Fifth Circuit Rules Texas Can Exclude Planned Parenthood From Medicaid Program

A man walks in front of the Fifth U.S. Circuit Court of Appeals in New Orleans on Jan. 7, 2015. (AP photo/Jonathan Bachman)

(CN) — The Fifth Circuit Monday ruled against Planned Parenthood it its suit over Texas’ efforts to deprive the family planning and health services provider of Medicaid funds.

Planned Parenthood is not entitled to bring a civil rights claim to challenge Texas’ determination that its providers are not “qualified” under Medicaid law, the majority of an en banc panel of the Fifth Circuit decided in a ruling authored by Chief U.S. Circuit Judge Priscilla Owen, a George W. Bush appointee. 

The 11-judge majority concluded that the portion of Medicaid law cited by Planned Parenthood and its patients, known as the “any-qualified-provider” provision, can not sustain the providers’ claims — brought under the Section 1983 civil rights law — against the state.

Because the individual plaintiffs in the case “do not have a right to continued benefits to pay for care” from the providers, Owen wrote, an injunction issued by a district court — based on the Section 1983 claims of the individual plaintiffs — must be vacated. 

Planned Parenthood characterized the ruling as “a blatantly political attack that will jeopardize critical health care access for Texans with low incomes during a global pandemic.”

“The governor wants to control where you can get family planning and sexual health care — once again, political ideology is driving health care policy, resulting in reduced access to care,” Planned Parenthood South Texas President and CEO Jefrey Hons said in a statement Monday. “All Texans, regardless of income, deserve access to quality, affordable health care and the ability to choose their own provider.

In 2015, the Texas Health and Human Services Commission first gave notice of its intention to terminate its Medicaid provider agreements with five Planned Parenthood entities — operating in Cameron County and the Dallas, San Antonio and Houston areas — that provide services to about 12,500 Medicaid beneficiaries at 30 locations annually.

Texas officials accused Planned Parenthood clinicians of expressing a “willingness” to profit from fetal tissue sold to anti-abortion activists, who had misrepresented themselves as being employees of a research firm in an undercover video released in 2015.

The activists were employees of a California group that calls itself the Center for Medical Progress. They were later charged for criminal conspiracy to invade piracy for recording the Planned Parenthood employees without permission.

The group’s video is edited to make it appear as if employees at the Houston-based Planned Parenthood Gulf Coast were negotiating the price of fetal remains, though the unedited footage revealed that the clinics sought only for the sham research firm to cover the cost of procuring and donating the fetal tissue.

In a press release Monday, Texas Attorney General Ken Paxton touted the appellate ruling as a decision to “Defund Planned Parenthood.”

“Undercover video 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,” Paxton said in the statement. “Planned Parenthood is not a ‘qualified’ provider under the Medicaid Act, and it should not receive public funding through the Medicaid program.”

The new ruling from the New Orleans-based federal appeals court does not examine whether Texas’ decision to terminate its Medicaid agreements with the Houston Planned Parenthood branch was proper, or whether the providers are “qualified” under the Medicaid law.

“Under federal regulations promulgated under the Medicaid Act, a state Medicaid agency must provide an avenue for a provider to appeal a determination that it is not ‘qualified.’ Texas has provided an administrative procedure for such appeals. There is no analogous provision for Medicaid beneficiaries when a particular provider is deemed unqualified, indicating that there is no such right.”

The court noted that Monday’s decision overrules a previous Fifth Court ruling in Planned Parenthood of Gulf Coast, Inc. v. Gee, in which a three-judge panel sided with the Planned Parenthood branch and Medicaid beneficiaries in a Section 1983 lawsuit against Louisiana that asserted the clinics were “qualified” Medicaid providers.

The majority found the opinion in Gee conflicts with the Supreme Court precedent and added that federal law “expressly allows states to terminate a provider’s Medicaid agreement on many grounds.”

“These provisions make clear that a state agency may determine that a Medicaid provider is unqualified and terminate its Medicaid provider agreement even if the provider is lawfully permitted to provide health services to the general public,” Owen wrote. 

U.S. Circuit Judge Stephen Higginson and U.S. Circuit Judge Gregg Costa, both Barack Obama appointees, and Chief U.S. Circuit Judge Carl Stewart, a Bill Clinton appointee, concurred and dissented in part with the majority’s ruling. 

U.S. Circuit Judge James Dennis, a Bill Clinton appointee, and U.S. Circuit Judge James Graves, a Barack Obama appointee dissented from the majority opinion. 

“Gee is well written and soundly reasoned, and nothing of substance has changed since we decided it,” Dennis wrote.

Planned Parenthood of Greater Texas said on Twitter that the ruling has not yet taken effect and its centers are still, for now, continuing to serve Medicaid patients. 

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