Planned Parenthood Still in the Women's Health Program...For Now

Travis County District Judge Stephen Yelenosky Thursday afternoon granted a temporary injunction barring the state from enforcing a rule that would keep Planned Parenthood from participating in the Women's Health Program until a trial on the merits of the case can be held in December.

At issue is a rule defining who may provide services under the WHP, begun in 2007 as a five-year Medicaid-waiver program that would provide family planning and basic health services to low-income and uninsured women who wouldn't be eligible for Medicaid unless pregnant. In Texas more than half of all pregnancies are paid for by Medicaid; in 2009, Texas Medicaid costs associated with pregnancy and birth cost $2.9 billion. The goal of the WHP is to expand health services to women in need and to reduce the number of unplanned pregnancies. It is undisputed that the program has achieved both goals and saved the state millions; under the waiver program the federal government paid 90% of the nearly $36 million annual cost for services.

Despite the program's ongoing success, the state has undertaken to rewrite the program rules in order to ban PP from participation. PP clinics provide services to nearly 50,000 clients. Roughly 111,000 women are currently receiving WHP services statewide. The state has sought to kick PP out of the program because some PP clinics in the state use private funds to provide abortion care. None of the PP clinics involved in the WHP provide abortion services. Indeed, abortion is not covered by the WHP and pregnant women aren't eligible for WHP services.

The state's decision to ban PP prompted the federal Centers for Medicare & Medicaid Services to tell the state that it would no longer be able to fund the WHP because the ban on PP would violate federal law that guarantees women access to the family planning provider of their choice. In response, Gov. Rick Perry said the state would forgo federal funding and come up with the money to pay for the program so that it may keep the ban on PP's participation in place; state health officials have done as charged, devising a new system that Health and Human Services Executive Commissioner Kyle Janek has said is ready to start providing services before the end of the year.

PP on Oct. 26 filed suit in state district court arguing that the that neither Perry nor state health officials actually had the authority to rewrite rules for the WHP in such a way that would cause the state to lose federal funding for the program. On Thursday, PP lawyers Mike McKetta and Pete Schenkkan argued to Yelenosky that a provision of Chapter 32 of Texas' Human Resources Code specifically renders "inoperable" any provision – like the new WHP rules – that causes the state to lose federal funding for any medical assistance program. The decision to overrule or rewrite that provision lies with the state lawmakers, they argue, not with Perry or with Janek. "We say the rule [banning PP] is invalid; we say [the state] knew this rule was invalid before they did it" because of the specific provision of Chapter 32, McKetta argued.

The state disagrees, arguing in court that the executive branch of state government has the power to decide which Medicaid programs the state should participate in, meaning that it doesn't have to participate in a Medicaid-funded WHP and may choose to go its own way with a state-funded, PP-banning program if Perry or Janek decide that's the way to go. The Legislature "can put out the parameters to be considered" in what federally-funded programs should be pursued, Texas Assistant Solicitor General Kristofer Monson told Yelenosky Thursday afternoon, but, "at some point the executive [power] has to mean something."

A trial on the merits of PP's case is set for Dec. 17.

More on the tug-of-war over the WHP is here, here, and here.