Planned Parenthood affiliates in Texas that do not provide abortion services filed a federal complaint on April 11, seeking a court order to prevent the Texas Health and Human Services Commission from barring them from participating in the Texas Women’s Health Program (WHP). The WHP provides funding for preventative health and family planning services for low-income women.

The Planned Parenthood affiliates bring federal constitutional challenges, and they challenge state statutory authority under 1 Texas Administrative Code §§354.1361-64 to bar them from participating in the WHP “because they publicly advocate to protect access to safe and legal abortion and/or affiliate with legally separate entities that engage in that advocacy and/or are affiliated with legally separate entities that provide and advertise abortions.”

The plaintiffs in Planned Parenthood of Austin Family Planning Inc., et al. v. Thomas M. Suehs, in His Official Capacity allege they have participated in the WHP since it began providing services in 2007 and haveprovided more than 40 percent of WHP services in Texas in 2010.

They seek a court order to prevent Suehs, executive commissioner of the Texas Health and Human Services Commission (HHSC), from removing them from the program after April 30 under a new affiliate rule the agency adopted on Feb. 23. They allege the rule would bar them from participating in the WHP because of their “associations with the provision of abortion and with advocacy for access to abortion.”

The plaintiffs allege the rule imposes unconstitutional conditions on their eligibility to participate in the WHP. They further allege it will cause irreparable harm to them and tens of thousands of low-income women seeking family planning and other preventative health services under the WHP.

The plaintiffs allege in the complaint that, because of the affiliate rule, the U.S. Department of Health and Human Services Centers for Medicare and Medicaid Services will cut off federal funding for the WHP, but Gov. Rick Perry has “instructed” Suehs and the HHSC to continue to provide WHP services with the affiliate rule in effect and with only state funds. [See the complaint.]

The plaintiffs seek a declaratory judgment that the affiliate rule violates the 1st and 14th amendments to the U.S. Constitution and their rights under state law. They filed their complaint in the U.S. District Court for the Western District of Texas in Austin.

Pete Schenkkan, a partner in Graves Dougherty Hearon & Moody in Austin who represents the plaintiffs, says the Planned Parenthood affiliates initially seek a preliminary injunction that “preserves the status quo until the lawsuit can be tried on its merits.”

In a statement, HHSC spokeswoman Stephanie Goodman writes that the agency is on “firm legal ground” because federal law gives states the right and responsibility to establish criteria for Medicaid providers.

The plaintiffs are Planned Parenthood of Austin Family Planning Inc.; Planned Parenthood Association of Hidalgo County Texas Inc.; Planned Parenthood Association of Lubbock Inc.; Planned Parenthood of Cameron and Willacy Counties; Family Planning Associates of San Antonio; Planned Parenthood of Central Texas; Planned Parenthood Gulf Coast Inc.; Planned Parenthood of North Texas Inc.; and Planned Parenthood of West Texas Inc.