IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

FILED
2DI2APR 30 AH II: 3'.1

PLANNED PARENTHOOD

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ASSOCIAnON OF HIDALGO COUNTY §

TEXAS, INC.; PLANNED

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PARENTHOOD ASSOCIATION OF

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LUBBOCK, INC.; PLANNED

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PARENTHOOD OF CAMERON AND

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WILLACY COUNTIES; FAMILY

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PLANNING ASSOCIATES OF SAN

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ANTONIO; PLANNED PARENTHOOD §

OF CENTRAL TEXAS; PLANNED

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PARENTHOOD OF GULF COAST,INC.; §

PLANNED PARENTHOOD OF NORTH §

TEXAS,INC.; PLANNED

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PARENTHOOD OF WEST TEXAS, INC.; §

AND PLANNED PARENTHOOD OF

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AUSTIN FAMILY PLANNING, INC.;

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PLAINTIFFS,

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V.

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THOMAS M. SUEHS, EXECUTIVE

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COMMISSIONER, TEXAS HEALTH

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AND HUMAN SERVICES

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COMMISSION,IN HIS OFFICIAL

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CAPACITY,

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DEFENDANT.

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CIVIL NO. A-12-CV-322·LY

ORDER GRANTING PRELIMINARY iNJUNCfION Before the court in the above styled and numbered cause ofaction are Plaintiffs' motion for Preliminary Injunction and Memorandum of Law in Support Thereof filed April 11,2012 (Clerk's Doc. No.2) and Defendant's Response to Plaintiffs' Motion for Preliminary Injunction and Memomndum of Law in Support Thereoffiled April 18,2012 (Clerk's Doc. No. 18). On April 19, 2012, the court held a hearing on Plaintiffs' motion, at which all parties appeared and were

