Many abortion rights supporters fear Planned Parenthood will not get a fair hearing before Matthew Kacsmaryk, the judge in the case.
Updated on Oct. 25, 2023 at 11:30 a.m. PT: On Monday, Oct. 23, Judge Matthew Kacsmaryk ordered a trial in a suit brought against Planned Parenthood Federation of America (PPFA) and three of its Texas affiliates: Planned Parenthood of Greater Texas, Planned Parenthood Gulf Coast, and Planned Parenthood South Texas. The case will now go to trial in April 2024.
“This is a baseless case. The Texas Planned Parenthood affiliates did not commit Medicaid fraud and followed the law, period. Planned Parenthood organizations are nonprofit organizations that provide quality, life-saving health care to their patients,” said Susan Manning, general counsel for PPFA. “The plaintiffs’ only goal in this case is to achieve their decades-long goal of shutting down Planned Parenthood to advance a political agenda. We will never back down, and we look forward to winning this case at trial.”
Any day now, the Trump-appointed, anti-abortion judge Matthew Kacsmaryk—who has tried to ban the abortion pill mifepristone—will rule in a lawsuit against Planned Parenthood Federation of America and three Texas affiliates. In Doe v. Planned Parenthood, the state of Texas and an anonymous plaintiff associated with the anti-abortion group Center for Medical Progress alleges that Planned Parenthood engaged in fraud when they filed Medicaid reimbursement claims for healthcare services they provided to thousands of people in Texas and Louisiana.
The plaintiffs are seeking up to $1.8 billion in civil penalties, which could bankrupt Planned Parenthood. The nonprofit organization argues that the Medicaid reimbursement claims they filed were specifically allowed by several court orders and were not Medicaid fraud.
The plaintiffs filed the case in the Amarillo Division of the Northern District of Texas, a federal court with no ties to the case and where there is only one judge: Kacsmaryk, a Trump-appointed, evangelical judge who has devoted his career to challenging and striking down laws that create access to reproductive and sexual healthcare.
“The stakes of this baseless case could not be more high—this is an active effort to shut down Planned Parenthood health centers,” said Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America. “Affordable, high-quality sexual and reproductive healthcare is already under threat, and these politically-motivated allegations could upend care for millions of patients in Texas and potentially across the country.”
Texas Gov. Greg Abbott (R), impeached Attorney General Ken Paxton, and an activist associated with the Center for Medical Progress—an organization that has engaged in illegal conduct itself, and been held liable for millions of dollars in damages—are pursuing this lawsuit as part of a longstanding right-wing effort to shut down Planned Parenthood.
The Long Winding Road to Doe v. Planned Parenthood
In 2013, anti-abortion activist David Daleiden created the Center for Medical Progress (CMP) and a fake biomedical research company, Biomax Procurement Services, to pose as buyers of fetal tissue for research.
CMP employees then used fake identification to register for meetings of the National Abortion Federation on behalf of BioMax, which claimed to be a vendor. While at the meetings, CMP employees surreptitiously recorded people violating a confidentiality agreement they signed affirming they were truthfully and accurately representing their business at the meetings and would not make video or audio recordings. They also agreed to keep information learned at the event confidential.
Daleiden and others illegally recorded conversations with Planned Parenthood employees, in direct contradiction to the confidentiality agreement. Then they released misleading and edited videos on social media beginning in July 2015. CMP claimed the videos showed Planned Parenthood personnel and others affiliated with NAF illegally selling fetal tissue. These claims were later disproven by numerous investigations by federal, state and local agencies.
Nevertheless, anti-abortion politicians in many states introduced legislation to strip Planned Parenthood of federal family planning funds and Medicaid reimbursement. In 2015, Louisiana passed legislation to terminate Planned Parenthood’s Medicaid provider credentials. Two years later, Texas also did this.
In response, Planned Parenthood sued both states and won. Two federal court orders explicitly allow the nonprofit to continue receiving Medicaid reimbursements for medical services provided to patients in Louisiana and Texas. They then filed claims for reimbursement for these services from the Medicaid program, which covers people living in poverty and without access to health insurance.
Meanwhile, in November of 2019, a jury found that CMP and its CEO David Daleiden broke multiple state and federal laws, including the Racketeer Influenced and Corrupt Organizations (RICO) Act, fraud, trespassing, breach of contract and illegal secret recording. The jury awarded Planned Parenthood over $2 million for injuries caused by Daleiden and his co-conspirators—an award largely affirmed on appeal.
Nevertheless, in December 2020, the extremely conservative Fifth Circuit reversed the lower court decisions in Planned Parenthood’s lawsuits against Texas and Louisiana. Planned Parenthood then sued in state court, obtaining an injunction to continue to receive Medicaid reimbursements, which they did until March 2021, when the case was dismissed.
Texas and the anonymous plaintiff affiliated with CMP then filed a lawsuit against Planned Parenthood, alleging Medicaid fraud under the federal False Claims Act, which allows private citizens to sue on behalf of the United States to recover money obtained from the government through fraud. The law incentivizes whistleblowers by allowing private citizens who win such a case to receive up to 30 percent of the money the government recovers.
The stakes of this baseless case could not be more high—this is an active effort to shut down Planned Parenthood health centers.
Alexis McGill Johnson
The plaintiffs, who filed claims under a similar state law, do not allege that Planned Parenthood billed Medicaid for services that it did not provide, which is what the False Claims Act was intended to address—but they refused to return the payments after the Fifth Circuit ruling.
