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Appeals Court Panel to hear arguments on injunction against Texas law

by | Jun 6, 2012

By Dave Andrusko

Pro-Life Texas Gov. Rick Perry

Here we go again, again. On Thursday, a three-judge panel of the Fifth Circuit Court of Appeals is scheduled to hear arguments on an injunction that bars Texas from enforcing rules that disqualify abortion business affiliates from participating in the state’s Women’s Health Program. Once the panel decides whether U.S. Judge Lee Yeakel’s injunction should stay in place, the case will move back to his court, the Wall Street Journal reported.

The narrative is as long as it is complicated.

Planned Parenthood has dodged the ban on abortion providers or their affiliates participating in the Women’s Health Program  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. The 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,” Judge Yeakel wrote in his order.

Just three days later, however, Fifth Circuit Court of Appeals Judge Jerry Smith granted Texas an emergency stay lifting the preliminary injunction.  But a three-judge panel of the Fifth Circuit Court of Appeals quickly vacated Judge Smith’s decision, meaning Judge  Yeakel’s preliminary injunction remained in force. “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.

The state of Texas appealed the decision.

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 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 Attorney General Abbott  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, of Texas Right to Life, said 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.”

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Categories: Abortion