Updated, Friday, 4:55 p.m.:
Travis County District Judge Stephen Yelenosky on Friday refused to grant Planned Parenthood’s request for a temporary injunction to be included in the Texas Women’s Health Program.
“Probable injury is not really sufficient,” said Yelenosky, who ruled in favor of Planned Parenthood at a hearing in December, “… because it is unlikely that the plaintiffs will succeed at trial, I will deny the temporary injunction.”
Although Yelenosky agreed with Planned Parenthood's arguments that the organization's exclusion from the Texas WHP could endanger access to health services, his ruling indicated he did not believe their legal arguments would be successful at trial. Yelenosky also cited a “poison pill” rule that would cause the Texas WHP to self-destruct if a court overturned the Affiliate Ban Rule in the reasoning for his ruling.
“This allows us to continue to provide important family planning and preventive care to low-income women and fully enforce state law," Dr. Kyle Janek, the state's executive commissioner of health and human services, said in a statement on the ruling. "We’ve got the Texas Women’s Health Program up and running, and we’ll continue to provide help to any woman who needs to find a new doctor or clinic.”
Pete Schenkkan, a lawyer representing Planned Parenthood, said the organization is "confident in the merits of our case," and will still consider taking the case to trial.
Planned Parenthood and the state of Texas will continue their legal battle Friday over the organization's ability to participate in the Texas Women’s Health Program.
“This is not about Planned Parenthood; it’s about access to these vital [health] services,” said Sarah Wheat, vice president of community affairs for Planned Parenthood of Greater Texas. Planned Parenthood plans to argue in court that the Affiliate Ban Rule, which prohibits providers affiliated with abortion providers from participating in the Texas Women’s Health Program, unduly restricts women’s access to health care services offered by the program.
“We feel very strongly that women should be able to choose where they get their health care, regardless of that provider’s associations,” she said.
State lawmakers approved the implementation of the Affiliate Ban Rule for the joint state-federal Medicaid Women’s Health Program in the 2011 session. In response to the state’s decision, the federal government — which provided a $9 match for every $1 spent by the state — stopped funding the Medicaid Women’s Health Program on Dec. 31. The state launched the Texas Women’s Health Program on Jan. 1 to replace the joint state-federal Medicaid WHP, a $40-million-a year program.
“We have every right to exclude abortion providers and their affiliates from this program,” said Sen. Jane Nelson, R-Flower Mound and chairwoman of the Senate Health and Human Services Committee. “We also have a responsibility to ensure that these women have alternatives in their community, and that’s what I’m going to focus on as the legal battles continue,” she added.
The 51 Planned Parenthood clinics that participated in the previous version of the program provided 40 percent of the services — such as cancer screenings, contraception and wellness exams — for low-income women in the program.
A study published in October by George Washington University, and cited by Planned Parenthood’s legal team, found that health care providers in Bexar, Dallas, Hidalgo, Lubbock and Midland counties would have difficulty absorbing the volume of WHP patients who previously received services at a Planned Parenthood clinic.
"If their patients must be served by other clinics, the facilities in those areas would need to expand their capacity by two- to five-fold, in order to absorb the patients now being served by Planned Parenthood," the report states. The researchers conclude that some women may have problems accessing services if Planned Parenthood clinics are excluded from the program because "there is no evidence that [program providers] are prepared to sustain the very large caseload increases that would be required to fill the gaps left after Planned Parenthood affiliates are excluded."
The Health and Human Services Commission countered those findings with a report released Monday. By surveying providers within 30 miles of Planned Parenthood clinics that previously participated in the Medicaid WHP, the state determined “capacity was especially robust in the Rio Grande Valley, San Antonio, Houston, Austin and Abilene areas,” and that additional providers were likely in San Angelo and Corsicana.
“The new survey negates the projections of the academic studies on which plaintiffs rely, because it undercuts the premises on which the data in those studies were analyzed,” says a document the Texas Attorney General’s office submitted to the court. The survey also “controverts plaintiffs’ assertions that services will not be provided in areas specified,” the document states.
In addition to blocking Planned Parenthood from participating in the Medicaid Women’s Health Program, lawmakers cut the state’s family planning budget by two-thirds — $73 million — in the 2012-13 budget. As a result of those cuts, more than 50 clinics across the state closed, according to a report conducted by researchers at the University of Texas and published in the New England Journal of Medicine.
Some argue that the combination of the Affiliate Ban Rule and the family planning money have destroyed the network of health care providers available to low-income women.
By cutting family planning money, the Legislature “shredded the safety net for all of these independent clinics that have never provided abortions,” said Wheat. “I think that points to the fact that this isn’t about abortion, it’s about basic women’s health care at this point.”