State Can Ban Planned Parenthood from New Texas Women's Health Program – For Now

A visiting district judge today declined to grant a temporary restraining order, thus clearing the way for Texas to ban Planned Parenthood from its new Texas Women's Health Program, slated to begin tomorrow, Jan. 1.

At issue is the new state-run and state-funded TWHP, which is designed to replace the former Medicaid-waiver Women's Health Program, which was supported 90% with federal funds. The program was up and running for five years and over that time period was considered a successful program that expanded access to basic health and family planning care for low-income Texas women while reducing the incidence of unplanned pregnancies in the state that are paid for by Medicaid. Currently more than half of all Texas births are paid for by Medicaid; Medicaid-paid births in 2009 cost the state $2.9 billion.

The program saved the state millions each year while it also increased enrollment – granting more and more women access to basic health care services – but lawmakers nonetheless decided to tweak the rules for the program, specifically to exclude Planned Parenthood from participation. Although Planned Parenthood has been the single largest provider of WHP services – nearly 50,000 of roughly 111,000 enrolled women have chosen Planned Parenthood as their WHP provider of choice – some lawmakers argued that all Planned Parenthood clinics should be banned from participation because some clinics provide abortion care. Pregnant women were not eligible for the WHP – nor are they eligible for the new state-run TWHP – and none of the Planned Parenthood clinics that provide WHP services – or that would provide services under the TWHP – provide any abortion care.

Although the state initially sought to continue the Medicaid-waiver WHP while also instituting a ban on Planned Parenthood's participation, the feds told the state it could not ban Planned Parenthood and still receive federal approval and funding for the program, since the move would violate federal law guaranteeing a woman access to a qualified provider of her choice. The state sued on that point, arguing that it should be able to discriminate and to keep the funding; a federal court in Waco blocked that plan earlier this month, declining to issue an injunction that would have forced the feds to keep funding the program.

While the state in November was also blocked by a Travis County district court from banning Planned Parenthood from the Medicaid-funded program, the state immediately appealed that ruling and has simply decided to go out on its own, to run and fund the roughly $40 million per year program solely in order to maintain the ban on Planned Parenthood.

Planned Parenthood earlier this month joined with WHP client Marcela "Marcy" Balquinta to protest the move. Balquinta, a student and education coordinator in McAllen, argues that if the state goes through with the ban she will be left without access to the TWHP because of the dearth of providers in the Valley. "If I couldn't go to Planned Parenthood, I don't know where I'd turn," she said in a press statement. "And there are tens of thousands of Texas women like me."

In declining to issue the temporary restraining order, which would have forbidden the state from discriminating against Planned Parenthood in its new TWHP, visiting Judge Gary Harger found that there is no "immediate, concrete and irreparable injury, loss or damage will likely result to the Planned Parenthood Plaintiffs before a temporary injunction hearing can be held."

Texas Attorney General Greg Abbott was pleased by the ruling, spokeswoman Lauren Bean said in a statement. "We are pleased the court rejected Planned Parenthood's latest attempt to skirt state law. The Texas Attorney General's office will continue to defend the Texas Legislature's decision to prohibit abortion providers and their affiliates from receiving taxpayer dollars through the Women's Health Program."

Though Harger has declined the TRO, a temporary injunction hearing has already been scheduled for Jan. 11, giving Balquinta and Planned Parenthood an expanded chance to plead their case. At that hearing a Travis County judge will have to decide whether the plaintiffs have a substantial likelihood of winning their larger suit.

In the meantime, however, the state has been cleared to proceed with the new program, and nearly 50,000 women who had chosen Planned Parenthood as their provider of choice will be orphaned and left to find a new TWHP provider, if they can. "We have more than 3500 doctors, clinics and other providers in the program and will be able to continue to provide women with family planning services while fully complying with state law," Health and Human Services Commission press officer Linda Edwards Gockel said in a press statement. "We welcome Planned Parenthood’s help in referring patients to providers in the new program."