The fight over the Texas Women’s Health Program is not over for Planned Parenthood. Last week, a Texas appeals court ruled that a lawsuit filed in state court challenging Texas’ “Affiliate Ban Rule,” which barred the reproductive health-care provider from the state-run program, may proceed.
Over two years ago Texas Republicans, led by Gov. Rick Perry, undertook a campaign to ban Planned Parenthood from its Women’s Health Program (WHP). The program was designed to provide health-care services to women who otherwise might not qualify for Medicaid, unless they were pregnant.
The WHP was originally funded mostly by federal dollars, but Texas had wide discretion in how to spend those dollars. Since the program’s inception, the Texas legislature had prohibited the state agency that administers WHP from contracting with “entities that perform election abortions or are affiliates of entities that perform or promote abortions.” Planned Parenthood and its affiliate clinics had operated for decades under that restriction, understanding it to mean that if they did not recommend abortion as a health procedure, and if they maintained a separate legal entity from abortion clinics, they could receive WHP funds. And up until 2012, the State of Texas had continuously funded Planned Parenthood clinics despite this restriction.
In 2012, however, Texas Republicans drafted a new rule governing the recipients of funding in the WHP, which redefined the word “affiliate” broadly enough so that even Planned Parenthood clinics that do not perform abortions are considered affiliates of the clinics that do, even if that affiliation is nothing more than a shared name. State lawmakers then used that new rule to cut off funding for those entities, effectively killing off the WHP program altogether and launching a new Texas Women’s Health Program entirely funded by the state.
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Planned Parenthood challenged the new rule in federal court, arguing it was an impermissible restriction on their First Amendment rights because typically the government cannot condition the participation in health services on giving up free speech rights and association rights. Federal district court judge Lee Yeakel agreed and blocked the rule from going into effect. But the U.S. Court of Appeals for the Fifth Circuit did not, ruling the state could go forward with its efforts to defund the reproductive health-care provider.
But Planned Parenthood also filed a lawsuit in state court, arguing the “Affiliate Ban Rule” also violated state law and requested the court issue an order blocking it from going into effect. Attorneys for the State of Texas defended the rule and asked the court to dismiss Planned Parenthood’s claims, arguing both that Planned Parenthood lacked standing to sue and that state agencies and officials were protected by sovereign immunity and could not be sued. The lower court denied both Planned Parenthood’s request for a temporary injunction and Texas’ request to dismiss the lawsuit for lack of standing, a ruling that also allowed the reproductive health-care provider to be excluded from the state’s health-care program.
Despite the fact that the state court refused to block the law from taking effect, attorneys for the State of Texas appealed the lower court’s ruling that state officials were not protected by sovereign immunity and that Planned Parenthood had standing to sue. The impact of that appeal was to give time for the new WHP to take effect without Planned Parenthood, all the while delaying a full trial on the substance of Planned Parenthood’s claims. Last week’s ruling finally allows that lawsuit to move forward.
“Whatever the merits of their claims might ultimately prove to be, the Planned Parenthood entities have sufficiently demonstrated the minimum threshold interest that confers standing under the Texas Constitution to assert the claims in court,” the court’s opinion states.
Unless attorneys for the state appeal the ruling, the lawsuit will return to Travis County district court for a trial to determine if Planned Parenthood should be granted a permanent injunction blocking Texas from excluding them from the state-operated and funded program. A trial date for the matter has not been set yet, and the Texas attorney general could appeal this ruling to the Texas Supreme Court, which means this case is months, if not years, away from a resolution.