In Planned Parenthood of Greater Texas v. Smith, the United States Court of Appeals for the Fifth Circuit recently threw out an injunction that had been issued in favor of several Planned Parenthood affiliates in Texas. The decision should be helpful in the ongoing battle to hold Planned Parenthood accountable for its illegal and unethical acts, as well as in the fight to restrict the massive flow of public funds that continues to go to abortion providers.
The Texas case is one of several lawsuits around the country that directly or indirectly stems from the investigative journalism of the Center for Medical Progress (CMP), which uncovered criminal, illegal, and unethical acts of numerous abortion providers and fetal tissue procurement companies. As you may recall, in 2015, CMP released a series of videos that showed senior abortion providers openly discussing practices such as profiting from the sale of fetal body parts and altering abortion methods to procure fetal specimens.
The ACLJ represents Troy Newman, a former CMP board member who is also the President of Operation Rescue, in lawsuits filed in California against CMP and several individuals associated with it by the National Abortion Federation (NAF), Planned Parenthood Federation of America (PPFA), and numerous Planned Parenthood affiliates. These cases seek to keep CMP’s evidence out of the public eye, and to deter future investigations of abortion providers’ illegal acts.
In light of CMP’s investigative reporting, the United States Senate and House of Representatives launched investigations into illegal, unethical, and immoral practices within the abortion and fetal tissue procurement industries. The resulting House Report and Senate Report contain shocking, first-hand evidence of unconscionable criminal and illegal actions by abortion providers and fetal tissue procurement companies. The reports contain, among other things, evidence of profiting from the sale of fetal organs (including the payment of bonuses for procuring organs that were highly sought after by researchers), altering abortion procedures for financial gain, performing illegal partial-birth abortions, killing newborns who survived attempted abortions, failing to obtain informed consent for fetal tissue donations, and fraudulent overbilling practices.
The Congressional investigators asked various law enforcement and regulatory bodies to investigate the offending organizations for possible criminal prosecution. As a result, the Department of Justice has been reportedly investigating Planned Parenthood, several other abortion providers, and fetal tissue procurement companies. Additionally, a $7.8 million court settlement was filed in California under which DaVinci Biosciences, LLC and DV Biologics, LLC admitted liability for their role in the unlawful sale of fetal tissue and stem cells for profit.
Moreover, the House investigators sent the Texas Attorney General evidence it had gathered about potentially illegal and unethical acts committed by Planned Parenthood Gulf Coast (“PPGC”). The Texas Health and Human Services Commission’s Office of Inspector General (“OIG”), which is responsible for investigating potential violations of Medicaid program requirements within the state, concluded, based on the CMP videos and the Congressional investigation “that [Planned Parenthood] at a minimum violated federal standards regarding fetal tissue research and standards of medical ethics.”
OIG stated that the “numerous violations of generally accepted standards of medical practice” committed by Planned Parenthood included “deviating from accepted standards to procure samples that meet researcher[s’] needs,” “permitting staff physicians to alter procedures to obtain targeted tissue samples needed for their specific outside research,” “allowing the researchers themselves to perform the procedures,” and “engag[ing] in misrepresentations regarding fetal tissue procurement.”
Texas statutes and Medicaid program guidelines allow OIG to terminate Medicaid provider agreements if OIG determines that a provider, or someone affiliated with a provider, has violated federal law, state law, or Medicaid policies. Also, the Medicaid agreements themselves include promises to comply with applicable laws and policies.
OIG terminated the Planned Parenthood affiliates’ agreements in light of the numerous violations discussed previously. The affiliates filed suit. Although the trial court issued an injunction in their favor, the Fifth Circuit vacated the injunction. Importantly, the court rejected the baseless claim that CMP’s videos had been deceptively edited, noting that OIG “submitted a report from a forensic firm concluding that the video was authentic and not deceptively edited. And the plaintiffs did not identify any particular omission or addition in the video footage.”
Additionally, the court quoted several statements from the CMP videos that were offered as evidence that PPGC had violated legal and ethical standards, such as by altering abortions in order to maximize the amount of fetal organs and tissue that could be sold to researchers. The court found it telling that “[t]he plaintiffs’ briefing with regard to the substance of the discussions contained in the [CMP] videos . . . is curiously silent.”
The Fifth Circuit also critiqued the district court’s failure to give the proper level of deference to the OIG’s termination decision, which was based on “a record of incriminating admissions by PPGC’s own personnel.” The court also concluded that, “[h]ere, there is far stronger evidence in support of OIG’s termination decision” than in a previous case debated by the parties.
The Fifth Circuit’s decision should positively impact the ongoing California cases. One of the Plaintiffs in those cases is PPGC, the key abortion provider in the Texas case. PPGC has claimed in the California case that it is an innocent victim of a CMP “smear campaign,” and yet the House and Senate investigations, and the Texas OIG’s investigation, concluded otherwise.
The Fifth Circuit’s decision also refutes the claim, made by the California plaintiffs, that the countless incriminating statements recorded by CMP can be chalked up to deceptive video editing. (This false accusation is further defeated by the fact that, when CMP released its shorter summary videos, it also released full-length footage of the relevant conversations.)
Additionally, the Fifth Circuit’s decision is helpful in the nationwide fight over the ability of federal and state legislatures and executive branch agencies to minimize or eliminate taxpayer funding for abortion providers. In particular, there have been numerous lawsuits involving the interpretation of federal Medicaid program standards, and one key issue is the extent to which a state agency may cut a Medicaid provider off from funding due to its illegal or unethical actions. The Fifth Circuit’s decision reinforces the commonsense conclusion that a provider can forfeit Medicaid provider eligibility—and potentially millions of taxpayer dollars—by engaging in illegal or unethical acts.
We will keep you updated as the CMP cases and other litigation involving Planned Parenthood moves forward.
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