In a stunning legal decision with national implications in the fight to end abortion, the 5th U.S. Circuit Court of Appeals in New Orleans, in an 11-5 decision, upheld the right of the state of Texas to defund Planned Parenthood from the state’s Medicaid program for violating state and federal laws. The state’s action was a direct result of the 2015 undercover videos by David Daleiden and the Center for Medical Progress which allegedly showed employees of several Planned Parenthood affiliates, including one in Texas, disobeying state and federal laws regarding the procurement of fetal tissue for research via abortions.

Not only did the 16 available judges of the 5th Circuit, in what is called an en banc decision, overrule their own three-judge panel decision in the Texas case, but they also overruled another three-judge panel decision from a 2015 case out of Louisiana which also dealt with the attempted defunding of Planned Parenthood because of the Daleiden videos. In the 2015 Louisiana case, an attempt to have the en banc court review the decision failed in a 7-7 tie vote, which allowed the three-judge panel decision that blocked that state’s attempt to defund Planned Parenthood, to stand.

Since that time, however, the makeup of the 5th Circuit has changed due to the appointment of six constitutionalist judges by President Donald Trump, and those appointments made a difference this time around.

In the Texas case, a number of Planned Parenthood clinics plus several individuals sued the state over its administrative finding that Planned Parenthood could no longer be considered a “qualified” Medicaid provider because of its conduct revealed in the Daleiden videos. Planned Parenthood chose not to participate in the administrative process, but then sued the state directly afterwards, along with the individual plaintiffs.

The federal district court judge who first heard the case issued a preliminary injunction on behalf of those individual plaintiffs, which effectively blocked the Texas action. It was that preliminary injunction ruling that made its way to the 5th Circuit, where it was originally upheld by a three-judge panel.

But then the full 5th Circuit voted to re-visit the ruling of the three-judge panel. That’s usually a sign that a majority of the judges think that the panel ruled incorrectly. And that’s exactly what happened here.

The precise issue on which the 5th Circuit ruled is the question whether those individual plaintiffs have the right to sue Texas under the federal Medicaid statute. The en banc ruling says they do not.

Texas Attorney General Ken Paxton issued a statement celebrating the 5th Circuit en banc decision.

“The Fifth Circuit correctly rejected Planned Parenthood’s efforts to prevent Texas from excluding them from the state’s Medicaid program,” Paxton said. “Undercover video plainly showed Planned Parenthood admitting to morally bankrupt and unlawful conduct, including violations of federal law by manipulating the timing and methods of abortions to obtain fetal tissue for their own research. Planned Parenthood is not a ‘qualified’ provider under the Medicaid Act, and it should not receive public funding through the Medicaid program.” 

Planned Parenthood Federation of America’s President and CEO, Alexis McGill Johnson denounced the 5th Circuit decision in a news release.

“Make no mistake — forcing Planned Parenthood out of the Texas Medicaid program would have a devastating impact on Texans,” McGill Johnson stated. “And Gov. Abbott knows exactly who he’s hurting — people of color, women, and people with low incomes. Let’s be clear — patients should be able to go to the provider they know and trust regardless of their zip code and income level. Accountability is coming, and we will fight back against any politician who doesn’t prioritize expanding accessible, affordable quality health care.”

The ruling could be appealed to the U.S. Supreme Court. There is a “circuit split” – i.e., a divergence of opinion – among the federal circuit courts of appeal on the legal question of the rights of individuals to sue a state for its determination of who is a “qualified” Medicaid provider.  Such a split typically ends up with the justices on the nation’s high court who must resolve the question. If the justices see things as the 5th Circuit has, it will be that much easier for states who wish to defund Planned Parenthood to do so.

The bulk of Planned Parenthood’s approximately six hundred million dollars in taxpayer funds it receives annually in the U.S. comes from Medicaid reimbursements. That’s why this 5th Circuit decision is so important.

The case is Planned Parenthood v. Kauffman.

Photo from Ken Wolter /