Now That Planned Parenthood Has Won a Medicaid Fight in Texas, What’s Next?

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Analysis Law and Policy

Now That Planned Parenthood Has Won a Medicaid Fight in Texas, What’s Next?

Jessica Mason Pieklo

A federal district judge ruled Texas couldn't rely on heavily edited videos from anti-abortion advocate David Daleiden to try to defund Planned Parenthood. In an earlier case from Utah, Supreme Court nominee Neil Gorsuch wasn't so sure.

A federal court in Texas issued an injunction Tuesday temporarily stopping lawmakers there from cutting Planned Parenthood out of the state’s Medicaid program. The decision is a win for reproductive rights, but the legal fight over funding for the health-care provider on a national scale is far from over.

The ruling came in a case challenging Texas lawmakers’ attempts to defund Planned Parenthood, following the release in 2015 of tapes that purported to show the organization’s associates negotiating the sale of fetal tissue and violating the federal “partial-birth abortion” ban. The videos, which were spearheaded by anti-choice activist David Daleiden, prompted more than a dozen state and federal investigations. None found any indication of lawbreaking.

On Tuesday, U.S. District Judge Sam Sparks echoed those findings, ruling attorneys for the state had failed to provide “any evidence” of Planned Parenthood’s wrongdoing. “A secretly recorded video, fake names, a grand jury indictment, congressional investigations—these are the building blocks of a best-selling novel rather than a case concerning the interplay of federal and state authority through the Medicaid program,” Sparks’ opinion opened, referring to the circumstances surrounding the videos’ recording.

“Yet, rather than a villain plotting to take over the world, the subject of this case is the state of Texas’s efforts to expel a group of health care providers from a social health care program for families and individuals with limited resources,” Sparks continued.

Roe has collapsed and Texas is in chaos.

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The fight over Planned Parenthood funding in Texas centers on Medicaid’s “free choice of providers” requirement. In other words, Medicaid recipients have the right to choose among a range of qualified providers without government interference. They also have the right to comprehensive reproductive health care. While the Hyde Amendment places restrictions on federal Medicaid funding going to pay for abortions, the Medicaid choice-of-provider provision—and the fact that abortion is a fundamental constitutional right—makes it clear that lawmakers cannot discriminate in funding decisions based on whether a provider performs abortions or not.

Despite that guarantee, states led by conservative lawmakers have tried to manipulate the choice-of-provider provision to exclude Planned Parenthood. These latest efforts were no different. In this case, Texas officials relied on the Daleiden videos to argue the reproductive health-care provider had violated medical ethics and standards. If true, this would have disqualified Planned Parenthood from the Medicaid program, meaning Planned Parenthood would no longer be able to be reimbursed for taking Medicaid patients. In turn, this would leave thousands of low-income patients looking elsewhere for care.

Judge Sparks found the evidence to support this argument unpersuasive.

“Therefore, to summarize, the inspector general relied on an unauthenticated video and the advice of an orthopedic surgeon to conclude [Planned Parenthood Gulf Coast] violated medical and ethical standards related to abortion procedures,” Sparks wrote, noting the background of the chief medical officer at Texas Health and Human Services Commission.

“The video in question offers, at most, theoretical conversations concerning what might be possible in a research partnership between a health care provider and a tissue procurement company. The inspector general had no evidence any [Planned Parenthood Gulf Coast] doctor ever altered an abortion procedure, for research or for any other purpose,” he continued.

Although this was certainly good news for reproductive rights, the new presidential administration means other states have new motivation to keep trying to use Medicaid as a vehicle for defunding Planned Parenthood.

While the Supreme Court has broadly upheld Medicaid’s choice-of-provider provision, the legal fight over just how far that guarantee stretches with regard to comprehensive reproductive health-care services is not quite as secure. Some conservatives argue that a different provision of the Medicaid statute, added in 1987, grants states the power to exclude qualified health-care providers from the program for whatever reason lawmakers see fit. Attorneys for the state of Indiana made that argument when they tried to defund Planned Parenthood there.

In 2011, Indiana enacted a law that prohibited state agencies from contracting with any entity that performs abortion. The effect of the law was to block Planned Parenthood of Indiana from participating in the state’s Medicaid program. Advocates challenged the law, arguing it violated the choice-of-provider provision. The Centers for Medicare and Medicaid Services (CMS), the portion of the U.S. Department of Health and Human Services (HHS) that oversees this portion of the program, made a determination that Indiana’s law did violate the choice-of-provider requirement. Based on that determination, a federal judge enjoined the state from implementing the law. Attorneys for the state of Indiana appealed. Judge Diane Sykes, writing for the U.S. Court of Appeals for the Seventh Circuit, said federal law “unambiguously gives Medicaid-eligible patients an individual right” to choose where they obtain health care. And because the right to an abortion is a fundamental constitutional right, the right to choose where they obtain health care necessarily must include the ability to choose an abortion provider if they want.

