Planned Parenthood of Cent. Tex. v. Sanchez

• Decision Date: 04 August 2003
• Docket Number: No. 03-CV-415.,03-CV-415.
• Parties: PLANNED PARENTHOOD OF CENTRAL TEXAS; Planned Parenthood of Houston and Southeast Texas; Planned Parenthood of North Texas; Planned Parenthood of San Antonio and South Central Texas; Planned Parenthood of West Texas; and Planned Parenthood of the Texas Capital Region, Plaintiffs, v. Eduardo J. SANCHEZ, Texas Commissioner of Health, Defendant.
• Court: U.S. District Court — Western District of Texas

280 F.Supp.2d 590

PLANNED PARENTHOOD OF CENTRAL TEXAS; Planned Parenthood of Houston and Southeast Texas; Planned Parenthood of North Texas; Planned Parenthood of San Antonio and South Central Texas; Planned Parenthood of West Texas; and Planned Parenthood of the Texas Capital Region, Plaintiffs, v. Eduardo J. SANCHEZ, Texas Commissioner of Health, Defendant.

No. 03-CV-415.

United States District Court, W.D. Texas, Austin Division.

August 4, 2003.

COPYRIGHT MATERIAL OMITTED

Peter D. Kennedy, George, R. James George, Jr., Donaldson & Ford, Austin, TX, Roger K. Evans, New York, NY, Helene T. Krasnoff, Washington, DC, for plaintiffs.

Lara Grant, Assistant Attorney General, for defendant.

Todd J. Knop, Mike Thompson, Jr., Wright & Greenhill, P.C., Austin, TX, Kelly Shackelford, Hiram S. Sasser, III, Plano, TX, for amicus.

ORDER

SPARKS, District Judge.

BE IT REMEMBERED on the 25th day of July 2003 the Court called the above-styled cause for hearing on Plaintiffs' Application for Preliminary Injunction, and the parties appeared through counsel of record. Before the Court are Plaintiffs' Complaint [# 1], Application for Temporary Restraining Order and Preliminary Injunction [# 7], Supplemental Memorandum [# 26] and letter brief [# 30] in support thereof, and Supplemental Declarations in Support Thereof [# 21]; Defendant's response to Plaintiffs' Application [# 13] and supplemental brief in support thereof [# 24]; and the Brief of Amicus Curiae Liberty Legal Institute [# 25]. Having considered the above documents, the evidence and arguments presented at the hearing, the case file as a whole and the applicable law, the Court enters the following opinion and order.

Factual and Procedural Background

This case concerns Rider 8 to the Texas General Appropriations Act (House Bill 1), passed by the Texas legislature on June 2, 2003 and signed into law by Governor Rick Perry on June 22, 2003. See Plaintiffs' Ex. 1. Rider 8 affects funding appropriated to the Texas Department of Health ("TDH") for family planning services during the period from September 1, 2003 to August 31, 2005. The state received these funds from the federal government pursuant to three federal laws: the Title X family planning program, 42 U.S.C. § 300 et seq.; the Title XX social services block grant program, 42 U.S.C. § 1397 et seq.; and the Title XIX Medicaid program, 42 U.S.C. § 1396 et seq. The state provides some matching funds required under Title XIX.

Rider 8 states as follows:

8. Prohibition on Abortions.

a. It is the intent of the Legislature that no funds shall be used to pay the direct or indirect costs (including overhead, rent, phones and utilities) of abortion procedures provided by contractors of the department.

b. It is also the intent of the legislature that no funds appropriated under Strategy D.1.2., Family Planning, shall be distributed to individuals or entities that perform elective abortion procedures or that contract with or provide funds to individuals or entities for the performance of elective abortion procedures.

c. If the department concludes that compliance with b. would result in a significant reduction of family planning services in any public health region of the state, the department may waive b. for the affected region to the extent necessary to avoid a significant reduction in family planning services to the region. This waiver provision shall expire on August 31, 2004, and no waiver shall extend beyond that date.

d. The department shall include in its financial audit a review of the use of appropriated funds to ensure compliance with this section.

See Plaintiffs' Ex. 1.

The legislative history of Rider 8 includes hearings before the Conference Committee. See Plaintiffs' Ex. 2B. One committee member stated, "the purpose of the rider is to insure that appropriated funds are not used to subsidize abortions." Id. at 3. Senator Judith Zaffirini confirmed in her comments on Rider 8 she is "prolife" but believed "this rider is too far reaching." Id. at 4. She stated, "I do believe that the target of this is Planned Parenthood."¹ Id. The committee chairman stated: "It would appear to me that it's a fairly simple solution that, if a contractor wished to continue to provide the services, they simply not do abortions and they'll have access to contract with the Department of Health. It'd be pure and simple." Id. at 7. Representative Sylvester Turner commented, "The question is whether or not the rider goes even further and reduces the services, the needed services to women in addition to what we are doing by virtue of cutting back." Id. at 8. The committee ultimately passed the rider by a 6 to 4 vote. Id. at 11.

