Planned Parenthood Ass'n of Hidalgo Cnty. Tex., Inc. v. Suehs

Decision Date21 August 2012
Docket NumberNo. 12–50377.,12–50377.
Citation692 F.3d 343
PartiesPLANNED PARENTHOOD ASSOCIATION OF HIDALGO COUNTY TEXAS, INCORPORATED; Planned Parenthood Association of Lubbock, Incorporated; Planned Parenthood of Cameron and Willacy Counties; Family Planning Associates of San Antonio; Planned Parenthood of Central Texas; Planned Parenthood of Gulf Coast, Incorporated; Planned Parenthood of North Texas, Incorporated; Planned Parenthood of West Texas, Incorporated; Planned Parenthood of Austin Family Planning, Incorporated, Plaintiffs–Appellees, v. Thomas M. SUEHS, Executive Commissioner, Texas Health and Human Services Commission, in his Official Capacity, Defendant–Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

OPINION TEXT STARTS HERE

Negative Treatment Reconsidered

V.T.C.A., Human Resources Code § 32.024(c-1); 1 TAC §§ 354.1362(1), (6), 354.1363(a)(2)(A), (B).

Helene T. Krasnoff (argued), Carrie Yvette Flaxman, Planned Parenthood Federation of America, Washington, DC, Matthew Birk Baumgartner, Pieter M. Schenkkan, Graves, Dougherty, Hearon & Moody, P.C., Austin, TX, Roger K. Evans, Planned Parenthood Federation of America, New York City, for PlaintiffsAppellees.

Kristofer S. Monson (argued), Office of the Atty. Gen. for the State of Texas, Jonathan F. Mitchell, Solicitor, Office of the Sol. Gen. for the State of Texas, Michael

P. Murphy, Andrew S. Oldham, Deputy Sol. Gen., Office of the Atty. Gen., Office of the Sol. Gen., Austin, TX, for DefendantAppellant.

Lawrence John Joseph, Washington, DC, for Eagle Forum Educ. and Legal Defense, and Texas Eagle Forum, Amici Curiae.

Jay A. Sekulow, American Center for Law & Justice, Washington, DC, for American Center for Law and Justice, Houston Coalition for Life, and Committee to Stop Taxpayer Funding of Abortion, Amici Curiae.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, DeMOSS and STEWART, Circuit Judges.1

E. GRADY JOLLY, Circuit Judge:

The appellees, nine Planned Parenthood organizations that operate health clinics in Texas, obtained a preliminary injunction to block the enforcement of Texas Health and Human Services Commission regulations. The regulations state that health care providers participating in a Medicaid-like program must not perform or promote elective abortions or be affiliates of entities that perform or promote elective abortions. The district court preliminarily enjoined the enforcement of these regulations against the appellees, reasoning that the regulations likely violate the appellees' rights to free speech and association, and deny the appellees the equal protection of the laws.

The district court issued the preliminary injunction based on a wholesale assessment of the regulations' constitutionality, which gave insufficient attention to Texas's authority to subsidize speech of its choosing within its programs. Accordingly, the order of the district court granting a preliminary injunction is VACATED and the case is REMANDED.

I.

In 2005 the Texas Legislature created the Women's Health Program (WHP) as a project to “expand access to preventative health and family planning services for women.” Act effective Sept. 1, 2005, ch. 816, § 1(a), 2005 Tex. Gen. Laws 2816, 2817. Under the WHP, Texas pays health care providers to provide various services, including counseling about contraceptives, to women who meet certain criteria. Id. § 1(a)(b). The WHP is funded by both Texas and the federal government as a demonstration project under Medicaid, pursuant to a waiver issued by the United States Department of Health and Human Services.2See 42 U.S.C. § 1315. Federal funding accounts for most of the WHP's total cost.

