News Law and Policy

On “Limbaugh’s Team,” Deeply Partisan Fifth Circuit Judge Blocks Federal Ruling In Favor Of Planned Parenthood

Andrea Grimes

In an overnight decision, the conservative Fifth Circuit Court of Appeals struck down an injunction issued yesterday allowing Planned Parenthood to continue providing Medicaid-funded care in Texas. The judge behind the ruling? Conservative Jerry Smith, a member of Rush Limbaugh's anti-Obama "team."

Yesterday, Texas Planned Parenthood clinics got a very temporary moment of reprieve in their fight to continue participating — with federal Medicaid dollars — in the Texas Women’s Health Program (WHP) when a federal judge temporarily blocked the State of Texas from excluding Planned Parenthood from WHP while their lawsuit winds its way through the courts.

Now, an overnight decision by one judge on the Fifth Circuit Court of Appeals has struck down the federal ruling, and Planned Parenthood in Texas is once again excluded from the program while their court challenge continues.

The judge who granted the State of Texas an “emergency” stay on the injunction first thing this morning is the deeply partisan, conservative Judge Jerry Smith, whom Rush Limbaugh welcomed to his anti-Obama “team” in April after Smith demanded that a Justice Department attorney write him a three-page explanation of the Obama Administration’s opinion on the court’s authority to overturn acts of Congress.

The case hinges on whether the State of Texas’ 2005 law that bars “affiliates” of abortion providers from receiving public funds is unconstitutional. Planned Parenthood has argued their exclusion from the Women’s Health Program is a violation of Planned Parenthood’s first amendment right to free speech and association.

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Texas only began enforcing the seven-year-old affiliate-banning law this year, which as Rewire has previously reported, has suddenly left tens of thousands of low-income Texas women wondering where they will get the reproductive care for which they depended on Planned Parenthood, which served nearly half of the participants of the WHP in Texas. Texas has insisted it can find the money and resources within the existing state budget to cover the huge gap left by Planned Parenthood, which it says qualifies as an “affiliate” of an abortion provider, though both doctors and patients remain skeptical of those claims and recent reporting belies them.

Texas Attorney General Greg Abbott argued yesterday, in documents filed immediately after the federal ruling blocking the de-funding of Planned Parenthood, that the state would be “irreparably harmed” if it could not continue to block Planned Parenthood’s participation — despite the fact that Texas has not considered it an “emergency” to enforce the 2005 law blocking abortion “affiliates” until 2012.

In court documents, Abbott argued:

Absent a stay pending appeal, the State of Texas—and the women of Texas who depend on the Women’s Health Program—will be irreparably harmed because state law prohibits Texas from continuing to operate the Texas Women’s Program if taxpayer money must be provided to entities that affiliate with abortion-promoting entities. Consequently, the district court’s preliminary injunction effectively forces Texas to choose between contravening state law and shutting down the program. The administrative provisions at issue are scheduled to go into effect (and Texas will be irreparably injured if they do not) at midnight tonight.

NARAL Pro-Choice Texas tells Rewire that this “emergency” claim is a political and “especially duplicitous” move. In a statement issued this morning, NARAL’s legislative counsel Blake Rocap tells Rewire:

“Given no injury has been shown over the past 7 years of Planned Parenthood’s participation, it is clear that the true emergency is that this is an election year and again we are seeing politicians put the health of their political careers ahead of the health of women.”

This is the second time this year that the Fifth Circuit — and Judge Jerry Smith in particular — has ruled against a federal judge on a case involving women’s health and rights to abortion in Texas. Smith was on the openly anti-choice three-judge panel that struck down a temporary injunction against Texas’ forced trans-vaginal ultrasound law in January, ensuring that the law continues to be enforced while its constitutionality is under review in the courts. The Fifth Circuit also made the unusual move at that time of retaining the right to rule on all future motions in the ultrasound case — effectively quashing any hope of the law being overturned since it can never be taken out of the hands of the anti-choice three-judge panel.

