Texas’ Right to De-Fund Planned Parenthood Defended in Court

State   |   Steven Ertelt   |   May 21, 2012   |   5:55PM   |   Austin, TX

The American Center for Law and Justice has filed an amicus brief with a federal appeals court backing a decision by Texas to stop providing state taxpayer funds that subsidize Planned Parenthood, the nation’s biggest abortion business.

In a brief filed with the U.S. Court of Appeals for the Fifth Circuit, the ACLJ urges the appeals court to vacate a preliminary injunction put in place that prohibits Texas from cutting off funds that ultimately benefit Planned Parenthood.

“The Supreme Court has been very clear on this issue – the decision by Texas to determine where it spends its funds is constitutionally sound,” said Jay Sekulow, Chief Counsel of the ACLJ.

He added, “Texas joins a growing number of states that no longer wants to provide taxpayer funding that end up subsidizing abortion providers. Planned Parenthood cannot legally force the state of Texas to fund its programs. We’re asking the appeals court to reject this flawed premise and permit Texas to exercise its constitutionally-protected authority to reject the pro-abortion message and halt funding to programs that support it.”

In its brief, the pro-life law firm argues that, under the Supreme Court’s government speech cases, “the Texas Health and Human Services Commission enjoys speaker autonomy to promote a message favoring childbirth over abortion, and to select speakers who are best suited to deliver health services in a manner consistent with that message.”

“That same speaker autonomy permits the Commission to exclude from participation in the program grantees who risk garbling or distorting the Commission’s message,” the brief asserts. “The Plaintiffs here link the Women’s Health Program in a conspicuous way to one of the nation’s most prominent abortion rights advocates, and thereby undermine the Commission’s intended message. Because Plaintiffs’ identity and mission as Planned Parenthood affiliates are antithetical to the Commission’s pro-life message, the Commission’s autonomy over its message includes the authority to exclude Plaintiffs from participation.”

The ACLJ filed the brief on behalf of itself and its Committee to Stop Taxpayer Funding of Abortion, which consists of nearly 40,000 Americans who support the authority of federal, state, and local governments to prevent the direct or indirect subsidizing of abortion through public funds. The brief was also filed on behalf of the Houston Coalition for Life (HCL), which owns and operates a mobile Crisis Pregnancy Center which provides free sonogram services to expectant mothers.

The brief concludes that the actions taken by Texas are protected by the First Amendment: “The First Amendment does not require the Commission to permit plaintiffs’ participation in the program just because they provide women’s health services. Plaintiffs have a First Amendment right to engage in abortion rights advocacy, but they do not have a First Amendment right to undermine Texas’ message disfavoring abortion by publicly and conspicuously linking the Texas Women’s Health Program with Planned Parenthood.”

Recently, the U.S. Fifth Circuit Court has overturned an appeals judge’s decision allowing Texas to ban the nation’s biggest abortion business from the state’s Women’s Health Program. The panel ruled the law Texas approved last year to prohibit abortion facilities from taking part in the program to protect taxpayers from funding abortion facilities is unconstitutional.

Fifth Circuit Judge Jerry Smith agreed Friday to overturn the stay he recently issued allowing the state to keep the funding ban in place.

Texas officials are likely to appeal the decision to the full appeals court and have already said they will be forced to shut down the program if Planned Parenthood wins its lawsuit to force the state to fund the abortion company.

Planned Parenthood filed a lawsuit against Texas contending that the new law prohibiting it from participating in the Women’s Health Program is unconstitutional discrimination. The lawsuit asked the court for an injunction to stop enforcement of the rules preventing Planned Parenthood from getting taxpayer funding via the program , saying the rules violate their rights by putting an “unconstitutional condition on their participation” in the Women’s Health Program.

The lawsuit also alleges the Texas Health and Human Services Commission, which is enforcing the rule, “overstepped its authority in adopting a rule that conflicts with the purpose of the laws that created the program.”