Since the WHP's inception, the Texas Legislature has prohibited the Texas Health and Human Services Commission (THHSC), which is charged with administering the WHP, from contracting with “entities that perform or promote elective abortions or are affiliates of entities that perform or promote elective abortions.” § 1(h), 2005 Tex. Gen. Laws at 2818. Until recently, however, THHSC had never formally interpreted this restriction on abortion-related activity, and the restriction had not been used to exclude the appellees from receiving WHP funds. Throughout the WHP's existence, THHSC has paid the appellees for their provision of WHP services, even though the appellees engage in abortion advocacy and have some legal relationship with Planned Parenthood Federation of America. The appellees have understood the restriction on abortion-related activity to mean that if they do not recommend abortion as a health procedure, and if they maintain a separate legal identity from abortion-providing clinics, then they can receive WHP funds.3

Recent developments unsettled the appellees' understanding and gave rise to the instant controversy. In 2011 the Texas Legislature re-authorized the WHP, and again prohibited THHSC from contracting with “entities that perform or promote elective abortions or affiliate with entities that perform or promote elective abortions.” Act effective Sept. 1, 2011, ch. 1355, Rider 62, 2011 Tex. Gen. Laws 4025, 4228; Act effective Sept. 28, 2011, ch. 7, § 1.19(b), 2011 Tex. Gen. Laws 300, 335. After the WHP's re-authorization, THHSC promulgated regulations interpreting the WHP's restriction on abortion-related activity. The regulations, like the statute, deny WHP funding for entities that perform or promote elective abortions or are affiliates of entities that perform or promote elective abortions. 1 Tex. Admin. Code § 354.1363(a). Under a limited exception within the regulations, however, a clinic receiving WHP funds may affiliate with a hospital that performs or promotes elective abortions. Id.

Unlike the statute, and importantly for this case, the regulations also define “promote” and “affiliate.” The regulations define “promote” as to [a]dvocate[ ] or popularize[ ] by, for example, advertising or publicity.” Id.§ 354.1362(6). They define “affiliate” as:

(A) An individual or entity that has a legal relationship with another entity, which relationship is created or governed by at least one written instrument that demonstrates:

(i) common ownership, management, or control;

(ii) a franchise; or

(iii) the granting or extension of a license or other agreement that authorizes the affiliate to use the other entity's brand name, trademark, service mark, or other registered identification mark.

Id.§ 354.1362(1).

THHSC mandated that recipients of WHP funds, including the appellees, certify their compliance with the new regulations. Believing compliance to be impossible, the appellees instead filed a federal lawsuit against THHSC Commissioner Thomas Suehs in his official capacity (“Texas”) in the Western District of Texas, seeking declaratory and injunctive relief, including a preliminary injunction.

The appellees' complaint alleges that the THHSC regulations violate their constitutional rights of free speech and association, and deny them the equal protection of the laws. Underlying this claim—for purposes of standing to attack these regulations—is the appellees' implicit concession that, based on the new definitions furnished by the THHSC regulations, they promote elective abortions and are affiliates of entitiesthat promote elective abortions, and therefore cannot receive WHP funds.

On April 30, 2012, the district court granted the appellees' requested preliminary injunction, blocking THHSC from enforcing the regulations. The court reasoned that the appellees had a substantial likelihood of succeeding on the merits of their lawsuit because the regulations impermissibly require the appellees to forego certain of their constitutional rights of free speech and association in order to receive WHP funds. The court also reasoned that the appellees had a substantial likelihood of succeeding on their equal protection claim because the regulations treat clinics and hospitals unequally. Texas appeals.

II.

To obtain a preliminary injunction, the appellees were required to demonstrate (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction were not granted, (3) that their substantial injury outweighed the threatened harm to the party whom they sought to enjoin, and (4) that granting the preliminary injunction would not disserve the public interest. Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir.2012).

[A] preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has clearly carried the burden of persuasion on all four requirements.” Id. (internal marks omitted). In reviewing the issuance of a preliminary injunction, we review the district court's findings of fact for clear error, its legal conclusions de novo, and the ultimate decision to issue the injunction for abuse of discretion. Bluefield Water Ass'n, Inc. v. City of Starkville, Miss., 577 F.3d 250, 253 (5th Cir.2009) (quoting Guy Carpenter & Co. v. Provenzale, 334 F.3d 459, 463 (5th Cir.2003)).

III.

To focus our review of the district court's order, we will first identify the merits of the appellees' lawsuit on which the preliminary injunction is based. The district court did not determine that the appellees are likely to prove that the regulations violate their right to perform abortions or to affiliate with entities that perform abortions. The right to obtain an abortion and any accompanying right to perform an abortion are not at issue in this appeal.

Instead, the district court held that the appellees are likely to prove that the regulations violate their right to promote abortion or to affiliate with entities that promote abortion. Put another way, the court held that the regulations likely abridge free speech. Specifically, the district court relied on a principle of constitutional law known as the “unconstitutional conditions doctrine,” which we will briefly describe before moving forward.

A.

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