| In Spring 2012, the Texas Health and Human Services Commission (HHSC) under Governor Rick Perry forbid the state from contracting with entities that performed or promoted elective abortions or their affiliates.
Fearing that they would be tossed out of the program and unable to provide these health care services to low-income women, Planned Parenthood entities that provided these services as part of the WHP program filed suit to stop the state of Texas from removing them from the WHP program. Notably, these Planned Parenthood entities were financially and legally distinct entities from those Planned Parenthood entities that provided abortion services.
In April, Planned Parenthood secured an injunction from Judge Lee Yeakel in federal court in Austin. The state failed in its efforts to have the injunction stayed until an appeal of the injunction was heard by the federal appeals court. Planned Parenthood argued that the state regulations violated their constitutional rights of free speech and association and denied them equal protection of the laws
This week, Planned Parenthood was not so lucky. The federal appeals court vacated the preliminary injunction.
According to the opinion of the appeals court, the regulations prohibited health care providers that participate in a Medicaid-like program from performing or promoting elective abortions or being affiliates of entities that perform or promote elective abortions.
The injunction originally had been granted because Judge Yeakel had reasoned that the HHSC regulations "likely violate the appellees' rights to free speech and association, and deny the appellees the equal protection of the laws."
The appeals court vacated the injunction because it held that the regulations fell within the authority of Texas to subsidize speech "of its choosing within its programs." The appeals court examined and discarded the unconstitutional conditions doctrine (the First Amendment proscribes indirect burdens that are created when the government conditions receipt of a benefit on foregoing constitutionally-protected speech.), focusing on the following:
"A funding condition cannot be unconstitutional if it could be constitutionally imposed directly."
From here, it criticized Judge Yeakel's opinion for relying on the unconstitutional conditions doctrine and for analyzing the regulations as a whole, rather than separately analyzing promotion of abortion and affiliation with groups that promote abortion.
The court held that the Texas could constitutionally restrict funding based on whether Planned Parenthood promoted abortions, under the holding and reasoning of the U.S. Supreme Court decision in Rust v. Sullivan, 500 U.S. 173 (1991).
In short, because Texas could restrict this speech directly, it was entirely unnecessary to determine if it was unconstitutional for Texas to do this indirectly.
After finding that Texas could premise participation in the WHP based on whether Planned Parenthood promoted abortion, the court then held that Texas could bar an affiliate that was authorized by the abortion-promoting agency to use its identifying marks. The court stated:
"Using a pro-abortion mark is, after all, a way of promoting abortion."
[emphasis added]
"Texas's authority to directly regulate the content of its own program necessarily includes the power to limit the identifying marks that program grantees are authorized to use...authorization to use a particular mark is authorization to promote that mark's message."
However, after stating that such a mark is a "way of promoting abortion" the court limited its interpretive role:
"Whether an identifying mark communicates a pro-abortion message as clearly as other speech is not a controlling factor for the purposes of this analysis."
According to the Fifth Circuit, the use of a trademark now promotes a clear pro-abortion message.
After vacating Judge Yeakel's injunction, the Fifth Circuit then dangled this:
"The regulations' restriction on affiliation is problematic because it is not a direct regulation of the content of a government program. Speech that organizations carry on in other capacities through affiliated entities is not speech within a government program in which the government has a direct say. See Rust, 500 U.S. at 196.
For now, however, we decline to examine the restriction on affiliation and its potential constitutional infirmities."
Keep in mind that this injunction was in place until a full hearing on the merits could be heard. An injunction hinges on the likely success at trial of the party seeking the injunction. With this opinion, the Fifth Circuit has ruled that it was unlikely that Planned Parenthood would prevail at trial and set out the reasons why.
The appeals court ruled:
"On remand, the district court is to reconsider the constitutionality of the restriction on affiliating with entities that perform elective abortions, specifically the prongs defining affiliation based on franchise and common ownership, management, or control, and to rule accordingly."
In ruling in the manner it did, the Fifth Circuit not only ruled that it was unlikely that Planned Parenthood would not prevail at the lower court hearing, they essentially ruled that Planned Parenthood will not prevail in the district court. Even if Planned Parenthood later appeals a lower court judgment, they will be appealing to the same appellate court with the same legal framework governing the outcome of their appeal. It would seem that the appeals court has already picked a winner.
From here, Planned Parenthood can go to a full hearing at the district court level or it can ask for a rehearing at the appellate level in front of a three-judge panel, or it can request a rehearing en banc at the appellate level, with the full court, and not just the three-judge panel.
From a practical perspective, Planned Parenthood responded that as a result of this week's ruling, more than 50,000 low-income, uninsured Texas women will be denied health care from their trusted provider. This follows on the heels of approximately 160,000 Texas women losing access to health care after after budget cuts passed by the state legislature and signed by Governor Perry last year to the state's family planning program.
Update: The Texas Tribune is reporting that Planned Parenthood is still in the WHP. The Associated Press reported, however, that HHSC is already looking into how to actually exclude providers like Planned Parenthood from the WHP.
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