Texas Can't Kick Planned Parenthood Out of the WHP After All, Appeals Court Says

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Earlier this week, Judge Jerry Smith of the Fifth Circuit Court of Appeals blocked a preliminary injunction that kept Texas from kicking Planned Parenthood out of the Women's Health Program. It looked as though that was the first step toward a decision allowing Texas to keep Planned Parenthood out of the WHP permanently.

Not so, as it turns out. Smith and two other judges, Eugene Davis and Edward Prado, just issued a ruling in which they agreed that the new state law blocking Planned Parenthood from participating in the WHP is unconstitutional. With this decision, Texas now cannot bar Planned Parenthood from the program, an order that will stand at least until the district court can hear formal arguments in the case.

The panel also flatly rejected Texas's argument that the state would be "irreparably harmed" if the injunction were not overturned, or that district court judge Lee Yeakel had abused his discretion by ordering the injunction.

They also lightly judicially smacked Texas for failing to acknowledge the existence of Planned Parenthood v. Sanchez , the 2007 case which led PP to form separate corporations for its abortion facilities and its health clinics, making the two types of facilities legally, financially and organizationally distinct.

Texas has argued repeatedly that any federal or state funding for Planned Parenthood's health clinics will "free up" other money for abortion. (For some reason, they always say that the funds in question are "fungible," which is an excellent and under-used word, even if in this case the statement it's part of is not at all true.)

"Our conclusion rests in part on the State's continuing reluctance to
address the obviously relevant opinion in Sanchez," the judges wrote. "Despite the plaintiffs' and the district court's having relied extensively on that authority, which binds this panel to the extent it is applicable, the State never mentioned it (as far as we can tell from the record) in the district court and did not refer to it in any way in its motion for stay pending appeal."

All of this comes as a bit of a surprise, since the Fifth Circuit's relative conservatism, as well as some of Judge Smith's previous legal maneuvers had many onlookers predicting the Fifth Circuit would rule against Planned Parenthood.

We'll hear much more about abortion, fungibility and women's health the week of June 4th, when oral arguments in the case are scheduled.


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21 comments
Chris Danger
Chris Danger

Score one for the good guys...Now, lets use this as the beginnings of tossing out bad leadership and even worse judges...

Scruffygeist
Scruffygeist

I'll examine her breasts! Problem solved!

Oh, and I'm glad there's judges out there with some sense.

Guest
Guest

Private Citizen Mike Rawlings has also chimed in to say that it's downright silly to let Planned Parenthood be two separate and distinct entities, but Mayor Mike Rawlings isn't sure where he stands on the matter.

Mavdog
Mavdog

here is the Cliff note to the opinion:

Hey State of Texas, we don't buy this BS you've been peddling about the Planned Parenthood "abortion mill" connection, in fact we're pissed that you apparently believed we were stupid enough to forget the court case of only 5 years ago that setlled the issue. So take your sorry ass outa here, quit trying to make political points with the PP pinata you keep trotting out and allow PP to continue providing these healthcare services to the poor people who need them.

RTGolden
RTGolden

"Our conclusion rests in part on the State's continuing reluctance toaddress the obviously relevant opinion in Sanchez,"  Sounds a lot like a teacher talking to a student who failed to do their homework.

Anna, do us a favor and hold off on any more of this reproductive legal ping pong until a match winner is announced..... ?

primi_timpano
primi_timpano

 He will achieve absolute certainty to his stand on this issue when his unmarried daughter, his son's girlfriend, his own girlfriend, or Tourist Mike's sex worker becomes with child.

Cliffhanger
Cliffhanger

Tourist Mike Rawlings wants to go pick up some hookers with Craig James. Tourist Mike's heard something about an incident back while James was a SMU.

Admonkey
Admonkey

Maybe he should poll Facebook, then do the opposite.

gladnotsad
gladnotsad

I agree. Over all I felt that the Grapevine Legoland Tinkerbell  tattoo article was much more informative and less  degrading to women, then this endless  faux "helpless-young ladies-can't get access to breast-exam-birthcontrol" nonsense. Give it a rest, please.

Skunked
Skunked

Or until someone at DO actually reads the opinion and figures out that the appeals court did not agree "that the new state law blocking Planned Parenthood from participating in the WHP is unconstitutional" instead of further mischaracterizing The Washington Post's mischaracterization.

From the ruling:

"We also notice that the district court, in its thorough order, carefully advised that it had reached no final decision of the plaintiff's suit to prohibit enforcement of the administrative rule in question."

Anna Merlan
Anna Merlan

Some of this ridiculous ping-ponging is what's interesting, but yes, I'll wake you guys up when this particular terrible movie is over and we can all stumble blearily out to the parking lot. 

