Friday, May 11, 2012

Planned Parenthood Correction | Casey's Last Word

Last week’s Last Word wasn’t. That’s because I made a mistake and I need to correct it.

It is no excuse that my mistake was, in effect, to agree with the governor and the attorney general. They were wrong too.

I said, accurately, that the Texas Legislature last year passed a law designed to exclude Planned Parenthood from the Women’s Health Program.

The program is 90 percent funded by the federal government and provides health screening and family planning services to more than 100,000 Texas women who are not quite poor enough to qualify for Medicaid but don’t have and can’t afford health insurance.

I also wrote that the law provides that if Planned Parenthood, which serves nearly half the women in the program, sues and wins, then the entire program must be shut down.

That was wrong.

I had forgotten that the “poison pill” provision never made it out of the Senate committee to which it had been assigned.

So I accepted assertions by the governor and the attorney general’s office that if Planned Parenthood prevailed in challenging the law in court, the whole program would have to cease.

The attorney general’s office was quite specific about it.

On April 30th, just hours after U.S. District Judge Lee Yeakel of Austin issued a preliminary injunction barring the exclusion of Planned Parenthood, the AG’s office filed an “emergency motion” asking the 5th U.S. Circuit Court of Appeals to lift the ban.

The harm, the AG argued, was imminent.

“Absent a stay pending appeal, the State of Texas – and the women of Texas who depend on the Women’s Health Program – will be irreparably harmed because state law prohibits Texas from continuing to operate the Texas Women’s Program if taxpayer money must be provided to entities that affiliate with abortion-promoting entities. The administrative provisions at issue are scheduled to go into effect (and Texas will be irreparably injured if they do not) at midnight tonight.”

This alarming language apparently led 5th Circuit Judge Jerry Smith, a Houston Republican, to issue a stay of Judge Yeakel’s order.

But last Friday, after he and two other members of a three-judge appellate panel, read Planned Parenthood’s side of the story, they restored Judge Yeakel’s preliminary injunction and issued a biting order aimed at the attorney general’s office.

The “midnight tonight” language, it turns out, referred to an arbitrary date set by Health and Human Services Executive Commissioner Tom Suehs for participating organizations to file sworn statements that they are not affiliated with abortion providers.

But the federal government, which has told Texas it must include Planned Parenthood to get federal funds, has said it will continue funding until November to give the state time to set up its own program.

But the three-judge panel chided the attorney general on a more substantial matter.

The panel noted that both Planned Parenthood and Judge Yeakel had “relied extensively” on “the important precedent from this court of Planned Parenthood of Houston and Southeast Texas v. Sanchez.”

This 2005 lawsuit, filed in response to earlier state efforts to ban Planned Parenthood, led the organization to set up separate affiliates, housed at separate clinics, to perform abortions.

The affiliates were structured so that the state could do regular audits to assure no Women’s Health Program money was used to support abortions.

The panel drily noted that the attorney general showed “a continuing reluctance to address the obviously relevant opinion in Sanchez.”

This is not surprising, since the Sanchez opinion strongly indicated that only by including Planned Parenthood while allowing it to set up a separate affiliate to perform abortions did the State of Texas avoid serious constitutional problems such as freedom of speech and association.

And those constitutional problems are just as much in play in the totally state-funded program promised by Governor Perry.

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