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Appeals Court Panel Holds Texas Must include PPFA in Women’s Health Program; Appeal Expected

by | May 5, 2012

By Dave Andrusko

Here we go again. Three days ago Fifth Circuit Appeals Judge Jerry Smith granted Texas an emergency stay lifting a preliminary injunction that would  have stopped Texas from enforcing rules that disqualify abortion business affiliates from participating in the state’s Women’s Health Program. 

Today a three-judge panel of the Fifth Circuit Court of Appeals vacated Judge Smith’s decision, meaning U.S. District Judge Lee Yeakel’s preliminary injunction issued Monday remains in force. There is little doubt the state will appeal the decision.

The  three-judge panel “agreed with a lower court [Yeakel] that there’s sufficient evidence the state’s law banning Planned Parenthood from participating in the Women’s Health Program is unconstitutional,” the Associated Press reported. 

“We cannot conclude, on the present state of the record, that the State has shown a great likelihood, approaching a near certainty, that the district court abused its discretion in entering the injunction,” the court order said.

In response to Yeakel’s decision, handed down Monday, attorneys for the state of Texas filed with the court, saying, “Although Planned Parenthood shares some of the program’s goals — such as promoting women’s health and reducing unwanted pregnancies — it also contravenes the very purpose of the program by actively promoting elective abortion.”

They added, “Planned Parenthood and its affiliates have every right to hold that belief and advocate for elective abortion, but they are not entitled to receive taxpayer subsidies from a government program that is designed to encourage preventative birth control and discourage abortion.”

Planned Parenthood has dodged the ban on abortion providers or their affiliates participating in the Women’s Health Program (WHP) that has existed since 2005. The Texas Health and Human Services Commission was unsure of the rule’s constitutionality and failed to enforce it.

However last year Texas Attorney General Greg Abbott issued an opinion that found that it violated no federal law or the U.S. Constitution to bar these organizations from participating.

In February, the state again adopted rules. They goal was to enforce the rule that would bar Planned Parenthood health clinics that do not perform abortions from participating in the WHP because they are affiliated with Planned Parenthood Federation of America which does provide abortions and advocates to keep abortion legal.

However, Judge Yeakel concluded the rule violated Planned Parenthood’s rights of free speech and association.

“By requiring plaintiffs to certify that they do not ‘promote’ elective abortions and that they do not ‘affiliate’ with entities that perform or promote elective abortions … Texas is reaching beyond the scope of the government program and penalizing plaintiffs for their protected conduct,” Yeakel wrote in his order.

The court battle has overlapped with the fight between the state and  the Obama Administration. Last December, the Obama Administration’s Centers for Medicare & Medicaid Services (CMS) refused to renew $40 million in funding for Texas’ Women’s Health Program on the grounds that the ban did in fact violated federal law.

The U.S. Health and Human Services Department ordered Texas to begin phasing out the program, which would no longer receive federal money. Texas AG Abbott has filed a federal lawsuit challenging the action. Meanwhile, Pro-life Gov. Rick Perry responded by vowing to find other sources of funding to continue the program.

After Judge Smith granted the state an emergency stay, Elizabeth Graham, the director of Texas Right to Life told NRL News Today that she agreed with Judge Smith’s analysis.

“By launching this politically-motivated lawsuit against the state of Texas, Planned Parenthood has shown that they are not the champion of women’s health they say they are,” she told NRL News Today. “They are clearly willing to throw women’s health under the bus to maintain their government funding and further their abortion agenda. As far as Planned Parenthood is concerned, if they can’t have the money, then nobody can.”

Categories: PPFA