Planned Parenthood of Gulf Coast, Inc. v. Gee

• Decision Date: 29 June 2017
• Docket Number: No. 15-30987,15-30987
• Parties: PLANNED PARENTHOOD OF GULF COAST, INCORPORATED; Jane Doe #1; Jane Doe #2; Jane Doe #3, Plaintiffs–Appellees v. Rebekah GEE, Secretary, Louisiana Department of Health and Hospitals, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

862 F.3d 445

PLANNED PARENTHOOD OF GULF COAST, INCORPORATED; Jane Doe #1; Jane Doe #2; Jane Doe #3, Plaintiffs–Appellees

v.Rebekah GEE, Secretary, Louisiana Department of Health and Hospitals, Defendant–Appellant

No. 15-30987

United States Court of Appeals, Fifth Circuit.

FILED June 29, 2017

Carrie Yvette Flaxman, Planned Parenthood Federation of America, Washington, DC, Erwin Chemerinsky, University of California, Irvine, CA, Melissa Ann Cohen, Esq., Planned Parenthood Federation of America, New York, NY, William E. Rittenberg, Esq., Rittenberg, Samuel & Phillips, L.L.C., New Orleans, LA, for Plaintiffs–Appellees.

Jimmy Roy Faircloth, Jr., Attorney, Faircloth, Melton & Sobel, L.L.C., Alexandria, LA, Brook Landry Villa, Faircloth, Melton & Sobel, L.L.C., Baton Rouge, LA, for Defendant–Appellant.

Alisa Beth Klein, Esq., Mark Bernard Stern, Esq., U.S. Department of Justice, Washington, DC, Mary Patricia Jones, Assistant U.S. Attorney, U.S. Attorney's Office, Baton Rouge, LA, for Amicus Curiae United States.

Martha Jane Perkins, National Health Law Program, Carrboro, NC, for Amici Curiae National Health Law Program, American Public Health Association, Center for Reproductive Rights, National Women's Law Center, National Family Planning & Reproductive Health Association, National Center for Lesbian Rights, National Latina Institute for Reproductive Health, IPAS, Sexuality Education and Information Council of the U.S.

Before WIENER, PRADO, and OWEN, Circuit Judges.

WIENER, Circuit Judge:

After this panel filed a unanimous opinion affirming the district court and a judge on this court then held the mandate, a panel member changed her position from agreeing to affirm the district court to advocating reversal. We therefore withdraw our original, unanimous opinion and replace it with two opinions: this one from the panel majority and another from our now-dissenting panel member.

NARROW FRAMEWORK

First, the one and only act of the district court that is at issue in this appeal is its temporary injunction, granted at the outset of this litigation to preserve the status quo among all the parties pending resolution of the substantive issues of this case. The parties to whom we refer are the defendant, the State of Louisiana, and the plaintiffs, Planned Parenthood of Gulf Coast, Incorporated ("PPGC") and three of its patients, each of whom is so financially disadvantaged as to qualify for Medicaid.

The district court granted its injunction in recognition of the fact that, if the State's revocation of PPGC's Medicaid qualification was to become effective immediately, only to be reversed after months or years of litigation, the clinics' poorest patients would nevertheless have suffered permanent harm.

Second, the State is not attempting to completely shut down the two PPGC clinics in question; it seeks only to deny Medicaid coverage for the clinics' treatment of their most needy patients, i.e., those who qualify for Medicaid. It is only that threatened act of the State that the district court has temporarily enjoined pending the orderly disposition of the Medicaid issue in this litigation. The merits of this case are not now before us; this litigation has not even reached the summary judgment stage, much less the merits, but only the initial, Rule 12(b) stage.

Third, neither of PPGC's two Louisiana clinics threatened here with Medicaid decertification by the State performs abortions or has ever participated in a program involving donation of fetal tissue. We emphasize this facet of the litigation's framework for the benefit of those of our colleagues and our readership whose overarching anathema to Planned Parenthood is grounded in their opposition to abortions or donations of fetal tissue, or both.

It is within this narrow framework that we now address the sole issue of this appeal, the district court's pre-merits, status quo, injunction.

BACKGROUND

Medicaid's free-choice-of-provider provision, 42 U.S.C. § 1396a(a)(23), guarantees that Medicaid beneficiaries will be able to obtain medical care from the qualified and willing medical provider of their choice. In response to secretly recorded videos released by the anti-abortion Center for Medical Progress depicting conversations with employees of an unrelated Planned Parenthood in a different state, Defendant–Appellant Louisiana Department of Health and Hospitals ("LDHH") terminated only the Medicaid provider agreement of Plaintiff–Appellee PPGC, leaving it licensed to provide its services to any and all non-Medicaid patients. PPGC and the individual Plaintiffs–Appellees Jane Doe #1, Jane Doe #2, and Jane Doe #3 (the "Individual Plaintiffs")—women who are Medicaid beneficiaries and receive medical care provided at one of PPGC's Louisiana facilities—(collectively "the Plaintiffs") filed this suit against LDHH under 42 U.S.C. § 1983, alleging violations of 42 U.S.C. § 1396a(a)(23) and the First and Fourteenth Amendments of the U.S. Constitution. Each Individual Plaintiff seeks to continue receiving care from PPGC's facilities, and each specifically contends that LDHH's termination action will deprive her of access to the qualified and willing provider of her choice, in violation of Medicaid's free-choice-of-provider provision.