represented by counsel. Having considered the motion, response, the arguments ofcounsel, the case file, and the applicable law, the court will grant the requested preliminary relief.
I. BACKGROUND This suit seeks to enjoin the enforcement ofa recent administrative rule promulgated by the Texas Health and Human Services Commission (the Commission), which has the effect ofexcluding Plaintiffs-nine Planned Parenthood organizations-from providing preventive health and familyplanning services through Texas's Women's Health Program. The Women's Health Program was established by the Texas Legislature in 2005 as a five-year demonstration project to expand access to preventive health and family-planning services for uninsured women, ages 18-44, with a nel family income at or below 185 percent of the federal poverty level. Act of May 30, 2005, 79th Leg., R.S., ch. 816, § 1,2005 Tex. Gen. Laws. 2816, 2816-18 (expired Sept. 1,2011) (the 2005 Act). Under the program, Texas provides a limited Medicaid benefit package of family-planning and related services to a population currently not covered under the Medicaid state plan. I The program was approved for a demonstration waiver under Title XI of the federal Social Security Act. See 42 U.S.C. § 1315. The Social Security Act gives the Secretary of Health and Human Services of the United States discretion to approve a state demonstration project for a waiver of certain Medicaid requirements, in order to allow the state to test new ways to deliver and pay for health-care services and to use Medicaid funds in ways not otherwise allowed by federal rule.2 Id The Commission
I See Medicaid & CHIP Program Infonnation on Texas Women's Health Waiver, http://www.medicaid.govlMedicaid-CHIP-Progmm-InfonnationIBy-TopicslWaivers/ll15/downl oadsltxltx-womens-health-waiver-fs.pdf (last updated Apr. 23, 2012).
2 Although the record is not fully developed at this time, it appears that the waiver's significance to the Women's Health Program is that the waiver allows a population not otherwise eligible for Medicaid to receive the program's services, paid for by state and federal funds.
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began implementing the Women's Health Program in 2007 with 90 percent ofthe program's services funded by federal reimbursements.
The rule at issue in this suit has its origins in the 2005 Act authorizing the Commission to create the Women's Health Program. The act contained a provision prohibiting the Commission
from using program funds "to perfol11l or promote elective abortions" and from contracting with "entities that perfonn or promote elective abortions or are affiliates of entities that perfonn or promote electlve abortions." 2005 Act at 2818. The act did not define "affiliates" or "promote." Due to litigation in Texas and other states challenging similar no~affiliation directives, the
Commission, under the direction of former Commissioner Albert Hawkins, originally took the position that the act, if construed to exclude Plaintiffs from the Women's Health Program, would likely not survive a constitutional challenge. As a result, Plaintiffs have participated in the Women's Health Program since its inception, despite their relationship to Planned Parenthood Federation of America, a national reproductive health~care provider that advocates for women's access to abortion.
Plaintiffs operate 49 health centers across Texas, where women can enroll and participate in the Women's Health Program. None of Plaintiffs' centers provide abortion services. In order to ensure that no slate or federal funds are spent on abortions, Plaintiffs maintain legal and financial separation from those Planned Parenthood entities that provide such services.) Plaintiffs' centers
) The legal and financial separation between Plaintiffs and those Planned Parenthood entities providing abortions came about as a result of prior litigation challenging a similar no-affiliation directive in the context ofa federal family-plaMingprogram administered by the Texas Department
ofHealth. See Planned Parenthood a/Houston & Se. Tex. v. Sanchez, 403 F3d 324 (5th Cir. 2005)
(reviewing constitutionality ofTexas statutory provision prohibiting distribution cffamily-planning funds to "individuals or entities that perfonn elective abortion procedures Or that contract with or provide funds to individuals or entities for the perfonnance of elective abortion procedures"). The Fifth Circuit Court of Appeals interpreted the directive as permitting the creation of separate legal entities that perform abortions but receive no federal funds and remanded the case to the di strict
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have historically provided a significant percentage of the Women's Health Program's familyplanning services. According to Plaintiffs' complaint, at least 49010 of the approximately 103,000 women who obtained services through the program in 2010 obtained some services at a Planned Parenthood provider. These women represent a population that, without the Women's Health Program, would likely be unable to obtain health care. To qualify for participation in the program, a woman must demonstrate that she has a family income at or below 185 percent of the federal poverty level, is not otherwise eligible for Medicare, Medicaid, and the Children' s Health Insurance Program (CHIP) and has no alternate health-insurance coverage.·
The 2005 Act expired September 1,2011, at the close of the Women's Health Program's five-year demonstration period. Id. In anticipation of its expiration, the Texas Legislature attached Rider 62 to the 2011 General Appropriations Act to provide for the program's continuation. Act of May 31, 2011, 82nd Leg., R.S., ch. 1355,2011 Tex. Gen. Laws4025, 4228 (effective Sept. 1,2011). Rider 62 restates the financial eligibility requirements for the program and directs the Commission to continue the Women's Health Program under Medicaid, contingent on the program's receiving an extension ofthe previous waiver. Id. In order to ensure that the program remained subject to the no-affiliation directive contained in the expired 2005 Ac~ the Legislature enacted a new noaffiliation provision, providing that:
court for further proceedings consistent with this interpretation. Id at 337-38. On remand, the parties reached a settlement. and the Planned Parenthood organizations agreed to create separate corporate entities with distinguishable names and boards ofdirectors and separate financial records
that are audited by Texas every two years to ensure adequate separation. • See Medicaid & CHIP Program Infonnation on Texas Women's HeaJth Waiver,
http://www.medic:aid.govlMedicaid-CHIP- Program-Infomlation!By-TopicsIWaiversll1 IS/downl oadsltxltx-womens-health-waiver-fs.pdf (last updated Apr. 23, 2012).
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The [Commission] shall ensure that money spent for purposes of the demonstration project for women' s health care services under former Section 32.0248, Human Resources Code, or a similar successor program is not used to perfonn or promote elective abortions, or to contract with entities that perform or promote elective abortions or affiliate with entities that perfonn or promote elective abortions.
Act of lune 28, 2011, 82nd Leg., 1st C.S., ch. 7, § 1.19, 2011 Tex. Gen. Laws 5390, 5425 (codified
at Tex. Hum. Res. Code § 32.024(c-I» (effective Sept. 28, 2011) (Section 32.024(c-I». The
Commission subsequently requested renewal ofthe Women's Health Program's waiver. The federal
government temporarily extended the waiver until March 31, 2012, to consider the Commission's
application for renewal. The program continued to operate with federal funding, as previously
administered, through the beginning of2012.
On February 23, 2012, the Commission, under the direction of current Commissioner,
Defendant Thomas M. Suehs (the Commissioner), adopted the rule challenged in this litigation. 37
Tex. Reg. 1696 (2012)(to be codified at I Tex. Admin. Code §§ 354.1361-.1364) (Tex. Health &
Hum. Servs. Comm'n) (effective March 14, 2012). The rule defines the terms "affiliate" and
"promote" for purposes of Section 32.024(c-I). Id The rule defines "affiliate" as
(A) An individual or entity that has a legal relationship with another entity, which relationship is created or governed by at least one written instrument that demonstrates:
(i) common ownership, management, or control; (ii) a franchise; or (iii) the granting or extension of a license or other agreement that authorizes the affiliate to use the other entity's brand name, trademark, service mark, or other registered identification mark. (B) The written instruments referenced in subparagraph (A) ofthis paragraph may include a certificate of formation. a franchise agreement, standards of affiliation, bylaws, or a license.
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Jd. The rule defines "promotes" as "(a]dvocates or popularizes by. for example, advertising or publicity." /d. The rule expressly excludes hospitals licensed under the Texas Health and Human Safety Code from compliance with the no-affilia1ion directive. /d.
In light of the new rule, the federal government refused to extend or renew the Women's Health Program's waiver on the basis that 1he rule conflicts with a provision of the Social Security Act that assures free choice of family-planning providers. See 42 U.S.C. § I396A(a)(23) ("[A]ny individual eligible for medical assistance ... may obtain such assistance from any institution, agency, ... or person, qualified to perfonn the service ... who undertakes to provide .. . such services."). The federal government also advised the Commission that it would continue federal funding for the Women's Health Program through atwo-stage phase-out period ofno more than nine months. The Texas Governor has instructed the Commissioner and the Commission to continue the operation of the Women's Health Program as a fully state-funded program, without the assistance of federal Medicaid funds, in full compliance with the new rule.s
The Texas Medicaid & Healthcare Partnership, the entity that administers claims processing for the Women's Health Program. advised Plaintiffs ofthe new rule and that Plaintiffs were required to certify before May 1,2012, that they do not perfonn or promote elective abortions, do not affiliate with any entity that does, and that Plaintiffs' failure to certify compliance with the rule would result in disqualification from participating in the Women's Health Program effective May 1,2012.
S It is unclear whether Texas will have any funds available for a completely state-run Women's Health Program, as Rider 62's authorization of the continuation of the Women's Health Program, after the expiration of the original five· year demonstration period, is contingent on an extension of the original waiver. See Act of May 31,2011, 82nd Leg., R.S.• ch. 1355,2011 Tex. Gen. Laws 4025, 4228 (effective Sept. 1,2011).
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Plaintiffs assert that, although they maintain legal and financial separation from any entity that performs abortions and do not provide or encourage women participating in the Women's Health Program to have abortions, they are unable to certify compliance with the new rule for numerous reasons. First, Plaintiffs concede that each oftheir organizations engages in advocacy and public education activities intended to protect and facilitate access to safe and legal abortions. See I Tex. Admin. Code § 354.1362(6) (defining "promote" as "advocates or popularizes" for purposes of statutory prohibition against contracting with entities that perform or "promote" elective
abortions). Second, all but one Plaintiffare affiliated with an entity that provides abortion care and that advertises that it provides those services. See id. at § 354.1362(1)(A) (defining "affiliate" as "a
legal relationship with another entity" for purposes of statutory prohibition against contracting with entities that "affiliate" with entities that perform or promote abortion). Third, although Plaintiffs and their affiliated abortion providers have easily distinguishable names, all use the registered service
mark "Planned Parenthood" in providing medical services. See id. at § 354.1362(1 )(A)(iii) (defining
"legal relationship with another entity" as including shared use of "brand name, trademark. setvice mark, or other registered identification mark"). Finally, Plaintiffs are all affiliates or ancillary organizations of affiliates of Planned Parenthood Federation of America, which advocates for
women's access to abortion and requires that its affiliates do the same. See id. at §
354.1362(1)(A)(i) (defining "legal relationship with another entity" as including "common ownership, management, or contro'''). Plaintiffs assert that the new rule completely bars their participation as providers of family-planning services through the Women's Health Program.
Unable to certify compliance with the new rule, Plaintiffs filed Ihis action, challenging the rule and Section 32.024(c-l} on federal constitutional and state-law grounds. See 28 U.S.C. § 1367;
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42 U.S.C. § 1983. Accompanying their complaint was a request for preliminary injunctive relief,
requesting that this court bar the rule from going into effect May I, 2012. II. LEGAL STANDARD
The purpose of a preliminary injunction is to prevent irreparable injury to the parties and
"preserve the court's ability to render a meaningful decision on the merits." Me;s v. Sanitas Servo
Corp., 511 F.2d 655, 656 (5th Cir. 1975). To obtain a preliminary injunction, Plaintiffs must demonstrate: (1) a substantial likelihood of success on the merits of their claim; (2) a substantial threat of irreparable injwy or hann if the injunction is not granted; (3) that the threatened injury to Plaintiffs outweighs any hann that the injunction might cause Texas; and (4) that granting the injunction will not disserve the public interest. See Karaha Bodas Co., L.L.C. V. Perusahaan Per/ambangan Minyak Dan Gas, 335 F.3d 357, 363 (5th Cir. 2003). A preliminary injunction is an extraordinary remedy, which should only be granted if the party seeking the injunction has clearly
carried the burden of persuasion on all four requirements. Id. The decision to grant or deny a
preliminary injunction is within the sound discretion of the district court and may be reversed only
for a cleor abuse ofdiscretion. Allied Mkrg. Group. Inc. v. eDL Mk/g.• Inc., 878 F.2d 806, 809 (5th Cir. 1989).
III. ANALYSIS Plaintiffs' complaint alleges that the Commission's rule violates both the United States constitution and Texas law. Before evaluating whether Plaintiffs are entitled to a preliminary injunction, the court will address the Commissioner's contention that this court lacks jurisdiction over Plaintiffs' state-law claim under Texas's Eleventh Amendment immunity from suit.
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A. Elevenlh Amendment Immunity The Eleventh Amendment bars a private citizen from bringing suit against a state in federal
court, unless the suit falls within the narrow exception articulated by the Supreme Court in Ex Parle Young. U.S. Consl. amend. Xl; McKinley v. Abbol/, 643 F.3d 403, 405 (5th Cir. 2011) (citing Ex
Parle Young , 209 U.S. 123 (1908». "The Young exception has been accepted as necessary to pennit the federal courts to vindicate federal rights and hold state officials responsible to the supreme authority of the United States." Id at 406 (internal quotation and citation omitted). ''This exception strips the individual state actor of immunity and allows a private citizen to sue that individual in federal court for prospective injunctive relief based on allegations that the actor violated federal law." Jd Because a state-law claim does not implicate federal rights. the Young exception does not apply to a state-law claim brought against a stale in federal court. Jd
The Eleventh Amendment' s jurisdictional bar extends to a suit against a state agency or department, as well as a suit against a state official sued in his official capacity, because such a suit is functi onally against the state itself. Pennhursl Siale Sch. & Hosp. v. Halderman, 465 U.S. 89,
100-01 (1984); McKinley, 643 F.3d at 406. Because Plaintiffs brought suit against the
Commissioner in his official capacity, the Eleventh Amendment bars Plaintiffs' claim that the Commission's rule is void and unenforceable under Texas law. See MCKinley , 643 F.3d at 406. Accordingly, Plaintiffs state-law claim must be dismissed.
The Commissioner does not raise an immunity defense to Plaintiffs' federal constitutional claims. The court finds that jurisdiction over these claims is proper under Ex Parfe YOllng. as
Plaintiffs seek only prospective declaratory and injunctive relief. See Ex Parle Young. 209 U.S. at 160;see olso Planned Parenthood ojCent. H.C. v. Cansler, 804 F. Supp. 2d 482, 489-90 (M.D.N.C.
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2011) (rejecting Eleventh Amendment immunity defense in suit seeking to enjoin SecretaryofNorth Carolina Department of Health and Human Services from enforcing state legislation that allegedly violated the federal constitution). 11lat Plaintiffs' federal constitutional claims are properly before this court does not affect this court's immunity analysis of Plaintiffs' state-law claim. The Eleventh Amendment applies equally to pendent state·law claims asserted under this court's supplemental jurisdiction. See Pennhurst. 465 U.S. at 120. Having concluded that this court has jurisdiction over Plaintiffs' federal constitutional claims but not their state·law claim, the court will consider Plaintiffs' request for a preliminary injunction only as to their constitutional claims. B. Enfiliemenllo Preliminary Relief
1. Substantial Likelihood of Success on the Merits To obtain a preliminary injunction, Plaintiffs must first show a substantial likelihood that they will succeed on the merits of their claims, once the case proceeds to a full and complete trial. Lakedreamsv. Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991). To do so, Plaintiffs need not prove their case. See id. at 1109 n.Il. Nor must Plaintiffs demonstrate a substantial cerlainty of success. See Schiavo errel. Schindler v. Schiavo, 403 F.3d 1223, 1232 (11th Cir.2005)("A substantial likelihood ofsuccess on the merits requires a showing of only Iikely or probable, rather than certain, success.j; see also Doron v. Salem Inn, Inc., 422 U.S. 922, 931 (1975); cf Ruizv. Estelle, 650 F.2d 555, 565 (5th Cir.1981). Plaintiffs allege that the Commission's rule and Section 32.024(c-l) impose unconstitutional conditions on Plaintiffs' eligibility to participate in the Women's Health Program and violate their right to equal protection under the laws. To warrant the issuance ofa preliminary injunction, Plaintiffs must demonstrate that they are likely to prevail on these claims.
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B

