family planning speech to the exclusion of abortion speech," reads the ruling. "Texas's authority to promote that policy would be meaningless if it were forced to enlist organizations as health care providers and message-bearers that were also abortion advocates."

Moreover, the panel has concluded that the state's desire to have PP clinics who provide family planning, and that would like participate in the program, disassociate themselves with the brand PP – "using a pro-abortion mark is, after all, a way of promoting abortion," the court wrote – also passes constitutional muster as a means to regulate the "content" of the WHP. "Texas's authority to directly regulate the content of its own program necessarily includes the power to limit the identifying marks that program grantees are authorized to use," the court ruled. "Identifying marks represent messages, and authorization to use a particular mark is authorization to promote that mark's message." Thus to allow the clinics to continue being members of the umbrella organization PP would be to trample the purpose of the WHP – "If the organizations participating the in WHP are authorized to use marks associated with the pro-abortion point of view – like the Planned Parenthood mark – Texas's choice to disfavor abortion is eviscerated, just as it would be if the organizations promoted abortion through pamphlets or video presentations."

The 5th Circuit declined to address the other restrictions that Texas wants to impose, notably that any PP clinics that might participate in the WHP be located in a physically separate locations from clinics that provide abortion care. That question, and related issues related to affiliation among PP clinics – those regarding "franchise and common ownership, management, or control" will be given back to Yeakel to consider.

Read the entire ruling here.

Read about oral arguments before the 5th Circuit in this case, here.

Read about the 5th Circuit's previous actions – and the aftermath – here.

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Read more of the Chronicle's decades of reproductive rights reporting here.

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