Federal District Judge Lee Yeakel initially ruled in favor of nine Planned Parenthood affiliates — giving them a temporary injunction blocking enforcement of the law and requiring the state to continue funding the abortion business until the lawsuit is fully adjudicated.

However, state officials quickly appealed the ruling — with Attorney General Greg Abbott filing an emergency motion for stay in the 5th U.S. Circuit Court of Appeals. Judge Jerry E. Smith granted the stay “pending further order of this court” and requested a response from the abortion business by the close of business today.

Stephanie Goodman of the Texas Health and Human Services Commission told the Houston Chronicle, “This ruling allows the state to fully enforce state law today and exclude abortion providers from the Women’s Health Program. Women who need help finding a new WHP provider can call 1-800-335-8957.”

When the stay was announced, pro-life groups were delighted.

Elizabeth Graham, the head of Texas Right to Life, talked with LifeNews about the decision.

“Though the preliminary injunction may seem to be a victory for the abortion giant, Governor Perry and Texas Attorney General Abbott have consistently held that Texas will not continue the WHP if taxpayers are forced to subsidize the abortion industry,” she said. “Planned Parenthood is now playing politics with women’s health by risking the whole program by its advocacy of abortion. Attorney General Abbott is fully prepared to defend the intent of the Legislature by allowing participation in the WHP to providers and agencies that provide a full spectrum of health care services and that are not affiliated with abortion.”

Graham added: “Texas Right to Life very carefully oversaw the WHP renewal legislation, ensuring that low income women could find services at agencies that do not provide abortion. Planned Parenthood’s claims in the lawsuit about discrimination and staff cuts if excluded from the WHP are absurd; if Planned Parenthood would stop committing abortion, they would be eligible for several public revenue streams. We have full confidence in Attorney General Abbott to protect the taxpayers of Texas from directly and indirectly funding America’s largest abortion chain.”

Joe Pojman, Ph.D., executive director of Texas Alliance for Life, also responded: “Planned Parenthood runs the largest chain of abortion facilities in our state, and they mix the Women’s Health Program and abortions under the same roof at many of those abortion facilities.”

“For example that is the case in Bryan, Dallas, Houston, and Waco. Governor Perry and the legislature have every right to prevent Planned Parenthood from promoting abortion as a method of family planning with tax dollars. We believe that today’s setback will be temporary and that the 5th Circuit Court of Appeals will recognize the constitutionality of Texas law,” he said. “Of the some 2,500 Women’s Health Program Providers, 98% have nothing to do with Planned Parenthood and abortion. Planned Parenthood, which has no mammogram machines, provides shabby care for low-income women. Planned Parenthood is unable or unwilling to offer comprehensive primary and preventative care, which low-income women deserve. A woman will not see a doctor at Planned Parenthood unless she is there for an abortion. The state ordered Planned Parenthood San Antonio to return thousands of WHP funds in 2009 because Planned Parenthood had been illegally operating unlicensed abortion facilities at the same sites where they were  providing WHP services.”

Before the lawsuit, the Obama Administration cut off the Women’s Health Care Program (WHP) for over 100,000 Texas women at over 2,400 providers for the sake of Planned Parenthood, which provides only limited health service at 44 facilities in Texas. In response, Governor Rick Perry and state lawmakers found their own funding for it.

The Medicaid Women’s Health Program provides preventive health care to over 100,000 low-income women in Texas every year. There are over 2,400 qualified providers of the Medicaid WHP in Texas; only 44 Planned Parenthood facilities currently receive the funds.

The decision to cut Planned Parenthood funding also already forced the abortion business to close several centers throughout the state.

In December, the Obama Administration refused to renew funding for Texas’ Women’s Health Program (WHP) because of new state rules that disqualify abortion business affiliates from participation in the program. The WHP encompasses Medicaid family planning services for low income women. The program started through authorizing legislation in 2005 and was renewed in the recent 82nd legislative session with new pro-life rules.