“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Four Trump Fifth Circuit judges – Don Willett, James Ho, Kyle Duncan, and Kurt Engelhardt – cast key votes in an 11-5 decision that reversed previous rulings and held that Texas and Louisiana could completely cut off Medicaid funding from Planned Parenthood clinics chosen by patients to obtain health care. The November 2020 case is Planned Parenthood of Greater Texas Family Planning and Preventative Health Services v. Kauffman.
For more than five years, Texas and Louisiana have tried to stop Medicaid patients from getting health care at Planned Parenthood clinics. In Texas, more than 12,000 Medicaid patients have gone to 30 Planned Parenthood health centers each year to receive “family planning and other health services,” including “basic health care for both men and women.” More than 5000 Medicaid patients have chosen to use such clinics in Louisiana. Planned Parenthood of Gulf Coast Inc v. Gee. When Louisiana tried to forbid Medicaid patients from using Planned Parenthood centers, Medicaid patients sued, contending that the state’s action violated their rights under Medicaid to choose their own health providers and that the state improperly claimed that the Planned Parenthood centers were not “qualified” for reasons unrelated to the quality of care they provided. A district court agreed with the patients and with Planned Parenthood, a three-judge panel of the Fifth Circuit affirmed, and rehearing by the full court was denied by a 7-7 vote in 2017.
In Texas, the state cut off Medicaid funding to all Planned Parenthood clinics based on later disproven claims that one of them was agreeing to sell fetal tissue. Medicaid patients sued, a district court granted a preliminary injunction in their favor, and a three-judge panel of the Fifth Circuit partially affirmed. The full court, however, decided to vacate that decision and consider the case again.
In an 11-5 ruling in which Trump judges Willett, Ho, Duncan, and Engelhardt provided key votes, the full Fifth Circuit reversed and vacated the district court’s injunction. (The other two Trump Fifth Circuit judges did not participate in the case.) The majority held that despite the prior ruling in Gee and the decisions of five other circuit courts of appeal, Medicaid patients could not sue to enforce their right to choose their health care providers under the Medicaid law. The majority went further and reached out to overrule the prior decision in the Gee case, which conflicted with its new rule that Medicaid patients cannot sue to enforce their rights. Since the injunction had also been entered on behalf of Planned Parenthood in the Louisiana case (unlike in Texas), the majority went even further and decided to “disavow” the Gee court’s conclusion that a state cannot decide that a provider like Planned Parenthood is not “qualified” for non-medical reasons “even if the provider is lawfully permitted to provide health services to the general public.” As a result, Louisiana’s cut-off of Medicaid funding to Planned Parenthood clinics is now also valid.
In the lead dissent, Judge James Dennis strongly criticized the majority’s decision because it “erroneously overrules circuit precedent” and “misconstrues” Supreme Court decisions to hold that Medicaid patients cannot enforce their rights under federal Medicaid law to “choose their own qualified and willing providers.” As a result, Dennis explained, the Fifth Circuit is now in conflict with five of the six other circuit courts of appeal to have considered the issue and leaves “more than 6.7 million Medicaid recipients in Texas, Louisiana, and Mississippi vulnerable to unlawful state interference with their choice of health care providers.” In this case, Dennis continued, the district court properly found that Texas lacked even “prima facie evidence,” or evidence that is sufficient on its face even if there is no response, to “conclude that the providers were not qualified.”
Judge Dennis concluded by pointedly noting that “nothing of substance has changed” since Gee and the decision not to rehear it, not mentioning the addition of six Trump judges to the court since then. He urged the court to “heed the admonitions” of Chief Justice Roberts in the recent June Medical Services case that respect for precedent is crucial in order to “keep the scales of justice even and steady, and not liable to waver with every new judge’s opinion.”
Trump judges Ho and Duncan went even further than the majority in a concurring opinion. Denouncing Judge Dennis for noting that respect for precedent was important “even in abortion-related cases,” they claimed that it was “rich” for Dennis to imply that the Fifth Circuit is “bending the law to disfavor abortion, “ particularly “considering how far the federal judiciary has bent over backwards to protect abortion,” in their view. With more decisions like this one, the Trump judges on the Fifth Circuit are clearly doing all they can to eliminate such protection, as well as protection for Americans’ health care rights in general.