State focuses on anti-abortion group video in Planned Parenthood hearing

Texas attorneys continued their argument in federal court on Wednesday that Planned Parenthood violated its Medicaid contract by altering abortions to obtain fetal tissue.

Showing multiple clips from a video released in 2015 by the anti-abortion group Center for Medical Progress, state attorneys and witnesses said in the U.S. District Court in Austin that the footage was grounds for dismissing Planned Parenthood from the joint federal-state health insurance program for the poor and disabled.

The hidden-camera footage shows Planned Parenthood employees talking about selling fetal tissue, though Planned Parenthood has claimed it is heavily edited and misleading. Texas lawyers said the video is proof the reproductive health provider admitted to changing abortion procedures to help researchers.

During his two-and-a-half hours on the witness stand, Texas Health and Human Services Commission Inspector General Stuart W. Bowen Jr. said the video showed Planned Parenthood “violated medical and ethical standards” under Medicaid. Bowen said he watched the eight-hour video five times and read transcripts from it.

Bowen also said the way Planned Parenthood employees used the phrase “financially beneficial” multiples times in the video also was evidence to the agency that “there was interest to pursue such activities” — that is, selling fetal tissue — for profits.

State attorneys are using the 2015 video as its main evidence in the multi-day hearing that will determine Planned Parenthood of Greater Texas and other affiliates’ future in Medicaid. Planned Parenthood lawyers are fighting for a temporary injunction to allow the organization to stay in Medicaid until a trial occurs.

The hearing comes more than a year after the reproductive health provider sued to block the state from removing them from Medicaid. The Texas Health and Human Services Commission put Planned Parenthood on notice Dec. 20 that its Medicaid funding would end.

Planned Parenthood lawyers pushed back on Bowen’s testimony, forcing him to admit that the agency had not actually seen any individuals in the video altering abortion operations.

But the video evidence used in court did appear to back up the state's claims. One clip showed Planned Parenthood Gulf Coast’s ambulatory surgical center director saying “it’s for a good cause” to obtain fetal tissue for research even if it means potentially prolonging an abortion procedure and having a patient endure more pain.

Texas attorneys also called to the stand O. Carter Snead, a law professor at the University of Notre Dame Law School and bioethics expert. Snead said that bioethics and medical ethics was about “the singular well-being of the patient” and that Planned Parenthood was in violation based off the video. He said changing a procedure and willingly having patients “experiencing pain for research” was not in the organization’s consent form.

But Planned Parenthood pushed back against Snead's testimony by pointing out his bias against the organization, reading clips from his past works as evidence. One of those articles quoted him writing that President Barack Obama’s administration was pushing Planned Parenthood’s “sexual freedom agenda” by forcing religious workplaces to cover contraception. Another article quoted him saying Obama “has chosen the agenda of Planned Parenthood over caring for the poor.”

Snead said if Planned Parenthood was not the largest abortion provider, he “would not have any issue with them receiving federal funding.” When asked about his general views on abortion, he said “it’s an extraordinarily complicated question.”

“When should it be legal to kill another person, is what you’re asking,” Snead said.

U.S. District Judge Sam Sparks, after telling Snead, “We don’t need to know about Plato and all of that stuff,” told state attorneys the professor’s testimony would probably not carry much weight in his decision.

“I don’t think this gentleman is going to help me make a determination,” Sparks said. “I’m interested in what was done, not was willing to be done. I think that’s what you should be concerned about.”

During afternoon testimony, Texas attorneys aimed to make the case that Planned Parenthood would not be missed if dropped from Medicaid as multiple women’s health program exists to address basic health needs and family planning services.

Leslie French Henneke, associate commissioner for health, developmental and independence services for the Texas Health and Human Services Commission, said that the state’s women’s health programs were taking a “holistic approach” to helping patients.

“You can’t treat one symptom without treating another,” Henneke said of balancing reproductive health needs with preventive care.

Henneke said that the state has more than 5,300 providers in the program and that she wouldn’t agree there’s a Medicaid provider shortage in the state.

The hearing is slated to go through Thursday, when the state will put one more witness on the stand and Planned Parenthood prepares to present two rebuttal witnesses. Sparks said he had wanted to make a decision by the end of the day Wednesday but that he would allow Planned Parenthood’s witnesses on Thursday.

Read related Tribune coverage:

• Planned Parenthood lawyers and witnesses said in front of a packed courtroom that ending the organization’s reimbursements for Medicaid could endanger access to family planning services for Texas’ most vulnerable populations. 
• Texas health officials in December delivered a final legal notice to nix the funding Planned Parenthood receives through the Medicaid program. 
• In the state's other abortion battle in court, Sparks announced earlier this month that he was delaying the start date of the state's fetal remains burial rule for another three weeks.

Disclosure: Planned Parenthood has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors is available here.