Judge: Texas can’t Kick Planned Parenthood out of Medicaid

by MARISSA EVANS –

U.S. District Judge Sam Sparks ruled Tuesday afternoon that Texas clinics affiliated with Planned Parenthood can continue to care for patients under the state’s Medicaid program, a phew-worthy victory for reproductive rights advocates and a loss for the state’s GOP leaders.

In a 42-page ruling, Sparks wrote that the state’s arguments in the case were “the building blocks of a best-selling novel rather than a case concerning the interplay of federal and state authority through the Medicaid program.”

“After reviewing the evidence currently in the record, the Court finds the Inspector General, and thus [the Texas Health and Human Services Commission], likely acted to disenroll qualified health care providers from Medicaid without cause,” the ruling read. “Such action would deprive Medicaid patients of their statutory right to obtain health care from their chosen qualified provider.”

The ruling comes more than a year after Planned Parenthood first sued Texas to stay in the joint federal-state health insurance program for the poor and disabled. Texas had begun the process of kicking Planned Parenthood out — even though its participating clinics provided reproductive health care and cancer screenings, not abortions — in October 2015. But the state did not send a final notice to those providers until December 2016. The affiliates in the lawsuit include Planned Parenthood of Greater Texas, Planned Parenthood Gulf Coast and Planned Parenthood of South Texas.

The catalyst for the December push was a heavily edited video released in 2015 by the Center for Medical Progress, an anti-abortion group. The eight-hour video, released in snippets across the Internet, appeared to show Planned Parenthood Gulf Coast employees admitting to selling aborted fetal tissue for medical research. Planned Parenthood has called the video misleading and has vehemently denied such practices.

Shortly after the ruling, Texas Attorney General Ken Paxton said in a news release he was disappointed with the decision and plans to appeal. He said the videos provided sufficient evidence and “exposed a brazen willingness by Planned Parenthood officials to traffic in fetal body parts.”

“No taxpayer in Texas should have to subsidize this repugnant and illegal conduct,” Paxton said. “We should never lose sight of the fact that, as long as abortion is legal in the United States, the potential for these types of horrors will continue.”

In court, Planned Parenthood attorneys argued that not allowing the reproductive health provider to stay in the Medicaid program, which is largely funded by the federal government, would severely curb access to care for poor Texas men and women seeking preventive and sexual health services. The attorneys also argued that the state did not have the capacity to deliver these services in the same way Planned Parenthood does and reiterated that state and federal law already prohibit taxpayer dollars from being spent on abortion services.

State attorneys, meanwhile, leaned heavily on the web video throughout court proceedings, pointing out various clips as part of their evidence. While the video appeared to back up their claims, Planned Parenthood attorneys forced several of the state’s witnesses to concede that no employees were seen committing illegal acts in the undercover video.

Throughout the ruling, the phrase “no evidence” appears multiple times. Sparks said Texas Health and Human Services Commission Inspector General Stuart W. Bowen Jr. “did not have prima facie of evidence, or even a scintilla of evidence” for the termination. He cited that the Center for Medical Progress video, the evidence against Planned Parenthood Gulf Coast and dragging in other Planned Parenthood affiliates were “three overarching bases for termination.”

Sparks said that “for those not blessed with eight free hours to watch” the video, it mostly contained a Planned Parenthood Gulf Coast employee and Center for Medical Progress representatives talking in “unclear and ambiguous dialogue” that was open to interpretation. He said the Texas Health and Human Services Commission did not provide evidence that they had authenticated the video before going forward with termination efforts.

While state attorneys tried to show that the reproductive health organization had “a willingness” to profit from procuring fetal tissue, Sparks said he did not find evidence of that.

“The Court is unconvinced mere willingness, without any evidence of attempt, is enough to deprive a Medicaid beneficiary of the right to her otherwise qualified provider,” the ruling read.

During the hearing, state attorneys asserted that Texas would take on Planned Parenthood’s patients if the organization was not a Medicaid provider anymore. They pointed to the more than 5,300 providers currently in Texas Medicaid. However, Sparks said in his ruling that he was not convinced patients would be able to quickly and easily find a new provider.

Ken Lambrecht, CEO of Planned Parenthood Greater Texas, said in a news release that the ruling ensures Medicaid patients can still receive birth control, cancer screenings and other reproductive health services.

“We went to court to protect our patients and to state clearly and simply that Texans, not politicians, should decide where to receive their health care,” Lambrecht said.

Yvonne Gutierrez, executive director for Planned Parenthood Texas Votes, said in a news release that the organization “will fight tooth and nail to protect access to health care for all Texans.”

“Politics should never come before health care that people need,” Gutierrez said.

It was a long shot for Texas lawmakers to get Planned Parenthood affiliates out of Medicaid.

Other states, including Alabama and Louisiana, tried to kick Planned Parenthood out, but federal courts quashed those efforts. Some states have also tried to write bills that would siphon off Medicaid dollars from Planned Parenthood, but the courts have rejected them. In 2015, the federal Centers for Medicare & Medicaid Services wrote to all 50 state Medicaid agencies warning that rejecting providers because they are affiliated with those who provide abortion services is illegal.

Melissa Conway, a spokeswoman for the anti-abortion group Texas Right to Life, said in a news release that the organization is hopeful that Texas “will soon prevail” in only allowing “ethical providers” to be in Medicaid.

“Our legislative team will continue to work full time during the legislative session to pass a budget-wide funding provision that prevents abortion businesses and their affiliates from receiving any additional state funding in Texas,” Conway said.

Read related Tribune coverage:

  • After three days of testimony from attorneys for the state and Planned Parenthood, U.S. District Judge Sam Sparks is letting the reproductive health provider stay in Medicaid until Feb. 21.
  • Showing multiple clips from a video released in 2015 by the anti-abortion group Center for Medical Progress, state attorneys and witnesses said the footage was grounds for dismissing Planned Parenthood from Medicaid.
  • Planned Parenthood lawyers and witnesses said in front of a packed courtroom that ending the organization’s reimbursements for Medicaid could endanger access to family planning services for Texas’ most vulnerable populations.

Disclosure: Planned Parenthood has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors is available here.

 

Reprinted with permission from The Texas Tribune