It's back to normal here in Texas as the courts hand down yet another anti-woman decision. Late last night, Republican Judge Jerry Smith of the 5th Circuit reversed US District Judge Lee Yeakel's decision to prevent the State of Texas from blocking Planned Parenthood from participating in the Women's Health Program. Yeakel's decision made clear that the State could not block Planned Parenthood from either a federally or state-funded Women's Health Program. This was a big — and evidently, temporary — win for the womenfolk of Texas, who for a few brief hours regained access to the provider that sees 40% of WHP participants.
After receiving yesterday's verdict Attorney General Greg Abbott filed a request for an emergency stay to halt the healthcare provider from participating in the program. Unsurprisingly, Judge Smith granted Abbott's stay. From The Statesman:
The stay apparently means that the state does not have to reimburse Planned Parenthood for patients treated as part of the Women's Health Program, which offers contraceptives, health screenings and other care to low-income women.
Under a state rule adopted in February, all program participants had to certify by today that they do not promote abortion or affiliate with organizations that perform or promote abortions. But Yeakel ruled Monday that the rule violated Planned Parenthood's First Amendment rights and placed thousands of women in danger of losing vital health care.
What happens now, and what does this mean?
Planned Parenthood has until 5:00 pm today to respond to the motion, at which point the order will be revisited. This means that while Abbott's requested emergency stay is in effect, Yeakel's original injunction (preventing the state from excluding Planned Parenthood) is not. The State of Texas is free to enforce the affiliate rule, blocking Planned Parenthood from participating in the WHP because they are affiliated with (gasp! horror! clutch pearls! fainting couch!) abortion providers. The 5th Circuit's emergency stay basically overturns Yeakel's original injunction until such time as the 5th Circuit revisits the stay and lifts the stay putting the injunction back into effect — i.e. upholding Yeakel's original ruling that no public Women's Health Program can exclude a qualified, licensed provider just because Republicans don't like them — or until there is a full trial before judge Yeakel and he issues a final order on the matter.
What are the legal issues here?
I asked a lawyer to help me out with this one. The State was granted the stay because they claim they will be irreparably harmed if they are forced to include Planned Parenthood as a provider in the program. Lawyers for the State of Texas essentially contend that they cannot violate state law (the affiliate rule, blocking Planned Parenthood and Planned Parenthood alone from participating in any Women's Health Program, whether federally or state funded) in order to continue the program constitutionally. (Various federal rules and interpretations of them make clear that a state cannot deliberately exclude a provider just because they don't like them, as long as they're otherwise qualified, licensed, etc.)
The State of Texas is claiming that they will be forced to shut down the entire Women's Health Program (again, whether funded by Medicaid or state dollars, of which we have none, but that's another problem) unless the injunction is stayed — i.e. unless they're allowed to keep excluding Planned Parenthood.
This legal reasoning doesn't pass the smell test — there has been a rule in place since 2003 banning abortion providers from receiving other Family Planning dollars, and the state does not seem to have suffered the grievous injury they allege will happen if they have to reimburse Planned Parenthood for the cancer screenings and contraception they have been providing to women since the inception of the Women's Health Program and in other family planning programs. All of these rules were enacted in 2005 at the start of the WHP, so why is it now, 7 years later, that this is such a friggin' emergency? The state doesn't seem to have suffered irreparable harm over the last 7 years by including Planned Parenthood in the program. So why will the next 6 months cause so much harm?
(Just for fun, picture Sid Miller and Dan Patrick running around, screaming about the social ills of women getting breast exams and pap smears. The horror! The horror! I digress.)
The State claims that Planned Parenthood can simply replace the public funds with private donations and keep providing services to 40% of the women who participate in the WHP. However, the State also claims that because Planned Parenthood didn't post an appeal bond, they can't pay the State back for damages since they don't have any money. What? Planned Parenthood doesn't need state funds to give women cancer screenings because they have a lot of money, but they don't have any money to pay back the state?
What is UP with the 5th Circuit?!
It's no surprise that Republican activist judge Jerry Smith granted Abbott's request. If Smith's name sounds familiar, it's because last month he threw a temper-tantrum after President Obama stated that it would be unprecedented for the Supreme Court — a group of appointed judges — to throw out a law passed by a democratically elected body. POTUS was, of course, referring to the Affordable Care Act.
The 5th Circuit court, which hears federal appeals from parts of Louisana, Mississippi, and Texas, is considered to be one of the most ideologically conservative federal appellate courts in the country. We've previously profiled Chief Judge Edith Jones, an extreme anti-choice zealot who has called for the SCOTUS to review Roe v Wade in the hopes of coming up with a reversed decision. Y'all, this is the court that ordered a rape victim to pay over $40,000 in legal fees to her school district and forced her to cheer for her rapist in a sporting event. Stay classy!
What's Next for the WHP?
Planned Parenthood has until 5 p.m. today to respond. At the heart of the matter are two diametrically opposed laws: the federal law that makes it illegal to exclude a specific qualified provider from a public program because a state doesn't like them, and the law passed by Texas specifically excluding Planned Parenthood from participating in the Women's Health Program because they're affiliated with abortion providers.
Key take-away: Texas Republicans are willing to end the entire Women's Health Program just to prevent Planned Parenthood from participating. How far will they go, and will the courts be able to stop them? That remains to be seen.