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Planned Parenthood Asks Fifth Circuit for En Banc Review

By Robyn Hagan Cain on September 06, 2012 | Last updated on March 21, 2019

Planned Parenthood isn't quite finished with its challenge to a Texas law that defunds the organization within the Lone Star State.

On Tuesday, Planned Parenthood asked the Fifth Circuit Court of Appeals for en banc rehearing of a three-judge panel's decision in Planned Parenthood Association, et al v. Thomas Suehs. The panel ruled last month that Texas can block Women's Health Program (WHP) funding to Planned Parenthood and other healthcare providers that offer abortions.

Texas passed a law in 2011 that effectively excluded abortion providers from receiving funding from the WHP beginning May 1. Regulations implementing that law state that health care providers participating in a Medicaid-like program must not perform or promote elective abortions or be affiliates of entities that perform or promote elective abortions.

Eight Planned Parenthood clinics that do not offer abortions sued to block implementation of the law in anticipation of the deadline, and won a temporary injunction.

In August, however, the Fifth Circuit concluded that the regulations were a type of speech-based condition, but were nonetheless constitutional under Rust v. Sullivan. (In Rust, the Supreme Court considered federal regulations limiting the abortion-related speech of clinics receiving funds under Title X of the Public Health Service Act. The Court reasoned that the government could disfavor abortion within its own subsidized program, and that exclusively subsidizing non-abortion family planning speech did not penalize abortion speech.)

The Fifth Circuit grants approximately 10 cases each year for en banc review. University of Texas law professor Stefanie Lindquist told The Daily Texan "This case may qualify ... as one of 'exceptional importance' that might warrant en banc review." A majority of the active judges on the Fifth Circuit must vote in favor of en banc rehearing.

Planned Parenthood is asking the Fifth Circuit to restore the injunction against the law until the appellate court can rule in the matter, The Associated Press reports.

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