Planned Parenthood of Gulf Coast, Inc. v. Gee

837 F.3d 477

Planned Parenthood of Gulf Coast, Incorporated; Jane Doe #1; Jane Doe #2; Jane Doe #3, Plaintiffs–Appellees

v.Rebekah Gee, Secretary, Louisiana Department of Health and Hospitals, Defendant–Appellant

No. 15–30987

United States Court of Appeals, Fifth Circuit.

Filed September 14, 2016

Carrie Yvette Flaxman, Planned Parenthood Federation of America, Washington, DC, Erwin Chemerinsky, University of California, Irvine School of Law, Irvine, CA, Melissa Ann Cohen, Esq., Planned Parenthood Federation of America, New York, NY, William E. Rittenberg, Esq., Rittenberg, Samuel & Phillips, L.L.C., New Orleans, LA, for Plaintiffs–Appellees.

Jimmy Roy Faircloth, Jr., Attorney, Faircloth, Melton & Sobel, L.L.C., Alexandria, LA, Brook Landry Villa, Faircloth, Melton & Sobel, L.L.C., Elizabeth Baker Murrill, Esq., Assistant Attorney General, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, for Defendants–Appellants.

Alisa Beth Klein, Esq., Mark Bernard Stern, Esq., U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Mary Patricia Jones, Assistant U.S. Attorney, U.S. Attorney's Office Middle District of Louisiana, Baton Rouge, LA, for Amicus Curiae United States of America.

Martha Jane Perkins, National Health Law Program, Carrboro, NC, for Amici Curiae National Health Law Program, American Public Health Association, Center for Reproductive Rights, National Women's Law Center, National Family Planning & Reproductive Health Association, National Center for Lesbian Rights, National Latina Institute for Reproductive Health, IPAS, Sexuality Education and Information Council of the U.S.

Before WIENER, PRADO, and OWEN, Circuit Judges.

WIENER, Circuit Judge:

Medicaid's free-choice-of-provider provision, 42 U.S.C. § 1396a(a)(23), guarantees that Medicaid beneficiaries will be able to obtain medical care from the qualified and willing medical provider of their choice. In response to secretly recorded videos released by the Center for Medical Progress depicting conversations with Planned Parenthood employees elsewhere, Defendant-Appellant Louisiana Department of Health and Hospitals (“LDHH”) terminated Plaintiff–Appellee Planned Parenthood Gulf Coast's (“PPGC”) Louisiana Medicaid provider agreements. PPGC and the individual Plaintiffs–Appellees Jane Doe #1, Jane Doe #2, and Jane Doe #3 (the “Individual Plaintiffs”)—women who receive care at one of PPGC's Louisiana facilities—(collectively “the Plaintiffs”) filed this suit against LDHH under 42 U.S.C. § 1983, alleging violations of 42 U.S.C. § 1396a(a)(23) and the First and Fourteenth Amendments of the U.S. Constitution. The Individual Plaintiffs are three women who are Medicaid beneficiaries and who receive medical care from one of PPGC's Louisiana facilities. They seek to continue receiving care from PPGC's facilities. They specifically contend that LDHH's termination action will deprive them of access to the qualified and willing provider of their choice, PPGC, in violation of Medicaid's free-choice-of-provider provision. The district court entered a preliminary injunction against LDHH's termination of PPGC's Medicaid provider agreements. LDHH appeals.

I. FACTS

PPGC is a non-profit corporation domiciled in Texas and licensed to do business in Louisiana. It operates two clinics in Louisiana: the Baton Rouge Health Center and the New Orleans Health Center. Both centers participate in Louisiana's Medicaid program. PPGC's two clinics provide care to over 5200 Medicaid beneficiaries, which comprise more than half of the patients they serve in Louisiana. Those clinics offer physical exams, contraception and contraceptive counseling, screening for breast cancer, screening and treatment for cervical cancer, testing and treating specified sexually transmitted diseases, pregnancy testing and counseling, and other listed procedures, including colposcopy. Neither clinic performs abortions, nor have they ever participated in a fetal tissue donation program.

Doe #1 relies on PPGC's health center in Baton Rouge for her annual examinations. According to Doe #1, PPGC also helped her obtain treatment for cancer in December 2013. Her cancer is now in remission, but it has rendered her unable to take birth control pills. She does not wish to have any more children and continues to rely on PPGC to advise her on future contraception options. Doe #1 wishes to continue receiving health care at PPGC because she does not know of any other providers that will take her insurance. She prefers to receive care at PPGC because she is comfortable with the staff, trusts the providers, and is easily able to make appointments.

