Earlier this week, Judge Jerry Smith of the Fifth Circuit Court of Appeals blocked a preliminary injunction that kept Texas from kicking Planned Parenthood out of the Women's Health Program. It looked as though that was the first step toward a decision allowing Texas to keep Planned Parenthood out of the WHP permanently.
Not so, as it turns out. Smith and two other judges, Eugene Davis and Edward Prado, just issued a ruling in which they agreed that the new state law blocking Planned Parenthood from participating in the WHP is unconstitutional. With this decision, Texas now cannot bar Planned Parenthood from the program, an order that will stand at least until the district court can hear formal arguments in the case.
The panel also flatly rejected Texas's argument that the state would be "irreparably harmed" if the injunction were not overturned, or that district court judge Lee Yeakel had abused his discretion by ordering the injunction.
They also lightly judicially smacked Texas for failing to acknowledge the existence of Planned Parenthood v. Sanchez , the 2007 case which led PP to form separate corporations for its abortion facilities and its health clinics, making the two types of facilities legally, financially and organizationally distinct.
Texas has argued repeatedly that any federal or state funding for Planned Parenthood's health clinics will "free up" other money for abortion. (For some reason, they always say that the funds in question are "fungible," which is an excellent and under-used word, even if in this case the statement it's part of is not at all true.)
"Our conclusion rests in part on the State's continuing reluctance to address the obviously relevant opinion in Sanchez," the judges wrote. "Despite the plaintiffs' and the district court's having relied extensively on that authority, which binds this panel to the extent it is applicable, the State never mentioned it (as far as we can tell from the record) in the district court and did not refer to it in any way in its motion for stay pending appeal."
All of this comes as a bit of a surprise, since the Fifth Circuit's relative conservatism, as well as some of Judge Smith's previous legal maneuvers had many onlookers predicting the Fifth Circuit would rule against Planned Parenthood.
We'll hear much more about abortion, fungibility and women's health the week of June 4th, when oral arguments in the case are scheduled.