Texas Can Deny Abortion|Provider State Funds

(CN) - Texas can ban Planned Parenthood from participating in a state health care program for low-income women, the 5th Circuit ruled, citing the state's "authority to subsidize speech of its choosing."

The ruling is the latest turn in a legal challenge lobbed by nine Planned Parenthood affiliates who claimed that an administrative rule would unconstitutionally exclude them from the Texas Women's Health Program.

The regulation blocks health care providers that participate in Medicaid-like programs from performing or promoting elective abortions, or from affiliating with entities that do.

U.S. District Judge Lee Yeakel granted the Planned Parenthood affiliates an injunction barring the rule from taking effect May 1, but the state quickly appealed and won a temporary stay of Yeakel's order.

On May 4, a three-judge panel of the 5th Circuit lifted the stay, saying it was not clear that the lower court had "abused its discretion in entering the injunction."

The panel opted to expedite the appeal, and oral arguments took place in early June.

In its ruling this week, the federal appeals panel in Jackson, Miss., said Yeakel's injunction had been "based on the wholesale assessment of the regulations' constitutionality, which gave insufficient attention to Texas's authority to subsidize speech of its choosing within its programs."

It is the program's policy to use public funds "to subsidize non-abortion family planning speech to the exclusion of abortion speech," the court noted.

"Texas's authority to promote that policy would be meaningless if it were forced to enlist organizations as health care providers and message-bearers that were also abortion advocates," Judge E. Grady Jolly wrote.

"The authority of Texas to disfavor abortion within its own subsidized program is not violative of the First Amendment right," he added.

The court also upheld the affiliation ban, saying Texas can bar would-be participants that use Planned Parenthood and similar identifying marks.

"Using a pro-abortion mark is, after all, a way of promoting abortion," Jolly wrote.

"If the organizations participating in the [health care program] are authorized to use marks associated with the pro-abortion point of view -- like the Planned Parenthood mark -- Texas's choice to disfavor abortion is eviscerated, just as it would be if the organizations promoted abortion through pamphlets or video presentations," he wrote.

The 5th Circuit vacated the injunction and remanded, directing the federal judge "to reconsider the constitutionality of the restriction on affiliating with entities that perform elective abortions ... and to rule accordingly."

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