Planned Parenthood Ass'n of Hidalgo Cnty. Texas, Inc. v. Suehs
| Decision Date | 30 April 2012 |
| Docket Number | Civil No. A–12–CV–322–LY. |
| Citation | 828 F.Supp.2d 872 |
| Parties | PLANNED PARENTHOOD ASSOCIATION OF HIDALGO COUNTY TEXAS, INC.; Planned Parenthood Association of Lubbock, Inc.; Planned Parenthood of Cameron and Willacy Counties; Family Planning Associates of San Antonio; Planned Parenthood of Central Texas; Planned Parenthood of Gulf Coast, Inc.; Planned Parenthood of North Texas, Inc.; Planned Parenthood of West Texas, Inc.; and Planned Parenthood of Austin Family Planning, Inc., Plaintiffs, v. Thomas M. SUEHS, Executive Commissioner, Texas Health and Human Services Commission, in his Official Capacity, Defendant. |
| Court | U.S. District Court — Western District of Texas |
OPINION TEXT STARTS HERE
Validity Called into Doubt
V.T.C.A., Human Resources Code § 32.024(c–1); 1 TAC § 354.1362 Carrie Y. Flaxman, Helene T. Krasnoff, Planned Parenthood Federation of America, Washington, DC, P.M. Schenkkan, Susan G. Conway, Matthew B. Baumgartner, Graves Dougherty Hearon & Moody, PC, Austin, TX, Roger K. Evans, Planned Parenthood Federation of America, New York, NY, for Plaintiffs.
Arthur C. D'Andrea, Assistant Solicitor General, Jonathan F. Mitchell, Office of the Attorney General, Austin, TX, for Defendant.
ORDER GRANTING PRELIMINARY INJUNCTION
Before the court in the above styled and numbered cause of action are Plaintiffs' motion for Preliminary Injunction and Memorandum of Law in Support Thereof filed April 11, 2012 (Clerk's Doc. No. 2) and Defendant's Response to Plaintiffs' Motion for Preliminary Injunction and Memorandum of Law in Support Thereof filed April 18, 2012 (Clerk's Doc. No. 18). On April 19, 2012, the court held a hearing on Plaintiffs' motion, at which all parties appeared and were represented by counsel. Having considered the motion, response, the arguments of counsel, the case file, and the applicable law, the court will grant the requested preliminary relief.
This suit seeks to enjoin the enforcement of a recent administrative rule promulgated by the Texas Health and Human Services Commission (the Commission), which has the effect of excluding Plaintiffs—nine Planned Parenthood organizations—from providing preventive health and family-planning services through Texas's Women's Health Program. The Women's Health Program was established by the Texas Legislature in 2005 as a five-year demonstration project to expand access to preventive health and family-planning services for uninsured women, ages 18–44, with a net family income at or below 185 percent of the federal poverty level. Act of May 30, 2005, 79th Leg., R.S., ch. 816, § 1, 2005 Tex. Gen. Laws 2816, 2816–18 (expired Sept. 1, 2011) (the 2005 Act). Under the program, Texas provides a limited Medicaid benefit package of family-planning and related services to a population currently not covered under the Medicaid state plan.1 The program was approved for a demonstration waiver under Title XI of the federal Social Security Act. See 42 U.S.C. § 1315. The Social Security Act gives the Secretary of Health and Human Services of the United States discretion to approve a state demonstration project for a waiver of certain Medicaid requirements, in order to allow the state to test new ways to deliver and pay for health-care services and to use Medicaid funds in ways not otherwise allowed by federal rule.2 Id. The Commission began implementing the Women's Health Program in 2007 with 90 percent of the program's services funded by federal reimbursements.
The rule at issue in this suit has its origins in the 2005 Act authorizing the Commission to create the Women's Health Program. The act contained a provision prohibiting the Commission from using program funds “to perform or promote elective abortions” and from contracting with “entities that perform or promote elective abortions or are affiliates of entities that perform or promote elective abortions.” 2005 Act at 2818. The act did not define “affiliates” or “promote.” Due to litigation in Texas and other states challenging similar no-affiliation directives, the Commission, under the direction of former Commissioner Albert Hawkins, originally took the position that the act, if construed to exclude Plaintiffs from the Women's Health Program, would likely not survive a constitutional challenge. As a result, Plaintiffs have participated in the Women's Health Program since its inception, despite their relationship to Planned Parenthood Federation of America, a national reproductive health-care provider that advocates for women's access to abortion.