Doe #2 is enrolled in Louisiana's Take Charge Plus program¹ and has received care at PPGC's health center in New Orleans since 2012. Until health issues left her unable to work full time, at which point she lost her private health insurance, Doe #2 had used a private obstetrician-gynecologist. That physician stopped treating Doe #2 once she lost her private insurance. Doe #2 now visits PPGC every year for her annual gynecological examination. She does not know where else she could obtain this care and prefers to continue receiving it from PPGC.

Doe #3 is a patient of PPGC's health center in Baton Rouge. There, she receives pap smears, testing for sexually transmitted diseases, and cancer screenings. Doe #3 prefers receiving care at PPGC and feels that it is easy for her to make appointments there. She states that it “is very difficult to find doctors in Baton Rouge who will accept Medicaid.” She needed to visit another Baton Rouge clinic for a necessary gynecological procedure, but had to wait seven months to receive an appointment.

In July 2015, the Center for Medical Progress, an anti-abortion organization, released a series of undercover videos and allegations purportedly showing that Planned Parenthood and its affiliates were contracting to sell aborted human fetal tissue and body parts. At a later hearing, the district court found that “none of the conduct in question [depicted in the videos] occurred at PPGC's two Louisiana facilities.” Nevertheless, then-Louisiana Governor Bobby Jindal directed LDHH and the State Inspector General to investigate PPGC.

On July 15, 2015, then-secretary of LDHH, Kathy Kleibert, wrote to PPGC requesting responses to a range of questions about its activities. PPGC promptly responded on July 24, 2015, relevantly stating that (1) it “does not offer abortion services,” and (2) it does not sell or donate any unborn baby organs or body parts. PPGC acknowledged that Planned Parenthood Center for Choice, Inc. (“PPCFC”), a separate corporation,² provides abortions in Texas, but that PPCFC does not operate a fetal tissue donation program.

Secretary Kleibert wrote to PPGC on August 4, 2015, claiming that several of PPGC's responses “directly contradict” the recently released videos. According to her, one video taken in Houston, Texas, depicted Melissa Farrell, Director of Research at PPGC, “discuss[ing] existing contracts for fetal tissue donation for the purpose of research.” Secretary Kleibert emphasized that LDHH “is extremely concerned that [PPGC or PPCFC], or both have not only participated in the sale or donation of fetal tissue, but also deliberately misinformed [LDHH] about this practice in its July 24 response letter.” In that same letter, Secretary Kleibert requested more information about the practices of PPGC and PPCFC.

PPGC responded on August 14, 2015, repeating that neither PPGC nor PPCFC sells or donates fetal tissue. PPGC explained that the secretly recorded conversation “does not discuss existing contracts for fetal tissue donation,” but rather, “concerns a list of tissue specimens a major Texas research institution had expressed interest in obtaining, in discussions about a possible future fetal tissue donation program.”

In the midst of these communications, LDHH notified PPGC on August 3, 2015, that it would terminate PPGC's Medicaid provider agreements. Secretary Kleibert stated no basis for the termination. She noted only that the provider agreements are voluntary contracts subject to termination “by either party 30 days after receipt of written notice” under La. R.S. § 46:437.11. That same day, then-Governor Jindal published a press release: “Governor Jindal and DHH decided to give the required 30-day notice to terminate the Planned Parenthood Medicaid provider contract because Planned Parenthood does not represent the values of the State of Louisiana in regards to respecting human life.” Secretary Kleibert's letter notified PPGC of its right to a hearing and stated that PPGC may request an administrative appeal within 30 days. At a subsequent hearing before the district court, LDHH's counsel clarified that this termination action did not relate to PPGC's ability to provide adequate care to its patients.³

On August 25, 2015, PPGC and the Individual Plaintiffs filed suit under 42 U.S.C. § 1983, contending that LDHH's termination of PPGC's Medicaid provider agreements violated Medicaid's free-choice-of-provider requirement, 42 U.S.C. § 1396a(a)(23), and the U.S. Constitution. On that date, the Plaintiffs also moved for entry of a temporary restraining order and preliminary injunction.

LDHH voluntarily rescinded the August 4, 2015, “at will” termination letters on September 14, 2015. On that same day, LDHH advised the district court by letter that it believed that the Plaintiffs claims and pending motions were now moot. But the next day, September 15, 2015, LDHH notified PPGC that it was “terminating/revoking” PPGC's Medicaid provider agreements for “cause” under La. R.S. §§ 46:437.11(D)(2), 437.14 and Title 50 of the Louisiana Administrative Code. LDHH also informed PPGC that it may request an informal hearing or suspensive administrative appeal within 30 days. PPGC has not requested either a hearing or an appeal. LDHH has further notified PPGC that the effected terminations would be suspended...