After a tumultuous week for the fate of reproductive care in Texas, Planned Parenthood will remain in the Women’s Health Program (WHP)– at least for now.

Just hours after an initial federal court ruling last Monday that deemed Texas’ controversial decision to block the centers from the WHP unconstitutional, a single judge quickly reversed the temporary injunction in a move being called “very rare” and “highly unusual.” The legal battle took another twist two days later when a three-judge appeals panel struck that order down and reinstated Planned Parenthood into the program, pending oral arguments and eventually a full trial.

In its May 4 briefing, the Fifth Circuit Court of Appeals panel–which includes the judge who granted the state’s emergency stay–slammed Texas for continually omitting “important precedent” in its attempt to enforce the ban. While the state is fighting to keep Planned Parenthood from participating in the federally subsidized low-income reproductive health services program because it provides abortions, the panel noted a significant 2007 Fifth Circuit case that makes clear Planned Parenthood abortion services operate as wholly separate operations from family planning services and is thus able to receive public funding– a case never mentioned by Texas officials in their court proceedings.

Our conclusion rests in part on the state’s continuing reluctance to address the obviously relevant opinion in [Planned Parenthood of Central Texas vs Sanchez]. 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. Nor has the state sought leave to supplement its submission with a response to Sanchez the plaintiffs’ focus on the affidavit referred to above.

Blake Rocap, legislative counsel with reproductive rights advocacy group NARAL Pro-Choice Texas says the state’s refusal to take Sanchez into account is significant and ushers in further criticism that the legal battle is fueled by ideology rather than concern for women’s health.

“The three-judge panel commented on the Attorney General’s failure to address this specific and relevant precedent in their briefing– another indication that this is not about upholding law or women’s access to health care but is much more about politics,” said Rocap.

Echoing plaintiff concerns, the panel also called into question the state’s need for an emergency stay to reverse the initial court ruling. Requested by Attorney General Greg Abbott, the stay was granted within 24 hours by Judge Jerry Smith, a former GOP county chair and Republican activist with a controversial history of disparaging women, the Texas Independent previously reported. The urgency of the stay relied on the claim that preventing the ban would force Texas to cease operating the WHP  “upon termination of federal funding.” But funding will continue until November 2012, the briefing points out, invalidating the state’s argument.

This supplemental filing undermines the State’s assertion of irreparable harm if the injunction is not stayed pending appeal. Regarding the balance of the merits, we cannot conclude, on the present state of the record, that the State has shown a great likelihood, approaching a near certainty, that the district court abused its discretion in entering the injunction.

An ‘emergency stay’ is normally reserved for situations that would cause irreparable harm, says Wayne Krause-Wang, legal director with the Texas Civil Rights Project. The cases must qualify as exceptional circumstances with severe time constraints– the state’s claim for such an emergency is questionable, he argues, considering its lack of proof of damage.

“It was certainly a tactic within the ability of the state of Texas to pursue,” said Krause-Wang. “It makes sense to apply for an emergency stay if you have the evidence to back it up, in this case it didn’t appear the state had the evidence, and that’s what the three judge panel ended up ruling at the end.”

“In retrospect the state’s argument of irreparable harm doesn’t seem to be viable. Ironically, it is a little disingenuous to say the state would be harmed by their own voluntary decision to cut off the Women’s Health Program, I think that’s turning the argument on its head,” he added.

Rocap called the emergency order “especially duplicitous.”

“Planned Parenthood has served as the largest provider of these services in the WHP since 2005 without incident, yet these anti-choice politicians are now declaring that it is an “Emergency” to exclude them because they exercise their First Amendment rights to affiliate with advocates of safe legal abortion,”  he said. “Given no injury has been shown over the past seven years of Planned Parenthood’s participation, it is clear that the true emergency is that this is an election year and again we are seeing politicians put the health of their political careers ahead of the health of women.”

The Health and Human Services Commission (HHSC), which days earlier indicated it would shut out Planned Parenthood, is now prohibited from enforcing the ban. The district court will decide on a definitive trial start date on May 18. The Fifth Circuit Court of Appeals will hear oral arguments on the state’s appeal of the temporary injunction during the week of June 4.

“We will comply with the court’s order as the case proceeds,” said HHSC spokesperson Stephanie Goodman. “We also will continue to work toward a state program that provides women with access to vital family planning services and complies with the law that bans abortion providers from getting those funds.”

Read the court of appeals document here.

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