The conservative-leaning 5th U.S. Court of Appeals has lifted an order blocking Texas from ousting Planned Parenthood affiliates as Medicaid health care providers. A three-judge panel of the New Orleans-based appellate court remanded the case back down to Austin-based U.S. Judge Sam Sparks for reconsideration; for now, Planned Parenthood remains in Medicaid until Feb. 8.
Texas has sought to withhold funding from Planned Parenthood for years, but the highly politicized 2015 decision to kick PP out of Medicaid entirely was spurred by deceptively edited and widely discredited "sting" videos produced by the anti-choice Center for Medical Progress. These purported to show PP physicians discussing the use of fetal tissue in research. Planned Parenthood, which denied any improper conduct, delivers about $3 million annually in preventive and reproductive health care to about 12,000 low-income Texans.
The resulting nationwide uproar led to (failed) efforts to defund PP at the federal level; Texas officials announced their intent to do the same, but delayed final action for more than a year, by which time Planned Parenthood had filed suit. In February 2017, Sparks found the state's action would cause irreparable injury to PP's Medicaid clients and issued his injunction, slamming Texas' argument as more like a "bestselling novel" than a deliberate investigation of Medicaid malfeasance ("Judge Blocks Texas From Kicking Planned Parenthood Out of Medicaid," Feb. 21, 2017).
The 5th Circuit order, issued Jan. 18, did not address the merits of the case, but the three-judge panel peppered its 36-page filing with skepticism over Sparks' ruling, knocking the judge for not giving the state's case the deference they thought it deserved. Upon remand, the 5CA has ordered Sparks to determine if Texas' actions were "arbitrary and capricious," a more difficult standard to meet.
Previously, the appellate court had ruled that Louisiana's similar effort to defund Planned Parenthood was unmerited (a decision left standing by the Supreme Court this past December), but Judge Edith Jones – who often ardently sides with the state in abortion cases – criticized Sparks for being too "dismissive" of the Texas Health and Human Services Commission's official report concluding the videos did show Planned Parenthood doing wrong. (It's no wonder why Sparks did so: The HHSC inspector general admitted during testimony he had not actually watched the videos prior to issuing the termination letter, and the state offered no other evidence.) The judges signaled their own leanings by including a graphic, bloody image of fetal tissue from the video in their ruling.
Planned Parenthood tells us it is currently weighing its legal options. "Rest assured, Planned Parenthood's doors are open to its patients today and they will be open tomorrow," said Yvonne Gutierrez, executive director of Planned Parenthood Texas Votes. "We will fight tooth and nail to protect access to health care for all Texans."
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