i. Unconstitutional Condition Under the unconstitutional-conditions doctrine. although a person bas no "right" to government funding, the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests." Perry v. Sindermann. 408 U.S. 593, 597 (J972). If the government were permitted to deny a benefit because the applicant for such benefit had exercised
a constitutional right. the applicant's "exercise of[that] freedomO would in effect be penalized and
inhibited," thereby allowing the government "to produce a result which it 'could not command directly...• Id (quoting Speiser o. Randall. 357 U.S. 513.526 (1958)). The Supreme Court has distinguished between conditions targeting a particular program or service from conditions aimed at the recipient of the government benefit. See RUSI v. Sullivan. 500 U.S. 173, 196 (1991).
It is well-established that the government is entitled to define the limits of a publicly funded program. Id. at 194. "The [g]overnment can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way." [d. at 193. For there is a "basic difference between direct state interference with a protected activity and state encouragement ofan alternative activity consonant with legislative policy." Id. at 193 (citing Maher o. Roe, 432 U.S. 464. 475 (1977)). It follows that. in accordance with a gooemment program's legitimate policy objectives. the government may refuse to fund activities. including protected activities, which are "specifically excluded from the scope of the project funded ." Id at 194-95. This is because such conditions leave the grantee of government funds "unfettered in its other activities" outside of the publicly funded program. Jd at 196 (upholding funding limitation prohibiling abortion·related activities. including speech. within scope of program activities).
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BlI t thl! government may not condit ion participation in a gove rn me nt progmlll or receipt of a government benefit upon an applican t's exercise of proICCted rights. For example, the Supreme Court has he ld that South Caro lina could not deny unemployment compensation benefits to an employee who was discharged for her refusa l to work on Saturday, the Sabbath day of her faith. Sherbert v. Verner, 374 U.S. 398, 404 (1963). The Court reasoned that such ind irect "discouragements" of the exercise of a protected right "undoubtedly have the same coercive effect upon the exercise of First Amendment rights as imprisonment, fines, injunctions, or taxes." Jd. at 404 n.5. And in a case more analogous to the fact s at issue here, the Supreme Court has held that California could not condi tion receipt of a veterans' property· tax exemption on a veteran's completi on of an oath swearing that the veteran does not advocate overthrow of the government by unlawful means. Speiser, 357 U.S. at 532. For Uto deny an exemption to cl aimants who engage in certain fomls of speech is in effect to penalize them for such speech." Id. at 5 18. Conditions on recipients of government benefi ts that implicate fundamental rights, such as free speech and free exerc ise, are subject to strict sc ru tiny and will only be upheld if shown to be " necessary to promote a compell ing govemment interest." Slwpiro v. Tllompson, 394 U.S. 6 18, 634 ( 1969). In such cases, there need not be a showi ng of an actual effect of deterring exercise of the right to trigger strict scnili ny, on ly that the classification "serves to penalize the exercise of that right." Melli '/ Hosp. v.
Maricopa Guy., 415 U.S. 250, 258 (1974) (citingD/II/Il v. Blumstein, 405 U.S. 330, 339-40 ( 1972)).
PlaintifTs allege that the Commission's rule imposes three unconstitutional conditions on their partic ipati on in the Women's Hea lth Program. They argue that the n il e conditions their participation on the surrender of their First Amendment right to advoca te to protect access to safe and legal abortion services, their First Amendment right to associate with Planned Parenthood
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Federation of America and other entities providing abortion services, and their Fourteenth Amendment right to provide abortion services through legally and financially separate affiliates.
The rights to free speech and association are fundamental rights safeguarded by the First
Amendment from invasion by the states. Mcintyre v. Ohio Elections Comm 'n, 514 U.S. 334. 336 n.1 (1995) (citing Whitney v. Cali/omia, 274 U.S. 357, 373 (1927». By advocating for women',
access to safe and legal abortion services and associating with entities providing such services, Plaintiffs are exercising these fundamental rights. Section 32.024(c-J), as interpreted by the Commission's rule. implicates these rights by conditioning Plaintiffs' participation in the Women's Health Program on their speech and associations. By requiring Plaintiffs to certify that they do not "promote" elective abortions and that they do not "affiliate" with entities that perfonn Or promote elective abortions, as defined by the rule. Texas is reaching beyond the scope of the government program and penalizing Plaintiffs for their protected conduct.
The Supreme Court has sought to avoid the constitutional infinnities of conditions that broadly impinge upon the exercise of fundamental rights by construing the conditions to permit the creation of legally distinct affiliates to enSure the separation of public funds from protected conduct
exercised outside the scope of a government program. See Regan v. Taxaaon with Representation oj Wash., 461 U.S. 540, 545 (1983) (upholding federal prohibition on tax-exempt charitable
organizations using tax-deductible contributions to support their lobbying efforts given alternative of creating Jegany distinct affiliates free to engage in First Amendment activity). If such division
was not possible. the Court invalidated the condition. See FCC v. League a/Women Voters o/Cal.,
468 U.S. 364, 400 (1984) (invalidating portion of Public Broadcasting Act of 1964 which prohibited noncommercial television and radio stations that receive federal grants from engaging in all
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editoriaiiring because recipients were unable to segregate their activities according to source of funding).
The ability of independent affiliates to exercise protected rights is a critical component in lower-court decisions upholding similar no·affiliation directives seeking to insulate govenunent funds from abortion and abortion-related speech. In reviewing Missouri legislation prohibiting the award of state family-planning funds to organizations Or affiliates of organizations that "provide or promote abortions," the Eighth Circuit Court ofAppeals upheld a statute against an unconstitutional· conditions challenge, concluding that the law "allows grantees to exercise their constitutionally protected rights through independent affiliates." Planned Parenthood ofMid-Mo. & E. Kan. . Inc.
v. Dempsey, 167 F.3d 458, 463 (8th Cir. 1999). The Eighth Circuit defined the constitutional
dividing lineas " whetherthe legislation .. . constitutionally restricts the use offunds within the State family-planning program or unconstitutionally restricts grantee activities outside the program." Id. at 462.
Similarly, the Fifth Circuit interpreted a no-affiliation directive prohibiting the distribution of federal funds to entities that "contract with or provide funds to individuals or entities for the
performance of elective abortion procedures." Planned Parenthood of Houston & Se. Tex. v. Sanchez. 403 F.3d 324, 328 (5th Cir. 2005). The court upheld the statute against a Supremacy
Clause challenge. construing the provi sion as not precluding the creation of independent affiliates engaged in abortion activities, noting that. absent the possibility ofaffiliates, the statute would likely be unconstitutional. Id at 338.
It is not possible to read Section 32.024(c-l). as defined by the Commission's rule, as permitting the possibility of affiliates. Following Sanchez. Planned Parenthood restructured its
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Texas organization so that entities receiving public funds do not engage in abortion services. Plaintiffs' 49 health centers. providing family-planning services through the Women's Health Program, have legally and financially distanced themselves from the Planned Parenthood organizations that perform abortion. By defining "affiliate" in broad tenns, to include shared "ownership, management, or control" or a shared "name, trademark, service mark, or other identification mark," the Commission's rule effectively forecloses any workable system ofaffiliates. Accordingly. this court finds that Section 32.024(c-I). as defined by the Commission's rule impinges on Plaintiffs' First Amendment speech and associational rights and caMot be saved by an alternative construction. Accordingly, the rule will not withstand constitutional scrutiny, unless Texas comes forth with a compelling interest to justify the rule's existence. See Shapiro, 394 U.S. at 634.
It is unlikely that Texas will be able to do so, even accepting the Commissioner' s assertion that one purpose of the Women's Health Program is to reduce elective abortions by preventing unwanted pregnancies by subsidizing birth-control strategies that do not involve elective abortions. The Women's Health Program. by statute. was created to provide uninsured Texas women with preventive health and family-planning services_ Act of May 30, 2005, 79th Leg_, R.S., ch. 816, § I, 2005 Tex. Gen. Laws. 2816. 2817. Such services include medical.history evaluations. physical examinations. health screenings for diabetes. cervical and breast cancer, and sexually transmitted diseases, and counseling and education about, and the provision of. contraceptives. Id. Plaintiffs have submitted sworn declarations to the court attesting to the fact that they do not provide abortion services or counsel a women participating in the Women's Health Program 10 seek an abortion. Plaintiffs further attest that they do not directly or indirectly subsidize the abortion·care services provided by their legally and financially distinct affiliates. Texas may have a compelling interest in
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protecting and promoting respect for fetal life after viability, but the record does not reflect that Section 32.024(c-l), as defined by the Commission's rule. is necessary to advance that interest. See Planned Parenthood ojSe. Penn. v. Casey, 505 U.S. 833, 929-30 (1992) ("With respect to the State's interest in potential life. <the "compelling" point is at viability ......') (Blackmun. 1.. concurring)(citing Roe v. Wade, 410 U.S. 113, 163 (1973).
Nor has the Commissioner alleged that there is inadequate separation of funds under the current affiliate arrangement or that there is a question as to whether government funds are being used to provide abortion services. Rather, the Commissioner argues that Plaintiffs' receipt of government funds for non-abortion-related activities effectively "frees up" organizational funds for use on abonion-related services. The couns have not looked favorably upon this argument, as it extends too far. See Planned Parenthood a/Cent. & N. Ariz. .... Arizona, 718 F.2d 938 (9th Cir. 1983) (rejecting similar argwnent because it could lead to conclusion that a state could refuse all Medicaid benefits to otherwise eligible applicant on basis that subsidy "freed up" personal funds for use on abortion).
Moreover. the Commissioner presents thecourt with no relevant suppon for his primary legal argument in support of the challenged rule: that a state may condition participation in a government program on account of constitutionally protected conduct. even if the conduct occurs outside the scope of the federally funded program, so long as the condition is germane to the purposes of the benefits conferred. The Commissioner's gennaneness argwnent does not appear in the Supreme Court's unconstitutional-conditions cases and is notably absent from Rust. in which the Court evaluated funding restrictions related to abortion.
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The Commissioner directs this court to cases arising in the unique context of public employment, where the Supreme Coun has found that, in the interest of the effective administration and integrity of government, the government may limit the partisan political activities of federal employees. See U.S. Civil Servo Comm 'n v. Nat '/ Ass 'n ofleiter Carriers. 413 U.S. 554, 564 (1973) (upholding Hatch Act, which declares unlawful certain specified political activities of federal employees even though prohibition extends to after·hours activitY)i United Pub. Workers ofAm. v. Milchell, 330 U.S . 75, 95 (1947) (same); see also Garcelliv. Ceballos, 547 U.S. 410, 418 (2006) (reviewing authority of government employer 10 regulate employee's speech content under distinct line of public-employment jurisprudence as established in Pickering v. Board of Education of Township High School District 205, Will Cnty., III., 391 U.S. 563 (1968)). The Commissioner also directs this court to South Dakota v. Do/e, a case that does no more than establish that Congress may, incident to the Spending Clause, attach conditions to states' receipt offederal funds, ifthe conditions are in pursuit of the general welfare and do not compel states to engage in activities that would themselves be unoonstitutiona!. See 483 U.S. 203, 210 (1987) (holding that Congress could condition states' receipt offederal highway funds on adoption ofminimum drinking age of21). This coun does not find these cases to be relevant or instructive.
Were this coun to adopt the Commissioner's germaneness argument in the context of a condition that unquestionably touches on fundamentnl constitutionnl rights. it would eviscerate the strict-scrutiny standard governing such conditions, applying a standard more akin to rational-basis review. See Shapiro, 394 U.S. at 634 (where fundamental rights involved, government must come fonh with more than rational relationship between condition and "admittedly pennissible state objectives"). Germaneness may be relevant as to whether a condition limiting the use ofgovernment
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,--- - - _. _. .._-- _._.- - -- - - - -- - - - -- - - - - -
funds ultimately furthers the ends advanced as the justification for the prohibition, as is required to uphold any condition on the grant ora benefit. See, e.g., Nal " Instruments. Inc. v. Town a/Dedham, 43 F.3d 731, 747-48 (1st Cir. 1995) (holding that bylaw prohibiting licensed entertainment businesses from operating between 1:00 a.m. and 6:00 a.m. was closely related to core purpose of law, which was to preserve nighttime tranquility of community, and therefore valid). However, gennaneness is not the ultimate test of a condition's constitutionality, and germaneness considerations cannot subsume the government's burden to satisfY this court's strict scrutiny.
In sum, the court concludes that Plaintiffs have demonstrated a substantial likelihood of success on the merits of their unconstitutional-conditions claims based on their First Amendment rights to speech and association. The case law is less dear on the merits of Plaintiffs' unconstitutional-conditions claim based on their Fourteenth Amendment right to provide abortion services through legally and financially separate affiliates. Having reviewed the case law concerning affiliates, the court finds that these cases do not endorse a separately cognizable constitutional right. Rather. they rely upon the possibility of affiliates to cure some other constitutional infirmity, such as a free-speech or Supremacy Clause violation. See Sanchez, 403 F.3d at 328; Dempsey, 167 FJd at 463. Plaintiffs' reduced likelihood ofsuccess on the merits oftheir Fourteenth Amendment claim is not fatal to their request fo r preliminary injunctive relief.
ii. Equal Protection Plaintiffs allege that by exempting hospitals that provide abortion services from compliance with the Commissio~'s rule, Texas denies Plaintiffs equal protection of the laws without adequate basis for the differential treatment. Equal-protection claims are typically subject to rational-basis review unless the challenged legislation "operates to the disadvantage of some suspect class or
18

