NEW ORLEANS (AP) - A federal judge improperly barred Texas from enforcing a new rule that excludes Planned Parenthood clinics from participating in a taxpayer-funded program providing health care and contraception to low-income women, an attorney for the state argued Thursday.
Texas Attorney General Greg Abbott's office asked the 5th U.S. Circuit Court of Appeals in New Orleans to lift an injunction that bars the state Health and Human Services Commission from enforcing the rule. A three-judge panel, which heard arguments from lawyers on both sides of the case, didn't indicate when it would rule.
Abbott's office argues the state is entitled to exclude groups affiliated with abortion providers from its federally subsidized Women's Health Program.
"The state has the ability to restrict how a WHP entity identifies itself when it is providing services to Texas citizens," Assistant Solicitor General Kristofer Monson told the judges.
Monson said the eight clinics suing the commission qualify as "affiliating" with an abortion-promoting entity under the new rule because they use the Planned Parenthood registered service mark. But the clinics would be eligible to participate in the program if they dropped Planned Parenthood from the names of their groups, Monson said.
"There is a route to continue to maintain affiliation and continue to receive WHP funding," he said.
Planned Parenthood attorney Helene Krasnoff said a name change alone wouldn't satisfy the rule's requirements for participation in the program.
"The state has stood here today and rewritten the rule," she said.
The clinics have participated in the program since its 2007 inception. Last year, however, the Republican-controlled Texas Legislature enacted a measure prohibiting the commission from contracting with groups affiliated with abortion providers.
Planned Parenthood attorneys say the so-called "affiliate rule" is unconstitutional and would deal a crippling financial blow to dozens of clinics serving roughly half of the more than 100,000 women enrolled in the program.
Krasnoff, a Washington-based lawyer for the group, said the rule tramples on the clinics' First Amendment free speech rights and their freedom to be associated with Planned Parenthood. She urged the panel to uphold the injunction issued by U.S. District Judge Lee Yeakel in Austin.
"This is political speech that's at the heart of the First Amendment," she said. "The rule does not just bar them from advocating. It bars them from affiliating."
Kransnoff said the clinics receiving WHP funds are legally and financially separate from any entity that provides abortions, although some of the clinics share office space with the abortion-providing entities. Two of the panel's judges pressed Krasnoff on the possible implications of that space-sharing arrangement.
"The farther away they are (from each other), the better it would seem to be," Judge Harold DeMoss Jr. said.
"The rule doesn't talk about physical separation," Krasnoff said. "It has nothing to do with facilities."
Judge E. Grady Jolly questioned whether Planned Parenthood is so synonymous with abortion that the clinics' participation in the state-run program interferes with the state's interest in reducing abortions.
"Don't you think that the message that the state was trying to send has been muddled?" Jolly asked.