Planned Parenthood argues that federal law has established that when a party complies with a federal court’s injunction, it cannot be forced to pay for that compliance if the injunction is later lifted. They also argue that the False Claims Act requires a showing that a defendant “knowingly” made a false statement to the government to obtain a payment, which did not happen, nor are the plaintiffs alleging this happened.
The plaintiffs are suing Planned Parenthood for three times the amount of the Medicaid reimbursements received between 2017 and 2021, plus up to an $11,000 penalty for each one of the thousands of claims filed for medical services provided to people in Texas and Louisiana—which could total over $1.8 billion. (Louisiana is not a party to this case.)
Many abortion rights supporters fear Planned Parenthood will not get a fair hearing before the judge in the case.
Who Is Matthew Kacsmaryk?
Before becoming a federal judge, Kacsmaryk was deputy general counsel for First Liberty Institute, a Christian conservative legal organization specializing in representing religious groups claiming they have experienced discrimination.
In 2015, Kacsmaryk wrote an op-ed for the National Catholic Register stating his opposition to same-sex marriage, no-fault divorce, birth control, abortion and sex outside of marriage—and his support for “complementarianism,” a religious belief that assigns primary headship roles to men and support roles to women based on their interpretation of certain biblical passages.
In November last year, Kacsmaryk ruled that the Affordable Care Act does not bar healthcare providers from discriminating against LGBTQ people.
The next month he upended decades of settled law by ruling that young people using federally-funded healthcare providers had to have parental consent before receiving reproductive healthcare services.
Then in April, Kacsmaryk tried to overturn the U.S. Food and Drug Administration’s decades-old approval of the abortion medication mifepristone.
“He is an anti-LGBT activist and culture warrior who does not respect the equal dignity of all people,” said Sen. Dianne Feinstein (D-Calif.) during his Senate confirmation hearing in 2018, reading from a letter from the Leadership Conference on Civil and Human Rights. “His record reveals a hostility to LGBT equality and to women’s health, and he would not be able to rule fairly and impartially in cases involving those issues.”
This lawsuit, intended to close Planned Parenthood’s doors, is personal to me and the thousands upon thousands of Texans like me who have turned to Planned Parenthood in our time of need.
Natalie Vallot
Potential Consequences of Doe v. Planned Parenthood
If Kacsmaryk rules in favor of the plaintiffs, Planned Parenthood could face bankruptcy, potentially depriving millions of people of basic healthcare, especially women, people with low incomes, young people, immigrants and people who face healthcare barriers due to race discrimination.
In 2022 alone, Planned Parenthood provided birth control information and services to over 2.3 million people, STI testing and treatment services to over 4.4 million people and cancer screenings and prevention services to nearly a million people.
Planned Parenthood estimates that one in every five women in America has visited one of their healthcare centers, and each year the organization prevents an estimated 579,000 unwanted pregnancies. Without Planned Parenthood, the people relying on its services would be forced to spend time seeking other healthcare providers, or face the terrifying reality of having no care and potentially ending up with an unwanted pregnancy in Texas—a state ranking last for high-quality prenatal and maternal care.
Young people are amongst the most vulnerable of the millions of people this case may affect.
“Young people rely on Planned Parenthood health centers for cancer screenings, birth control, STI testing, well-person visits, and more,” said McGill Johnson, “and the last thing they need is fewer options for care.”
For many, Planned Parenthood provides life-saving care. Among these patients is Natalie Vallot, who has shared her story and experience with the organization.
An advanced practice nurse in Texas, Vallot explained how the potential loss of Planned Parenthood could affect young people.
“This lawsuit, intended to close Planned Parenthood’s doors, is personal to me and the thousands upon thousands of Texans like me who have turned to Planned Parenthood in our time of need,” said Natalie Vallot, who was in her 20s when Planned Parenthood diagnosed a lump in her breast. At the time, she worked in the service industry without health insurance. Still, she could take advantage of the sliding scale fees offered by Planned Parenthood.
“The lump turned out to be benign, but because of that experience I started getting regular mammograms much earlier than most. Planned Parenthood taught me that the kind of lump I had can become malignant. It was extremely important that I was able to address it in a timely manner,” she said. “My experience would have been incredibly different had it not been for the routine, preventative healthcare I received at that Texas Planned Parenthood health center.”
Vallot describes the Texas lawsuit as “a direct attack on our life-saving cancer screenings, birth control, primary care, wellness exams, and so much more.” She worries that the Texas lawsuit against Planned Parenthood might mean that young women today will not have access to the services that were so important to her.
“There are so many young people just getting started in life who are working hard and still can’t quite afford the healthcare they need,” said Vallot. “Today, it’s even harder to find affordable, accessible healthcare than when I was a young woman—especially here in Texas, where politicians have spent decades working to dismantle sexual and reproductive healthcare access and eliminate people’s options.”
Planned Parenthood, which accepts Medicaid and offers sliding scale fees for low-income people, is the only place available for many people to access healthcare short of going to an emergency room, said Vallot.
“I see firsthand what happens when people are not able to get preventive healthcare they need,” said Vallot. “As an Internal Medicine provider, I know the importance of adhering to routine exams and healthcare visits, because too often the patients I see at the hospital are the ones who have not been able to afford this preventive care. Frankly, this is an expensive and inefficient use of Texas’s valuable resources.”
While waiting for Kaczmaryk to rule any day, Vallot worries about the future.
“Texans desperately need more access to quality, affordable healthcare, not less,” said Vallot. “It’s long past time for our state leaders to stop playing politics with people’s lives. People of Texas deserve better.”
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