Smith, who was appointed to the Fifth Circuit by Ronald Reagan in 1988, also made news in early April when he railed against “Obamacare” during court hearings, leading the National Law Journal to say that Smith’s “tantrum” had “undermined, in several important ways, the judicial authority they purported to defend.” He’s also been part of an anti-environment ruling in the wake of the Deepwater Horizon oil spill and has in the past ruled against the use of affirmative action at the University of Texas Law School. Right in step with his Fifth Circuit colleagues, Smith appears to be as brashly conservative as his passionately anti-choice bench mate, Judge Edith Jones, who has openly acknowledged that she’d like to see Roe v. Wade overturned.

In the current Planned Parenthood case, the court has said that Planned Parenthood has until 5 p.m. this afternoon to respond to the stay. At that point, the Fifth Circuit may either lift the stay — unlikely, given its conservative leanings — or the stay will remain in place while the case proceeds in federal court.

Roundups Law and Policy

Gavel Drop: The Fight Over Voter ID Laws Heats Up in the Courts

Jessica Mason Pieklo & Imani Gandy

Texas and North Carolina both have cases that could bring the constitutionality of Voter ID laws back before the U.S. Supreme Court as soon as this term.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts

Texas Attorney General Ken Paxton intends to ask the U.S. Supreme Court to reinstate the state’s voter ID law.

Meanwhile, according to Politifact, North Carolina attorney general and gubernatorial challenger Roy Cooper is actually saving taxpayers money by refusing to appeal the Fourth Circuit’s ruling on the state’s voter ID law, so Gov. Pat McCrory (R) should stop complaining about it.

And in other North Carolina news, Ian Millhiser writes that the state has hired high-powered conservative attorney Paul Clement to defend its indefensible voter ID law.

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Alex Thompson writes in Vice that the Zika virus is about to hit states with the most restrictive abortion laws in the United States, including Alabama, Louisiana, Mississippi, and Texas. So if you’re pregnant, stay away. No one has yet offered advice for those pregnant people who can’t leave Zika-prone areas.

Robin Marty writes on Care2 about Americans United for Life’s (AUL) latest Mad Lib-style model bill, the “National Abortion Data Reporting Law.” Attacking abortion rights: It’s what AUL does.

The Washington Post profiled Cecile Richards, president of the Planned Parenthood Federation of America. Given this Congress, that will likely spur another round of hearings. (It did get a response from Richards herself.)

Kimberly Strawbridge Robinson writes in Bloomberg BNA that Stanford Law Professor Pamela Karlan thinks the Supreme Court’s clarification of the undue burden standard in Whole Woman’s Health v. Hellerstedt will have ramifications for voting rights cases.

This must-read New York Times piece reminds us that we still have a long way to go in accommodating breastfeeding parents on the job.

News Law and Policy

Federal Judge Guts Florida GOP’s Omnibus Anti-Choice Law

Teddy Wilson

"For many people, Planned Parenthood is the only place they can turn to,” said Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away."

A federal judge on Thursday permanently blocked two provisions of a Florida omnibus anti-choice law that banned Planned Parenthood from receiving state funds and required annual inspections of all clinics that provide abortion services, reported the Associated Press.

U.S. District Judge Robert Hinkle issued an order in June to delay implementation of the law.

“The Supreme Court has repeatedly said that a government cannot prohibit indirectly—by withholding otherwise-available public funds—conduct that the government could not constitutionally prohibit directly,” Hinkle wrote in the 25-page ruling.  

Thursday’s decision came after Republican Gov. Rick Scott’s administration decided not to pursue further legal action to defend the law, and filed a joint motion to end the litigation.

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Hinkle issued a three page decision making the injunction permanent.

HB 1411, sponsored by Rep. Colleen Burton (R-Lakeland), was passed by the Republican-controlled state legislature in March.

The judge’s ruling nixed provisions in the law that banned state funding of abortion care and required yearly clinic inspections. Other provisions of the law that remain in effect include additional reporting requirements for abortion providers, redefining “third trimester,” and revising the care of fetal remains.

The GOP-backed anti-choice law has already had a damaging effect in Palm Beach County, where Planned Parenthood was forced to end a program that focused on teen dropout prevention.

Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida, said in a statement that the ruling was a “victory for thousands of Floridians” who rely on the organization for reproductive health care.

“For many people, Planned Parenthood is the only place they can turn to,” Zdravecky said. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away.”

A spokesperson for Scott told Reuters that the administration is “reviewing” the decision.


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