Texas Still Defunding Planned Parenthoods

     AUSTIN (CN) – A 5th Circuit judge blocked a ruling that would have let Planned Parenthoods continue participating in a Texas health care program for low-income women.
     The stay, granted Monday by Circuit Judge Jerry Smith, came just after U.S. District Judge Lee Yeakel granted a preliminary injunction after he found a likelihood of irreparable harm.
     Nine Planned Parenthood organizations sued Thomas Suehs, the executive commissioner of the Texas Health and Human Services Commission, over the rule, which they say would have excluded them from participating in the Texas Women’s Health Program. This same rule cost the program its federal funding because the government said it conflicted with Social Security law.
     The organizations say the new law restricts their First Amendment right to advocate for access to abortions and associate with entities that provide the services, such as the Planned Parenthood Federation of America.
     In agreeing with this position Monday, Yeakel said that “the government may not condition participation in a government program or receipt of a government benefit upon an applicant’s exercise of protected rights.”
     The new rule may violate fundamental rights provided by the First Amendment, according to the 24-page order.
     “By requiring plaintiffs to certify that they do not ‘promote’ elective abortions and that they do not ‘affiliate’ with entities that perform or promote elective abortions, as defined by the rule, Texas is reaching beyond the scope of the government program and penalizing plaintiffs for their protected conduct,” Yeakel wrote.
     The judge said a settlement in the case Planned Parenthood of Houston & Southeast Texas v. Sanchez led to the formation of Planned Parenthood entities that are financially and legally separate from those entities that provide abortions.
     “Following Sanchez, Planned Parenthood restructured its Texas organization so that entities receiving public funds do not engage in abortion services,” Yeakel wrote. “Plaintiffs’ 49 health centers, providing family-planning services through the Women’s Health Program, have legally and financially distanced themselves from the Planned Parenthood organizations that perform abortion.”
     But the code, Section 32.024(c-1), does not permit the possibility of affiliates, the ruling states.
     “By defining ‘affiliate’ in broad terms, to include shared ‘ownership, management, or control’ or a shared ‘name, trademark, service mark, or other identification mark,’ the commission’s rule effectively forecloses any workable system of affiliates,” Yeakel wrote. “Accordingly, this court finds that Section 32.024(c-1), as defined by the commission’s rule impinges on plaintiffs’ First Amendment speech and associational rights and cannot be saved by an alternative construction. Accordingly, the rule will not withstand constitutional scrutiny, unless Texas comes forth with a compelling interest to justify the rule’s existence.”
     Yeakel was less supportive of the claim that the rule infringes on a 14th Amendment right to provide abortion services through legally and financially separate affiliates.
     But the judge added that it would be an unconstitutional violation of equal-protection rights for the rule to exempt hospitals that provide abortion services.
     Yeakel dismissed the state-law claim against Commissioner Suehs, finding the official has immunity under the 11th Amendment.
     “The court observes that if the federal funds are phased out, Texas does not provide another source of funds, and the Women’s Health Program terminates, the controversy now before the court may be of no consequence,” Yeakel concluded.
     Judge Smith’s stay did not include any reason for the order. The Planned Parenthoods responded Tuesday to the state’s emergency motion.

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