5th Circuit unanimously upholds Texas’s decision to remove Planned Parenthood from state Medicaid Program

By Dave Andrusko

Judge Sam Sparks

In a blistering decision handed down Thursday night, a unanimous three judge panel of the 5th U.S. Court of Appeals vacated Judge Sam Sparks’ 2017 preliminary injunction that blocked Texas from striking Planned Parenthood from the state’s Medicaid program.

A chastised Judge Sparks, a favorite of the abortion industry, was ordered to undertake a new review.

The Texas Health and Human Services Commission’s decision to end the state’s Medicaid provider agreements with Planned Parenthood affiliates across the state stemmed directly from the now famous undercover videos taken by the Center for Medical Progress (CPP), headed by David Daleiden.

Attorney General Ken Paxton’s office defended the the Texas Health and Human Services Commission’s action in court and commended the decision. “The 5th Circuit’s ruling shows that the district court [Judge Sparks] applied the wrong legal standard,” Attorney General Paxton said. “Planned Parenthood’s reprehensible conduct, captured in undercover videos, proves that it is not a ‘qualified’ provider under the Medicaid Act, so we are confident we will ultimately prevail.”

“The video camera doesn’t lie,” Daleiden added in statement last night. “[T]he Fifth Circuit Court of Appeals vindicated our citizen journalism work by debunking Planned Parenthood’s smear that the videos were ‘heavily edited’ or ‘doctored.’

Many accounts of the decision rightly focused on a footnote in the 36-page decision. A meme that Planned Parenthood created instantly was that the videos had been “heavily edited.” It was repeated mindlessly as a given and even stories today included the declaration that the videos were “edited.”

The opinion went into this characterization in depth, as part of a larger theme that Judge Sparks had treated Planned Parenthood with “deference” and state of Texas officials with deep skepticism bordering on contempt. For example

The district court stated, inaccurately, that the CMP video had not been authenticated and suggested that it may have been edited. [6] The district court also noted that neither the Inspector General nor the Medical director had expert knowledge concerning abortion procedures. And the court discounted Ms. [ Melissa] Farrell’s videotaped statements because she claimed on the witness stand that she really had no personal knowledge of the medical aspects of abortion procedures and had never even been in the room when an abortion was performed. …

[Melissa Farrell is a PP employee deeply involved in procuring fetal tissue and organs.]

The footnote read

In fact, the record reflects that OIG [Office of Inspector General] had submitted a report from a forensic firm concluding that the video was authentic and not deceptively edited. And the plaintiffs did not identify any particular omission or addition in the video footage. Moreover, the district court also suggested that there was no evidence that any of PPGC’s [Planned Parenthood Gulf Coast’s] research was federally funded, so the regulations relied on by OIG might be inapplicable. But the record actually establishes that the UTMB study was funded by the National Institute of Health.

Amazing, the Washington Post’s story was remarkably balanced, a 180 degree different approach than the main story covering the March for Life.

Meagan Flynn’s first three paragraphs help the reader understand why Sparks’s snarky condescension might not have set well with the 5th Circuit.

When Texas tried to kick Planned Parenthood out of the state’s Medicaid program based on “sting” videos produced by undercover antiabortion activists, a federal judge in Austin said the whole case sounded more as if it belonged in a “best-selling novel.”

“Yet, rather than a villain plotting to take over the world, the subject of this case is the State of Texas’s efforts to expel a group of health care providers from a social health care program for families and individuals with limited resources,” U.S. District Judge Sam Sparks wrote in February 2017.

Sparks was skeptical. Texas contended the videos showed Planned Parenthood discussing the illegal sale of fetal tissue of aborted babies, an interpretation Planned Parenthood has disputed. Sparks, in turn, said the state had not produced “even a scintilla of evidence” suggesting Planned Parenthood should be disqualified from Medicaid based on the videos.

Then the pivot:

But on Thursday, the U.S. Court of Appeals for the 5th Circuit said Sparks is the one who had it all wrong. The three-judge panel found he used the incorrect standard of review, vacating Sparks’s 2017 preliminary injunction that had blocked Texas from defunding Planned Parenthood, and remanding the case back to the district court for further review.

The 5th Circuit ruling, Flynn noted, “effectively gives weight to the sting videos and the conclusions Texas reached based on them in a way the court hasn’t offered before.”

For the layman, the decision is heavy going in spots but very much worth reading. You’ll especially profit from Judge Jones’s concurrence where she politely slams Judge Sparks for dismissing the competence of the Office of the Inspector General.

“[The Office of Inspector General] is the agency that the state of Texas has empowered to investigate and penalize Medicaid program violations. The agency is in the business of saying when providers are qualified and when they are not. That the Chief Medical Officer is a surgeon—and not himself an abortion provider— does not mean that he deserves no deference when deciding whether a provider has failed to meet the medical and ethical standards the state requires.”