Texas’s Rule Prohibiting Access to Preventative Services for Thousands of Women Ruled Constitutional
This August, in Planned Parenthood Ass’n of Hidalgo County Texas, Inc. v. Suehs, the Fifth Circuit held that it is constitutional for Texas to deny Texas Women’s Healthcare Program (WHP) funds from organizations performing elective abortions and from organizations that promote elective abortions through identifying marks. The court reasoned that Texas’ restrictions on the breadth of the WHP and on identifying marks were valid and functioned as a direct regulation of a state program. The restriction on identifying marks was considered by the court to be a limit on promoting elective abortions and was lawful as a direct regulation of speech.
This question of Texas’ ability to regulate family planning clinics arose when the Republican-led Texas Legislature passed a law restricting funds to organizations linked to elective? abortion providers. The March 14, 2012 rule states that WHP providers “must certify that they do not perform or affiliate with an entity that performs or promotes elective abortions.” By withholding funding from organizations like Planned Parenthood that provide other services such as cancer screening, birth control, and gynecological exams, Texas is preventing women from obtaining necessary preventative services.
In Texas, Planned Parenthood provides family planning services, but not abortions, to approximately half of the 130,000 low-income Texas women enrolled in the program. This was primarily designed to give services to women who might not qualify for Medicaid. However, Texas uses the guise of state regulation of speech to prevent clinics, like Planned Parenthood, that are even simply affiliated with other organizations that perform abortions from obtaining WHP funding.
Apparently an attempt to skirt the actual issue underlying this case, the Fifth Circuit specifically stated in dicta that “the right to obtain an abortion and any accompanying right to perform an abortion are not at issue in this appeal.” Instead, the court provided Texas with a loophole around Roe v. Wade by addressing this situation as a free speech issue. The rights empowering women from Roe v. Wade have been severely diminished by Texas’s limitation of access to family planning services for its citizens by prohibiting WHP funding to clinics such as Planned Parenthood.
According to Medicare and Medicaid Centers , the new Texas rule violates federal law. As a result, federal officials are phasing out support for the program that federal funds once paid for 90 percent, or about $35 million, of the $40 Million Women’s Health Program. Also, the eight Planned Parenthood clinics suing Texas could lose $13 million per year. According to a poll in March, fifty-nine percent of Texan voters opposed the new rule, showing that the rule lacks report from a majority of Texans. Now, the question is where does that leave thousands of women in Texas who need basic preventative services? The Fifth Circuit has left many questions open-ended as the district court is now required to “reconsider the constitutionality of the restriction on affiliating with entities that perform elective abortions, specifically the prongs defining affiliation based on franchise and common ownership, management, or control.” Additionally, the Fifth Circuit restricted its analysis to the scope of free speech, leaving the possibility open to invalidate Texas’ new law on other grounds. For now, thousands of women in Texas will have to seek preventative services elsewhere, if they can even afford them now.
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Planned Parenthood Ass’n of Hidalgo County Texas, Inc. v. Suehs, 692 F.3d 343 (5th Cir. 2012).
Will Weissert, Texas Can Cut Planned Parenthood Funds, Rules Federal Court, Huffington Post (Aug. 22, 2012, 3:36 AM), http://www.huffingtonpost.com/2012/08/22/texas-planned-parenthood-court_n_1821090.html.
Amanda Peterson Beadle, Obama Administration Ends Medicaid Funding for Texas Women’s Health Program, Think Progress (Mar. 16, 2012, 9:01 AM), http://thinkprogress.org/health/2012/03/16/445894/funding-cut-for-texas-womens-health-program/.
Will Weissert, Texas Planned Parenthood Hearing Gets Emotional, Huffington Post (Sep. 4, 2012, 7:19 PM), http://www.huffingtonpost.com/2012/09/04/texas-planned-parenthood_n_1856057.html.
Corrie MacLagan, Appeals Court Rules Texas can cut off Planned Parenthood Funding, Reuters (Aug. 21, 2012, 9:16 PM), http://www.reuters.com/article/2012/08/22/us-abortion-plannedparenthood-texas-idUSBRE87K19420120822
Family Planning Associates of San Antonio, Medicaid Women’s Health Program, http://www.plannedparenthood.org/familyplanningofsa/medicaid-womens-health-program-32160.htm.
Texas Health and Human Services Commission, Texas Women’s Health Program Information for Providers, http://www.hhsc.state.tx.us/WomensHealth/provider-information.shtml.
This is a really interesting topic that highlights the way courts have framed and responded to legal issues surrounding women’s health and reproductive rights. In Suehs, the 5th Circuit Court responded to the legal issues by framing it as a “free speech” issue. In the past, the Supreme Court has responded to reproductive issues and the right to abortion as a “privacy” issue. While the Supreme Court ultimately held that women have a right to decide whether or not to have an abortion, having done so based on the reasoning that women have a right to privacy, this holding doesn’t seem to go far enough. The right to choose whether to have an abortion seems to be an equal protection issue. Under the equal protection clause, women should have the right to decide the course of their future just like every other citizen. Women’s health is different from men’s health and requires different types of services. Under the equal protection clause, women should have the freedom to make sound decisions regarding their health. Courts, such as the 5th Circuit Court, should try to address these issues in cases where women’s health issues arise instead of framing them in a way that allows them to skirt the issue.