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Judge: TWHP can proceed without Planned Parenthood

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by Becca Aaronson

AUSTIN (THE TEXAS TRIBUNE) - A state district judge refused on Monday to grant a temporary restraining order allowing Planned Parenthood clinics to participate in the Texas Women's Health Program. The Jan. 1 launch of the program can proceed as planned, the judge ruled, until a trial challenging the state's rule excluding Planned Parenthood is held on Jan. 11.

"We are pleased the court rejected Planned Parenthood's latest attempt to skirt state law," said Lauren Bean, a spokesperson for the Texas attorney general's office, in an email. Bean said the state "will continue to defend the Texas Legislature's decision to prohibit abortion providers and their affiliates from receiving taxpayer dollars through the Women's Health Program."

In the 2011 legislative session, lawmakers passed a law requiring the Health and Human Services Commission, which ran the Women's Health Program, to ban medical providers "affiliated" with abortion providers from participating in the program. The federal government told Texas that if the so-called Affiliate Ban Rule were implemented, it would stop providing federal matching funds of $9 for every $1 in state funds. In response, Gov. Rick Perry pledged to forgo the federal funding — roughly $30 million annually — and set up a state-funded version of the program called the Texas Women's Health Program. 

Planned Parenthood sought a temporary restraining order to prevent the state from excluding their clinics from the TWHP when it replaces the Women's Health Program. They also asked the judge to stop the state from enacting a "poison pill" rule that would shut down the program down if a court allowed providers excluded under the Affiliate Ban Rule to participate. 

"It is shocking that once again Texas officials are letting politics jeopardize health care access for women. This case isn't about Planned Parenthood—it's about women like Marcy Balquinta who rely on us for basic, preventive health care," Ken S. Lambrecht, President and CEO of Planned Parenthood of Greater Texas, said in a statement. "Regardless of what happens in the courts, Planned Parenthood will be here for our patients. Our doors remain open today and always to Texas women in need. We only wish Texas politicians shared this commitment to Texas women, their health, and their wellbeing."

"I vehemently disagree with the state's efforts to blacklist a qualified provider and, thereby, interfere with a woman's right to choose her own provider," state Rep. Donna Howard, D-Austin, said in a statement before the judge's ruling. "I will be submitting a letter to the Texas Health and Human Services Commission, requesting a list of approved providers to gauge the outreach of the new program and ensure that all qualified women throughout the state have access to its services."

Pete Schenkkan, a lawyer representing Planned Parenthood, maintained that because 48,000 of the 110,000 women participating in the program currently receive services from Planned Parenthood clinics, excluding the organization's affiliates from would drastically affect women's access to health services.

"In many rural areas, small towns and the poorer areas of the biggest cities, the Planned Parenthood clinic is either the only provider of such services or provides the vast majority," Schenkkan told reporters after last Friday's hearing. He said that patients would have to travel greater distances, wait weeks for an available appointment or attempt to self-pay for services from the provider of their choice, Planned Parenthood, if those clinics were excluded.

Some Planned Parenthood clinics — potentially three of four clinics in Hidalgo County, for example — would be forced to close immediately if they were not allowed to participate, he said, because the majority of their patients are enrolled in the Women's Health Program. All Planned Parenthood clinics would have to begin charging for services currently provided to poor women for free, he said.

"That would cause many of these women not to seek care at all," or attempt to pay for services out of pocket, Schenkkan argued in court. "Some of those women will die. Others will suffer devastating impacts to their health."

The new state program will provide contraception, cancer screenings and other services provided through the previous program at the same reimbursement rates for roughly 110,000 women who would be eligible for Medicaid if they became pregnant. But the TWHP will be funded only with state money and will be run by a different state agency, the Department of State Health Services, rather than HHSC, which runs Texas Medicaid and the Women's Health Program.

"The law is that if a program changes its funding source and is redressed under different rules, it's a different program," said Kristofer Monson, the state's lawyer. He told the judge on Friday that patients would retain the same rights under the TWHP, but because it is funded by the state, Texas is allowed to dictate which providers are eligible to participate.

"Nothing changes for her, other than she has to find a new doctor," said Monson. "She was never guaranteed the right to choose the specific doctor that she chose, only the right to choose a facility that is qualified to participate in the program."

Monday's ruling is the latest in a series of court proceedings that have delayed and complicated the implementation of the Affiliate Ban Rule and the Texas Women's Health Program. Planned Parenthood originally challenged the constitutionality of the Affiliate Ban Rule, arguing that it prohibited women from going to their provider of choice. But in October, a three-judge panel of the 5th Circuit Court of Appeals denied that claim and set the stage for the state to move forward with its plan to launch the successor program on Nov. 1.

A few days after that ruling, a Travis County district court judge issued a temporary restraining order requiring the state to continue the existing program until it could be determined whether state law made the Affiliate Ban Rule inoperative, because it caused the state to lose federal funding for the program. The state successfully appealed that injunction and, again, began moving forward on its plan to implement the Texas Women's Health Program without Planned Parenthood providers.

But the state did not forgo its fight to continue receiving federal money to support the program. In December, the state attempted — but failed — to receive an injunction to stop the federal government from cutting off funding for the Women's Health Program on Dec.31. 

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