NEW ORLEANS – A federal appeals court heard arguments Tuesday on whether Texas had the right to cut off Medicaid funding to Planned Parenthood clinics in the state – a case that could also determine funding for the organization in Louisiana and Mississippi and that eventually may end up before the Supreme Court.
The case involves Texas’ move to cut off funding for Planned Parenthood clinics following the release by anti-abortion activists of graphic, secretly recorded videos in 2015. A state inspector general said the video appeared to show Planned Parenthood had improperly changed how abortions were performed so that better specimens could be preserved for medical research.
Planned Parenthood and a group of Medicaid beneficiaries sued to preserve Medicaid coverage for cancer screenings, birth control access and other non-abortion-related health services for nearly 11,000 low-income women at 30 clinics statewide. U.S. District Judge Sam Sparks ruled that Texas officials had provided no evidence of wrongdoing and that the videos that launched Republican efforts across the U.S. to defund the nation’s largest abortion provider were insufficient as evidence. He issued an injunction blocking Texas from withholding the funding.
In January, a three-judge panel of the 5th Circuit said Sparks should give greater weight to state findings on whether Planned Parenthood clinic staff members are qualified under Medicaid’s medical and ethical standards. But Judge Edith Jones, who wrote the opinion, made clear she also wanted the full 5th Circuit to take a broader look at the issue. The full court agreed, leading to Tuesday’s hearing.
The issue has a complicated history at the 5th Circuit.
In 2016, a three-judge 5th Circuit panel unanimously upheld a lower court’s injunction preventing Louisiana from cutting the organization’s Medicaid funding. But one of the judges, Priscilla Owen, later changed her mind, making it a 2-1 decision. Louisiana asked for a full-court rehearing. That led to a 7-7 deadlock in 2017, when the court had only 14 active judges.
Since the 2017 deadlock, five nominees of President Donald Trump have filled vacancies on the 5th Circuit. In the January ruling in the Texas case, Jones – a nominee of President Ronald Reagan and among the court’s longest tenured active judges – said the Louisiana case should be revisited. Among the issues: whether Medicaid patients and health care providers should be able to sue over a state’s decision to withhold funding, bypassing state administrative procedures for determining such matters.
As he opened arguments Tuesday, Kyle Hawkins of the Texas Attorney General’s Office took aim at the 2017 decision. Federal law does not allow a Medicaid recipient to sue in federal court to block a state’s decision to disqualify the recipient, he said. He acknowledged that the previous 5th Circuit opinion in the Louisiana case said otherwise. “That decision was wrongly decided and should be overruled today,” he said.
Tuesday’s arguments were heard by 16 judges, including four of Trump’s five nominees – the fifth worked for Texas Gov. Greg Abbott and as a deputy Texas solicitor general and did not take part.
Planned Parenthood and its supporters say in briefs that federal law allows Medicaid patients to obtain assistance “from any institution, agency, community pharmacy, or person, qualified to perform the service.”
Among the points discussed during Tuesday’s hearing were whether individuals have the right to choose a qualified provider and how much authority the state has to decide which providers are qualified.
Jones and Judge Jennifer Elrod closely questioned Jennifer Sandman, an attorney who argued for multiple Planned Parenthood organizations and for Medicaid beneficiaries. Although the videos have been widely attacked as being heavily edited and inaccurate, they said there was no evidence of that entered into the case record.
“Don’t tell us about inaccurate videos,” said Jones, whose January opinion included a still shot of apparent fetal tissue, taken from the video. “Those videos were never challenged by the plaintiffs for accuracy.”
Sandman noted multiple criminal investigations in Texas that found no wrongdoing by Planned Parenthood.
It’s unclear when the 5th Circuit will rule. Also unknown is how broadly they will rule – whether they will simply address Sparks’ injunction in the Texas case or issue orders that could alter the Louisiana case and also affect Planned Parenthood funding in Mississippi. The 5th Circuit covers all three states.
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