In the latest move in this tennis match, 5th Circuit overturns last-minute stay

BY JORDAN SMITHFRI., MAY 11, 2012

Planned Parenthood's Cecile Richards spoke in Austin at a rally for women's health in March.
Planned Parenthood’s Cecile Richards spoke in Austin at a rally for women’s health in March.
PHOTO BY JOHN ANDERSON

A three-judge panel of the 5th U.S. Circuit Court of Appeals on May 4 overturned a stay by one judge that banned Planned Par­ent­hood from participation in the Women’s Health Pro­gram. The stay, imposed last week in a midnight order issued by Judge Jerry Smith, had suspended a temporary injunction issued by federal district Judge Lee Yeakel on April 30 that blocked the state from kicking more than two dozen of the state’s PP clinics out of the program.

At issue is the new “rule” crafted last year that dubs the WHP-participating PP clinics, which do not provide any abortion care, as “affiliates” of PP clinics across the state that do provide abortion services – but are not funded by the WHP. The PP clinics sued the state in federal court, arguing that the ban on their participation violated both their First Amendment right of free speech and association as well as their 14th Amendment equal protection rights. Lawyers for the clinics and for the state argued the issue before Yeakel in mid-April; on April 30, Yeakel ruled in favor of the clinics, saying they had demonstrated that they were likely to prevail at trial, and issued an order that would bar the state from excluding the clinics as WHP providers until a full trial on the merits of the case could be heard, possibly next month. Indeed, at the hearing Yeakel told the lawyers – Helene Krasnoff for PP and Solicitor General Jona­than Mitchell for the state – that he understood timing was of the essence in the case – a resolution needs to be reached so that the program can continue (or not, as the state may have it) based on the legality of the state’s rule. Both Krasnoff and Mitchell said they could be ready to argue the merits within a month.

Nonetheless, Mitchell penned a request late on April 30, asking the 5th Circuit to intervene and arguing that to allow PP to continue in the WHP was an emergency because state law bans the clinics, and to allow them to remain involved, the state would be forced to shut down the entire program, putting in jeopardy the health care access of more than 180,000 women enrolled in the program.

While the drama of Mitchell’s argument might have impressed Smith after hours on April 30, that didn’t last; on Friday, Smith was among the three judges who reversed the stay, reinstating the injunction that allows PP to remain active in the WHP until a trial can be held. In part, the panel ruled that the state’s characterization of the “emergency” nature of the situation wasn’t exactly accurate and that the state has yet to address a potentially major failing of its case. Specific­al­ly, the state has not done anything to counter the PP argument that the issue of affiliation among abortion-provider clinics and their sister clinics that do not provide such care was already addressed in an earlier lawsuit, Planned Parenthood of Houston and Southeast Texas v. Sanchez. As a result of that case, the state’s PP clinics legally unaffiliated themselves in order to satisfy Texas that no taxpayer money was going to fund abortion services.

So for the time being at least, the PP clinics involved in the WHP – just 2% of all WHP providers in 2010, yet they served nearly 50% of all WHP clients – will remain able to see, and be reimbursed for, services provided to the tens of thousands of women who make PP their provider of choice.

by 

May 7, 2012


Texas Republicans have been trying to figure out a way to defund Planned Parenthood since they captured both legislative bodies and the governor’s office in 2002.

Now, the efforts of Gov. Rick Perry and his anti-abortion allies to strip the organization of state funding have led to a legal tussle in federal court.

For Republican politicians in Texas, like Rep. Sid Miller, opposition to the reproductive health organization is a badge of honor.

"In the last budget, I transferred $21 million away from Planned Parenthood," says Miller, who represents a rural Texas district southwest of Fort Worth. "We believe it’s inherently wrong to use taxpayer dollars to fund an organization that performs abortions."

None of the dozens of clinics that will lose state funds actually perform abortions. It is already against state and federal law for clinics that perform abortions to receive taxpayer dollars.

But Texas is going a step further, with a law that eliminates funding for women’s health clinics that either associate with abortion providers or advocate for abortion rights.

Planned Parenthood has filed a lawsuit in federal court, claiming these new Texas rules violate the organization’s constitutional rights to free association and free speech.

Rep. Miller disagrees. “I don’t see how any of that even correlates,” he says. “We’re not stopping them from doing whatever they want to do. They’re still free to service women however they want to. We’re just saying, ‘You’re not going to do it with taxpayer dollars.’”

Texas already cut its support statewide for women’s health clinics by two-thirds in 2011, eliminating access to family planning services for nearly 300,000 poor and working-class women.

The Texas Legislative Budget Board estimates those cuts will result in roughly 20,000 additional unplanned births. Texas currently ranks first among the states in spending on teen births.

But for abortion opponents, the issue is not about money, but about keeping Planned Parenthood out of the Texas Women’s Health Program, which provides services to low-income women.


