Planned Parenthood Fights Kansas at 10th Circuit

DENVER (CN) — Planned Parenthood of Kansas and Mid-Missouri faced the 10th Circuit for the second time Tuesday, asking the panel to affirm a ruling that Kansas cannot deny federal Medicaid funding to its two clinics in Kansas.

Planned Parenthood has fought a six-year battle with Kansas Gov. Sam Brownback and Kansas Department of Health and Environment Secretary Dr. Robert Moser. It sued the state in Federal Court in 2011, after Brownback signed a bill that prevented Planned Parenthood of Kansas and Mid-Missouri from receiving Title X Medicaid funds because of their association with abortion services.

U.S. District Judge Thomas Marten granted Planned Parenthood a preliminary injunction in August 2011, finding that Planned Parenthood would face “irreparable injury to its rights to freedom of association” if Kansas were allowed to enforce the bill.

The state appealed, and in March 2014 the 10th Circuit reversed and remanded. Tenth Circuit Judge Carlos Lucero wrote a strongly worded 49-page dissent in that 2-1 ruling, concluding: “I am neither persuaded to follow the vanishing trail that my colleagues pursue in an end run around the district court, nor am I amenable to their harsh treatment of binding precedent. Accordingly, I dissent.” The majority opinion in 2014 was written by 10th Circuit Judge Harris Hartz, joined by Tenth Circuit Judge Terrence O’Brien.

Kansas argued that the two clinics had failed to cooperate with state inspections, and that Planned Parenthood did not exhaust its administrative remedies before suing. Hartz rejected Planned Parenthood’s appeal on First Amendment grounds, finding it failed to prove that the law “was motivated by a desire to penalize Planned Parenthood’s protected speech and association.”

On remand in July 2016, U.S. District Judge Julie Robinson ruled for Planned Parenthood, finding that “it is uncontroverted that PPKM (Planned Parenthood of Kansas and Mid-Missouri) and PPSLR (Planned Parenthood of the St. Louis Region) serve hundreds of underprivileged women in the State of Kansas. It is in the public interest to allow these individuals to be treated by the qualified provider of their choice.”

On Tuesday, Patrick Strawbridge with Consovoy McCarthy Park told the new 10th Circuit panel that Kansas had every right to deny the funding.

“The Medicaid program is classic spending clause litigation,” Strawbridge said, and states have “leeway” to determine which medical providers get Medicaid money. “This leeway includes the decision of which providers are qualified.” He said Planned Parenthood merely “got a decision they did not like.”

Planned Parenthood Federation of America attorney Diana Salgado disagreed, saying the state was reaching for excuses to deny Planned Parenthood funding.

“Plaintiffs were searching for a cause of action,” Salgado said. She said the failure to pass a state inspection was the result of miscommunication: that the state told Planned Parenthood it had passed the inspection, and it did not hear otherwise until two months later.

“Planned Parenthood has granted access to the health centers to inspectors; the inspectors handed Planned Parenthood staff a report that said no problems had been found,” Salgado said.

“The state can’t place labels on a provider … that says that provider is qualified. That’s what Kansas has done here,” Salgado said.

Tenth Circuit Judges Gregory Phillips, Robert Bacharach and Carolyn McHugh heard the arguments.

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