Plaintiffs operate 49 health centers across Texas, where women can enroll and participate in the Women's Health Program. None of Plaintiffs' centers provide abortion services. In order to ensure that no state or federal funds are spent on abortions, Plaintiffs maintain legal and financial separation from those Planned Parenthood entities that provide such services. 3 Plaintiffs' centers have historically provided a significant percentage of the Women's Health Program's family-planning services. According to Plaintiffs' complaint, at least 49% of the approximately 103,000 women who obtained services through the program in 2010 obtained some services at a Planned Parenthood provider. These women represent a population that, without the Women's Health Program, would likely be unable to obtain health care. To qualify for participation in the program, a woman must demonstrate that she has a family income at or below 185 percent of the federal poverty level, is not otherwise eligible for Medicare, Medicaid, and the Children's Health Insurance Program (CHIP), and has no alternate health-insurance coverage.4
The 2005 Act expired September 1, 2011, at the close of the Women's Health Program's five-year demonstration period. Id. In anticipation of its expiration, the Texas Legislature attached Rider 62 to the 2011 General Appropriations Act to provide for the program's continuation. Act of May 31, 2011, 82nd Leg., R.S., ch. 1355, 2011 Tex. Gen. Laws 4025, 4228 (effective Sept. 1, 2011). Rider 62 restates the financial eligibility requirements for the program and directs the Commission to continue the Women's Health Program under Medicaid, contingent on the program's receiving an extension of the previous waiver. Id. In order to ensure that the program remained subject to the no-affiliation directive contained in the expired 2005 Act, the Legislature enacted a new no-affiliation provision, providing that:
The [Commission] shall ensure that money spent for purposes of the demonstration project for women's health care services under former Section 32.0248, Human Resources Code, or a similar successor program is not used to perform or promote elective abortions, or to contract with entities that perform or promote elective abortions or affiliate with entities that perform or promote elective abortions.
Act of June 28, 2011, 82nd Leg., 1st C.S., ch. 7, § 1.19, 2011 Tex. Gen. Laws 5390, 5425 (codified at Tex. Hum. Res.Code § 32.024(c–1)) (effective Sept. 28, 2011) (Section 32.024(c–1)). The Commission subsequently requested renewal of the Women's Health Program's waiver. The federal government temporarily extended the waiver until March 31, 2012, to consider the Commission's application for renewal. The program continued to operate with federal funding, as previously administered, through the beginning of 2012.
On February 23, 2012, the Commission, under the direction of current Commissioner, Defendant Thomas M. Suehs (the Commissioner), adopted the rule challenged in this litigation. 37 Tex. Reg. 1696 (2012) () (Tex. Health & Hum. Servs. Comm'n) (effective March 14, 2012). The rule defines the terms “affiliate” and “promote” for purposes of Section 32.024(c–1). Id. The rule defines “affiliate” as
(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. The rule defines “promotes” as “[a]dvocates or popularizes by, for example, advertising or publicity.” Id. The rule expressly excludes hospitals licensed under the Texas Health and Human Safety Code from compliance with the no-affiliation directive. Id.
In light of the new rule, the federal government refused to extend or renew the Women's Health Program's waiver on the basis that the rule conflicts with a provision of the Social Security Act that assures free choice of family-planning providers. See 42 U.S.C. § 1396A(a)(23) (). The federal government also advised the Commission that it would continue federal funding for the Women's Health Program through a two-stage phase-out period of no more than nine months. The Texas Governor has instructed the Commissioner and the Commission to continue the operation of the Women's Health Program as a fully state-funded program, without the assistance of federal Medicaid funds, in full compliance with the new rule.5
The Texas Medicaid & Healthcare Partnership, the entity that administers claims processing for the Women's Health Program, advised Plaintiffs of the new rule and that Plaintiffs were required to certify before May 1, 2012, that they do not perform or promote elective abortions, do not affiliate with any entity that does, and that P...
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Planned Parenthood of Cent. N.C. v. Cansler
...protected rights,” such as the right to advocate for and provide abortion-related services. Planned Parenthood Ass'n. of Hidalgo County Tex., Inc. v. Suehs, 828 F.Supp.2d 872, 882 (W.D.Tex.2012); see also Planned Parenthood of Mid–Missouri and E. Kan. v. Dempsey, 167 F.3d 458, 463–64 (8th C......