RTGolden
RTGolden

I was more referring to the endless back and forth in the Court.

primi_timpano
primi_timpano

Actually, the ruling was about as bad as it can get for the state and makes one question the competency of its lawyers.  Aside from the state's failure to even address, much less challenge, the District Court's and PP's reliance on Sanchez--something a first year law student would have briefed in moot court--it essentially submitted a false affidavit to the court, falsely claiming it and its women's health program's would suffer irreparable damage if the stay were to be lifted.  The court concluded this affidavit to be false when PP submitted evidence funding would proceed through mid-November, further noting the state failed to supplement its affidavit to address PP's evidence.

Sanchez is worth reading, because it deals with the state's previous efforts to deny funding to PP, which was essentially settled by having the state agree to establish regulations setting forth how the abortion clinics and non-abortion clinic medical services would be deemed unaffiliated.  PP proceeded to reorganize in compliance with these regs and everybody was happy till now.  Now the state wishes to essentially disavow its own affiliation regs.

Incidentally, in Sanchez the state agreed to this arrangement because it became clear it would lose the legal case on the basis of the 14th Amendment to the constitution.

So the state has terrible lawyers, lies to the court, reneged on its own regs, and will likely fail in its efforts (which it admits to, noting that if a court finds it harming PP's constitutional rights it will just close the entire health program down).  Amazing.

primi_timpano
primi_timpano

 BTW, a Judge Smith was one of the judges in Sanchez.  Don't know if it is the same Smith, but today he is the only Smith on the Fifth Circuit.

Lolotehe
Lolotehe

 That's it. I'm gonna be a handmaid for Halloween. I'll dress all in red and carry a basket with pictures of food....

Planned Parenthood Supporter
Planned Parenthood Supporter

Skunked, my friend, you're full of shit.  primi_timpano has it pretty well nailed.  I suspect even Judge Jerry Smith was mortified when he found out how the State had lied and distorted.  Do read the opinion.  It's quite a smackdown.

For what it's worth, I'm a civil litigator, an appellate specialist, and a Texas Super Lawyer in appellate law.  I've read thousands of appellate opinions (and drafted hundreds during my many years as a staff attorney for various Texas appellate courts).  The Fifth Circuit motions panel's opinion is unusual and detailed, particularly regarding the timing of the State's behavior.  Specifically, the opinion describes how the State created the illusion of an "emergency" by filing its motion for stay pending appeal an hour-and-a-half before the law was to take effect, while omitting the very information (both the fact that federal funding will not cease until November and the failure to address the Sanchez precedent) that demonstrated why no emergency existed.

It's obvious to me, reading this opinion, that the panel was grossly offended by the State's conduct (as well it should have been).  Hell, I even have some sympathy for Judge Smith now.  He had no time and little to go on when he issued the emergency stay.  And he corrected himself upon waking up the next day and finding that he had been duped.

primi_timpano
primi_timpano

Read the ruling.  The Austin Chronicle has it linked.  It wasn't up at the court website last night.

Anna's story was good journalism.  Technicalities aside, and let's face it, federal litigation has lots of these that do not not deserve a second breath, much less the first breath of their filing, the state did not meet its standard for staying the injunction, namely the state could not prove it would suffer immediate irreparable harm were the stay to be lifted and the injunction continued.

I am a long, long way from civil litigation--perhaps one of our downtown litigators will step in--but to get an injunction the plaintiff (PP) must show that it will be irreparably harmed absent the protective features of the injunction.  It must also show a substantial likelihood of success on the merits.  This means the judge granting the injunction believes that based on the present evidence and pleadings PP will win.

As mentioned in my previous post, this is not a guess on the judge's part.  This all happened before and was litigated in the Sanchez case referenced by the Fifth Circuit.  Since this all happened before, was subject to the Sanchez litigation, which litigation forced Texas to back down (because it was going to lose), Sanchez is very persuasive precedent.  But the Texas briefs never mentioned Sanchez, nor countered PP's claims based on Sanchez.

So no, the court did not declare or rule on something to be unconstitutional, but that is only because there has not been a trial on the merits and final ruling.  The District Court thinks it is more likely there is unconstitutional state conduct, but is withholding its decision until it can have a trial.  Texas thought it was doing something unconstitutional in Sanchez, and is doing it again.  This last point is disgusting: the state is purposely violating the constitution to win political brownie points.  It knows it and doesn't care. To the state Republicans, the constitution is merely today's doormat on which to publicize their "war against Washington."

Skunked
Skunked

The ruling was an appeals court denial of an emergency stay to a preliminary injunction. Anything else you are reading into the ruling has not even been decided at the district court level. Accuracy? Anyone? Oh yea, I forgot, DO knows what we (readers) need to know and it is not closely linked to any real 'news'.

They (DO) could have easily included an opinion on where they think the court will be headed instead of reporting that the court declared something unconstitutional.

primi_timpano
primi_timpano

 Excellent writer.  Really enjoyed Oryx and Crake and the Blind Assassin.  The Oryx sequel is on my reading list.

Anna Merlan
Anna Merlan

I love that book. Don't really want to live in it, though... 

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