The district court entered a preliminary injunction against LDHH's termination of PPGC's Medicaid provider agreements pending the eventual outcome of this litigation on the merits. LDHH appeals.

FACTS

A. Plaintiffs–Appellees

1. PPGC is a non-profit corporation domiciled in Texas and licensed to do business in Louisiana. It operates two clinics in Louisiana: the Baton Rouge Health Center and the New Orleans Health Center. Both centers participate in Louisiana's Medicaid program. PPGC's two clinics provide care to over 5200 Medicaid beneficiaries, who comprise more than half of the patients they serve in Louisiana. Both clinics offer physical exams, contraception and contraceptive counseling, screening for breast cancer

, screening and treatment for cervical cancer, testing and treating specified sexually transmitted diseases, pregnancy testing and counseling, and other listed procedures, including colposcopy. Again, neither clinic performs abortions nor has either ever participated in a fetal tissue donation program.

2. Doe #1 relies on PPGC's health center in Baton Rouge for her annual examinations. According to Doe #1, PPGC also helped her obtain treatment for cancer

in December 2013. Her cancer is now in remission, but it has rendered her unable to take birth control pills. She does not wish to have any more children and continues to rely on PPGC to advise her on future contraception options. Doe #1 wishes to continue receiving health care at PPGC because she does not know of any other providers that will take her insurance. She prefers to receive care at PPGC because she is comfortable with the staff, trusts the providers, and is easily able to make appointments.

3. Doe #2 is enrolled in Louisiana's Take Charge Plus program¹ and has received care at PPGC's health center in New Orleans since 2012. Until health issues left her unable to work full time, at which point she lost her private health insurance, Doe #2 had used a private obstetrician-gynecologist. That physician stopped treating Doe #2 once she lost her private insurance. Doe #2 now visits PPGC every year for her annual gynecological examination. She prefers to continue receiving it from PPGC and does not know where else she could obtain this care under Medicaid.

4. Doe #3 is a patient of PPGC's health center in Baton Rouge. There, she receives pap smears

, testing for sexually transmitted diseases, and cancer screenings. Doe #3 prefers receiving care at PPGC and finds it is easy to make appointments there. She states that it "is very difficult to find doctors in Baton Rouge who will accept Medicaid." Doe #3 needed to visit another Baton Rouge clinic for a necessary gynecological procedure, but was given an appointment for a day seven months later.

B. History

In July 2015, the anti-abortion Center for Medical Progress, released a series of undercover videos and allegations purporting to show that Planned Parenthood and its affiliates were contracting to sell aborted human fetal tissue and body parts. At a later hearing, the district court found that "none of the conduct in question [depicted in the videos] occurred at PPGC's two Louisiana facilities." Nevertheless, then-Louisiana Governor Bobby Jindal directed LDHH and the State Inspector General to investigate PPGC.

On July 15, 2015, then-secretary of LDHH, Kathy Kliebert, wrote to PPGC requesting responses to a range of questions about its activities. PPGC promptly responded on July 24, 2015, relevantly stating that (1) it "does not offer abortion services," and (2) it does not sell or donate any unborn baby organs or body parts. PPGC acknowledged that Planned Parenthood Center for Choice, Inc. ("PPCFC"), a separate corporation,² provides abortions in Texas, but that PPCFC does not operate a fetal tissue donation program.

Secretary Kliebert wrote to PPGC on August 4, 2015, claiming that several of PPGC's responses "directly contradict" the recently released videos. According to her, one video taken in Houston, Texas, depicted Melissa Farrell, Director of Research at PPGC, "discuss[ing] existing contracts for fetal tissue donation for the purpose of research." Secretary Kliebert emphasized that LDHH "is extremely concerned that [PPGC or PPCFC], or both have not only participated in the sale or donation of fetal tissue, but also deliberately misinformed [LDHH] about this practice in its July 24 response letter." In that same letter, Secretary Kliebert requested more information about the practices of PPGC and PPCFC.

PPGC responded on August 14, 2015, repeating that neither PPGC nor PPCFC sells or donates fetal tissue. PPGC explained that the secretly recorded conversation "does not discuss existing contracts for fetal tissue donation," but rather, "concerns a list of...