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Fifth Circuit Reverses Itself, Dealing Significant Setback to Planned Parenthood in Texas


Planned Parenthood was dealt a significant setback in the Lone Star State, courtesy of the Trump-appointee-heavy U.S. Court of Appeals for the Fifth Circuit. The full circuit court issued a ruling Monday in favor of Texas officials fighting to end Medicaid funding of Planned Parenthood, reversing a 2019 decision by a three-judge panel of the court.

Monday’s ruling, which is based in part on the infamously discredited 2015 video that purported to show Planned Parenthood officials selling fetal tissue, not only specifically reverses rulings in Texas and Louisiana, but also affects Mississippi (which also is part of the Fifth Circuit).

Legally, the central issue was primarily a procedural one. Judges answered the question whether Medicaid patients can use civil rights laws to challenge a state’s determination that a health care provider is not “qualified” within applicable Medicaid laws. Writing for court, Chief Judge Priscilla Owen (a George W. Bush appointee) concluded that whether a provider is “qualified” is a matter to be resolved between the government and the provider itself—without involving the individual patient.

The litigation had initially been brought by five Planned Parenthood Medicaid providers and seven individual patients. Like all providers participating in the Texas Medicaid program, Planned Parenthood entered into agreements under which they were required to comply with all Texas Medicaid policies and applicable state and federal regulations.

The controversy leading to the litigation stemmed in large part from a now-infamous and heavily-edited video made by the anti-abortion group Center for Medical Progress (“CMP”). CMP purported to demonstrate that Planned Parenthood financially profited from the illegal sale of fetal tissue following abortions conducted on its premises. Those allegations have been summarily denied by Planned Parenthood, and have been dismissed multiple times by the Department of Justice.

Still, the Texas Inspector General had been convinced enough to pull Planned Parenthood’s credentials, serving notice that determined the organization “not qualified to provide medical services in a professionally competent, safe, legal[,] and ethical manner under the relevant provisions of state and federal law pertaining to Medicaid providers.”

Litigation ensued, and plaintiffs won big in district court. After a hearing, the district court held that the indidivdual plantiffs did indeed have a right to challenge Texas’s decision to throw out Planned Parenthood. It went on to conclude that the plaintiffs’ case was strong enough to warrant a preliminary injunction, because the Inspector General “did not have prima facie . . . evidence, or even a scintilla of evidence,” to conclude that Planned Parenthood was unqualified.

Texas appealed and a three-judge panel of the Fifth Circuit upheld the lower court ruling that individual plaintiffs could maintain their lawsuit. That ruling was appealed to the full Fifth Circuit–which ruled Monday to reverse the panel’s ruling and vacate the preliminary injunction.

The court embarked on a lengthy statutory analysis before concluding that Medicaid patients have no right to challenge state decisions about which providers qualify for inclusion in the program.

The matter, as Judge Owen pointed out, is the subject of a split among the federal circuits. The Fifth Circuit sided with the Eighth Circuit, finding that while providers themselves have the right to challenge an “unqualified” designation, individual patients do not. Judge Owen reasoned:

“In a health care system that is massive and costs taxpayers billions of dollars each year, it is difficult to conclude from so thin a read of § 1396a(a)(23) that Congress envisioned states’ spending additional millions of dollars defending suits in courts across the country brought by Medicaid patients when particular providers are excluded or terminated.”

The Fourth, Sixth, Seventh, Ninth, and Tenth Circuits, acknowledged Owen, disagree. “With great respect for our sister courts,” wrote Owen, “[the circuit courts’ reasoning in these cases] are demonstrably incorrect.”

Judges Don Willett, James Ho, Kyle Duncan, and Kurt Engelhardt (all Donald Trump Appointees) concurred in full with what they called “Chief Judge Owen’s excellent majority opinion,” but also issued a separate concurrence to underscore additional case-based reasoning why vacating the preliminary injunction was appropriate.

Two circuit judges—James L. Dennis (a Bill Clinton appointee) and James. E. Graves (a Barack Obama appointee)—dissented.

In his dissenting opinion, Judge Dennis wrote that he was “persuaded that the remarkably consistent holdings of five of our sister circuits” are the correct ones. He accused the majority of abandoning precedent in favor of an unwise outcome.

“Under the majority’s decision,” Judge Dennis wrote, “Medicaid patients will lose any semblance of autonomy in choosing their health care providers and must meekly accept what choices the state allows.”

In a statement, President and CEO of Planned Parenthood Federation of America Alexis McGill Johnson said about the court’s ruling:

“Make no mistake — forcing Planned Parenthood out of the Texas Medicaid program would have a devastating impact on Texans. And Gov. Abbott knows exactly who he’s hurting — people of color, women, and people with low incomes. Let’s be clear — patients should be able to go to the provider they know and trust regardless of their zip code and income level. Accountability is coming, and we will fight back against any politician who doesn’t prioritize expanding accessible, affordable quality health care.”

Texas Attorney General Ken Paxton (R) issued a statement doubling down on reliance on the 2015 video:

“The Fifth Circuit correctly rejected Planned Parenthood’s efforts to prevent Texas from excluding them from the state’s Medicaid program. Undercover video plainly showed Planned Parenthood admitting to morally bankrupt and unlawful conduct, including violations of federal law by manipulating the timing and methods of abortions to obtain fetal tissue for their own research. Planned Parenthood is not a ‘qualified’ provider under the Medicaid Act, and it should not receive public funding through the Medicaid program.”

Paxton is currently under investigation for alleged bribery and abuse of his office.

[image via Michael B. Thomas/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos