So you want to defund Planned Parenthood? Texas gives other states a roadmap.

October 26, 2012

A handful of states have passed laws that cut Planned Parenthood out of their Medicaid program. Most have been held up in legal wrangling, with numerous court decisions that disallow such regulations.

That's not the case in Texas: After 15 months of court battles, it appears to have received the final go-ahead to cut off Planned Parenthood. Its success in the courts where others have failed gives a sense of the trade-off states must make if they want to successfully cut off the health-care provider's funding.


Local citizens and employees of the Planned Parenthood clinic in San Angelo, Tex. gather in front of the clinic in March to participate in the "Don't Mess with Texas Women" rally. (Patrick Dove - AP)

A quick recap of where the battle has been is helpful here, starting with the original law. Texas originally wanted to cut Planned Parenthood out of its Women's Health Program, which is run through Medicaid. The Obama administration pushed back hard: It pulled out its contribution to that program, saying discriminating against a provider who delivered a constitutional service - in this case, abortion - disqualified the state from receiving federal dollars.

In the wake of that decision, Texas decided to start its own Women's Health Program. It would provide the same services to women, like preventive screenings and contraceptives, but do so without federal funding. And it would also exclude health-care providers like Planned Parenthood.

It was that new, Women's Health Program that Planned Parenthood most recently challenged in court. The group noted that Planned Parenthood has two distinct organizations in Texas, one for its clinics that perform abortions and one for those that do not. Disallowing all of them to participate in the program, the argument went, violated their right to free speech and association.

While a lower court accepted that argument, the Fifth Circuit Court of Appeals rejected it in August. It ruled that the provision barring abortion providers from the Women's Health Program was constitutional, because it was a "specific restriction on the breadth of the program." It relied on previous case law, that found that in cases where a speech restriction was limited to a very specific provision, it was constitutional. 

That's the decision the Fifth Circuit reaffirmed Thursday when it declined Planned Parenthood's request to re-hear the case, with the entire panel of nine judges.

The state has already written out the rules of its "affiliate ban" and expects it will take effect next week.

It's worth noting this is in contrast to a decision coming out of Indiana, where a federal court ruled Tuesday the state can't defund Planned Parenthood. The big difference between the two cases is that Indiana wanted to continue using federal dollars for its program.

These two rulings, taken together, suggest states have a pretty stark choice if they want to defund Planned Parenthood. They can ditch federal funding and, under the Fifth Circuit's interpretation, move forward. But if they want to continue using Medicaid dollars, as Indiana has done, the court system looks to be less amenable to such a program.

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Dylan Matthews · October 26, 2012