impinges upon a fundamental right explicitly or implicitly protected by the Constitution." Maher, 432 U.S. at 470 (citing San Anlonio lndep. Sch. ViSi. v. Rodriguez. 411 U.S. I. 17 (1973» . The
challenged rule likely impinges upon a fundamental constitutional right. Accordingly, Texas must show a compelling interest for its policy choice of relieving hospitals licensed under the Texas Health and Human Safety Code from compliance with the no-affiliation directive.
As previously stated. the current unrebuned record reflects that Plaintiffs neither perform abortion nor counsel women participating in the Women's Health Program to seek abortions. Furthermore. Plaintiffs maintain legal and financial separation from entities providing abortion services. Accordingly, Texas's policy choice of exempting hospitals from compliance with the rule is arguably not rationally related to the Women' s Health Program's purpose of reducing elective abortions, much less reflective of 8 compelling interest necessary to advance that goal. Plaintiffs allege that the exempt hospitals provide or promote elective abortion services. If so, Texas ' s differential treatment of Plaintiffs' 49 health centers, which do not provide abortion services, is unlikely to withstand constitutional scrutiny.
2. Substantial Threat of Irreparable Injury Plaintiffs demonstrate a substantial threat of irreparable injury if immediate relief is not
granted. See Karaha Bodas Co., 335 F.3d at 363. If Plaintiffs are unable to certify compliance with Section 32.024(c-l) before May I. 2012. they will no longer be eligible for participation in the
Women's Health Program. As 8 result, Plaintiffs assert that they will collectively lose approximately $13.5 million in aMual funding for preventive health and famiiy-plaMing services and will be required to close clinics and lay off staff. Even if the funding were to be reinstated in the future, Plaintiffs argue that it will be exceedingly expensive, ifnot impossible, to resume operationsoftheir
19
. , ..

.....__.._._- - - -- - -- -

clinics as they exist today. According to Plaintiffs' sworn declarations, Planned Parenthood of North Texas stands to lose approximately S2 million in annual funding. Planned Parenthood Association of Hidalgo County attests that it will lose $1.4 million in BIlnual funding, which is 50 percent of its operating budget, and will be forced to layoff 15 to 35 staff members and close two of its three health centers. Planned Parenthood of Lubbock states that it will lose 60% of irs revenue, making it nearly impossible to continue operation of its one health center, and Planned Parenthood of West Texas represents that it will lase 40% orits revenue. Planned Parenthood of West Texas asserts that it has already closed one health center and reduced hours at another center in anticipation of the loss ofWomen's Health Program funding. These declarations establish that Plaintiffs' inability to certify compliance with Section 32.024(c-l) will cause them substantial and irreparable hann. even if funding is ultimately restored after full consideration of the merits of this case.
3. Balancing Hann Plaintiffs must also show that their threat of irreparable harm outweighs the potential injury to Texas if the injunction is granted. See id The Commissioner argues that jfPlanned Parenthood
obtains the relief it seeks, the entire Women's Health Program will be shut down, because Texas enacted the program on the condition that Planned Parenthood entities would be excluded from
funding. According to the sworn declaration provided by the Commissioner,"{i]fPlaintiffs obtain an injunction .. .• state law will require the Commission to cease operating the Program upon tennination of federal funding ... .n The record reflects that it is the federal government's intent to continue funding the Women's Health Program for another nine months as a part of a two-stage phase-out offedera l funding. This court anticipates rendering a final judgment on the merits in this
20

. L -_ _ _ _ _ _ _ _ _ _ _ __ _ _ _ __ ,

_

__...

case before the phase-out period is complete. Accordingly, the asserted injury to Texas cannot outweigh the imminence of the injury faced by Plaintiffs were this court to deny the injunction.
4. Public Interest Finally, Plaintiffs must demonstrate that enjoining enforcement of the Commission's rule is in the interest of the public. The enforcement of the rule will result in a significant reduction in funding of family-planning services to uninsured women on May 1.2012. Plaintiffs' assert that almost one half of women participating in the Women's Health Program in calendar year 2010 obtained some services at a PlaMed Parenthood clinic. Plaintiffs' sworn declarations establish that their loss of funding will deprive thousands of Texas women of critical health services. especially in rural areas in which no alternative provider to the Women's Health Program is available. For example, Planned Parenthood ofNorth Texas asserts that some of the counties in its service region have nO other program providers to serve the nearly 7,000 women it currently serves through the program. Planned Parenthood of Hidalgo County attests that it is the largest program provider in its region and currently provides program services to nearly 6,500 women. Planned Parenthood Association of Lubbock states that it currently provides program services to nearly 2,000 women, and other providers in the region have a three-to-four-month waiting period for an appointment. Planned Parenthood of West Texas currently provides program services to more than 3,000 women and represents that other providers in the region do not have the capacity to absorb these patients. Moreover. women currently participating in the Women's Healtb Program are not the only members of the public that would be hanned by this court's denial ofan injunction. If Plaintiffs are forced to close some health centers or to reduce their centers' hours, the tens of thousands of additional clients Ihey serve will also be hanned.
21

The record demonstrates that Plaintiffs currently provide a critical component of Texas's farnily-plaMing services to low-income women. The coun is unconvinced that Texas will be able to find substitute providers for these women in the immediate future, despite its stated intention to do so. The establishment of replacement services is of particular concern to the court given the imminence of the substantial loss of program providers on May 1,2012. Accordingly, the court fmds that the public interest is best served by allowing Plaintiffs to continue to receive government funds to provide family-planning services to women throughout Texas while this case is pending.
IV. CONCLUSION Plaintiffs have satisfied their burden of persuasion on the four factors necessary for them to be entitled to maintain the status quo that exists between them and the State of Texas, pending this court's determination of the merits of Plaintiffs' allegations. In balancing the relative harm to the parties and the court's concern for the interest ofthe public, the court is particularly influenced by the potential for immediate loss of access to necessary medical services by several thousand Texas women . The record before the court at this juncture reflects uncertainty as to the continued viability of the Texas Women's Health Program. Rider 62 is contingent on extension of the program '5 original federal waiver, a waiver that expired March 31, 2012. Federal funds available to the Women's Health Program are being phased out. Although the Governor has instructed that the program is to continue fully funded by Texas, the current record gives the court no comfort that funds are or will be available to continue the program after the phase out of federal funds. Although thiscoun expresses skepticism as to the viability ofthe Women's Health Program and holds that Plaintiffs are entitled 10 their requested interlocutory relief, the court does not today detennine the ultimate outcome ofthis dispute. That must await a fully developed record. The court
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today does no more than preserve the relative positions of the parties until a thorough airing of the issues by trial occurs. The court observes that if the federal funds are phased out, Texas does not provide another source offunds, and the Women's Health Program tenninates, the controversy now before the court may be of no consequence.
IT IS THEREFORE ORDERED that Plaintiffs' fifth claim forrelief, arising under Texas state law, is DISMISSED WITHOUT PREJUDICE, as bam:d by the Eleventh Amendment.
IT IS FURTHER ORDERED pursuant to Rule 65(a) of the Federal Rules of Civil Procedure that Plaintiffs' request for a preliminary injunction is GRANTED.
IT IS FURTHER ORDERED that Defendant Thomas M. Suehs, Executive Commissioner of the Texas Health and Human Services Commission, and his agents, employees, appointees, and successors are HEREBY ENJOINED, pending final judgment, from enforcing, threatening to enforce, or otherwise requiring Plaintiffs to show compliance with the administrative rules to be codified at Sections 354.1361-.1364 of Title 1 of the Texas Administrative Code.
IT IS FURTHER ORDERED that no bond shall be required from Plaintiff as a result of this preliminary injunction and that this injunctive relief is effective immediately.
IT IS FINALLY ORDERED that the parties meet and confer on all matters they must accomplish before a trial may be held. The court expects the parties to agree not only on such matters but on a reasonable schedule to accomplish them. This case is SET for a scheduling conference at
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1:30 p.m. on Friday, May 18,2012. The parties shall be prepared to discuss apretrial schedule and trial date at that time.
SIGNED this 30th day of April. 2012.
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:<»Co. 4

