That faint popping sound you heard last night was Governor Rick Perry uncorking a nice bottle of bubbly, after the 5th U.S. Circuit Court of Appeals on Thursday refused a request by Planned Parenthood to rehear the case over its ban from the new Texas Women's Health Program (TWHP). Texas, it appears, has officially won its quest to keep Planned Parenthood clinics from receiving state funding, under the logic that the clinics are "abortion affiliates."
Within minutes of the ruling, Perry issued a statement praising the court's decision.
"Today's ruling affirms yet again that in Texas the Women's Health Program has no obligation to fund Planned Parenthood and other organizations that perform or promote abortion," he said. "In Texas we choose life, and we will immediately begin defunding all abortion affiliates to honor and uphold that choice."
This latest decision follows a long and tortuous few months of legal ping-pong, after a group of Texas Planned Parenthood clinics sued the state in April to remain in the federal, Medicaid-funded Women's Heath Program. The federal government said earlier this year that it would soon stop funding the WHP, contending that the state couldn't keep Planned Parenthood out without violating Medicaid rules.
Planned Parenthood's clinics served roughly half of the program's 130,000 low-income Texans, with the federal government picking up 90 percent of the bill. The clinics provided contraceptives, cancer screenings, and exactly zero abortions. Planned Parenthood's surgical centers, which do provide abortions, have never received WHP dollars or any other federal funding.
A three-judge panel at the 5th Circuit ruled in August that Planned Parenthood could indeed be booted from the program. PP was asking to have the case heard again by all the 5th Circuit judges (known as an en banc hearing), which is the request that was denied yesterday.
Technically the case isn't yet closed: It's still open in the lower court where it originated, the U.S. District Court in Austin. A trial in district court was set for this month, but was postponed until this appellate ruling could be reached. The case could revert back there, or Planned Parenthood could appeal to the Supreme Court, according to Reuters.
But with this ruling in place, state officials said, they can begin funding their new state program on November 1, without paying for services performed at Planned Parenthood's clinics. Health and Human Services executive commissioner Kyle Janek said in his own statement that state health officials have "increased the number of doctors and clinics in the program, and we'll be ready to help any woman who needs to find a new provider."
Janek adds that the ruling "makes it clear that we can enforce state law and get federal funding for the Women's Health Program, and we're going to push for that."
He may want to tell Rick Perry about that plan. The Governor previously vowed not to accept Medicaid expansion money to pay for the WHP.
In other words: the state is now trying for a scenario in which it will both be allowed to exclude Planned Parenthood and receive federal funds. The technical term for this is "chutzpah."
Ken Lambrecht, president and CEO of Planned Parenthood of Greater Texas, also released a statement yesterday, one that offered few clues as to how the non-profit will proceed.
"Planned Parenthood has been in Texas for more than 75 years, and we're not going anywhere," he said. "We are here for the patients who rely on us and we will continue to evaluate every possible option to protect the health of our patients."
Update, 2:15 p.m.: We didn't have to wait long for Planned Parenthood's next move. The nonprofit sent out a press release about an hour ago, announcing that they have filed a lawsuit in state court, claiming that the ban on "abortion affiliates" keeping them from the TWHP is invalid under state law.
PP's lawyers argue that the affiliate ban is invalid under Chapter 32 of the Texas Human Resources Code, "which authorizes the Women's Health Program subject to approval from the federal government," the press release states. "This chapter makes any provision 'inoperative' if it causes Texas to lose federal matching funds for the Women's Health Program. HHSC was not authorized by the Texas legislature to adopt the Affiliate Ban Rule because it makes the Women's Health Program ineligible for federal funding."
Update 2, 5:30 p.m.: On a conference call with reporters this afternoon, representatives from Planned Parenthood and their attorneys announced that Judge Amy Clark Meachum of the 201st Judicial Civil District Court in Travis County has granted PP a temporary restraining order. They will be able to remain in the Women's Health Program until at least November 8, when their next court date is scheduled.
What's still not quite clear is who's actually going to be footing the bill for the program on November 1. Right now, the federal government is still paying for 90 percent of the WHP. But federal Medicaid officials have made it clear that when Texas's new rules banning "abortion affiliates" go into effect, that federal funding will end. Yet Texas's Health and Human Services Commission seems confident that the state will somehow be able to begin enforcing the new ban yet still be able to receive federal funds.
Rick Perry released a statement responding to PP's newest lawsuit. It reads, in full:
If there was ever any doubt that Planned Parenthood is more concerned about its own interests than those of Texas women, there is no longer. Having lost on its constitutional claims, Planned Parenthood has now turned to Travis County judges in a desperate effort to find some way to keep making money off Texas taxpayers. In Texas, we've chosen to protect innocent life. We will keep fighting for life, and we will ultimately prevail.
"We are in court to stand up for the health of more than 100,000 women in the Women's Health Program," reads a statement sent out by Kenneth Lambrecht, the president and CEO of Planned Parenthood of Greater Texas. "We will do everything possible to protect the health of women and families in Texas."