The Plaintiffs filed this lawsuit challenging the constitutionality of Rider 8 on June 26, 2003. The Plaintiffs are nonprofit corporations that provide family planning services using federal funds they receive from the state and also provide abortion services using private funding. The Plaintiffs were approved for family planning funding by the TDH, subject to change from legislation or appropriations, in March 2003, prior to Rider 8's passage. See Defendant's Ex. A-1.

Planned Parenthood of Central Texas, headquartered in Waco, provides family planning and abortion services to women in seven counties. See Plaintiffs' Ex. 3. The TDH renewed its contract to receive approximately $600,000 in funds for the fiscal year 2004, and it expects it would also receive about $60,000 in Medicaid reimbursements during that period. Id. In 2001, Planned Parenthood of Central Texas performed 1,098 abortions, financed entirely by private funds. Id.

Planned Parenthood of Houston and Southeast Texas, headquartered in Houston, serves 35 Texas counties in ten clinics. See Plaintiffs' Ex. 4. It received a letter from the TDH in March 2003 awarding it over $2.8 million to serve almost 20,000 clients in the fiscal year 2004 and estimates it would also be reimbursed for $550,000 in services to over 3,000 Medicaid recipients during that time. Id. In the fiscal year ending August 31, 2002, it performed almost 7,000 abortions using private funds. Id.

Planned Parenthood of North Texas is headquartered in Dallas and serves over 70,000 patients each year from 57 Texas counties in its 27 locations. See Plaintiffs' Ex. 5. The TDH awarded it funding of almost $3.7 million for the 2004 fiscal year, subject to appropriations, and the organization received almost $700,000 in Medicaid reimbursements last year. Id. It performs approximately 4,500 abortions each year at two locations, using private funds. Id.

Planned Parenthood of San Antonio and South Central Texas, headquartered in San Antonio, serves over 27,000 patients per year from 28 counties at its eight locations. See Plaintiffs' Ex. 6. It received a letter from TDH awarding it $1.386 million for fiscal year 2004, and it expects to receive an additional $400,000 in Medicaid reimbursements during that period. Id. In 2002, it performed 1,238 abortions to clients from south-central Texas and Mexico in one San Antonio location, using entirely private funds. Id.

Planned Parenthood of West Texas, headquartered in Odessa, serves over 10,000 patients each year from 50 counties. See Plaintiffs' Ex. 7. The TDH awarded it $889,554 to serve 7,816 patients during fiscal year 2004, and it expects it would have received approximately $70,000 in Medicaid reimbursements during that period. Id. It performs approximately 1,000 abortions each year at its Midland location, using private funds. Id. It is the only abortion services provider in the 50-county area. Id.

Finally, Planned Parenthood of the Texas Capital Region, headquartered in Austin, provides medical services to approximately 20,000 patients each year in three Austin clinics. See Plaintiffs' Ex. 8. The TDH awarded it $667,500 to serve 4900 patients during the fiscal year 2004. Id. While this Plaintiff does not currently provide abortions, it plans to break ground in September 2003 on a new clinic that will provide abortions beginning in September 2004 using private funds. See Plaintiffs' Ex. 14.

On June 10, 2003, the TDH sent a letter to the 67 contractors it had approved for continued funding in May 2003 explaining the legislature's passage of Rider 8 and requiring the contractors to return an affidavit to it by June 30, 2003 to be able to receive family planning funds. See Defendant's Ex. A-3. In the affidavit, the contractor was required to swear it would not perform elective abortion procedures, contract with or provide any funds to individuals or entities for the performance of abortion procedures, or submit claims for reimbursement of costs of abortion procedures after September 1, 2003. See Defendant's Ex. A-4. The TDH has not yet received affidavits from the Plaintiffs, the University of Texas Southwestern Medical Center or Austin Travis County Health & Human Services. See Defendant's Ex. A at ¶ 8.

The Plaintiffs filed a lawsuit and application for temporary restraining order on June 26, 2003. After holding a hearing on the application for temporary restraining order on June 30, 2003, at which the parties appeared through counsel of record, the Court granted the Plaintiffs' application for temporary restraining order and suspended the TDH's deadline for receiving the affidavits. The Court set the Plaintiffs' request for preliminary injunction for hearing on July 25, 2003.

Analysis

I. Standard for Preliminary Injunction

The Plaintiffs request a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. To obtain a preliminary injunction, a party must show (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm if the injunction is not granted; (3) the threatened injury to the plaintiffs outweighs the injury to the defendant; and (4) granting the injunction does not disserve the public interest. Cherokee Pump & Equipment, Inc. v. Aurora Pump, 38 F.3d 246,...