Fifth Circuit Slashes Planned Parenthood Medicaid Coverage

NEW ORLEANS (CN) – The Fifth Circuit on Thursday overturned a ruling barring Texas from eliminating Planned Parenthood from the state’s Medicaid program based on a sting video made by anti-abortion activists supposedly showing clinic representatives bartering the sale of fetal tissue.

The New Orleans-based federal appeals court struck down a February 2017 preliminary injunction issued by U.S. District Judge Sam Sparks in Austin federal court finding that Texas Health and Human Services Commission “likely acted to disenroll qualified health care providers from Medicaid without cause.”

(AP Photo/Brennan Linsley)

On Thursday, the three-judge Fifth Circuit panel sent the issue back to Sparks for review.

“The record reflects that [the Texas 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,” according to a footnote in the ruling penned by U.S. Circuit Judge Edith Jones.

The unanimous panel ruled that Sparks hadn’t followed proper standard in his decision to issue the injunction and said he should examine more closely whether Planned Parenthood clinic staff members are “qualified” under Medicaid’s medical and ethical standards.

In November 2015, five Planned Parenthood affiliates and seven Jane Doe plaintiffs filed a federal class action seeking to preserve Medicaid coverage for birth control access, cancer screenings and other non-abortion related health services that could affect as many as 12,500 people.

Following the release of the heavily edited fetal tissue videos in 2015, Texas officials claimed Planned Parenthood and its affiliates had misrepresented the services it provides, saying the clinics engage in a “‘policy of agreeing to’ and a ‘willingness to violate medical and ethical standards.’”

They alleged Planned Parenthood alters the type and timing of abortions performed for the purposes of harvesting tissue. 

Judge Sparks’ injunction noted that investigations into the state’s allegations came up empty.

“The investigation found no wrongdoing by [Planned Parenthood Gulf Coast], but the grand jury indicted the two anti-abortion activists who created the videos,” Sparks wrote in his order. Charges against the video makers were later dropped.

The videos in question were made as part of a sting operation by the anti-abortion group Center for Medical Progress, which heavily edited footage to make it appear as if Planned Parenthood sells tissue from aborted fetuses for research. Texas law allows donation of tissue for research but prohibits an exchange of money for organs.

Subsequent investigations, led by 13 states, concluded Planned Parenthood was not in the wrong.

Texas was among many states that tried to defund Planned Parenthood based on the videos. In October 2015, the state accused the clinic of violating ethical standards and began a series of attacks aimed at ousting it from the state Medicaid program. Planned Parenthood sued the following month.

Sparks’ 42-page ruling said the state’s claims were as sensational as “a best-selling novel.”

“A secretly recorded video, fake names, a grand jury indictment, congressional investigations,” Sparks’ order said, “these are the building blocks of a best-selling novel rather than a case concerning the interplay of federal and state authority through the Medicaid program.”

The Fifth Circuit, however, found that Planned Parenthood Gulf Coast has sold tissue for outside research and directed Sparks to give greater consideration to state findings on whether clinic staff members are “qualified” under Medicaid’s medical and ethical standards.

The appeals court judges said that in investigating the videos, Texas found that Planned Parenthood had “violated ‘generally accepted medical standards, and thus [was] not qualified to provide medical services.’”

Texas Attorney General Ken Paxton said he was pleased with Thursday’s ruling.

“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,” Paxton said in an emailed statement.

Planned Parenthood did not immediately reply Friday to a request for comment.

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