"It bars it in numerous ways: Because we advocate to protect women’s access to safe and legal abortion. It bars it because we associate with entities that engage in that conduct. It bars you from having any relationship with any provider of abortion services."
"In essence, the rule bars being Planned Parenthood and being in this program," says Helene Krasnov, a Planned Parenthood lawyer.

Essentially, Krasnov says, “you can’t be connected with comprehensive reproductive health care” without running afoul of the law.

Krasnov says those stipulations go too far. And, she argues, Planned Parenthood’s speech and associations have nothing to do with the quality of the health care provided at its clinics.

"The government can tell an entity what it can do with government funds," Krasnov says. "The government can set the rule for its own programs. But it can’t disqualify you from the program based on constitutionally protected conduct that you do outside that government program."

Last Monday, U.S. District Judge Lee Yeakel ruled that Planned Parenthood’s claim — that the state of Texas is violating its constitutional rights — was likely to succeed. Yeakel issued an injunction stopping Texas’ defunding until he can schedule a trial and hear arguments.

The state has appealed, and the matter is now before the Fifth Circuit Court of Appeals. Oral arguments will be heard the first week of June.

Austin American-Statesman:
State Overruled Again in Health Program Fight

Austin American-Statesman:

State Overruled Again in Health Program Fight

Posted: 05/04/2012 5:05 pm


It’s been a bumpy week for Planned Parenthood clinics in Texas. First a U.S. district judge temporarily stopped a new law that would have cut Planned Parenthood out of the state Women’s Health Program. Then a panel of judges smacked down that ruling. And now, the same appeals court has restored state funding to the family planning provider until its case can be heard later this month.

On Thursday, Texas Attorney General Greg Abbott and his team of state lawyers asked a federal appeals court to block U.S. District Judge Lee Yeakel’s Monday decision that required the state to continue funding Planned Parenthood. In his request for an emergency stay, Abbott analogized Planned Parenthood to a terrorist organization and said the state would be forced to drop the entire Women’s Health Program if it was asked to continue funding an organization that performs abortions.

While federal appeals Judge Jerry E. Smith initially complied with that request, Smith and two other judges changed their minds on Friday and denied the state’s request on the grounds that the attorney general failed to show the state would suffer immediate, irreparable harm from giving Medicaid money to Planned Parenthood.

Abbott’s office could not immediately be reached for comment.

None of the eight Planned Parenthoods that participate in the Texas Women’s Health Program offer abortions, and Planned Parenthood accounts 40 percent of the program’s services to low-income women across the state. If the court sides with Planned Parenthood in its upcoming case against the state, lawmakers have said they will likely shut down the whole Women’s Health Program, which serves at least 130,000 women a year.

Cecile Richards, president of Planned Parenthood, tied the case to the presidential election.

"This case isn’t about Planned Parenthood — it’s about the women who rely on Planned Parenthood for cancer screenings, birth control, and well-woman exams," Richards said in a statement on Friday. "Governor Perry has already thrown 160,000 women off of health care for partisan political reasons — now there will be more to come. Mitt Romney would supersize what’s happening in Texas and try to block women’s access to lifesaving health care nationwide."

    Texas Planned Parenthood Funding in Limbo 

    WEDNESDAY, MAY 2, 2012 05:25 PM CDT

    Fifth Circuit Court Judge Jerry Smith makes sure that the state’s antiabortion legislation gets upheld

    Here is what the state of Texas considers “irreparable harm”: Continuing to provide Planned Parenthood with federal funds for the Texas Women’s Health program, which it has done for several years. Here is what it does not find harmful: immediately denying healthcare access to tens of thousands of women who have been going to Planned Parenthood affiliates for basic health services that aren’t abortions.

    On Monday, a U.S. District Court judge didn’t buy the state’s legislation defunding Planned Parenthood, putting a temporary stay on the enforcement of the law. But within a day, there was another judge who found the argument persuasive: Fifth Circuit Judge Jerry Smith, last seen obnoxiously demanding that a female Justice Department lawyer ”submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power.” (Kevin Drum memorably compared it to “a middle school teacher handing out punishment to a student because of something her father said at a city council meeting the night before,” and you wouldn’t have to look hard to find the sexist condescension.)

    The District Court judge had written 24 pages on the constitutional merits, focusing on Planned Parenthood’s First Amendment rights of association. Smith issued two sentences two hours after the state’s petition, undoing that, and apparently buying the state of Texas’ argument that Planned Parenthood’s alleged “abortion promoting” mission justified discriminating against a qualified provider of healthcare.  (The clinics receiving WHP funding don’t even provide abortions, but other Planned Parenthood clinics do.)

