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Judge temporarily blocks Planned Parenthood's ouster from Texas Medicaid

By Marissa  Evans and Mariana Alfaro

U.S. District Court Judge Sam Sparks on Thursday delayed Planned Parenthood's ouster from the state’s Medicaid program until Feb. 21.

The decision comes after three days of testimony and arguments in the U.S. District Court in Austin. The reproductive health provider initially sued more than a year ago, but that lawsuit sat dormant until Dec. 20, when the Texas Health and Human Services Commission put Planned Parenthood on notice that its Medicaid funding would end.

"We are grateful that the court has so far protected the 11,000 men, women and young people who could lose access to birth control, cancer screenings and other primary, preventive care at Planned Parenthood," Yvonne Gutierrez, executive director of Planned Parenthood Votes, said in a statement Wednesday evening. "Let’s be clear about what is at stake: We have seen what happens when the state 'defunds' Planned Parenthood —people go without care."

In court, state attorneys relied heavily on a video released in 2015 by the anti-abortion group Center for Medical Progress. In video clips shown during the hearing, Planned Parenthood employees appeared to admit to changing abortion procedures in order to procure fetal tissue for researchers, which the state said is grounds for dismissal from the joint federal-state insurance program for the poor and disabled.

Planned Parenthood has claimed the eight-hour video and subsequent clips floating around the internet are heavily edited and misleading. The organization's attorneys argued that kicking them out of Medicaid would have devastating consequences for men and women who would no longer have trusted providers to turn to for preventive or sexual health needs.

During closing arguments Thursday, attorneys from both sides cited clips from the video. Sparks said he wanted all involved to review the video footage and present their findings to him Jan. 30.

"I don't know if I'll be able to give an opinion [without further review of the video]," Sparks said.

In closing arguments for the state, Assistant Attorney General Andrew Stephens said removing Planned Parenthood from Medicaid doesn’t mean the organization will stop providing services or that patients wouldn’t be able to find the same treatments in other facilities. He said the case was to remove the organization from Medicaid, not to revoke their license to practice.

Jennifer Sandman, Planned Parenthood's deputy director of litigation, insisted during her closing statement that even if there were enough evidence to remove Planned Parenthood Gulf Coast from Medicaid, there is no evidence of malpractice by Planned Parenthood of Greater Texas and Planned Parenthood of South Texas.

“They’re wholly different Planned Parenthood organizations,” she said. “A provider cannot be excluded from Medicaid just by [having the name Planned Parenthood]. There’s no ownership or controlled relationship.”

Sparks also questioned the decision by the Office of the Inspector General to group the three Planned Parenthood affiliates into one case.

"Did it just one day pop into [the inspector general's] head that he could get rid of all the Planned Parenthoods because somebody is allowing abortions?" Sparks said. "Everybody knows that Planned Parenthood has abortion facilities."

Earlier during the final day of testimony, the state continued to make its case that Medicaid patients would still have access to health services without Planned Parenthood’s help.

Jami Snyder, associate commissioner for Medicaid and CHIP, said on the stand that there were 141,000 providers available in the program, including 29,000 primary care physicians and 3,300 OBGYNs. She said the program has “a very robust network” thanks to strict network adequacy requirements for the managed care organizations that help with Medicaid and patients have a variety of tools to help them find a new doctor. She said the available providers dwarf Planned Parenthood’s presence.

“What we know to be true is that a variety of providers in our network offer family planning services,” Snyder said.

But Planned Parenthood lawyers pressed Snyder on provider availability, forcing her to admit she was unsure if all of the Medicaid providers offer weekend hours or walk-in appointments like the reproductive health organization does. Snyder also admitted Medicaid providers do not necessarily offer the exact same services as Planned Parenthood.

Snyder also elicited gasps in the courtroom when she admitted she did not know about surging maternal mortality rates in Texas.

During morning testimony, Planned Parenthood brought in John A. Robertson, the Vinson and Elkins Chair at University of Texas School of Law at Austin, to rebut testimony from a bioethicist the state had brought in on Wednesday.

Robertson said fetal tissue research should aim to protect the health and safety of the woman, not to induce an abortion for research, but he argued Planned Parenthood was within those ethical lines.


“Minor adjustments in how a physician doing the abortion will do the procedure would not rise to the level of an ethical concern unless they threaten the health or welfare of the woman involved,” Robertson said.

But state attorneys claimed Robertson was biased, citing an article he wrote in 2011 that read, in part, "... a woman could abort for reasons or factors revealed in prenatal tests that some persons would find trivial or frivolous, such as hair or eye color, athletic or musical prowess ... ."

Planned Parenthood also brought in Amanda Stevenson, a professor at the University of Colorado Boulder, who authored a controversial study for the New England Journal of Medicine in March 2016 that argued that Texas women lost access to health care services after Planned Parenthood was kicked out of a family planning program.

Stevenson said it’s unclear if Planned Parenthood patients would be able to overcome barriers to accessing care, to make appointments right away or know where to find services if they have to find a new provider.

“Those things will all work together jointly to determine whether she will still receive the same quality of care after her provider is excluded,” Stevenson said.

This article originally appeared in The Texas Tribune.

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