Indiana appealed, but the U.S. Supreme Court declined to take the case.

However, Tom Price is now HHS secretary. He is a conservative that believes “not one woman” cannot afford contraception and belongs to a group that promotes the false claim that abortion causes breast cancer. Should Price move to loosen the Medicaid choice-of-provider definitions and grant states more power to direct those funds, it’s a safe bet places like Arkansas, Louisiana, Ohio, and Kansas will try once again to eliminate Planned Parenthood from their Medicaid programs entirely.

But will those efforts be successful? So far, federal courts have blocked at least six attempts by conservative states to evict Planned Parenthood from Medicaid programs related to the Daleiden videos. But in one of those cases, current Supreme Court nominee Neil Gorsuch would have let the defunding efforts proceed.

Utah, like Texas, tried unsuccessfully to cut Planned Parenthood out of its Medicaid program following the Daleiden videos. Utah’s efforts came in the form of a directive issued by Republican Gov. Gary Herbert’s administration to state agencies to discontinue their contracts providing federal funding to Planned Parenthood Association of Utah (PPAU). Those contracts include funding for after-school programming for young people, as well as for sexually transmitted infection testing throughout the state.

Herbert announced the decision via press conference where he offered the following justification: “We now have video where they’re selling fetus body parts for money and it’s an outrage and the people of Utah are outraged. I’m outraged. So for coloring outside the lines, [PPAU] forfeits some of their benefits.”

A federal district court blocked Herbert’s efforts, and a panel of judges on the U.S. Court of Appeals for the Tenth Circuit affirmed that ruling, declining to take the case en banc.

Judge Gorsuch was on that panel and dissented from the decision, arguing the court had not given enough deference to Herbert’s authority to direct Medicaid dollars. Therefore, he said, it was wrong to block the defunding efforts. He also took it one step further, stating that he explicitly agreed with Herbert’s actions.

“It is undisputed that when the Governor announced his decision to discontinue funding he contemporaneously explained that his decision came in direct response to the videos,” Gorsuch wrote.

He continued:

And it is undisputed, too, that the Governor was free as a matter of law to suspend the funding in question for this reason. To be sure, the panel cited the fact that the Governor has long opposed abortion and, from this, inferred that he wanted to punish the group for its lawful abortion advocacy. But it is undisputed that the Governor has held office since 2009 and had taken no action against PPAU until shortly after the release of the videos in 2015.

It’s paragraphs like the one above that show how dangerous a justice Gorsuch will be if confirmed to the U.S. Supreme Court.

What Gorsuch really is trying to do here is to create an “alternative facts” defense for states that want to keep Planned Parenthood out of Medicaid.

First, Gorsuch’s assertion that it is “undisputed” that Herbert has the power to cut off funding as he sees fit is fundamentally impossible. That power is not undisputed, as the case itself proves.

Second is the fact that the Daleiden videos are proven fakes. The allegations against Planned Parenthood are baseless. As Judge Sparks noted Tuesday, the videos are the stuff of fiction—because they are fiction. Yet Gorsuch did not acknowledge this; instead, he would let anti-choice lawmakers use that fiction as justification for cutting access to comprehensive reproductive health care out of state Medicaid grants.

In Gorsuch’s tortured logic, the decision to defund Planned Parenthood was about the anti-abortion videos, not about efforts by anti-abortion lawmakers to work around Medicaid’s current choice-of-provider protections.

To that end, he claimed that reproductive rights advocates and the court improperly inferred an anti-abortion motive to Herbert’s funding directive, all the while defending Herbert’s anti-abortion actions. If Herbert is so anti-choice, Gorsuch disingenuously argued, why didn’t he try to defund Planned Parenthood before?

Meanwhile, no trial date has been set for the court to issue a final ruling on the Texas case. Texas Attorney General Ken Paxton (R) has already announced plans to appeal Tuesday’s ruling, citing the “raw, unedited footage from undercover videos” that “exposed a brazen willingness by Planned Parenthood officials to traffic in fetal body parts,” as justification.

So far not even the conservative U.S. Court of Appeals for the Fifth Circuit has bought into efforts to defund Planned Parenthood based on the Daleiden videos, so a win for Texas on appeal is not a given. In September, the Fifth Circuit ruled Louisiana had similarly failed to provide proof of its claims that a Planned Parenthood in its state had committed fraud or misrepresentation based on the content of the Daleiden videos when it attempted to defund the reproductive health-care provider.

Let that settle in for a bit. The Fifth Circuit isn’t willing to look past the fact the Daleiden videos are frauds and used as cover by conservative lawmakers to try to improperly defund Planned Parenthood, but our likely next associate justice of the Supreme Court sure is. Should Price start revising the rules around Medicaid choice-of-provider protections, we can expect conservative-run states to give defunding another go—especially if they’ve got a blueprint set out for them the way Gorsuch tried in the Utah case.