While I know that the punditry have declared the War On Women (WoW) over, that isn’t true and it’s really gotten pretty interesting in Texas. Since we spent a full month debating religious liberty as that term relates to large employers and health insurance plans, I think it’s only fair that we look at the rights in play in Planned Parenthood versus Texas. This is the complaint Planned Parenthood filed in Texas (pdf)
Plaintiffs challenge the federal constitutionality and the state statutory authority of 1 Texas Admin. Code §§354.1361-64 (“Affiliate Rule”and“Rule”), which bars Plaintiffs–family planning providers that do not provide abortion services – from participating in Texas’s Women’s Health Program (“WHP”) because they publicly advocate to protect access to safe and legal abortion and/or affiliate with legally separate entities.
Plaintiffs seek declaratory relief because the Affiliate Rule imposes unconstitutional conditions on their eligibility to continue to participate in WHP. In particular, the Rule disqualifies Plaintiffs from eligibility to participate in WHP because of Plaintiffs’advocacy to protect access to safe and legal abortion and/or Plaintiffs’ affiliation with organizations who advocate to protect access to safe and legal abortion and/or because they area affiliated with legally separate entities that provide and advertise abortions.
The Affiliate Rule, and Tex. Hum.Res. Code §32.024(c-1)if it requires that Rule, violate Plaintiffs’ right to equal protection under the laws because it treats them differently from hospitals licensed under Texas Health and Human Safety Code Chapter 241 that perform or “promote” abortions and/or are “affiliated” with entities that perform and “promote” elective abortion as those terms are defined in the Rule without adequate basis for the differential treatment
Why is Rick Perry attacking the Constitution? This will not stand. Liberty! Unfurl your Gadsden flag, and start marching.
A lot has happened on this, and the upshot is that right now Planned Parenthood won’t be getting paid for providing health care to low income women:
A 5th Circuit judge blocked a ruling that would have let Planned Parenthoods continue participating in a Texas health care program for low-income women.
The stay, granted Monday by Circuit Judge Jerry Smith, came just after U.S. District Judge Lee Yeakel granted a preliminary injunction after he found a likelihood of irreparable harm. The organizations say the new law restricts their First Amendment right to advocate for access to abortions and associate with entities that provide the services, such as the Planned Parenthood Federation of America.
In agreeing with this position Monday, Yeakel said that “the government may not condition participation in a government program or receipt of a government benefit upon an applicant’s exercise of protected rights.”
The new rule may violate fundamental rights provided by the First Amendment, according to the 24-page order.
“By requiring plaintiffs to certify that they do not ‘promote’ elective abortions and that they do not ‘affiliate’ with entities that perform or promote elective abortions, as defined by the rule, Texas is reaching beyond the scope of the government program and penalizing plaintiffs for their protected conduct,” Yeakel wrote. Accordingly, the rule will not withstand constitutional scrutiny, unless Texas comes forth with a compelling interest to justify the rule’s existence.”
Yeakel was less supportive of the claim that the rule infringes on a 14th Amendment right to provide abortion services through legally and financially separate affiliates.
But the judge added that it would be an unconstitutional violation of equal-protection rights for the rule to exempt hospitals that provide abortion services.
We’re familiar with the Fifth Circuit judge that issued the final order:
Last month, Republican Fifth Circuit Judge Jerry Smith pitched a tantrum in open court, demanding that the Department of Justice respond to some imprecise political rhetoric by President Obama in an attempt to embarrass the president. Today, the staunch Republican judge raised further doubt about his ability to separate politics from the law by suspending a decision benefiting Planned Parenthood just hours after it was handed down by another judge.
Yesterday afternoon, a federal trial court in Texas granted a preliminary injunction preventing the state from cutting off women’s health funds to Planned Parenthood. The trial court’s opinion was written by Judge Lee Yeakel — a George W. Bush appointee — and it is 24 pages long, including substantial analysis of difficult constitutional doctrines such as the scope of the First Amendment right to free speech and the “unconstitutional conditions” doctrine. Significantly, the Bush-appointed trial judge was concerned that Texas stripped funds from Planned Parenthood because it disapproved of the organization’s advocacy in favor of women’s health — a direct attack on Planned Parenthood’s First Amendment rights if Yeakel is correct.
This morning, less than 24 hours after Yeakel handed down his decision, Judge Smith handed down a two sentence decision of his own:
IT IS ORDERED that appellant’s motion for stay pending appeal is GRANTED pending further order of this court. This order is entered by a single judge pursuant to FED. R. APP. P. 8(a)(2)(D).
Rights only matter if powerful religious groups that run giant health care entities and back conservative politicians are claiming infringement, apparently.