 
 Multiple Documents
Part Description 1 18 pages 2 Civil Cover Sheet Civil Cover Sheet
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Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD OF AUSTIN

§

FAMILY PLANNING, INC.,

§

PLANNED PARENTHOOD ASSOCIATION

§

OF HIDALGO COUNTY TEXAS, INC.,

§

PLANNED PARENTHOOD ASSOCIATION OF

§

LUBBOCK, INC.,

§

PLANNED PARENTHOOD OF CAMERON

§

AND WILLACY COUNTIES,

§

FAMILY PLANNING ASSOCIATES OF SAN

§ CIVIL CASE NO. 1:12-CV-00322

ANTONIO,

§

PLANNED PARENTHOOD OF CENTRAL TEXAS, §

PLANNED PARENTHOOD GULF COAST, INC., §

PLANNED PARENTHOOD OF NORTH

§

TEXAS, INC., and

§

PLANNED PARENTHOOD OF WEST TEXAS, INC., §

Plaintiffs,

§

§

vs.

§

§

THOMAS M. SUEHS, Executive Commissioner,

§

Texas Health and Human Services Commission, §

in his official capacity,

§

Defendant.

§

COMPLAINT I. NATURE OF THE ACTION
1. This action is filed pursuant to 42 U.S.C. § 1983, to vindicate Plaintiffs’ rights under the First and Fourteenth Amendments to the U.S. Constitution. Plaintiffs also raise state law claims pursuant to 29 U.S.C. § 1367. Plaintiffs challenge the federal constitutionality and the state statutory authority of 1 Texas Admin. Code §§ 354.1361-64 (“Affiliate Rule” and “Rule”), which bars Plaintiffs – family planning providers that do not provide abortion services – from participating in Texas’s Women’s Health Program (“WHP”) because they publicly advocate to protect access to safe and legal abortion and/or affiliate with legally separate entities

