In Battle's Latest Turn, Planned Parenthood Allowed to Stay in Program

Planned Parenthood will continue participating in the Women’s Health Program — for now. Travis County District Judge Stephen Yelenosky on Thursday approved a temporary injunction to delay the state’s implementation of the “Affiliate Ban Rule,” which would bar the nonprofit from participating in the program, until a full trial can be held in December.

Planned Parenthood is "likely to prevail on their claim that the rule is inconsistent with the instructions of the Texas
Legislature," wrote Yelenosky in a letter authorizing the temporary injunction. 

“This is another victory for the women of Texas that Planned Parenthood is proud to serve,” said Pete Schenkkan, the lawyer representing the group.

Multiple court proceedings have delayed and complicated the implementation of the Affiliate Ban Rule and the Texas Women’s Health Program, which the state previously planned to start on Nov. 1. In October, a three-judge panel of the 5th Circuit Court of Appeals shot down Planned Parenthood’s claim that the Affiliate Ban Rule is unconstitutional and set the stage for the state to move forward with its plan. But a few days after that ruling, another Travis County district court judge issued a temporary restraining order requiring the state to continue the program until it could be determined whether state law made the rule inoperative, because it caused the state to lose federal funding for the program.

In an email to the Tribune, Lauren Bean, a spokesperson for the Attorney General's Office, said the state will appeal the judge's decision to issue a temporary injunction, "which incorrectly halts implementation of State law."

“We’ve got the state program ready to stand up at any time, and that transition would be seamless for patients and their doctors,” Kyle Janek, Texas' executive commissioner of health and human services, said in an earlier statement announcing that Texas would continue the federally funded Women’s Health Program until funding stops or a state court decision is made.

Earlier on Thursday, the nation’s Medicaid director, Cindy Mann, wrote a letter to the state's Health and Human Services Commission confirming that the federal government would cut off Women’s Health Program funding on Dec. 31. She also reconfirmed the position that the state’s rule violates federal law. “It restricts women’s ability to receive services from the qualified family planning providers of their choice,” Mann wrote.

The Women’s Health Program serves about 130,000 impoverished women who would be eligible for Texas Medicaid if they became pregnant. Participating providers perform cancer screenings, testing for sexually transmitted diseases and offer contraception — but not abortions. The state receives a higher funding match for the program from the federal government — $9 for every $1 spent by the state — than for traditional Medicaid. 

In 2011, state lawmakers directed the Health and Human Services Commission to establish the Affiliate Ban Rule, which prohibits organizations that have the same name as abortion providers from participating in the Women’s Health Program.

Earlier this year, when the federal government said it would discontinue funding if Texas implemented the Affiliate Ban Rule, Gov. Rick Perry pledged to forgo the $30 million in annual federal funds and launch the Texas Women’s Health Program, funded only by state money.

And Stephanie Goodman, a spokeswoman for the Health and Human Services Commission, said the 26 Planned Parenthood clinics still providing WHP services are the only providers that would be kicked out of the program if the Affiliate Ban Rule and the Texas Women’s Health Program took effect. 

Planned Parenthood’s lawyers argued the Affiliate Ban Rule would cause irreparable harm to the organization’s family planning clinics, some of which receive 80 percent of their revenue from the Women’s Health Program, and potentially deprive tens of thousands of women access to care.

In 2011, lawmakers reduced state funding for family planning services — separate from the Women’s Health Program — by two-thirds, from $111 million to $37.9 million for a two-year period. In addition, they set up a priority funding system to direct the majority of remaining funds to comprehensive health providers, such as so-called federally qualified health centers. 

As a result of those cuts, the Planned Parenthood Association of Hidalgo County lost $3.1 million, testified Patricio Gonzales, the nonprofit’s chief executive officer, and was forced to close four of eight Planned Parenthood clinics in South Texas. If those clinics are also barred from participation in the Women’s Health Program, the clinics would lose an additional 70 to 80 percent of their revenue, Gonzales said, and the organization would likely be forced to layoff staff and close two or three of the remaining clinics. 

Financial support for “the family planning clinics in the state is kind of a three legged stool,” made up of private insurance and grants, the Women’s Health Program and state family planning grants, said Joseph Potter, a researcher at the University of Texas conducting a three-year study on the impact of the state cuts to family planning grants.

The reduction in state family planning grants has already had devastating effects on access to care — 53 family planning clinics closed entirely, according to an article he co-authored for the New England Journal of Medicine — and the remaining providers do not have the capacity to take on Women’s Health Program patients currently served by Planned Parenthood, he testified.

“Texas overall is underserved, rural and poorer parts of Texas are especially underserved,” Potter said, “so, there isn’t this large base of providers with space in their practices that is there ready, willing and able to take on this client base.” 

Proponents of the state’s rule say comprehensive health care providers, like federally qualified health centers, which receive a special stream of federal funding to care for the uninsured, would be better tasked with providing Women’s Health Program services than Planned Parenthood. But Potter told the court that FQHCs currently provide services to about 10,000 women in the Women’s Health Program, while Planned Parenthood serves about 50,000. “Were the FQHCs to take over that client base, they would have to expand their capacity five-fold overnight,” he said.