Where Things Stand with the Women’s Health Program

The confusing legislation and litigation, untangled. 

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ASSOCIATED PRESS | JOY LEWIS

For more than a year, the state of Texas and Planned Parenthood have been locked in a bitter feud over the future of the Texas’s Women’s Health Program, a Medicaid fund that provides women’s health care and contraceptive services to 130,000 low-income women. Planned Parenthood provides preventative care and contraceptives to some 50,000 of these women at its health centers, which do not perform abortions.

But during the 2011 session, when legislators reauthorized the WHP, they inserted a rule that blocks money from going to organizations that “affiliate with entities that perform or promote elective abortions.” Planned Parenthood says the rule unfairly singles out their organization. So what started out as a program to expand Medicaid services to women for family planning purposes became politicized by the topic of abortion. How did we get here?

In the latest wrinkle, a state-court judge issued an order in October temporarily keeping Planned Parenthood in the WHP while it continues to receive federal funds. Planned Parenthood and the Texas Health and Human Services Commission are set to meet in Travis County District Court this Thursday at 9 a.m. to argue over whether a temporary injunction should be granted in the case.

What is the Women’s Health Program?
The legislature created the Women’s Health Program in 2005 to “to expand access to preventive health and family planning services” to low-income women who do not otherwise qualify for Medicaid. Who qualifies? The Texas Observer‘s Dave Mann summed up the program’s scope this way in March:

The Texas Women’s Health Program is narrowly focused: women ages 18-44 (child bearing age) who earn less than about $1,700 a month on their own and who aren’t pregnant. If you become pregnant, you’re off the program. It will pay for women to be sterilized—cause that’s a pretty effective way to prevent pregnancies—but once a woman is sterilized, she’s booted off the program (cause she’s no longer a risk to become pregnant).

Because conservatives feared that funds would go to abortion clinics, the legislation that created the WHP is very clear: health clinics that participate in the program cannot “perform elective abortions.” The program began in January 1, 2007 and had a five-year lifespan that was due to expire on the last day of 2011 unless it was renewed. Planned Parenthood was allowed to participate in the program during those first five years, because its family planning facilities operate—and do to this day—separately from its facilities that provide abortions.

How did the Eighty-second Legislature affect the program?
As Mimi Swartz recently chronicled in the pages of Texas Monthly, in 2011, the Texas Legislature slashed the family planning budget by $73 million and passed a controversial “sonogram bill.”

And then there was the thorny issue of renewing the WHP. Back in 2010, state senator Bob Deuell, R-Greenville, revisited the specifics of the language that had created the program, telling Texas Attorney General Greg Abbott that he wanted to exclude abortion affiliates from the WHP and that by law, they should already be pushed out. Abbott responded in 2011 by issuing two opinions, according to the Texas Tribune’s Emily Ramshaw. The first said that the HHSC shouldn’t partner with abortion affiliates, but the second left it open to the HHSC to define what an “affiliate” was.

The legislature voted in May 2011 to renew the WHP, but asked the HHSC to adopt a rule  that expanded the definition of “affiliate” to ensure Planned Parenthood would not be welcome. The new rule that was crafted, according to the New York Times: “defines ‘affiliate’ as any entity that shares a name or trademark with any organization that provides or ‘promotes’ abortion. (In the lexicon of the anti-abortion right, just talking about abortion counts as promoting it.)”

And what happened when that rule was adopted?
The new rule went into effect on March 14 after then-Texas HHSC commissioner Tom Suehs signed off on it in February. The federal government, which provides $9 for every $1 paid by the state into the Women’s Health Program, responded by saying it would not continue to fund the WHP because Texas’s move to bar Planned Parenthood, a key health provider, from the program violated federal rules. (Planned Parenthood provides more than forty percent of care under the WHP.)

What’s all this noise about litigation? 
One could be forgiven for not knowing where Planned Parenthood stands in the WHP, as recent months have brought a flurry of legal rulings that excluded and included the women’s healthcare provider from the program.

In mid April, Planned Parenthood filed a federal lawsuit against the state of Texas, arguing that the rule violated the organization’s right to free speech. By the end of the month a federal judge in Austin had granted a preliminary injunction that barred Planned Parenthood from being excluded. But on August 21, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit lifted that injunction, ruling Texas can keep Planned Parenthood out. Planned Parenthood countered by requesting that the U.S. Court of Appeals for the Fifth Circuit hear the case en banc, but that request was denied.

So in October, Planned Parenthood filed another lawsuit in state court, this time arguing that “affiliate rule violates a state requirement that the program conform with federal law and be eligible to receive federal funds,” the AP reported. A state court judge granted a temporary restraining order that keeps Planned Parenthood in the program until a November 8 hearing on a temporary injunction.

And in March, Abbott entered the fray himself, filing a lawsuit against the feds over the loss of funding.

How would Texas fund a state-run WHP?
Without those federal dollars, the state is on the hook for close to $40 million to keep the program running. (The state currently pays $4 million of the program’s $40 million budget.) Governor Perry has promised that the WHP would live on, with or without federal funding.

In April, Texas sent a proposal to the U.S. Centers for Medicare and Medicaid Service that outlined a plan to transition WHP to a state-run program. That proposal requested that federal funding continue through the end of October, “to ensure that current and future clients of the program have access to family planning services without disruption.”

So, how does the state come up with the additional $36 million it needs? Stephanie Goodman, a spokeswoman for the Health and Human Services Commission, described the state’s plan to the Lubbock Avalanche-Journal’s Adam D. Young last week: 

In the event the federal government drops its funding, the state has plans to set aside about $40 million to fund the program, including imposing a hiring freeze on Health and Human Services Commission administrative posts and increasing efforts to recover Medicaid funds lost to fraud or wasteful spending, [Goodman] said.

And how would a state-run WHP function?
HHSC commissioner Kyle Janek, who took over after Tom Suehs retired, released details about what would and wouldn’t fly in the Texas-run program on October 18.

Surprisingly, the state said it would allow doctors to discuss abortion with their patients so long as it they only provided “neutral, factual information” and “nondirective counseling.” Doctors are barred from directly contact abortion facilities for patients, but can supply contact information.

The new rules also further elaborate on what an “abortion affiliate” is, saying that in addition to having separate bank accounts and governing boards, that clinics must also maintain “physical and financial separation.”

So where does that leave the program?
Three court cases are still pending, according to the AP.

And, on October 31, the final day that the program was scheduled to be federally funded, Perry and Janek announced that the organization could remain in the program through the end of the year, even though an independent Texas program is ready to go. (Perry said that three thousand providers were lined up to offer services, a number that he claimed was five hundred greater than earlier this year.) “We think the wisest decision for now is to continue with the federal funding. We will continue to pay Planned Parenthood until we get some certainty from the [court] cases,” Janek stated.

Perry urged Planned Parenthood to drop its lawsuits. The Obama administration has said that federal funding for the program will not extend past the end of the year.

Watch Perry and Janek speak about the fate of the WHP below:

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