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Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 2 of 18
that engage in that advocacy and/or are affiliated with legally separate entities that provide and advertise abortions.
2. In 2005, the Texas Legislature established WHP in order “to expand access to preventive health and family planning services for women.” Tex. Hum. Res. Code § 32.0248(a). WHP originated as a demonstration project within the Medicaid program, approved and funded 90 percent by the federal government. WHP is now phasing out of the Medicaid program and apparently will continue as an entirely state-funded program.
3. The legislation authorizing WHP directed the Texas Health and Human Services Commission (“HHSC”), for the purposes of WHP, not to contract with entities that are “affiliates of entities that perform or promote elective abortions.” Tex. Hum. Res. Code § 32.0248(h). Section 32.0248 did not define “affiliate” or “promote.”
4. In implementing that statute and administering WHP, HHSC took the position that Section 32.0248(h) could not be constitutionally construed or applied to exclude Plaintiffs from the program. See Letter from then-Executive Commissioner of HHSC Albert Hawkins to Texas Senator Robert F. Deuell (Feb. 4, 2009) (“implementing the subsection (h) ban on contracting with organizations that are affiliates of abortion providers likely would be held unconstitutional by the courts”).
5. Accordingly, HHSC has, until now, implemented the statutory no-affiliation directive consistent with its understanding of applicable federal court decisions including Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324 (5th Cir. 2005). Under Sanchez, the Texas Department of Health (“TDH”) could not exclude Plaintiffs from participation in a Texas family planning program (one separate and distinct from WHP), as long as Plaintiffs maintained legal and financial separation from any affiliated entity that provides
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Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 3 of 18
abortion services, which Plaintiffs have done. Thus, Plaintiffs have participated in WHP since its inception. Moreover, Plaintiffs have been a critical component of that program, together providing more than 40 percent of the WHP services statewide in fiscal year 2010.
6. On February 23, 2012, HHSC adopted the new Affiliate Rule, to apply to WHP. The Rule defines the terms “affiliate” and “promote” so as to prohibit Plaintiffs from continuing to participate in the program because of their associations with the provision of abortion and with advocacy for access to abortion. Pursuant to Defendant Suehs’ announced implementation plan for the Rule, unless he is enjoined by this Court, Plaintiffs will be removed from the program after April 30, 2012.
7. Plaintiffs seek declaratory relief because the Affiliate Rule imposes unconstitutional conditions on their eligibility to continue to participate in WHP. In particular, the Rule disqualifies Plaintiffs from eligibility to participate in WHP because of Plaintiffs’ advocacy to protect access to safe and legal abortion and/or Plaintiffs’ affiliation with organizations who advocate to protect access to safe and legal abortion and/or because they are affiliated with legally separate entities that provide and advertise abortions. Plaintiffs also seek declaratory relief under Texas law because HHSC exceeded its statutory authority in promulgating the Rule, which violates the Texas statutory scheme it purports to implement by defeating its principal stated purposes.
8. If enforced, the Affiliate Rule will cause irreparable harm to Plaintiffs and to tens of thousands of low-income women seeking family planning and other preventive health services. Accordingly, Plaintiffs seek appropriate injunctive relief.
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Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 4 of 18
II. JURISDICTION AND VENUE 9. Jurisdiction over Plaintiffs’ claims is conferred on this Court by 28 U.S.C.
§§ 1331 and 1367. 10. Plaintiffs’ claim for declaratory and injunctive relief is authorized by 28 U.S.C.
§§ 2201 and 2202 and by Rules 57 and 65 of the Federal Rules of Civil Procedure, and by the general legal and equitable powers of this Court.
11. Venue is appropriate under 28 U.S.C. § 1391(b) because the Defendant resides in this District. III. THE PARTIES
A. Plaintiffs 12. Planned Parenthood of Austin Family Planning, Inc. (“PPAFP”) is a Texas notfor-profit corporation, headquartered in Austin, where it operates a health center that provides family planning services, including through WHP. PPAFP does not provide abortion services. 13. Planned Parenthood Association of Hidalgo County Texas, Inc. (“PPAHC”) is a Texas not-for-profit corporation headquartered in McAllen. PPAHC provides family planning services, including through WHP, at four health centers in Hidalgo County. PPAHC does not provide abortion services. 14. Planned Parenthood Association of Lubbock, Inc. (“PPAL”) is a Texas not-forprofit corporation headquartered in Lubbock. PPAL provides family planning services, including through WHP, at its health center in Lubbock. PPAL does not provide abortion services. 15. Planned Parenthood of Cameron and Willacy Counties (“PPCWC”) and Family Planning Associates of San Antonio (“FPA”) are Texas not-for-profit corporations headquartered
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Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 5 of 18
in San Antonio. FPA has four health centers, which do business as “Planned Parenthood,” in the metropolitan San Antonio area, all of which participate in WHP. PPCWC has three health centers, located in Kingsville, Harlingen, and Brownsville, which participate in WHP. FPA and PPCWC do not provide abortion services.
16. Planned Parenthood of Central Texas (“PPCT”) is a Texas not-for-profit corporation, headquartered in Waco, Texas, where it operates a health center that participates in WHP. PPCT does not provide abortion services.
17. Planned Parenthood Gulf Coast, Inc. (“PPGC”) is a Texas not-for-profit corporation headquartered in Houston. PPGC serves a region of more than 400 miles across the Gulf Coast from Bryan to New Orleans. PPGC provides WHP services at 11 health centers in Texas: 5 in Houston, as well as centers located in Bryan, Dickinson, Huntsville, Lufkin, Rosenberg, and Stafford. PPGC does not provide abortion services.
18. Planned Parenthood of North Texas, Inc. (“PPNT”) is a Texas not-for-profit corporation, headquartered in Dallas. PPNT provides family planning services at 21 health centers in North Texas. All of these health centers participate in WHP. PPNT does not provide abortion services.
19. Planned Parenthood of West Texas, Inc. (“PPWT”) is a Texas not-for-profit corporation headquartered in Midland. PPWT provides family planning services at three health centers, all which participate in WHP. PPWT does not provide abortion services.
B. Defendant 20. Thomas M. Suehs is the Executive Commissioner of HHSC, the agency that is responsible for administering WHP and that adopted the Affiliate Rule. He is the government official responsible for implementation of the Rule. He is sued in his official capacity.
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Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 6 of 18
IV. LEGAL, LEGISLATIVE, AND REGULATORY BACKGROUND A. Planned Parenthood v. Sanchez 21. In 2003, prior to the inception of WHP, the Texas Legislature attached a rider to
Article II, Health and Human Services, of its annual appropriations bill, known as “Rider 8.” Rider 8 applied to family planning funds from several federal programs and prohibited those funds from going to “individuals or entities that perform elective abortion procedures or that contract with or provide funds to individuals or entities for the performance of elective abortion procedures.” Tex. House Bill 1 (2003).
22. Several Planned Parenthood entities who participated in those programs and also provided abortion services with their private funds brought a lawsuit against TDH challenging Rider 8 as unconstitutional. On appeal of the district court’s issuance of a preliminary injunction, the U.S. Court of Appeals for the Fifth Circuit ruled that Rider 8 should be construed, if possible, to avoid being declared unconstitutional.
23. The Fifth Circuit explained that its “own reading of Rider 8 leads us to the conclusion that affiliates are permitted.” Planned Parenthood of Houston and Se. Tex. v. Sanchez, 403 F.3d 324, 341 (5th Cir. 2005). Under the Fifth Circuit’s reading, Rider 8 did “not preclude a family planning services provider from maintaining a contract with TDH while simultaneously creating a separate legal entity that performs abortions and receives no federal funds.” Id. at 337-38. The Court explained, however, that if “the burden of forming affiliates . . . would in practical terms frustrate [Planned Parenthood’s] ability to receive federal funds,” Rider 8 would be preempted. Id. at 342.
24. On remand, TDH and the Planned Parenthood entities reached a settlement consistent with the holding of the Fifth Circuit. The Planned Parenthood entities created separate
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Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 7 of 18
corporate entities – with distinguishable names, separate boards of directors and governing bodies, detailed employee timekeeping, clear signage, and separate books and records – one for family planning services and one for abortion services. The family planning entities, some of whom are Plaintiffs here, continued to receive the family planning funds, and they have been audited by the State at least once every two years to ensure compliance with these requirements.
B. The Women’s Health Program 25. In 2005, Texas enacted legislation directing HHSC to seek approval from the United States Department of Health and Human Services Centers for Medicare and Medicaid Services (“CMS”) for a five-year demonstration project through the Medicaid program “to expand access to preventive health and family planning services for women.” Tex. Hum. Res. Code § 32.0248(a) (emphasis added). CMS approved the original proposal, and the Women’s Health Program began providing services on January 1, 2007. 26. Women are eligible to participate in WHP if they are least 18 years of age and have a net family income at or below 185 percent of the federal poverty level or if they participate in certain government programs, are presumed eligible for those programs, or have a family member who participates in those programs. See Tex. Hum. Res. Code § 32.0248(b). 27. WHP provides essential well-women services, including physical examinations, health screenings for breast and cervical cancer and sexually transmitted infections (“STIs”), and counseling and education about, and the provision of, contraception. See Tex. Hum. Res. Code § 32.0248(a). WHP does not pay for abortions. 28. The 2005 state legislative authorization for WHP contained the following directive to HHSC: (h) The department shall ensure the money spent under the demonstration project, regardless of the funding source, is not used to perform or promote elective
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Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 8 of 18
abortions. The department, for the purpose of the demonstration project, may not contract with entities that perform or promote elective abortions or are affiliates of entities that perform or promote elective abortions. Tex. Hum. Res. Code § 32.0248(h). It did not contain a definition of “affiliate” or “promote.” 29. As explained above, since the inception of WHP, HHSC has implemented the statutory prohibition on the participation of “affiliates of entities that perform or promote abortions” consistent with its understanding of Supreme Court and Fifth Circuit precedent. 30. As the original authorization for WHP was set to expire in late 2011, the Texas Legislature, in the summer of 2011, enacted Rider 62 to Article II of the Budget which provides: Out of funds appropriated above in Goal B, Medicaid, the Health and Human Services Commission, contingent on receiving a waiver under Section 1115 of the Social Security Act, shall provide Women’s Health Program services under Medicaid to women. Only women whose income and family size puts them at or below 185% of the Federal Poverty Guidelines and who meet all other Medicaid eligibility requirements are eligible for Women’s Health Program services. Rider 62 to Article II, Health and Human Services, House Bill 1 (2011) (emphasis added). 31. In addition, the 2011 Legislature enacted Senate Bill 7, which states that: The department shall ensure that money spent for purposes of the demonstration project for women’s health care services under former Section 32.0248, Human Resources Code, or a similar successor program is not used to perform or promote elective abortions, or to contract with entities that perform or promote elective abortions or affiliate with entities that perform or promote elective abortions. See Tex. Hum. Res. Code § 32.024(c-1). Like the 2005 legislative authorization, Section 32.024(c-1) does not define “affiliate” or “promote.” 32. These provisions of Texas law – former Section 32.0248 and current Section 32.024(c-1) – are part of Chapter 32 of Texas’s Human Resources Code. The express purpose of Chapter 32 is “to enable the state to obtain all benefits” for needy individuals that are “authorized under the Social Security Act or any other federal act.” Tex. Hum. Res. Code § 32.001. Texas law requires that if any provision of that Chapter “conflicts with a provision of the Social
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Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 9 of 18
Security Act or any other federal act and renders the state program out of conformity with federal law to the extent that federal matching money is not available to the state, the conflicting provision of state law shall be inoperative.” Tex. Hum. Res. Code § 32.002(b).
C. The Affiliate Rule 33. On February 23, 2012, HHSC adopted the Affiliate Rule. The Rule defines “affiliate” for the purposes of WHP as: (A) An individual or entity that has a legal relationship with another entity, which relationship is created or governed by at least one written instrument that demonstrates:
(i) common ownership, management, or control; (ii) a franchise; or (iii) the granting or extension of a license or other agreement that authorizes the affiliate to use the other entity’s brand name, trademark, service mark, or other registered identification mark. (B) The written instruments referenced in subparagraph (A) of this paragraph may include a certificate of formation, a franchise agreement, standards of affiliation, bylaws, or a license. 1 Tex. Admin. Code § 354.1362(1). The Rule defines “[p]romotes” as “[a]dvocates or popularizes by, for example, advertising or publicity.” 1 Tex. Admin. Code § 354.1362(6). 34. The Rule’s prohibition on HHSC contracting with entities that perform or promote abortions or entities that are affiliated with entities that perform or promote abortions specifically excludes hospitals licensed under Texas Health and Human Safety Code Chapter 241. 1 Tex. Admin. Code § 354.1363; 1 Tex. Admin. Code § 354.1362(5). 35. The Rule took effect on March 14, 2012. Under HHSC’s implementation plan, providers who do not certify compliance with the Rule will be removed from the program after April 30, 2012. 36. HHSC adopted the Rule in February 2012 even though CMS had previously advised HHSC in December 2011 that Texas’s request to renew federal participation in WHP
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Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 10 of 18
would be denied if the Rule was implemented because the Rule conflicts with the requirement of the Social Security Act that “any individual eligible for medical assistance . . . may obtain such assistance from any institution, agency, . . . or person, qualified to perform the service . . . who undertakes to provide him such services.” 42 U.S.C. § 1396A(a)(23). After HHSC proceeded to formally adopt the Rule, CMS reaffirmed its refusal to renew or extend the prior demonstration project and advised HHSC that it would continue federal funding for WHP through a “phaseout” period that will extend no more than nine months.
37. Governor Perry has instructed Defendant Suehs and HHSC to take steps so Texas can continue to provide the “vital health and wellness services” of WHP using only state funds. Thus, with or without federal participation in WHP, Defendant intends to continue WHP with the Affiliate Rule in force.
38. In its Rule adoption order, HHSC did not address the fact that the Rule would cause WHP to lose federal funding, which the program was enacted expressly to obtain. Nor did it address the fact that the Rule would decrease the availability of family planning services, which the program was expressly established to expand. HHSC’s only response to the decreased availability of family planning services resulting from the Rule was that the agency was “expressly directed” by the Legislature to adopt the provider-excluding Rule, and that it has “taken steps” to recruit “additional qualified providers” and to “transition” Plaintiffs’ WHP patients to other providers. 37 Tex. Reg. at 1699 (Mar. 9, 2012). HHSC did not meaningfully address the unconstitutionality of the Rule.
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Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 11 of 18
V. THE IMPACT OF THE RULE ON PLAINTIFFS AND WOMEN IN TEXAS A. The Affiliate Rule Disqualifies Plaintiffs from WHP 39. Although Plaintiffs are all legally and financially separate from any entity that
performs abortions and they do not encourage women to have abortions, the definitions of “affiliate” and “promote” adopted by HHSC bars each Plaintiffs’ participation in WHP for numerous reasons, including:
(a) Each Plaintiff, either itself or through an affiliated entity, engages in advocacy and public education activities intended to protect and facilitate access to safe and legal abortion for women who choose to exercise their right to choose abortion.
(b) All but one Plaintiff are also affiliated with an entity that provides abortion care and that advertises that it provides those services.
(c) Although Plaintiffs and their related abortion providers have easily distinguishable names, as required by the Sanchez settlement, all use the registered service mark “Planned Parenthood” in providing medical services.
(d) Plaintiffs all are affiliates of, or ancillary organizations of affiliates of, Planned Parenthood Federation of America (“PPFA”), which also advocates for women’s access to comprehensive reproductive healthcare, including abortion, and requires that its affiliates do the same. PPFA does not provide abortion care itself, but its memberaffiliates offer that service throughout the United States and as of January 2013, all member-affiliates will be required to do so. 40. Put simply, the Affiliate Rule operates as a complete bar for Plaintiffs to be part of “Planned Parenthood” and also to participate in WHP. Indeed, HHSC stated this plainly in adopting the Rule, explaining that its purpose was “to prohibit the participation of specialty
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Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 12 of 18
providers that share a common mission or purpose with entities that perform or promote elective abortions.” 37 Tex. Reg. 1696 (Mar. 9, 2012).
B. The Rule Will Irreparably Harm Plaintiffs and Their Patients and Disserves the Public Interest
41. Plaintiffs currently operate 49 health centers throughout the state of Texas where women can enroll in, and obtain services through, WHP. According to HHSC, in calendar year 2010, WHP served more than 103,000 low-income Texas women. In state fiscal year 2010, at least 49% of women who obtained services through WHP obtained some services at a Planned Parenthood provider, amounting to 39% of the claims and 46% of the reimbursements that year.
42. The Rule will cause severe, irreparable injury to Plaintiffs. Plaintiffs’ combined reimbursements from WHP totaled nearly $13 million during fiscal year 2010; loss of that funding will severely impact their operating budgets. Without this funding, Plaintiffs will be forced to reduce services, close clinics, and/or lay off employees. Once these actions are taken by Plaintiffs, it would be very expensive – if not impossible – for them to resume operations as they are today.
43. These injuries to Plaintiffs and their patients are especially acute because in 2011, Texas’s family planning program was cut by two-thirds, reducing it from $111.5 million during the 2010-2011 biennium to $37.9 million over the next two years. This reduction means that many fewer providers receive family planning funds; last year, more than 70 agencies received these funds, but by February 2012, there were only 41 agencies contracting with TDH for these funds. Plaintiffs, in particular, felt these reductions acutely; altogether, Plaintiffs closed 12 health centers in 2011 and 2012 as a direct result of those cuts. These cuts make the impact of losing WHP funding worse for Plaintiffs and all their patients, not just those in WHP.
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Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 13 of 18
44. Unless Plaintiffs completely disassociate themselves from their affiliated abortion providers, from PPFA, and from any entity that advocates for women’s access to comprehensive reproductive healthcare, they will be forced out of WHP. This will mean that tens of thousands of women will be forced to choose between seeking services from Plaintiffs at substantially higher self-pay costs, trying to seek WHP services elsewhere, or forgoing care altogether.
45. Because these are women with family incomes at or below 185 percent of the federal poverty level, it will be difficult for them to self-pay. If they do, they likely will have to forgo some of the care for which WHP would have provided reimbursement. For example, some will forgo testing for certain types of cancer or STIs and/or switch to cheaper, but less effective, methods of contraception, thereby decreasing their overall health and placing themselves at greater risk of undiagnosed disease and/or unplanned pregnancy.
46. If these women instead elect to try to find another provider, doing so will not be easy. There are simply not enough WHP providers to absorb the tens of thousands of women who relied on Plaintiffs. There is already a shortage of primary care providers throughout the State. The other reproductive healthcare providers have limited capacity, and many of these providers have also faced recent funding cuts. This means that many of Plaintiffs’ patients may be unable to find another provider who participates in WHP.
47. At a minimum, many of Plaintiffs’ WHP patients will have to travel further (at greater expense to themselves) and/or wait longer for appointments. Delays in seeking testing and treatment for breast and cervical cancer as well as STIs will have devastating health consequences for some of these women. Lack of access to and delays in receiving family planning services can be expected to lead to an increase in unplanned pregnancies and, in turn, to an increase in abortions.
COMPLAINT – Page 13

Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 14 of 18
48. Given the difficulties of continuing to seek care either at Plaintiffs’ health centers or alternative providers, many of Plaintiffs’ patients will simply go without this preventive care altogether, resulting in them being at increased risk of undiagnosed cancer and STIs, unplanned pregnancies, and abortion.
49. The Affiliate Rule will also harm the public interest and Texas taxpayers because it will cause the State both to lose federal funding for WHP and have greater overall healthcare costs because the services Plaintiffs provide through WHP save the State money. For example, based on formulas used by the Legislative Budget Board, WHP saved more than $46 million in 2009 by preventing pregnancies that would have resulted in Medicaid-covered births. The State’s share of those savings, after paying WHP expenditures, totaled almost $20 million in general revenue.
50. Plaintiffs have no adequate remedy at law. CLAIMS FOR RELIEF
COUNT I – UNCONSTITUTIONAL CONDITION (First Amendment to the U.S. Constitution)
51. Plaintiffs hereby reaffirm and reallege each and every allegation made in ¶¶1-50 above as if set forth fully herein.
52. The Affiliate Rule, and Tex. Hum. Res. Code § 32.024(c-1) if it requires that Rule, impose unconstitutional conditions on Plaintiffs’ eligibility to participate in WHP because the Rule disqualifies Plaintiffs from eligibility based upon their advocacy to protect access to safe and legal abortion services, their affiliation with entities that advocate to protect access to safe and legal abortion services, and/or their affiliation with entities that advertise the availability of abortion services.
COMPLAINT – Page 14

Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 15 of 18
COUNT II – UNCONSTITUTIONAL CONDITION (First Amendment to the U.S. Constitution)
53. Plaintiffs hereby reaffirm and reallege each and every allegation made in ¶¶1-52 above as if set forth fully herein.
54. The Affiliate Rule, and Tex. Hum. Res. Code § 32.024(c-1) if it requires that Rule, impose unconstitutional conditions on Plaintiffs’ eligibility to participate in WHP because the Rule disqualifies Plaintiffs from eligibility based upon their association with Planned Parenthood Federation of America and/or with Planned Parenthood entities that provide abortion services and/or advocate to protect access to safe and legal abortion services.
COUNT III – UNCONSTITUTIONAL CONDITION (Fourteenth Amendment to the U.S. Constitution)
55. Plaintiffs hereby reaffirm and reallege each and every allegation made in ¶¶1-54 above as if set forth fully herein.
56. The Affiliate Rule, and Tex. Hum. Res. Code § 32.024(c-1) if it requires that Rule, impose unconstitutional conditions on Plaintiffs’ eligibility to participate in WHP because the Rule disqualifies Plaintiffs from eligibility based upon their providing abortion services through legally and financially separate affiliates.
COUNT IV – EQUAL PROTECTION OF THE LAWS (Fourteenth Amendment to the U.S. Constitution)
57. Plaintiffs hereby reaffirm and reallege each and every allegation made in ¶¶1-56 above as if set forth fully herein.
58. The Affiliate Rule, and Tex. Hum. Res. Code § 32.024(c-1) if it requires that Rule, violate Plaintiffs’ right to equal protection under the laws because it treats them differently from hospitals licensed under Texas Health and Human Safety Code Chapter 241 that perform or “promote” abortions and/or are “affiliated” with entities that perform and “promote” elective
COMPLAINT – Page 15

Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 16 of 18
abortion as those terms are defined in the Rule without adequate basis for the differential treatment.
COUNT V – INVALID RULE (Texas State Law)
59. Plaintiffs hereby reaffirm and reallege each and every allegation made in ¶¶1-58 above as if set forth fully herein.
60. The Affiliate Rule is void and unenforceable under Texas state law because: (i) in promulgating it, HHSC exceeded its Texas statutory authority because the Rule is inconsistent with the Texas statute it purports to implement; and (ii) HHSC acted arbitrarily and capriciously in adopting the Rule, failing to take the relevant statutory factors into account and failing to engage in the reasoned decision-making required for adoption of a valid rule under Texas law.
WHEREFORE, Plaintiffs request that this Court: 1. Issue a declaratory judgment that the Affiliate Rule, and Tex. Hum. Res. Code § 32.024(c-1) if it requires that Rule, violate the rights of Plaintiffs by imposing unconstitutional conditions on Plaintiffs’ participation in WHP, in violation of the First and Fourteenth Amendments to the United States Constitution; 2. Issue a declaratory judgment that the Affiliate Rule, and Tex. Hum. Res. Code § 32.024(c-1) if it requires that Rule, violate the rights of Plaintiffs by treating them differently from hospitals licensed under Texas Health and Human Safety Code Chapter 241 that perform or “promote” abortions and/or are “affiliated” with entities that perform and “promote” elective abortion as those terms are defined in the Rule without adequate basis for the differential treatment in violation of the Fourteenth Amendments to the United States Constitution;
COMPLAINT – Page 16

Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 17 of 18

3. Issue a declaratory judgment that HHSC exceeded its statutory authority in promulgating the Affiliate Rule because it is inconsistent with the Texas statute it purports to implement;
4. Issue a declaratory judgment that the Affiliate Rule is void because, in promulgating it, HHSC failed to provide reasoned justification in violation of Tex. Gov’t Code §§ 2001.033 and 2001.035;
5. Issue preliminary and permanent injunctive relief, without bond, maintaining the status quo and restraining the enforcement, operation, and execution of the Affiliate Rule, and Tex. Hum. Res. Code §32.024(c-1) if that statute requires that Rule;
6. Grant Plaintiffs attorneys’ fees, costs and expenses pursuant to 42 U.S.C. § 1988; and
7. Grant such further relief as this Court deems just and proper. Dated: April 11, 2012
Respectfully submitted,

/s/ P.M. Schenkkan

____________

P.M. Schenkkan

State Bar No. 17741500

Susan G. Conway

State Bar No. 04716200

Matthew B. Baumgartner

State Bar No. 24062605

mbaumgartner@gdhm.com

GRAVES, DOUGHERTY, HEARON

& MOODY, P.C.

