Originally published by The 19th.
Planned Parenthood Federation of America and Texas Planned Parenthood affiliates have asked a judge for a ruling in their favor in a lawsuit brought by the state of Texas that accused Planned Parenthood of Medicaid fraud.
The suit was filed in January 2022 by Texas Attorney General Ken Paxton, but the situation goes back to 2016, when the state of Texas barred Planned Parenthood from participating in its Medicaid program. If the judge does not rule in favor of either party, the case will most likely move to a jury trial this spring. The lawsuit is one of a number of moves made by states that could limit or prevent providers from practicing, even as state legislatures restrict access to abortion in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization leaving legality up to the states.
In Indiana, Attorney General Todd Rokita filed a complaint with the state medical board against abortion provider Dr. Caitlin Bernard. Bernard first entered national headlines after performing a legal abortion on a 10-year-old who had traveled to Indiana from Ohio for an abortion that she could not receive in her home state. Rokita initially claimed that Bernard failed to properly report this abortion, though documents reviewed by The 19th confirmed that she had. Rokita’s office, in its complaint to the medical board, said Bernard did not protect the privacy of her minor patient.
“Instead, she violated her sacred oath of confidentiality by intentionally exposing her 10-year-old patient’s trauma to the media, all for the sake of furthering her political views,” Rokita said in an emailed statement. Bernard’s first hearing before the Indiana Medical Review Board is scheduled for next month. She has denied all wrongdoing.
“Dobbs now makes abortion providers and reproductive health providers generally more vulnerable, politically and legally. But that also means that people are paying attention,” Elizabeth Sepper, a professor at the University of Texas Law School who specializes in health law and religious liberty, told The 19th.
Sepper said that while a number of states have made efforts to exclude Planned Parenthood from Medicaid programs and individual abortion providers have long found themselves subject to a myriad of intense bureaucratic regulation and compliance requirements, the climate is now “more hostile” — which means that the tone and tenor of actions taken against networks of clinics and individual providers alike is too.
A request for comment on the merits of the suit from Paxton’s office had not received a reply by the time of publication.
The latest move by Planned Parenthood in the Texas case came late Friday, just before a deadline to respond. In January 2022, the state of Texas and an anonymous plaintiff sued Planned Parenthood’s national office and the three Planned Parenthood affiliates in Texas, alleging that Planned Parenthood was not entitled to keep certain Medicaid reimbursements. When those reimbursements were received, court orders allowed Planned Parenthood to participate in the state program; that ended in 2021. Plaintiffs are suing the three Texas Planned Parenthood affiliates not only for the approximately $17 million they received in Medicaid reimbursements but for over $1 billion in additional penalties and damages. The state’s deadline to respond to Planned Parenthood’s new filing for a summary judgment is January 27, and Planned Parenthood’s reply brief to the state is due on February 10. If the judge in the suit does not issue an immediate ruling on the case, it will most likely move to a jury trial this spring.
Laura Terrill, CEO of Planned Parenthood of South Texas, said the lawsuit is “the latest political attack” by Texas officials.
“This is about controlling people’s bodies and lives. It is not enough here in Texas to simply ban abortion, but now the state is shutting down health care providers and preventing them from meeting the health care needs of Texans,” Terrill said.
Terrill called the Texas case meritless and part of a relentless strategy to limit access to health care by targeting providers seen not just in Texas, but nationwide in states already hostile to reproductive health care.
Nicole Huberfeld, the Edward R. Utley Professor in Health Law at Boston University’s School of Law, said anti-abortion politicians are “emboldened” by the Dobbs decision.
“Attorney generals are political actors, and some believe they can be reelected based on being aggressive in prosecuting abortion cases,” she said.
While prosecuting doctors is not generally politically popular, she said, it can scare other providers. In this way, the situation in Texas with Planned Parenthood is not dissimilar to what is happening with Bernard, she said. “I see this as harassment litigation — it appears to have no other purpose. A judge should consider it frivolous, but that may not occur with sympathetic courts,” she said of the Texas suit. “Such strategies could have a chilling effect on health care providers, who tend to be risk-averse.”
Physicians and nurses are already worried about the restrictions by states and how they could impact their ability to provide care.
“When I speak with physicians, they are terrified that they will lose their license when they provide care that is consistent with the standard of care in a given situation — and that means they will slow down when they make medical decisions, which can jeopardize patient health and safety,” Huberfeld said. “Clinicians tend to be conservative in terms of not wanting to take risks, and they are afraid that practicing to the standard of care will jeopardize their patients and their ability to practice.”
Sepper said that what is happening in Indiana and Texas could send a message to providers that family planning generally is in danger — causing OB-GYNs to want to disassociate themselves from abortion providers and the topic of abortion altogether. This kind of reaction, she said, “would come at a particularly inopportune moment because we do need doctors to get a backbone and to speak about what they are seeing as OB-GYNs and about how important abortion access is to pregnant people.”
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