Citing a series of undercover videos an antiabortion group released this summer, Gov. Greg Abbott on Monday announced that Texas would kick Planned Parenthood out of the state’s Medicaid program entirely. On Monday, Planned Parenthood Gulf Coast in Houston got a letter from state health officials claiming those videos proved “you and your Planned Parenthood affiliates are no longer capable of performing medical services in a professionally competent, safe, legal, and ethical manner.”
The move should come as no surprise, seeing as how Texas has, in effect, become the epicenter of the fight against reproductive rights. Again.
After all, the U.S. Supreme Court ruling in Roe v. Wade, the 1973 case that legalized abortion across the country and protected it as a woman’s constitutional right, overturned a Texas abortion law. It’s the landmark decision that a series of high court cases that followed all cite as precedent in telling states how they can or can’t place restrictions on abortion providers.
The basic rule that’s emerged from that body of law is this: Lawmakers can place restrictions on abortion providers only if those laws are 1) “reasonably related” to a “legitimate state interest,” and 2) don’t place an “undue burden” on a woman’s right to choose. And House Bill 2, the law the Texas Legislature passed in 2013 despite Wendy Davis’s midnight filibuster, could very well redefine what constitutes an unconstitutional burden on a woman’s right to choose, according to abortion providers and reproductive rights advocates.
The final provision of the law, which the U.S. Supreme Court hasn’t yet decided on, requires abortion clinics to dump as much as $1.5 million into building improvements and upgrades in order to meet the hospital-like operating standards of an ambulatory surgical center (an expense all but eight of the state’s remaining 22 abortion clinics say would force them to close). Abortion providers challenging the law point to the fact that if HB2 is fully implemented, nearly 1 million women of reproductive age will live more than 150 miles away from an abortion provider — about one in six women.
In his ruling last year calling the law unconstitutional, federal District Court Judge Lee Yeakel said restricting clinics to that degree in a state the size of Texas effectively creates a de facto barrier to abortion for some women, particularly those who are poor or living in rural areas or the state’s border region.
The U.S. Fifth Circuit Court of Appeals, which is probably the country’s most conservative federal appeals court, even conceded, “We do not doubt that women in poverty face greater difficulties” under the law. But the appeals court ruled that HB2 doesn’t harm “at least a large fraction of women” — 900,000 women are apparently not a “large” enough “fraction” for the Fifth Circuit judges.
And the case against HB2 could redefine not just what constitutes an “undue burden” on women’s right to choose, but also what it means for lawmakers to have a “legitimate state interest” in placing restrictions on abortion providers. Texas lawmakers have said HB2 was written solely to safeguard women’s health, that the “legislative intent” of a bunch of die-hard, vehemently anti-abortion lawmakers was not to curtail abortion access — even though they were often warned, and at times even admitted, that that’s exactly what was going to happen.
Yet, as Judge Yeakel put it, there’s a “dearth of credible evidence” that the ambulatory surgical center requirements in any way make women healthier. In fact, just earlier this month, researchers warned that the law, if fully implemented, could endanger more women who do manage to obtain an abortion, due to a spike in wait times at those clinics left standing that could lead to a dramatic increase in second-trimester abortions, which carry a higher risk of complications than when the procedure is done early.
At this point, the Supreme Court could grant Texas’s request to dismiss the case and let HB2 stand. But many are betting the Supremes will weigh in. Charles Rhodes, who teaches constitutional law at the South Texas College of Law, told us earlier this year when the Fifth Circuit upheld Texas’s law that HB2 appears to be just the right case at just the right time for consideration by the high court.
“If the Supreme Court doesn’t take the Texas case, it’s going to have to take on something like it in short order, because there’s just too much uncertainty about which types of abortion restrictions are constitutional, which ones aren’t and what are the evidentiary hurdles that challengers have to meet,” Rhodes said. Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, one of the plaintiffs in the legal challenge to HB2, says the stakes are incredibly high. Here’s how she put it when we spoke to her earlier this year: “Does Roe apply for everybody or just for some people?”
So in this climate, it should shock no one when Texas health officials boot Planned Parenthood’s family planning clinics, which don’t provide abortions, from the state’s joint federal-state Medicaid program with little explanation. That is, except for citing the undercover “sting” videos as if they are undisputed evidence of guilt, which they are not. For instance, forensic analysts who have reviewed the videos say there’s evidence they were deceptively edited and “do not represent a complete or accurate record of the events they purport to depict.”
There are still ongoing state and local investigations into Planned Parenthood, ostensibly to determine whether, as the videos’ producers claim, the organization profited off fetal tissue donation. Harris County District Attorney Devon Anderson’s office last week confirmed that its own investigation into the group is still pending, though her office would provide virtually no information on what, exactly, they’re investigating. (Some have questioned whether the antiabortion activists, who appear to have used fake IDs to surreptitiously gain access to private medical facilities, broke the law in making the sting videos in the first place.)
The thing is, when it comes to banning Planned Parenthood, we’ve been down this road before. In 2012 Texas kicked Planned Parenthood’s family planning clinics (which, again, do not provide abortions) out of the Women’s Health Program, a widely successful Medicaid waiver program that provided basic health care for Texas’s poor and uninsured women, simply because they were an “affiliate” of an abortion provider.
Texas didn’t much care that officials with the federal Centers for Medicare and Medicaid Services said that longstanding federal law precluded the state from arbitrarily kicking a medical provider out of the program, not even when the feds threatened to pull funding from the program, $9 to every $1 Texas chipped in.
In the end, the state lost nearly $40 million in annual federal funding for women’s health care. Texas then struggled to set up its own program with its own money, but the state’s own numbers have indicated that Texas serves thousands fewer clients after Planned Parenthood, which at one time served nearly half of all women enrolled in the Medicaid waiver program, was excluded as a provider.
It’s not yet clear what, if anything, the feds might do because of Texas’s latest shot at Planned Parenthood. If recent history is any guide, CMS doesn’t appear to take kindly to states meddling with Medicaid beneficiaries’ access to care. And of course there’s almost certainly a lawsuit on the way. Literally the same day Texas announced it was defunding Planned Parenthood, a federal judge blocked Louisiana from doing that very same thing.
Whether a Texas judge might do the same is unclear. It’s also unclear if Abbott, like his predecessor, Rick Perry, would ask that Texas forgo federal money if CMS threatens to withhold any funding as it did in 2012.
Still, Monday’s announcement is a clear sign that Texas is still a leader in the war on reproductive rights.
The next landmark abortion case, one that could literally redefine whether the procedure is unobtainable for women on a lower rung of the socioeconomic ladder, could very likely be centered on restrictions passed by the Texas Legislature.
It’s the same Legislature that, as a whole, is so antiabortion that state health officials just assume lawmakers want them to ban anyone with even the slightest connection to an abortion provider from participating in the state’s Abstinence Education Program. As we found out last week, organizations are now banned from receiving state money to tell kids not to have sex if they operate within 1,000 feet of an abortion provider or have a name that is at all similar to that of any abortion provider, affiliate or “any entity that engages in pro-abortion advocacy.” Lawmakers didn’t even have to tell state health officials to do this. As Health and Human Services Commission spokesman Bryan Black told the Texas Tribune last week, “We see a clear legislative directive of shifting state resources away from Planned Parenthood and other abortion providers.”
And it’s the same state that wants to ban Planned Parenthood from providing any services under Medicaid, even though it took that gamble three years ago and lost.
This article appears in Oct 22-28, 2015.