Author Archive

Texas abortion drug bill could mean more side effects and higher costs

Posted on: December 20th, 2012 by Mary Tuma 1 Comment

A GOP lawmaker is looking to make Texas the latest state to restrict the use of abortion medications in a way that some experts warn could increase the drugs’ side effects while making them more expensive. (more…)

Texas lawmaker seeks to reverse Planned Parenthood ban

Posted on: November 16th, 2012 by Mary Tuma 6 Comments

A Texas lawmaker introduced legislation earlier this week that would nullify a controversial rule banning abortion affiliates from participating in a Medicaid program that offers reproductive health care to low-income women. (more…)

Texas health commissioner: database errors are a ‘real problem’

Posted on: November 1st, 2012 by Mary Tuma No Comments

Texas Health and Human Services Executive Commissioner Kyle Janek. Photo via the Texas Health and Human Services Commission.

Texas health commissioner Kyle Janek said Wednesday that errors in a state-crafted database intended to help women find reproductive health care providers are “a real problem.” (more…)

‘Why are they making this more difficult for us?’

Posted on: October 29th, 2012 by Mary Tuma 4 Comments

Crystal Gonzalez sits in a McAllen, Texas, coffee shop while searching for a new health care provider. Photo by Mary Tuma.

When Texas decided to exclude Planned Parenthood clinics from its Medicaid-funded women’s health care program, women like Crystal Gonzalez were left scrambling for a new provider. (more…)

STUDY: Family planning cuts in Texas force clinic closures

Posted on: September 27th, 2012 by Mary Tuma 5 Comments

{link url=

Deep slashes to family planning funds made during Texas’ last legislative session have caused 53 clinics that provide family planning services to shutter their doors, according to a new article in the New England Journal of Medicine.

Additionally, 38 clinics reduced their hours, and many of the existing clinics have been forced to lay off staff and cut back basic services as a result of “the most radical” legislative effort to curb reproductive health funding in the nation, the study finds. (more…)

Citing “important precedent” neglected by state officials, three judge panel temporarily reinstates Planned Parenthood in WHP

Posted on: May 8th, 2012 by Mary Tuma 3 Comments

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.

(Photo Source: Flickr/WeNews)

Judge with history of disparaging women stays state appeal to exclude Planned Parenthood from WHP

Posted on: May 1st, 2012 by Mary Tuma 3 Comments

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.

Hours after federal judge blocks Texas’ Planned Parenthood ban, state files appeal

Posted on: May 1st, 2012 by Mary Tuma No Comments

Just hours after a federal judge ruled against Texas’ controversial decision to bar Planned Parenthood clinics from the vital Medicaid-based Women’s Health Program (WHP), Texas officials were quick to call for an appeal of the temporary injunction, adding another hurdle in the ongoing tug of war over basic reproductive health care.

Planned Parenthood affiliates filed suit in early April to contest the state’s enforcement of a rule prohibiting the clinics from taking part in the WHP because they provide abortions, despite the fact abortion services are not paid for by WHP and can’t legally be subsidized by federal or state funds. The suit challenges the state’s decision as “unconstitutional” under the First and Fourteenth Amendments and argues that women should be allowed to choose their health care provider without state interference. It also claims that the Health and Human Services Commission’s (HHSC) regulation violates Texas law, as it conflicts with the intention of the statutes that created the program.

In his Monday ruling, U.S. District Judge Lee Yeakel – appointed to the bench by George W. Bush in 2003– found that Texas is not allowed to exclude the centers from the federal program, as they collectively provide a “critical component” of the WHP. Doing so would likely be unconstitutional, Yeakel argued, since Texas is basing Planned Parenthood’s participation in the program on their abortion affiliation, services which are maintained as financially and legally separate and are constitutionally protected operations.

Shutting nearly 50 Planned Parenthood centers out of the WHP– a program that provides basic reproductive health care like birth control, cervical cancer and STD screenings to uninsured low-income women– would cause “substantial and irreparable harm” as clinics would be forced to close, lay off staff and reduce operating budgets, wrote Yeakel. And the damage isn’t limited to WHP patients, he wrote– if clinics are forced to close their doors or reduce hours, tens of thousands of other clients would be turned away, as well.

