Judge Kristine Baker this afternoon issued a temporary restraining order that prevents the state of Arkansas from stopping Medicaid reimbursements for people who receive services from Planned Parenthood of the Heartland clinics in Little Rock and Fayetteville.
The order will be in place for two weeks while the judge considers arguments to make the order permanent.
Gov. Asa Hutchinson ordered the end of Medicaid to Planned Parenthood — about $50,000 last year — on account of publicity about misleadingly edited and dishonestly obtained videos by an anti-abortion group that attempted to make the case that Planned Parenthood affiliates in a couple of other states had illegally sold fetal tissue to medical research. No proof of that charge has emerged. Planned Parenthood says it legally provides such tissue at two facilities (not in Arkansas) in return for small reimbursements for the cost.
Hutchinson’s order took effect Sept. 14, but no patient was affected because no Medicaid patients were scheduled to be seen until Sept. 21. Planned Parenthood sued to overturn the orders, as has been done against similar orders in other states. It contends it’s being punished for actions of others; that its operations in Arkansas have caused no ethical or medical concerns, and that patients couldn’t easily get the same services at one place elsewhere. Aslo, they prefer Planned Parenthood.
In fighting the suit, Attorney General Leslie Rutledge’s top litigator, Lee Rudofsky, made the unsupported claim that the videos showed a live child being dismembered. He also said the Arkansas affiliate of Planned Parenthood, though operated independently of other affiliates nationwide, should be held responsible for its association with the Planned Parenthood network.
Judge Baker had indicated in her questioning at Thursday’s hearing that the videos seemed to have no connection to Arkansas and she also questioned Rudofsky’s argument — part of a brief of some 300 pages — that plaintiffs (Jane Does and Planned Parenthood) lacked standing to sue over the end of Medicaid. Courts in other states have upheld challenges to similar orders in other states before.
The order expires Oct. 2 unless the judge extends it. It will apply to all Medicaid-eligible people seeking Planned Parenthood services, not just the Jane Doe plaintiffs.
The judge said the state had failed to produce evidence that any of the conduct cited in the videos involved the Arkansas affiliate and rejected for now the state’s argument that those actions could be attributed to the Arkansas affiliate.
For example, there is no evidence that PPH performs surgical abortions in Arkansas from which fetal tissue could be obtained. There is no evidence that PPH performs medication abortions in Arkansas from which fetal tissue can be obtained and donated for any purpose. There also is no evidence that PPH has been cited, reprimanded, or cautioned by ADHS in the past about its qualifications as a provider of the services it offers.
The judge said courts in other states had rejected a claim similar to Arkansas’s that it had unchecked power to terminate Medicaid contracts.
Although these cases addressed legislative enactments and the instant case involves a decision made by the Governor and communicated through ADHS or a decision made by ADHS, depending on which termination letter is examined, those facts do not sufficiently distinguish the instant case from the aforementioned cases, and the holdings of those cases weigh in favor of the plaintiffs’ likely success on the merits here.
The judge rejected, too, the state’s argument that a recent Supreme Court case took away the private right of action in this circumstance. She said the individual plaintiffs certainly had the right to sue under federal law and precedents in other states and Planned Parenthood might as well.
Temporary restraining orders are granted, the judge noted, when there’s a likelihood of success on the merits in the final analysis.
I’ve asked for comment from the governor’s office and the attorney general. Will add when received. I presume they won’t emulate Kim Davis.
UPDATE: Comments from the governorr (of course he used Obama to slander the judge);
“As governor, I disagree with the Court’s decision. Ethical conduct by Medicaid providers is a relevant factor for the state to consider. Hopefully, the Court or a higher court will reconsider the preliminary decision once the facts are fully developed. It is disappointing that a judge appointed by President Obama does not give sufficient weight to the morally repugnant conduct of Planned Parenthood displayed in a series of recently released videos.”
From Rita Sklar of the Arkansas ACL:U:
“This ruling comes on the heels of Federal Courts blocking similar efforts across the country,” said Rita Sklar, Executive Director for the ACLU of Arkansas. “To date, two federal Courts of Appeals, the Seventh and Ninth Circuits, have blocked similar laws enacted in Indiana and Arizona, and the Supreme Court declined to review both of those rulings. We are confident in the merits of this case and hope the federal courts will ultimately rule on the side of the women who rely on Medicaid programs for basic, preventive health care.”
“We are grateful the court has ruled on the side of the women, men and teens in Arkansas who rely on Planned Parenthood for care,” said Suzanna de Baca, CEO of Planned Parenthood of the Heartland. “For our patients, this isn’t about politics—it’s about staying healthy and building a future.”
“Yet another court has ruled to stop politicians from blocking access to care at Planned Parenthood. This is a victory for women in Arkansas and Planned Parenthood’s 2.7 million patients across the country,” said Cecile Richards, president of Planned Parenthood Federation of America. “At Planned Parenthood, we will never back down and we will never stop fighting for our patients to access the care they need and deserve.”
From the attorney general’s office:
Attorney General Rutledge respectfully disagrees with Judge Baker’s decision. It should be noted, however, that this decision is just the beginning of the litigation process.