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IN
THE UNITED
STATES
DISTRICTCOURTFORTHEWESTERNDISTRICT
OF
TEXASAUSTINDIVISIONPLANNEDPARENTHOOD
§
ASSOCIATION
OF
HIDALGOCOUNTY
§
TEXAS,INC.;
PLANNED
§
PARENTHOODASSOCIATION
OF
§
LUBBOCK,INC.; PLANNED
§
PARENTHOOD
OF
CAMERON
AND
§
WILLACY COUNTIES;FAMILY
§
PLANNINGASSOCIATES OF SAN
§
ANTONIO;PLANNED PARENTHOOD
§
OF
CENTRALTEXAS; PLANNED
§
PARENTHOOD
OFGULF
COAST,
INC.;
§
PLANNEDPARENTHOOD OF
NORTH
§
TEXAS, INC.;PLANNED
§
PARENTHOOD
OF
WEST TEXAS, INC.;
§
AND
PLANNED PARENTHOOD
OF
§
AUSTIN FAMILY PLANNING,INC.;
§
PLAINTIFFS,
§
§
V.
§
§
THOMAS
M.
SUEHS, EXECUTIVE
§
COMMISSIONER,TEXAS HEALTH
§
AND
HUMANSERVICES
§
COMMISSION,
IN HIS
OFFICIAL
§
CAPACITY,
§
DEFENDANT.
§
FtLED
2UI2APR3OAMII:39
TPVT
rUT
TEktitOl
Of
TEXAS
C
-
U
CIVIL NO.A-12-CV-322-LY
ORDER GRANTINGPRELIMINARY INJUNCTION
Before the
court
in
the above styledand numbered cause
of
action
are
Plaintiffs' motion
forPreliminary
Injunction
and
Memorandum
of
Law
in
Support
Thereof
filed April
11,
2012
(Clerk's
Doc.No.
2)
and
Defendant's
Response
to
Plaintiffs' Motion
for Preliminary Injunction andMemorandum
of
Law
in Support
Thereof
filed April
18,
2012
(Clerk's
Doc. No.
18).
On April
19,
2012, the
court
held a hearing onPlaintiffs' motion,
at
which
all
parties appeared
and were
Case 1:12-cv-00322-LY Document 25 Filed 04/30/12 Page 1 of 24
 
represented
by
counsel. Having consideredthe motion,response, the arguments
of
counsel,
the casefile, and the
applicable
law,
thecourt will grantthe requestedpreliminary relief.I.
BACKGROUND
This suit seeks to
enjoin theenforcement
of
a
recent administrativerule promulgated
by the
Texas Healthand
Human ServicesCommission
(the
Commission), which hasthe
effect
of
excluding
Plaintiffsnine
Planned Parenthood
organizationsfrom
providingpreventive health
and family-
planningservices through
Texas's
Women's
Health Program. The
Women's
Health Program
wasestablishedbythe Texas
Legislature
in 2005
as
a
five-yeardemonstration
project
to
expandaccess
to
preventive
health andfamily-planning
servicesfor
uninsured women, ages18-44, with
anetfamily income at
or
below
185
percent
of
the federal
poverty
level.
Act
of
May
30,2005,
79th Leg.,R.S.,
ch. 816,
§
1,2005
Tex. Gen. Laws.
2816,
2816-18
(expired
Sept.
1,2011)
(the 2005 Act).
Under
the
program, Texas
provides alimitedMedicaid benefit package
of
family-planning
andrelatedservices
to
a
population
currently notcovered under theMedicaid
state
plan.1
The
programwasapprovedforademonstrationwaiver under Title
XI
of
thefederal Social Security
Act.
See
42
U.S.C.
§
1315.
The SocialSecurity Act givesthe Secretary
of
Health andHuman
Services
of
theUnited States
discretion
to
approve
astate
demonstration project for
a
waiver
of
certain Medicaidrequirements,
in
order
to
allow the
state to
test newways
to
deliver and payfor health-care
servicesand
touse
Medicaidfunds in ways nototherwise allowed
by
federal
rule.2
Id.
The
Commission
See
Medicaid
&
CHIP ProgramInformation on
TexasWomen's
Health
Waiver,http
://www.medicaid.gov/Medicaid-CHIP-Program-InformationlBy-Topics/
Waivers!
111
5/downl
oads/tx!tx-womens-health-waiver-fs.pdf
(lastupdated
Apr. 23,
2012).
2
Although the record
is
notfully developed
at
this time,
it
appearsthat
the
waiver's
significance
to
the
Women's
HealthProgram
is
that thewaiver allows
a
population not
otherwiseeligible forMedicaid
to
receivethe
program's
services,
paid for
by stateand federal funds.
2
Case 1:12-cv-00322-LY Document 25 Filed 04/30/12 Page 2 of 24
 
beganimplementing the
Women's
HealthProgram
in 2007
with
90
percent
of
the
program's
servicesfunded byfederal
reimbursements.
The rule at
issue
in
this
suit has itsorigins in the 2005
Actauthorizing
the Commission
to
createthe
Women's
Health Program.
The actcontained a
provision prohibiting
the Commissionfrom
usingprogram funds "toperform
or
promoteelective abortions"and from contractingwith"entities thatperform
or
promote
elective abortionsor
are
affiliates
of
entities thatperform
orpromoteelective
abortions."
2005
Act at
2818. The actdid
not define
"affiliates"
or
"promote."
Due to
litigation
in
Texas andother
stateschallenging
similarno-affiliation directives,
the
Commission,
under
the
direction
of
former CommissionerAlbertHawkins, originally
took
the
positionthat the
act,
if
construed
to
excludePlaintiffs
from the
Women's
HealthProgram, would
likely notsurvive a
constitutionalchallenge.
As a
result, Plaintiffshave
participated
in the
Women's
HealthProgram since
its
inception,despite theirrelationship
to
PlannedParenthoodFederation
of
America, anational
reproductivehealth-careprovider that advocatesfor
women's
access
toabortion.
Plaintiffsoperate
49
health
centers acrossTexas, where
women
can enrolland participate
in
the
Women'sHealth
Program. None
of
Plaintiffs'
centers provide
abortion
services. Inordertoensurethat
no state
orfederal funds
are
spent onabortions,Plaintiffs
maintain
legal andfinancialseparationfrom
thosePlanned Parenthoodentities thatprovide such
services.3
Plaintiffs'
centersThe legal and
financialseparation betweenPlaintiffs
and
thosePlanned Parenthood
entitiesproviding abortionscame
about
as a
result
of
priorlitigation challenging
a
similar no-affiliationdirective
in the
context
of
a
federalfamily-planningprogram administered
by
the Texas Department
of
Health.
See
PlannedParenthood
of
Ho
uston
&
Se.
Tex.
v.
Sanchez,
403
F.3d
324 (5th
Cir.
2005)(reviewing
constitutionality
of
Texasstatutoryprovisionprohibiting distribution
of
family-planningfunds
to
"individuals
orentities that performelectiveabortion proceduresor that contract with
orprovidefunds to
individuals or entitiesfor theperformance
of
electiveabortion procedures").
The
FifthCircuit Court
of
Appeals interpretedthedirective
as
permitting
the
creation
of
separate legalentitiesthat perform
abortions butreceive
nofederal funds
andremanded the case
to
the district
3
Case 1:12-cv-00322-LY Document 25 Filed 04/30/12 Page 3 of 24
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