Appeals Court Defends Texas’ Credence in Undercover Videos as Basis for Cutting Planned Parenthood From Medicaid

NEW ORLEANS, La. — The Fifth Circuit Court of Appeals in Louisiana has overturned a lower court injunction that prohibited the State of Texas from cutting Planned Parenthood from its Medicaid program, and has concluded that the district court erred in taking too lightly the inspector general’s credence in the validity of the undercover videos that were the basis for the exclusion.

“[T]here is no question that the OIG (Office of Inspector General) here made factual findings after viewing the videos and related evidence,” wrote Judge Edith Jones, nominated to the bench by then-President Ronald Reagan, on behalf of the court on Thursday.

“The OIG further concluded, based on the videos, that the provider plaintiffs 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,” she wrote.

“[Planned Parenthood’s] briefing with regard to the substance of the discussions contained in the videos (as opposed to their trial witnesses’ post hoc justifications) is curiously silent.”

Jones also noted that “the record reflects that OIG had submitted a report from a forensic firm concluding that the video was authentic and not deceptively edited. And the plaintiffs (Planned Parenthood) did not identify any particular omission or addition in the video footage.”

As previously reported, following the review of two lawsuits surrounding alleged unlawful Medicaid billing practices, as well as an undercover video released in 2015 by David Daleiden and the Center for Medical Progress, the Texas Health and Human Services Commission (HHSC) sent a letter to Planned Parenthood Gulf Coast, providing the entity with a notice of termination from its Medicaid program.

“[T]here is reliable information indicating a pattern of illegal billing practices by Planned Parenthood affiliates, including you, across the state,” the correspondence read. “Our prima facie case of fraud is supported by related cases involving fraudulent practices identified by whistleblowers from inside the Texas Planned Parenthood network.”

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“The [undercover] videos [also] indicate that you follow a policy of agreeing to procure fetal tissue even if it means altering the timing or method of an abortion. These practices violate accepted medical standards, as reflected in federal law, and are Medicaid program violations that justify termination,” it outlined.

The Center for Medical Progress had captured Melissa Farrell, director of research for Planned Parenthood Gulf Coast, discussing with undercover investigators the “diversification of the revenue stream” over dinner, along with a visit to the organization’s pathology lab, where workers sorted through the remains of aborted babies.

“If we alter our process and we are able to obtain intact fetal cadavers, then we can make it part of the budget, that any dissections are this, and splitting the specimens into different shipments is this,” she explained. “I mean, it’s all just a matter of line items.”

Planned Parenthood sued the Texas HHSC in November 2015 in an effort to retain its participation in the Medicaid program, asserting that the termination was illegal, but the Commission did not yet cancel the contract as originally planned.

The following year, the State moved forward, issuing a final notice that Planned Parenthood would be defunded in 30 days, resulting in the organization again filing for an injunction.

In February 2017, Judge Sam Sparks, nominated to the bench by President George H.W. Bush, ruled in favor of Planned Parenthood, opining that Texas was without justification to cut the abortion giant from the state’s Medicaid program.

“After reviewing the evidence currently in the record, the court finds the inspector general, and thus [the Texas Health and Human Services Commission], likely acted to disenroll qualified health care providers from Medicaid without cause,” he wrote. “Such action would deprive Medicaid patients of their statutory right to obtain health care from their chosen qualified provider.”

“A secretly recorded video, fake names, a grand jury indictment, congressional investigations—these are the building blocks of a best-selling novel rather than a case concerning the interplay of federal and state authority through the Medicaid program,” Sparks remarked.

However, on Thursday, the Fifth Circuit Court of Appeals vacated Sparks’ injunction, ruling that he too quickly brushed off the inspector general’s decision, which was based on the undercover videos.

“In sum, the district court erred by giving no deference to OIG’s factual findings and by accepting evidence beyond the agency record,” Jones wrote.

“The district court stated, inaccurately, that the CMP video had not been authenticated and suggested that it may have been edited,” she outlined. “The district court also noted that neither the inspector general nor the medical director had expert knowledge concerning abortion procedures. And the court discounted Ms. Farrell’s videotaped statements because she claimed on the witness stand that she really 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 said that just because the inspector general is not an abortionist, but rather a surgeon, “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.”

“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,” she declared.

The appeals court sent the ruling back to Sparks to re-review the request for an injunction under the proper standard.

View the decision in full here.

“The video camera doesn’t lie: CMP’s undercover video series caught Planned Parenthood’s top leaders openly admitting to selling baby body parts for profit in violation of federal law,” The Center for Medical Progress said in a statement. “[T]he Fifth Circuit Court of Appeals vindicated our citizen journalism work by debunking Planned Parenthood’s smear that the videos were ‘heavily edited’ or ‘doctored.'”

“Now, it is time for the U.S. Department of Justice to do its job and hold Planned Parenthood accountable to the law.”

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