For more than a year a feud has been brewing between the state of Texas and Planned Parenthood over coverage for the Women’s Health Program. At various points—especially over the course of the past few months—the controversy has hit near breaking points in a drama that has pulled in federal officials, appeals courts, and at worst thousands of low-income women looking for the best care they can get. What started out as a program to expand Medicaid services to women for family planning purposes became politicized by the topic of abortion. And today, ironically, the question of choice remains at the center of this very important debate. Should women in Texas be able to choose their health care provider, even if that means the keeper of the program has to write a big fat check to Planned Parenthood?
The Women’s Health Program Is…
The Women’s Health Program is the result of bi-partisan legislation passed in 2005. The Medicaid program provides health care to over 130,000 Texas women. Because conservative legislators feared that funds would be funneled to abortion clinics, the language of the legislation that created the WHP is very clear. Health clinics that qualify for the program cannot “perform elective abortions.” The program was implemented beginning January 1, 2007 and had a five-year lifespan that was due to expire on the last day of 2011 unless it was renewed. HHSC lawyers feared that it would be unconstitutional to bar entities like Planned Parenthood from providing care to women across the state. As it happened, Planned Parenthood was allowed to participate in the five-year program, because its family planning facilities operated—and do to this day—separately from its facilities that provide abortions.
The Role of the 2011 Lege
The 2011 lege hit women hard. Family planning was slashed by $73 million, a controversial ‘sonogram bill,’ was passed, and as talks began leading up to the renewal of the WHP, some legislators went back to the specifics of the language that had created the program. In 2010, State Senator Bob Deuell told 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. When the matter came up during the 2011 lege, the WHP was extended in May 2011, but a clear message was sent: Planned Parenthood and other “abortion affiliates” would not be welcome.
He Said, She-Said
Then-Texas HHSC commissioner Tom Suehs signed the rule on February 23, 2012 and it took effect March 14, 2012. The U.S. Centers for Medicare and Medicaid Service and the U.S. Department of Health and Human Services responded by saying that the federal government would not continue to fund the Medicaid WHP because Texas planned to exclude key health provider and violated federal rules in doing so. Planned Parenthood is the primary provider in the WHP and accounts for over forty percent of care. It’s worth noting that ninety percent of the WHP was federally funded, and that without that money, the state was on the hook for close to $40 million to make the program work. So, Abbott filed his eighteen lawsuit against the feds over the loss of funding. Meanwhile, Governor Perry assured Texas women that with or without federal funding the WHP would live on
In mid-April Planned Parenthood sued the state of Texas. By the end of the month a federal judge in Austin had granted a preliminary injunction that barred Planned Parenthood from being excluded, and a number courtroom twists followed that pushed out and let in the women’s health care provider. On August 21, the three-judge panel on the fifth circuit court of appeals handed down a unanimous ruling that gave Texas the right to strip Planned Parenthood of its funding. Planned Parenthood responded by requesting that the entire fifth circuit court of appeals hear the case, but that request was denied. Back in Austin, Planned Parenthood filed another suit in state court and was granted temporary access to the Women’s Health Program that will last until a November 8 hearing.
With court cases echoing in the background, Texas submitted a plan to the Centers for Medicare and Medicaid Service back in April that requested 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.”
How the State Would Run It
HHSC Executive Commissioner Kyle Janek, who took over after Tom Suehs retired, released the details about what would and wouldn’t fly in the Texas-run program. To everyone’s surprise, the State said it would allow doctors to discuss abortion with their patients so long as the information remained “neutral, factual information, and nondirective counseling.” Doctors are not permitted to directly contact abortion facilities for patients, but can supply contact information. The new rules go on to specifically outline 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.”
In the Clear for Now…
On the final day that the program was scheduled to be federally funded—and subsequently the final day that Planned Parenthood would have be permitted to participate in the WHP had a restraining order not been filed—Perry and Janek said that the independent Texas program was 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. But Janek stated, “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.”
Three court cases are still pending,