    In an election year, these posturings take on new meaning; by today, Planned Parenthood was proclaiming in a news release, “What would Mitt Romney’s America look like for women’s health care?  We need look no further than Texas,” and highlighting the policy similarities of Romney and Perry on women’s health. Romney, of course, has pledged to defund Planned Parenthood, which during the primaries became a consensus Republican issue. The last federal attempt to do so, last year’s Pence Amendment, nearly shut down the entire government, though Obama held the line — as he pointed out in a recent campaign video supporting the organization.

    The presidential policies matter, but as we can see from Texas, the judiciary, prompted by state legislatures that are coming off a wave of abortion restrictions, is currently wielding the most power when it comes to women’s everyday lives, and the 5th Circuit in particular has been unrepentantly hostile to reproductive rights. When they failed with Pence, right-to-lifers turned to the states, primed by the 2010 election of even more anti-choice legislators and governors. In Texas, the conservative 5th Circuit has become a brick wall, previously allowing enforcement of the most extreme ultrasound law in the country, one that requires a woman to listen to the results.

    Smith is a Reagan appointee, as is his fellow 5th Circuit conservative gadfly Edith Jones, who wrote the opinion in the ultrasound case, though if they’re feeling particularly emboldened lately, you can’t really blame them. After all, the Obama administration has shown little interest in prioritizing the judiciary, even after Bush’s ambitious effort to fill federal appellate courts with movement conservatives. A January Brookings Institution report showed that Obama has nominated fewer federal trial judges than his predecessors, even as a wave of judges retires. (Unprecedented Senate intransigence is a major factor in confirmations, but doesn’t explain the nominations.)  And Dahlia Lithwick has argued that “Obama, like Bill Clinton before him, has selected lower court judges more notable for their racial and gender diversity than their hard-left judicial orientation.”

    All of this is to say that as long as states like Texas keep passing laws that punish women and stretch the boundaries of constitutional interpretation, to put it mildly, the buck is likelier than ever to stop at a judge like Jerry Smith.

    COMMENTARY | Jerry Smith, judge of the 5th Circuit Court, overturned a lower court decision and allowed Texas to withdraw funding from Planned Parenthood because the organization provides abortions, according to Reuters. This prompted me to ask: How important are Planned Parenthood’s other services and how severe a transgression against the people of Texas did legislators commit if those services are important?

    Planned Parenthood provides cancer screenings for low-income women. Screenings provide early detection of cancer.

    Dartmouth College is an elite Ivy League school. Its teaching hospital is Dartmouth-Hitchcock Hospital. That institution is home to the Norris Cotton Cancer Center, a nationally renowned cancer treatment facility. The Keene, N.H., branch is a vital regional medical resource. Dr. Steven S. Larmonis the facility medical director and a respected oncologist.

    "Getting an early diagnosis of cancer, with nearly every type of cancer, improves the response to treatment and the rate of cure. The improving rates of cancer cures we have had in the past few years are directly related to how well and frequently we screen for cancer,” he told me.

    Early detection appears to make the difference between life and death. I’ll file that under “important.”

    A source at Planned Parenthood sent me materials showing the organization performed over 1.5 million cancer-related screenings for its patients at about 800 centers last year.

    That means the loss of screening services will impact a huge number of people, mainly the poor and disenfranchised.

    I spoke with attorney Brandon Todd Dillon of The Dillon Law Firm in Coldspring, Texas. He told me the legislators and judges enjoy legal protection from the consequences of their actions. Their actions create a situation of unequal treatment under the law and could form the basis for what he called a 1983 lawsuit, which is like a class action civil rights case. Dillon also said it could be argued their actions were negligent in the legal sense.

    Planned Parenthood’s services are life saving. They help many people each year who cannot afford such services. It’s ridiculous and possibly legally actionable to put so many women’s lives in greater peril over a political squabble. Philosophical disagreement cannot justify denying access to health care, particularly if someone claims to be “pro-life.”


    HOUSTON — The brinkmanship continues as Texas battles to cut government funding to Planned Parenthood.

    Texas legislators passed a law last year to effectively remove Planned Parenthood and other abortion providers from the Texas Medicaid Women’s Health Program as of today. 

    Planned Parenthood clinics had sued the state to maintain funding and appeared to have won a victory Monday when a federal judge in Austin issued an injunction that prevented Texas from withdrawing funds from 49 clinics. But early Tuesday, a federal appeals court judge stayed the injunction, pending an appeal by the state filed late Monday.

    Judge Jerry Smith of the U.S. 5th Circuit Court of Appeals in New Orleans gave Planned Parenthood until 5 p.m. Tuesday to file an opposition brief that he will consider before ruling on the state’s appeal.

    The stay appeared to throw Planned Parenthood funding under the Medicaid Women’s Health Program into limbo.

    Lauren Bean, a spokeswoman for the Texas attorney general’s office, told the Los Angeles Times that, under the stay, Planned Parenthood “is now banned from receiving funding from the state to participate in the WHP” pending the judge’s ruling.