The exclusion would result in a “significant reduction in funding family-planning services” and deprive hundreds of thousands of women basic access to health care, especially in rural areas, the court noted, pointing to already beleaguered clinics in North and West Texas, Lubbock and Hidalgo County. The assurance by state health officials that they will find replacement providers for displaced rural women who rely on Planned Parenthood–an issue previously reported on by the Texas Independent–came under scrutiny by the judge.

“The court is unconvinced that Texas will be able to find substitute providers for these women in the immediate future, despite its stated intention to do so,” wrote Yeakel.

It is in the public interest to allow Planned Parenthood providers to continue their services within the WHP, he found.  The judge also expressed little faith in Texas’ ability to recoup the $35-40 million in federal funds lost due to its decision to cut Planned Parenthood out of the mix of providers.

“Although the Governor has instructed that the program is to continue fully funded by Texas, the current record gives the court no comfort that funds are or will be available to continue the program after the phase out of federal funds,” Yeakel wrote in his conclusion.

Patricio Gonzales, who heads Planned Parenthood Association of Hidalgo County– a poverty-stricken border area hit hard by budget cuts and bracing for additional slashes– called on Governor Rick Perry and the state to prioritize women and “set aside any vendetta they may have against Planned Parenthood.”

“No woman should ever have to fear being cut off from her doctor’s care because of shortsighted political games,” said Gonzales in a statement. “Legal action is always a last resort, but the state and Governor Perry’s actions gave us no other option. The health and well-being of our patients is our number-one priority. We hope that this decision will allow us to continue our lifesaving work of providing high-quality health care and cancer screenings to some of Texas’ most vulnerable women.”

In his concluding remarks, Yeakel stressed the ruling was not definite. A “thorough airing of the issue by trial” remains necessary. If the federal funds are phased out and Texas fails to salvage the program, the judge admitted the ruling “may be of no consequence.” A conference date to determine when the full trial will begin is scheduled for May 18.

Not wasting any time, Texas Attorney General Greg Abbott on behalf of HHSC Commissioner Tom Suehs responded by issuing an appeal in the hours following the ruling.

How Gov. Perry and state health officials will create a wholly Texas-run WHP program and come up with the millions in federal funds forgone because of their decision, and whether the program will continue at all are equally questionable at this point. Some fear the state will dismantle the program, as officials have publicly vowed to do if Planned Parenthood won the suit, according to the San Antonio Express-News earlier this month. HHSC says it will follow the ruling for now, but seems determined to stick by what officials view as a state’s rights issue.

“We received the judge’s order and will comply with the ruling, but we remain confident that federal law gives states the right to establish criteria for Medicaid providers,” said HHSC spokesperson Stephanie Goodman in an e-mail response.

When asked if cutting the life-saving Medicaid program altogether was still an option on the table now that the temporary injunction has been granted, Goodman said the department is in talks with the AG’s office to determine their next steps.

“We’ll need to carefully review the ruling and consult with the Attorney General’s Office before we make any decisions on the program’s future. One of things we’ll be looking at is whether the judge’s ruling allows for the creation of a state-funded program that excludes abortion providers and affiliates,” she said. “We remain committed to ensuring that the program ultimately complies with state law.”

In a statement released after the ruling, Perry spokesperson Catherine Frazier responded similarly.

“Texas has a long history of protecting life, and we are confident in Attorney General Abbott’s appeal to defend the will of Texans and our state law, which prohibits taxpayer funds from supporting abortion providers and affiliates in the Women’s Health Program,” she said. “We will continue to work with the Attorney General to pursue all available legal options.”

Perry and state officials argue their ability to block Planned Parenthood from the program is constitutionally sound under state law and have attacked the Obama administration’s “pro-abortion agenda” for disallowing their rule, despite a comparable block by the health administration under former President Bush, the Texas Independent reported. The ban is said to run counter to federal Social Security law and is therefore prohibited.

Planned Parenthood says it is keeping an eye on the state’s next move. For them, Texas’ speedy appeal is a sign that the fight is far from over.

“The state has given us every indication that they would end the program entirely,” said Planned Parenthood representative Erica Prosser. “We are waiting and watching to see what they do next.”

A copy of the preliminary injunction ruling can be read here. A copy of the state’s appeal can be read here.

(Photo Source: Flickr/WeNews)