AUSTIN, Texas — A federal appeals judge stepped into the fight over the Texas Women's Health Program on Tuesday, saying he wanted to hear arguments on whether the state should be prevented from enforcing a law that bans Planned Parenthood from participating in the program.
Less than 24 hours after a federal judge in Austin ordered Texas not to enforce a rule banning clinics associated with abortion providers from receiving state funds, Fifth Circuit Appeals Judge Jerry Smith granted Texas an emergency stay lifting the Austin court's order.
"We are disappointed in the stay granted last night," said Sarah Wheat, interim CEO of Planned Parenthood of Austin Family Planning. "When presented with both sides, the District Court agreed the rule was likely unconstitutional, and that implementation would cause a serious problem with health care access for Texas women."
Stephanie Goodman, spokeswoman for the Texas Department of Health and Human Services said Tuesday that the order allows the agency to exclude the clinics from the program effective today. She said women having trouble locating a health care provider should contact the agency.
In court papers, the state's attorneys argued that the state may ban groups from the Women's Health Program that don't agree with the state's policies.
"Although Planned Parenthood shares some of the program's goals – such as promoting women's health and reducing unwanted pregnancies – it also contravenes the very purpose of the program by actively promoting elective abortion," the attorneys said. "Planned Parenthood and its affiliates have every right to hold that belief and advocate for elective abortion, but they are not entitled to receive taxpayer subsidies from a government program that is designed to encourage preventative birth control and discourage abortion."
Planned Parenthood replied to that argument Tuesday afternoon, saying that the organization and its employees should not have to give up their constitutional rights to free speech and freedom of association to qualify as health providers in a state program.
The emergency stay is the latest development in a dispute over which criteria Texas can impose on a health care provider that participates in state-funded programs for the poor.
When Texas lawmakers renewed the Women's Health Program last year, they made it clear they didn't want any state funding to go to clinics affiliated with abortion providers, even if those clinics don't provide abortions and are legally and financially separate from those that do. The state has already banned organizations that provide elective abortions from receiving state funds.
Earlier this month, Planned Parenthood filed a federal lawsuit saying the rule violates the group's rights. On Monday they celebrated a victory when Judge Lee Yeakel agreed that they had a case and ordered the state not to enforce the law until he could hold a trial.
The $40 million program provides health care to roughly 130,000 women who are poor and don't have health insurance, but would otherwise not qualify for Medicaid, the health insurance program for the poor and disabled. The program provides basic check-ups, contraception and cancer screenings. Planned Parenthood officials say that 97 percent of the services they provide do not involve abortion.
The federal government funded 90 percent of the program, but cut funding last month because officials said the new rule violated federal law.
Texas Attorney General Greg Abbott has filed a federal lawsuit in Washington calling that decision a violation of state's rights. Gov. Rick Perry ordered the state Department of Health and Human Services to find funds to continue the program. Allowing it to end would cost the state more that continuing it because it would lead to a spike in unplanned pregnancies.