5th Circuit upholds Texas’s and Louisiana’s defunding of Planned Parenthood

By Dave Andrusko

On Monday the full 5th Circuit Court of Appeals (“en banc”) vacated  a preliminary injunction that prevented Texas and Louisiana from excluding Planned Parenthood from their Medicaid programs.

The decision by the New Orleans-based court “also affects Mississippi, which is under 5th Circuit jurisdiction,” wrote the Associated Press’s Kevin McGill. “The issue is likely to go next to the U.S. Supreme Court.”

Texas Attorney General Ken Paxton applauded the 11-5 decision, “Planned Parenthood is not a ‘qualified’ provider under the Medicaid Act, and should not receive public funding through the Medicaid program,” he said. 

As Texas Right to Life explained previously

The question at hand is whether citizens may file a federal lawsuit to demand Planned Parenthood (or any other provider of their choice) be included in their state’s Medicaid program after each state had decided to terminate Planned Parenthood’s contract.

Judge Priscilla Owen, who wrote the opinion for an 11-member majority, addressed that issue at considerable length. The key summary paragraph begins

Medicaid beneficiaries have an “absolute right” … to receive services from a provider whom the State has determined is “qualified,” but beneficiaries have no right under the statute to challenge a State’s determination that a provider is unqualified.

The case has followed a long and complicated path, beginning in 2016, when, after more than a year of delays, Texas defunded Planned Parenthood. As AG Paxton wrote in his statement, Texas concluded that a lengthy series of undercover videos taken by the Center for Medical Progress “plainly showed Planned Parenthood admitting to morally bankrupt and unlawful conduct, including violations of federal law by manipulating the timing and methods of abortions to obtain fetal tissue for their own research.” 

A three-judge panel of the same court (in Planned Parenthood of Gulf Coast, Inc. v. Gee) had held that Louisiana could not exclude Planned Parenthood. The full 5th Circuit Court had only 14 members and when Louisiana appealed, the court deadlocked 7-7. 

The court is now comprised of 16 members. Four of those participating Monday were appointed by President Trump.

The Gee decision was overturned yesterday.

In January 2019, the 5th Circuit held that a lower court “had incorrectly blocked Texas’ decision to exclude Planned Parenthood from the program, but “still maintained precedent set in Gee that Medicaid patients could bring a challenge under Section 1983,” Daniel Friend wrote

However, Monday’s en banc decision disagreed, holding instead that Medicaid patients do not “have a right under Section 1983 of the U.S. public health code to challenge a State’s determination that a health care provider is not ‘qualified’ under their Medicaid program.”