Texas A.G. Argues That Court Should Allow Defunding of Planned Parenthood Gulf Coast

By Theresa Smith | August 10, 2017 | 3:24 PM EDT

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(CNSNews.com) - Ken Paxton, Attorney General for the state of Texas, filed a legal brief on Monday, arguing that the U.S. Court of Appeals for the 5th Circuit should reverse their decision that disallowed Texas to defund Planned Parenthood Gulf Coast (PPGC) of Medicaid funding.

The brief was filed on the basis that PPGC violated medical and ethical standards, as shown by an undercover video created by the Center for Medical Progress (CMP) on April 9, 2015.

On Dec. 20, 2016, the Office of the Inspector General (OIG) terminated the Medicaid funding for PPGC. After a preliminary injunction from Jan. 17 to 19, the court issued a decision against that of the OIG.

According to the legal brief, Texas is allowed to disqualify agencies from receiving Medicaid funding if an agency violates ethical or medical standards. It argues that PPGC has done so.

The document states that federal laws “generally prohibit researchers from taking part in abortions to secure fetal tissue and prohibit modifying abortion procedures for research purposes.” The legal brief reported that the CMP video shows that Melissa Farrell, research director for PPGC, admitted that PPGC doctors modify abortion procedures in order to harvest intact specimens.

The brief said that the OIG’s decision to terminate the Medicaid funding of PPGC is “eminently reasonable in light of the statements made on the video by the PPGC staff and the documented misrepresentation PPGC made to Texas law-enforcement officials.”

In 2015, the Office of Inspector General of Texas reviewed an unedited version of the video from CMP five times and concluded that “in his opinion, the video demonstrated that PPGC violated accepted medical and ethical standards.”

The legal brief says that the OIG’s mission is “the prevention of fraud, waste, and abuse through the use of audits, inspections, and investigation of frauds -- state and federal -- appropriated for the delivery of health and human services in Texas.”

The document also reported that during the review process, the OIG sent a Notice of Termination to PPGC “that began the process of terminating their Medicaid provider agreements.” This letter gave PPGC the opportunity to address the issues brought up in the notice in an informal meeting or to submit evidence and argument to OIG saying if the findings were true or false.

Instead, PPGC filed a complaint in the District Court on Nov. 23, 2015. After the process reviewing the material was complete, OIG sent PPGC a Final Notice of Termination on Dec. 20, 2016, saying that PPGC “violated accepted medical and ethical standards in numerous ways.”

PPGC filed a motion for preliminary injunction on Jan. 4, 2017 and an evidentiary hearing on the motion was held on Jan. 17-19, 2017. The hearing concluded with the District Court entering a “temporary restraining order against the OIG’s termination decision.” Then on Feb. 21, the District Court issued a preliminary injunction against “the termination of all of [PPGC’s] Medicaid provider agreements.” 

During the inspector general’s testimony at the hearing, several portions of the video were played, highlighting what PPGC Research Director Melissa Farrell, who appears throughout the video, said.

The legal brief argued that, at the Preliminary Injunction Proceeding, PPGC plaintiffs “failed to establish that the video is unreliable evidence.” Although they claimed that the video is “fraudulent and deceptively edited,” reported the legal brief, “none of Plaintiffs’ witnesses had even watched the unedited video, despite offering opinions and testimony on what it purportedly shows.”

Melaney Linton, PPGC’s CEO, testified that the PPGC representative in the video “was not appropriately portrayed,” saying it was “highly edited,” reported the brief. She had not seen the video “offered by the State in this case,” and neither had the plaintiffs’ counsel. They did not offer evidence that the video had been edited or been taken out of context, according to the legal brief. 

“[N]one of that testimony is credible, and it was clearly erroneous for the court to rely on it,” stated the brief. 

Also, Farrell and other plaintiffs’ witnesses were not credible, because they contradicted what was in the video in certain things they said, the brief argued.

Dr. Ted Spears, chief medical officer of the OIG, testified as a witness on the side of the defendant, according to the brief. His conclusion agreed that the PPGC had “violated accepted medical and ethical standards.”

“Spears explained that PPGC staff stated at least some of their doctors were willing to alter abortion procedures in the future to obtain certain fetal-tissue specimens, and that Farrell had admitted that some PPGC doctors had altered abortion procedures in the past for fetal tissue research purposes.”

He also said that the videos show that the PPGC “is willing to place the needs of a researcher above the needs of a patient,” also a violation.

Dr. Mikeal Love, a board-certified OB/GYN practicing in Austin, Texas, and Professor Orlando Snead, a bioethicist and professor at the University of Notre Dame Law School, also reviewed the video and gave similar testimonies on their conclusions. (47-48)

They concluded: “The Court should reverse and vacate the preliminary injunction.”