NEW ORLEANS — The U.S. Court of Appeals for the Fifth Circuit vacated Thursday a previous injunction barring Texas from stripping Planned Parenthood affiliates of Medicaid funding.
The injunction was based largely on undercover videos released by the pro-life group Center for Medical Progress (CMP) during the summer of 2015 that show Planned Parenthood workers negotiating the sale of body parts from aborted children.
“The [Texas Office of the Inspector General, OIG] ... concluded, based on the videos, that [Planned Parenthood affiliates] at a minimum violated federal standards regarding fetal-tissue research and standards of medical ethics by allowing doctors to alter abortion procedures to retrieve tissue for research purposes or allowing the researchers themselves to perform the procedures,” Circuit Judge Edith Jones wrote in the court’s Jan. 17 opinion.
Many media reports since 2015 have characterized CMP’s undercover videos as “deceptively” or “heavily” edited, undercutting their credibility.
“The district court stated, inaccurately, that the CMP video had not been authenticated and suggested that it may have been edited. ... In fact, the record reflects that OIG had submitted a report from a forensic firm concluding that the video was authentic and not deceptively edited,” Jones wrote. “And the plaintiffs did not identify any particular omission or addition in the video footage.”
In the videos in question, two individuals, including journalist David Daleiden, posed as representatives from a fetal-tissue procurement company and claimed to be interested in purchasing liver, thymus and neural tissue from fetuses aborted during the second trimester of pregnancy.
Melissa Farrell, research director for Planned Parenthood Gulf Coast, is shown in the videos discussing the possibility of a research partnership, providing a tour of her clinic’s surgical facilities and displaying tissue samples from recently aborted fetuses, according to the court ruling.
An August 2016 grant proposal attributed to George Soros’ Open Society Foundations indicated at least $7-$8 million would be spent in a campaign to counter the CMP videos and “transform the narrative, charging that the videos were doctored.”
Following the release of the videos, the Texas Office of the Inspector General subsequently informed Planned Parenthood’s affiliates in October 2015 that they were “no longer capable of performing medical services in a professionally competent, safe and legal manner,” their funding would be terminated, and they were sent final notice of the decision during December 2016.
Planned Parenthood’s 30 affiliates in Texas currently receive $3.4 million in Medicaid funds.
The affiliates sued in federal court to block the termination of funding, and the district court granted an injunction for the plaintiffs in part because, in the February 2017 opinion of district Judge Sam Sparks, the undercover videos had not been authenticated and appeared to have been edited.
The district court also discounted statements from Farrell because she claimed on the witness stand that she had no personal knowledge of the medical aspects of abortion procedures and “had never even been in the room when an abortion was performed.”
Jones affirmed that the state has the right to exclude a health-care provider from Medicaid funds and criticized the Planned Parenthood affiliates’ argument that the OIG has insufficient expertise to determine the qualifications of abortion providers.
“That the chief medical officer is a surgeon — and not himself an abortion provider — does not mean that he deserves no deference when deciding whether a provider has failed to meet the medical and ethical standards the state requires,” Jones wrote.
“It is even odder to claim that federal judges, who have no experience in the regulations and ethics applicable to Medicaid or medical practice, much less in regard to harvesting fetal organs for research, should claim superior expertise.”
The case is now remanded to the district court for further review, which has been ordered to apply a different legal standard to determine the final outcome.
The Texas House of Representatives first passed a budget that would have stripped Planned Parenthood of its state funding in April 2017. Texas’ Inspector General Office had sought to strip the abortion provider of state funding because the videos “indicated noncompliance with accepted medical and ethical standards,” according to the lawsuit.
Texas Attorney General Ken Paxton wrote in a Jan. 17 statement: “Planned Parenthood’s reprehensible conduct, captured in undercover videos, proves that it is not a ‘qualified’ provider under the Medicaid Act, so we are confident we will ultimately prevail.”