To the casual observer, Texas Attorney General Ken Paxton's argument in favor of kicking Planned Parenthood out of Medicaid may sound twisted and maybe even like something out of a gross sci-fi movie: Planned Parenthood was "trafficking in fetal body parts," he wrote. One abortion doctor was even "taking home the specimen in her cooler."
To a federal judge, however, it's nothing but hogwash.
Such have been the explosive but largely misleading allegations the state has waged against Planned Parenthood to justify defunding the health care provider. And such is the basis of Paxton's legal brief filed with the U.S. Fifth Circuit Court of Appeals on Tuesday.
To argue to the appeals court that Planned Parenthood has been illegally selling fetal tissue, Paxton and the state are still relying almost exclusively on undercover "sting" videos that two politically motivated activists filmed at Planned Parenthood Gulf Coast in Houston. The activists, from the anti-abortion group Center for Medical Progress, infiltrated the facility using fake IDs and pretended to be researchers in need of fetal tissue. (Donating fetal tissue for research purposes is legal, which Planned Parenthood last did with the University of Texas Medical Branch in 2011).
In February, U.S. District Judge Sam Sparks ruled that anyone "blessed with eight free hours" to watch the entire video would find that the conversations between the so-called researchers and the Planned Parenthood representative reveal "nothing more than confused and ambiguous dialogue, open to interpretation." Therefore, Sparks blocked the state from defunding Planned Parenthood since it had no legitimate basis to do so — the move would have deprived roughly 12,500 women of reproductive health care. Sparks wrote that the state's efforts to defund Planned Parenthood based on these videos were more akin to the efforts of fictitious villains trying to take over the world.
"A secretly recorded video, fake names, a grand jury indictment, congressional investigations — these are the building blocks of a best-selling novel rather than a case concerning the interplay of federal and state authority through the Medicaid program," he wrote. "Yet, rather than a villain plotting to take over the world, the subject of this case is the State of Texas's efforts to expel a group of health care providers from a social health care program for families and individuals with limited resources."
The Texas Health and Human Services Commission's Office of Inspector General was the single agency that reached the conclusion that PP was "selling" fetal tissue and manipulating abortion procedures to get the "best specimen." In fact, after the Harris County District Attorney's Office finished its own investigation, former Republican DA Devon Anderson announced criminal charges not against Planned Parenthood but against the two activists. They were charged with using fake IDs and — most ironically — soliciting the sale of fetal tissue. (Facing political pressure, Anderson's administration ultimately dropped the charges based on two rare technicalities not related to the merits of the case.)
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The Health and Human Services Commission inspector general, meanwhile, arrived at his conclusion to defund Planned Parenthood based on the expert opinion of his chief medical officer: an orthopedic surgeon with no experience in obstetrics and gynecology. The state admitted that he issued to PP the state's first notice of termination of the contract before he even viewed the full video, instead only watching Center for Medical Progress's cherry-picked excerpts.
"Therefore, to summarize, the Inspector General relied on an unauthenticated video and the advice of an orthopedic surgeon to conclude [Planned Parenthood] violated medical and ethical standards related to abortion procedures," Sparks wrote.
In a statement issued Tuesday, Paxton maintained that the sting videos show PP breaking the law, asking the Fifth Circuit to reverse Sparks's decision.
“Texas acted to cut off major taxpayer funding for Planned Parenthood because of its repugnant conduct,” Attorney General Paxton said. “Clear indications of Planned Parenthdood’s [sic] adjustment of abortion procedures to procure and sell fetal body parts for research should be enough to reverse a district court’s egregious ruling.”