Judge with history of disparaging women stays state appeal to exclude Planned Parenthood from WHP
A court ruling issued yesterday that would have stopped Texas from implementing a ban on Planned Parenthood providers in the Women’s Health Program (WHP) is now obsolete. The state quickly appealed the ruling just hours after it was announced and received a stay on the preliminary injunction the same day, giving reproductive rights advocates less than 24 hours to celebrate. Texas is now able to exclude Planned Parenthood from the life-saving WHP, shutting out tens of thousands of low-income women who rely on the clinics for basic reproductive health care.
“The ruling allows the state to fully enforce state law today and exclude abortion providers from the Women’s Health Program. As of today, abortion providers and affiliates aren’t eligible to bill the state for Women’s Health Program services,” said Health and Human Services Commissioner (HHSC) spokesperson Stephanie Goodman in an e-mail.
Yesterday’s ruling concluded that Texas’ ban on allowing Planned Parenthood providers to participate in the WHP because they affiliate with abortion services would pose “substantial and irreparable harm,” to hundreds of thousands of low-income women. It violates the provider’s First Amendment rights and ultimately fails to serve the public interest, Bush-appointed Judge Lee Yeakel ruled. In response, Attorney General Greg Abbott writes in the appeal that the state and the women of Texas who depend on the WHP would be, “irreparably harmed” because state law prohibits Texas from continuing to operate the program, “if taxpayer money must be provided to entities that affiliate with abortion-promoting entities,”– despite the fact no taxpayer money is allowed to go toward abortions and no clinic in the program actually provide abortion services.
The appeal takes sharp aim at blaming Planned Parenthood for its response. “Consequently, the district court’s preliminary injunction effectively forces Texas to choose between contravening state law and shutting down the program,” Abbott writes. “This emergency situation is of Planned Parenthood’s own making. Planned Parenthood has been on notice of the state law at the heart of this suit for months.” Similarly, Texas has been on notice by the Centers for Medicare and Medicaid which warned the state it would lose all federal funding if the rule excluding Planned Parenthood– a provider of the program since its inception some five years ago– goes into effect, but the state remained steadfast in arguing its right to exclude the clinics, in the face of federal law.
Sarah Wheat, interim CEO of Planned Parenthood Austin, is confident Yeakel’s ruling will hold if the issue sees a full trial. (A May 18 pretrial conference date to decide when a full trial will begin is scheduled, but that may change as events evolve.)
“We are disappointed in the stay granted last night, but we will be responding [later] today. We are optimistic that when the State’s motion for a stay is fully considered, the District Court’s order that Texas cannot prevent Planned Parenthood from providing cancer screenings, birth control, screenings for high blood pressure and diabetes, and STD testing as part of the Women’s Health Program will stand,” she said in a statement. “When presented with both sides, the District Court agreed the rule was likely unconstitutional, and that implementation would cause a serious problem with health care access for Texas women.”
On behalf of HHSC Commissioner Tom Suehs, Abbott filed the emergency motion to stay Monday evening in the U.S. Fifth Circuit Court of Appeals. Judge Jerry Smith– a former Harris County GOP chairman, Republican activist and oil-industry lawyer, appointed to the bench by former President Ronald Reagan– granted the stay. While an April Associated Press article describes Smith as a non-partisan figure, the judge came under fire for “disparaging comments” he reportedly made about women during his time as GOP county chairman.
A July 1987 article in the Houston Chronicle says Smith had labeled feminists as a “gaggle of outcasts, misfits and rejects” [with "perverted views”] and referred to the League of Women Voters as the “Plague of Women Voters.”
Upon retrieval of the 1987 article, The Texas Independent additionally notes Smith is also reported to have made attempts to, “get a black woman judge removed from a minority rights case.” Combined with his criticism of women, civil rights and feminist organizations “immediately questioned or spoke out against” his nomination to the 5th U.S. Circuit Court of Appeals. Linda Berg, counsel for the national office of NOW told the Houston Chronicle at the time, “He clearly is very insensitive, at least in the past he has shown himself insensitive, to minority rights and women’s rights. He has been involved in some controversial actions that upset women’s and civil rights groups in Houston.”
In January, Smith was part of the three-judge panel that upheld Texas’ controversial pre-abortion sonogram law, a move that overturned a U.S. district judge’s ruling that found the law unconstitutional. Basing the decision largely on moral grounds, Smith helped strike a preliminary injunction on the sonogram law, a ruling heralded by Gov. Rick Perry and state anti-abortion advocates. Undergoing an abortion is “a difficult and painful moral decision,” the judges concluded at the time, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude that some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.”
According to a 1996 Austin American-Statesman article retrieved via Lexis-Nexis, Smith dismissed a damage suit by a Texas mother who sued school officials in Bryan for not protecting her two middle-school age daughters from sexual harassment by boys on the school bus. The girls allegedly, “had endured nine months of repeated taunts, groping and grabbing,” while riding the bus. ”The mere existence of sexual harassment does not necessarily constitute sexual discrimination,” the Judge wrote for the Fifth Circuit Court.
Planned Parenthood is expected to file a brief later today. To read a copy of the state’s stay request, click here.