FILE - This April 19, 2019, file photo shows a Planned Parenthood building in Houston. A federal appeals court is about to again take up the issue of whether and how states can cut off federal Medicaid funding for Planned Parenthood. Arguments are set for Tuesday, May 14. (Godofredo A Vasquez/Houston Chronicle via AP, File)

Planned Parenthood funding in Texas at stake in hearing

May 14, 2019 - 10:26 am

NEW ORLEANS (AP) — A federal appeals court heard arguments Tuesday on whether Texas had the right to cut off Medicaid funding to Planned Parenthood clinics in the state — a case that could also determine funding for the organization in Louisiana and Mississippi and that eventually may end up before the Supreme Court.

The case involves Texas' move to cut off funding for Planned Parenthood clinics following the release by anti-abortion activists of graphic, secretly recorded videos in 2015. A state inspector general said the video appeared to show Planned Parenthood had improperly changed how abortions were performed so that better specimens could be preserved for medical research.

Planned Parenthood and a group of Medicaid recipients sued to preserve Medicaid coverage for cancer screenings, birth control access and other non-abortion-related health services for nearly 11,000 low-income women at 30 clinics statewide. U.S. District Judge Sam Sparks ruled that Texas officials had provided no evidence of wrongdoing and that the videos that launched Republican efforts across the U.S. to defund the nation's largest abortion provider were insufficient as evidence. He issued an injunction blocking Texas from withholding the funding.

In January, a three-judge panel of the 5th Circuit said Sparks should give greater weight to state findings on whether Planned Parenthood clinic staff members are qualified under Medicaid's medical and ethical standards. But Judge Edith Jones, who wrote the opinion, made clear she also wanted the full 5th Circuit to take a broader look at the issue. The full court agreed, leading to Tuesday's hearing.

The full 5th Circuit deadlocked 7-7 in 2017 on whether Louisiana could withhold Medicaid funding from Planned Parenthood. That decision, in effect, upheld a district court ruling preserving the funding. In December, the Supreme Court rejected an appeal by the state.

Since the 2017 deadlock, five nominees of President Donald Trump have filled vacancies on the 5th Circuit. Jones, in the January ruling, said issues in the Louisiana case should be revisited, including whether individuals and health care providers should be able to sue over a state's decision to withhold funding, bypassing state administrative procedures for determining such matters.

Tuesday's arguments were heard by 16 judges, including four of Trump's five nominees — the fifth worked for Texas Gov. Greg Abbott and as a deputy Texas solicitor general and did not take part.

Planned Parenthood and its supporters say in briefs that federal law allows Medicaid patients to obtain assistance "from any institution, agency, community pharmacy, or person, qualified to perform the service."

Among the points discussed during Tuesday's hearing were whether individuals have the right to choose a qualified provider and how much authority the state has to decide which providers are qualified.

The issue has a complicated history at the 5th Circuit.

In 2016, a three-judge panel unanimously upheld a lower court's injunction preventing Louisiana from cutting the organization's Medicaid funding. But one of the judges, Priscilla Owen, later changed her mind, making it a 2-1 decision. Louisiana asked for a full-court rehearing. That led to the 7-7 deadlock in 2017.

It's unclear when the 5th Circuit will rule following Tuesday's arguments. Also unknown is how broadly they will rule — whether they will simply address Sparks' injunction in the Texas case or issue orders that could alter the Louisiana case and also affect Planned Parenthood funding in Mississippi. The 5th Circuit covers all three states.

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