Planned Parenthood Se., Inc. v. Bentley

Decision Date28 October 2015
Docket NumberCIVIL ACTION NO. 2:15cv620–MHT
Parties Planned Parenthood Southeast, Inc.; and Jane Doe, Plaintiffs, v. Robert Bentley, Governor of Alabama, in his official capacity; and Stephanie McGee Azar, Acting Commissioner, Alabama Medicaid Agency, in her official capacity, Defendants.
CourtU.S. District Court — Middle District of Alabama

Brigitte Amiri, Jennifer Dalven, American Civil Liberties Union Foundation, Jennifer R. Sandman, Melissa Cohen, Planned Parenthood Federation of America, New York, NY, Carrie Y. Flaxman, Planned Parenthood Federation of America, Washington, DC, Randall C. Marshall, ACLU of Alabama Foundation, Inc., Montgomery, AL, for Plaintiffs.

David Bryson Byrne, Jr., State of Alabama, Governor's Office, James William Davis, State of Alabama, Misty Shawn Fairbanks Messick, Office of the Attorney General, Montgomery, AL, John Cowles Neiman, Jr., Kasdin Miller Mitchell, Prim Formby Escalona, Scott Samuel Brown, Maynard Cooper & Gale PC, Birmingham, AL, for Defendants.



Before the court is a challenge to a decision by the Governor of Alabama to terminate the State's Medicaid provider agreement with Planned Parenthood Southeast, Inc. (PPSE), which funds services unrelated to abortion, including routine gynecological exams, pregnancy counseling, and breast- and cervical-cancer screenings

. The plaintiffs are PPSE and Jane Doe, a PPSE patient and Medicaid recipient, suing individually and on behalf of a putative class of similarly situated Medicaid-recipient patients of PPSE. The defendants are the Governor of Alabama and the Acting Commissioner of the Alabama Medicaid Agency; both are sued in their official capacities.

The plaintiffs filed this lawsuit to challenge the termination of PPSE's provider agreement as unlawful under the ‘free-choice-of-provider’ provision of the Medicaid Act, which states in relevant part that "any individual eligible for medical assistance ... may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required ... who undertakes to provide [her] such services." 42 U.S.C. § 1396a(a)(23). PPSE also claims that the termination violates its rights under the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. PPSE and Doe bring all of their claims under 42 U.S.C. § 1983. Jurisdiction is proper under 28 U.S.C. §§ 1331 (federal question) and 1343 (civil rights).

This matter is currently before the court on PPSE and Doe's motion for entry of a preliminary injunction. The motion will be granted on the basis of Doe's Medicaid Act claim.


To demonstrate that a preliminary injunction is warranted, a plaintiff must show that "(1) there is a substantial likelihood that he ultimately will prevail on the merits of the claim; (2) he will suffer irreparable injury unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the public interest will not be harmed if the injunction should issue." Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir.1983). The plaintiff bears the burden of persuasion as to each of the four required showings. McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.1998).

A. State Medicaid Program

The federal Medicaid program was established by Congress to provide low-income families, disabled individuals, pregnant women, and children with affordable medical care. The program operates as a partnership between the federal government and the States. Subject to guidelines established by the federal government regarding eligibility for assistance, the types of services covered, and the costs of those services, States receive federal funds. See 42 U.S.C. § 1396a. Although States are afforded discretion in administering the program, they are required to submit their plans for federal approval. See 42 C.F.R. § 430.10. The plan operates as a contract between the participating State and the federal government, and the Department of Health and Human Services may withhold federal funds if the State fails to "comply substantially" with the plan as approved and adopted. 42 C.F.R. § 430.35.

As a state participant, Alabama maintains such a plan with the federal government. The State also maintains "provider agreements" with health-care providers, which impose on providers state and federal regulatory requirements governing the filing of claims. When a provider renders covered services to a Medicaid recipient, the State pays that provider directly. Family-planning services are covered under the Medicaid Act and under the Alabama plan.1

PPSE is a regional non-profit corporation affiliated with Planned Parenthood Foundation of America (PPFA); it operates health centers in Mobile and Birmingham. Through these centers, it provides family-planning and preventive-health services, including physical exams, contraceptive counseling, contraception, breast- and cervical-cancer screenings

, treatment for sexually transmitted infections, and pregnancy counseling. Both offices also provide abortions. As an affiliate of PPFA, PPSE is distinct from the national organization; PPSE maintains an independent board and exercises exclusive control over its daily affairs. Although PPSE is not supervised by PPFA, it must comply with certain standards adopted by PPFA in order to operate under the "Planned Parenthood" name.

