DALLAS (CBSDFW.COM) – Siding with Planned Parenthood, a district judge in Austin on Monday ordered the state to temporarily lift its ban that prevents affiliates from receiving funding under the Women’s Health Program.
In a 25-page opinion, Judge Lee Yeakel found reasonable evidence that the ban may be unconstitutional, and ordered an injunction against enforcing it until he can hear full arguments.
According to Texas law, any organization that receives federal or state funding must be legally and financially separate from clinics that perform abortions.
A new provision enacted in the last legislative session also banned organizations affiliated with ones that provide abortions from participating in the Texas Medicaid Women’s Health Program.
Texas Health and Human Services spokeswoman Stephanie Goodman said that the entire program could now be eliminated, because the judge’s decision creates a stalemate between the state and federal government over abortion-related funding. “The most immediate effect would be that, of course, we could not fully enforce state law, and so affiliates of abortion providers would still be in the program as of tomorrow,” Goodman said.
Most Planned Parenthood clinics do not perform abortions, and the small percentage that do are legally separate from the larger majority.
The 2011 state law excludes all clinics that provide wellness exams and contraception to women with low incomes from receiving money as part of the Women’s Health Program, because of their affiliation with Planned Parenthood. The affiliate provision would have ceased funding the Planned Parenthood clinics on May 1.
About 130,000 Texas women depend on the Medicaid Women’s Health Program.
“So, what we’re talking about is clinics who truly only provide breast and cervical exams, STD tests, HIV tests, birth control, so women can plan and space their families,” said Sarah Wheat, the co-CEO of Planned Parenthood of the Texas Capitol Region, earlier this month when the suit was filed. “That’s who was targeted. That’s who’s been de-funded.”
Eight Planned Parenthood organizations that do not offer abortions filed the suit about three weeks ago. Wheat said close to two dozen clinics have shuttered since the affiliate provision passed the Republican-dominated Texas Legislature.
In its original filing, Planned Parenthood says it received $13 million from the Women’s Health Program in 2010, and losing that money would cause “severe, irreparable injury” to the clinics. “Without this funding, plaintiffs will be forced to reduce services, close clinics and/or lay off employees,” the suit reads. “Once these actions are taken… it would be very expensive — if not impossible — for them to resume operations as they are today.”
Pete Schenkkan, the attorney representing the eight Planned Parenthood organizations, said that the state rule violates both the 1st and 14th Amendments of the U.S. Constitution. “Because the law is clear, government, any government, cannot deny government funds to otherwise qualified participants on the grounds that they are exercising their rights of free speech or association,” Schenkkan told CBS 11 News earlier this month. “The government can’t say ‘you’re perfectly qualified to deliver these services, as you’ve been doing for five years, but we’ve decided not to let you because we don’t want you exercising your free speech.'”
The state has defended the affiliate provision. Goodman maintains that Texas has every right to restrict associations from participating in the Women’s Health Program. However, 90 percent of funding for the Texas Medicaid Women’s Health Program comes from Medicaid. So, when the state began enforcing this ban, the federal government began slicing funds. This meant the program lost about $30 million of its annual $40 million price tag.
The U.S. Department of Health and Human Services said the ‘affiliated with’ provision violates the federal law that guarantees Medicaid recipients will be able to choose care from any qualified provider willing to provide a service.
The federal government is currently deciding whether the program should be completely defunded.
Planned Parenthood has filed similar lawsuits in Indiana, South Carolina, Kansas and Tennessee.
State Attorney General Greg Abbott is appealing the judge’s decision. The office of Governor Rick Perry released a statement saying, “Texas has a long history of protecting life, and we are confident in Attorney General Abbott’s appeal to defend the will of Texans and our state law.” The final decision will come after a trial — where more appeals are expected. In the meantime, the Governor’s office maintains that they will pursue all legal options available.
(The Associated Press, Phyllis Smith of 1080 KRLD News and Stephanie Lucero of CBS 11 News contributed to this report.)
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