    Said Stephanie Goodman, a spokeswoman for the state’s Health and Human Services Commission: “This ruling allows the state to fully enforce state law today and exclude abortion providers from the  Women’s Health Program. That means that ineligible providers, including Planned Parenthood, are no longer eligible to bill the  Women’s Health Program.” The commission administers the Women’s Health Program.

    In March, federal officials withdrew their funding for the $35-million Medicaid program, eliminating about 90% of its budget, saying the state ban on abortion providers violated women’s federal right to pick the best available healthcare provider.

    Planned Parenthood officials had thought that federal funding might be restored once the injunction was issued but they were unclear Tuesday on what would happen now that the injunction has been stayed.

    “We’re planning to continue to see women who are enrolled in the WHP because we don’t want to confuse them any more than the state has,” said Rochelle Tafolla, a spokeswoman for Planned Parenthood Gulf Coast based in Houston.

    She said several other Planned Parenthood affiliates across the state also planned to continue providing services for which they’d been reimbursed by the state in the past.

    “It may be that the services we provide today will not be reimbursed because of the judge’s and the state’s actions last night,” Tafolla said. “This is a midnight deal and we need to see the women that are relying on us.”

    Tafolla said Planned Parenthood’s attorneys plan to submit opposition briefs later Tuesday and “hope the judge sees the state judge was correct in granting the injunction.”

    It was not clear how soon Smith could act once he receives Planned Parenthood’s response.

    “There are over a 100,000 women that are relying on this program, so I’m hoping that the judge will act quickly,” Tafolla said.


    Just two hours after a U.S. district judge stopped a Texas law that would have eliminated Planned Parenthood’s participation in the state’s Women’s Health Program, Federal Appeals Judge Jerry E. Smith issued an emergency stay that lifted that order.

    In the appeal for the emergency stay, a team of attorneys led by Texas Attorney General Greg Abbott compared Planned Parenthood to a terrorist organization.

    "Planned Parenthood does not provide any assurance that the tax subsidies it receives from the Women’s Health Program have not been used directly or indirectly to subsidize its advocacy of elective abortion," Abbott wrote in his motion to stay the injunction. "Nor is it possible for Planned Parenthood to provide this assurance."

    "Money is fungible, and taxpayer subsidies — even if ‘earmarked’ for nonabortion activities — free up other resources for Planned Parenthood to spend on its mission to promote elective abortions … (because ‘[m]oney is fungible,’ First Amendment does not prohibit application of federal material-support statute to individuals who give money to ‘humanitarian’ activities performed by terrorist organizations)."

    The "federal material-support statute" that Abbott mentions makes it a felony to give money to a terrorist organization, even if the funds are specified for nonterrorist activities. Abbott makes the argument that giving Medicaid money to Planned Parenthood for breast cancer screenings, pap smears, STD testing and birth control is akin to giving a terrorist organization money for humanitarian activities.

    Planned Parenthood responded Tuesday to the terrorist comparison in a statement to the Huffington Post.

    “In a state that leads the nation in the number of uninsured — where one in four Texas women lack health insurance, and women face the third highest rate of cervical cancer — I think it is appalling to make such a comparison when Planned Parenthood works every day to keep women healthy,” said Melaney Linton, president and CEO of Planned Parenthood Gulf Coast.

    In fact, none of the eight Planned Parenthood clinics that participate in Texas’ Women’s Health Program offer abortions, and the money Planned Parenthood receives through the program for specific medical visits, treatments, and procedures does not even fully cover the cost of those services. Abortions at Planned Parenthood are entirely paid for with private money in compliance with the Hyde Amendment, which has prohibited taxpayer-funded abortions for decades.

    Because the new Texas law violated federal Medicaid rules about provider discrimination, the Department of Health and Human Services cut off all Medicaid funding for family planning to the state of Texas in March, jeopardizing the entire Women’s Health Program. The program serves about 130,000 low-income women; Planned Parenthood serves more than 40 percent of those women, which was an influencing factor in U.S. District Judge Lee Yeakel’s Monday decision to halt the law and force the state to continue funding Planned Parenthood.

    In appealing that decision, Abbott made the argument that the state of Texas would prefer to shut down the entire Women’s Health Program rather than allow it to fund Planned Parenthood.

    “Consequently, the district court’s preliminary injunction effectively forces Texas to choose between contravening state law and shutting down the program,” he told the appeals court.

    Smith, who was appointed by former President Ronald Reagan, complied with Abbott’s request for an appeal within hours of the decision, temporarily voiding Yeakel’s injunction and immediately blocking the flow of money to Planned Parenthood. Until 5 p.m. on Tuesday Planned Parenthood can respond to the stay, after which the appeals court will make a final decision.