Until the termination of the provider agreement,2 both of PPSE's offices participated in the State's Medicaid program and, therefore, were able to provide the aforementioned services for free or at reduced cost to Medicaid recipients in the State. PPSE provided services to Medicaid recipients one to two times per week. Over the past two fiscal years, PPSE received approximately $ 5,600 in state Medicaid funds. All parties agree that PPSE receives no Medicaid funding for abortion services.

B. Videos Regarding Fetal–Tissue Donation

Beginning in mid-July 2015 and ending in early August, the Center for Medical Progress, an anti-abortion group, released a series of controversial videos on fetal-tissue donation programs operated by certain abortion clinics. These programs permit women who elect to have abortions to donate fetal tissue for medical research purposes. At the PPFA-affiliated clinics that provide these services, the fetal tissue is collected by providers. In some instances, procurement companies partner with the providers to collect and transmit tissue to researchers. The parties do not dispute that no employee or representative of PPSE is depicted in these videos and that PPSE does not participate in fetal-tissue donation, and never has.

The videos feature individuals affiliated with the Center for Medical Progress posing as employees of a fake tissue-procurement company. These individuals participate in a series of covertly filmed conversations with employees of PPFA and various PPFA-affiliated clinics. The videos—nine in all—discuss two purported practices at issue here. First, the videos are clearly intended to give the impression that the depicted PPFA affiliates profit from the ‘sale’ of fetal tissue. Second, the videos attempt to give the impression that providers at the affiliates that participate in fetal-tissue-donation programs alter abortion procedures in order to obtain intact—and therefore more ‘valuable’—specimens.

Following the release of the videos, PPFA representatives criticized the tactics of the filmmakers and argued that the videos falsely portray the practices of those affiliates that engage in fetal-tissue donation. PPFA contends that much of what was omitted from the videos' recorded conversations with staff reflects that PPFA affiliates recover only their costs, and do not profit from their fetal-tissue-donation programs. An independent analysis of several of the videos, submitted by the plaintiffs, concludes that the released videos were "heavily edited" and therefore lack any legal "evidentiary value." Pls.' Ex. G, Reply Br. Mot. Prelim. Inj. 2, doc. no. 36–1.

The release of the videos led to strong and immediate backlash against PPFA and the clinics affiliated with it. Both PPSE and other affiliates report an increase in death threats and incidents of harassment. Only two days after the release of the first video, the Governor of Indiana ordered an investigation into PPFA-affiliated clinics in that State. Similar investigations were launched by politicians in Massachusetts, South Dakota, Pennsylvania, and Georgia. Louisiana, Arkansas, Utah, Texas, and New Hampshire also responded with efforts to terminate affiliated clinics from their Medicaid programs.

C. Termination of PPSE's Provider Agreement

On August 6, 2015, the Governor of Alabama sent a letter to PPSE to notify it that its provider agreement was being terminated. The letter did not provide a reason for the termination and advised PPSE that the termination would go into effect 15 days later. The Governor states in his briefing in this court that his decision to terminate was based on his viewing one of the videos released by the Center for Medical Progress. The plaintiffs cite a statement the Governor made to the media, in which he contends that comments made in the video he viewed displayed a lack of respect for human life. The Governor states that he had no plan to terminate PPSE's provider agreement before viewing this video. Further, it is undisputed that, prior to the receipt of this letter, PPSE had not been made aware of any investigation into its medical or administrative practices by the Alabama Medicaid Agency.


To determine whether issuance of a preliminary injunction is warranted, the court will first evaluate the plaintiffs' likelihood of success on the merits of their claims, then consider the threat of irreparable injury, and, finally, discuss...

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