401 Congress Avenue, Suite 2200

Austin, TX 78701-3744

(512) 480-5673

pschenkkan@gdhm.com

sconway@gdhm.com

mbaumgartner@gdhm.com

COMPLAINT – Page 17

Case 1:12-cv-00322-LY Document 1 Filed 04/11/12 Page 18 of 18
Roger K. Evans* Planned Parenthood Federation of America 434 W. 33rd Street New York, NY 10001 (212) 541-7800 roger.evans@ppfa.org Helene T. Krasnoff* Carrie Y. Flaxman* Planned Parenthood Federation of America 1110 Vermont Avenue NW, Suite 300 Washington, DC 20005 (202) 973-4800 helene.krasnoff@ppfa.org carrie.flaxman@ppfa.org ATTORNEYS FOR PLAINTIFFS
*
Application for admission pro hac vice forthcoming
CERTIFICATE OF SERVICE I hereby certify that on April 11, 2012, I served, via hand delivery, the foregoing Complaint, on the following:
Office of the Texas Attorney General 300 W. 15th Street Austin, Texas 78701 Attorneys for Defendant Thomas M. Sues
/s/ P.M. Schenkkan P.M. Schenkkan
COMPLAINT – Page 18

OJS 44 (Rev. 12/07)

Case 1:12-cv-00322C-LIYVILDoCcuOmVeEntR1-S1HEFiEleTd 04/11/12 Page 1 of 2

The JS 44 civil coversheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States inSeptember 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS Planned Parenthood of Austin, Family Planning, Inc.; Planned Parenthood Association of Hidalgo County Texas, Inc.; Planned Parenthood Association of Lubbock, Inc.; et al.
(b) County of Residence of First Listed Plaintiff Travis County, TX
(EXCEPT IN U.S. PLAINTIFF CASES)

DEFENDANTS Thomas M. Suehs, Executive Commissioner of the Texas Health and Human Services Commission, in his official capacity

County of Residence of First Listed Defendant

Travis County, TX

(IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

(c) Attorney’s (Firm Name, Address, and Telephone Number) P.M. Schenkkan, Graves Dougherty Hearon & Moody, P.C., 401 Congress Ave., Suite 2200, Austin TX, 78701 (512) 480-5673
II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

’ 1 U.S. Government Plaintiff

’ 3 Federal Question (U.S. Government Not a Party)

Attorneys (If Known)
Office of the Texas Attorney General

300 W. 15th Street

Austin, TX 78701

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

Citizen of This State

PTF ’1

DEF ’1

Incorporated or Principal Place of Business In This State

PTF DEF ’ 4 ’4

’ 2 U.S. Government Defendant

’ 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

’ 2 ’ 2 Incorporated and Principal Place of Business In Another State

’ 5 ’5

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

Citizen or Subject of a Foreign Country

’ 3 ’ 3 Foreign Nation

FORFEITURE/PENALTY

BANKRUPTCY

’ 6 ’6 OTHER STATUTES

’ 110 Insurance

PERSONAL INJURY

’ 120 Marine

’ 310 Airplane

’ 130 Miller Act

’ 315 Airplane Product

’ 140 Negotiable Instrument

Liability

’ 150 Recovery of Overpayment ’ 320 Assault, Libel &

& Enforcement of Judgment

Slander

’ 151 Medicare Act

’ 330 Federal Employers’

’ 152 Recovery of Defaulted

Liability

Student Loans

’ 340 Marine

(Excl. Veterans)

’ 345 Marine Product

’ 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

’ 350 Motor Vehicle

’ 160 Stockholders’ Suits

’ 355 Motor Vehicle

’ 190 Other Contract

Product Liability

’ 195 Contract Product Liability ’ 360 Other Personal

’ 196 Franchise

Injury

REAL PROPERTY

CIVIL RIGHTS

’ 210 Land Condemnation

’ 441 Voting

’ 220 Foreclosure

’ 442 Employment

’ 230 Rent Lease & Ejectment ’ 443 Housing/

’ 240 Torts to Land

Accommodations

’ 245 Tort Product Liability ’ 444 Welfare

’ 290 All Other Real Property ’ 445 Amer. w/Disabilities -

Employment

’ 446 Amer. w/Disabilities -

Other

’ 440 Other Civil Rights

PERSONAL INJURY ’ 362 Personal Injury -
Med. Malpractice ’ 365 Personal Injury -
Product Liability ’ 368 Asbestos Personal
Injury Product Liability PERSONAL PROPERTY ’ 370 Other Fraud ’ 371 Truth in Lending ’ 380 Other Personal Property Damage ’ 385 Property Damage Product Liability
PRISONER PETITIONS ’ 510 Motions to Vacate
Sentence Habeas Corpus: ’ 530 General ’ 535 Death Penalty ’ 540 Mandamus & Other ’ 550 Civil Rights ’ 555 Prison Condition

’ 610 Agriculture

’ 422 Appeal 28 USC 158

’ 620 Other Food & Drug

’ 423 Withdrawal

’ 625 Drug Related Seizure

28 USC 157

of Property 21 USC 881

’ 630 Liquor Laws

PROPERTY RIGHTS

’ 640 R.R. & Truck

’ 820 Copyrights

’ 650 Airline Regs.

’ 830 Patent

’ 660 Occupational

’ 840 Trademark

Safety/Health

’ 690 Other

LABOR

SOCIAL SECURITY

’ 710 Fair Labor Standards

’ 861 HIA (1395ff)

Act

’ 862 Black Lung (923)

’ 720 Labor/Mgmt. Relations ’ 863 DIWC/DIWW (405(g))

’ 730 Labor/Mgmt.Reporting ’ 864 SSID Title XVI

& Disclosure Act

’ 865 RSI (405(g))

’ 740 Railway Labor Act

FEDERAL TAX SUITS

’ 790 Other Labor Litigation ’ 870 Taxes (U.S. Plaintiff

’ 791 Empl. Ret. Inc.

or Defendant)

Security Act

’ 871 IRS—Third Party

26 USC 7609

IMMIGRATION

’ 462 Naturalization Application

’ 463 Habeas Corpus -

Alien Detainee

’ 465 Other Immigration

Actions

’ 400 State Reapportionment ’ 410 Antitrust ’ 430 Banks and Banking ’ 450 Commerce ’ 460 Deportation ’ 470 Racketeer Influenced and
Corrupt Organizations ’ 480 Consumer Credit ’ 490 Cable/Sat TV ’ 810 Selective Service ’ 850 Securities/Commodities/
Exchange ’ 875 Customer Challenge
12 USC 3410 ’ 890 Other Statutory Actions ’ 891 Agricultural Acts ’ 892 Economic Stabilization Act ’ 893 Environmental Matters ’ 894 Energy Allocation Act ’ 895 Freedom of Information
Act ’ 900Appeal of Fee Determination
Under Equal Access to Justice ’ 950 Constitutionality of State Statutes

V. ORIGIN ’ 1 Original
Proceeding

(Place an “X” in One Box Only)

’ 2 Removed from
State Court

’ 3 Remanded from
Appellate Court

’ 4 Reinstated or
Reopened

’

5

Transferred from another district

(specify)

’ 6 Multidistrict
Litigation

Appeal to District

’7

Judge from Magistrate

Judgment

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

VI.

CAUSE OF ACTION

42 U.S.C. 1983
Brief description of cause:

Challenge to the constitutionality of 1 Texas Admin. Code §§ 354.1361-64 barring participation in federal program

VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only if demanded in complaint:

COMPLAINT:

UNDER F.R.C.P. 23

JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S)

IF ANY

(See instructions): JUDGE

DOCKET NUMBER

DATE
04/11/2012

SIGNATURE OF ATTORNEY OF RECORD
/s/ P.M. Schenkkan

FOR OFFICE USE ONLY

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

Print

Save As...

Export as FDF

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JS 44 Reverse (Rev. 12/07)

Case 1:12-cv-00322-LY Document 1-1 Filed 04/11/12 Page 2 of 2

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and theinformation contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. Thisform, approved by the Judicial Conference of the United Statesin September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil dokcet sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court foreach civil complaint filed. The attorney filing a case should complete the form as follows:

I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or dfeendant is an official within a government agency, identify first the agency and then the official,giving both name and title.

(b) County of Residence. For each civil case filed, exceptU.S. plaintiff cases, enter the name of the county where the firstlisted plaintiff resides at thetime of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section “(see attachment)”.

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an “X” in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdicti on arises under the Constitution of the Unite d States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 US. .C. 1332, where parties are citizens of different states. WhenBox 4 is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diveristy of citizenship was indicated above. Markthis section for each principal party.

IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cnanot be determined, be sure the cause of action, in Section VbI elow, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.

V. Origin. Place an “X” in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in statecourts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box.

Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.

Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above.

Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge’s decision.

VI. Cause of Action. Report the civil statute directlyrelated to the causeof action and give a brief description of the cause.Do not cite jurisdictional statutes

unless diversity.

Example:

U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.

Planned Parenthood Association of Hidalgo County Texas, Inc. et al v. Suehs, Docket No. 1:12-cv-00322 (W.D. Tex. Apr 11, 2012), Court Docket
General Information

Case Name
Docket Number Court Nature of Suit Related Opinion(s)

Planned Parenthood Association of Hidalgo County Texas, Inc. et al v. Suehs 1:12-cv-00322 United States District Court for the Western District of Texas Civil Rights: Other 828 F. Supp. 2d 872

© 2013 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6M6O2EQO2?documentName=1.xml

 
 Case 1:12-cv-00322-LY Document 47 Filed 05/29/12 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PLANNED PARENTHOOD

§

ASSOCIATION OF HIDALGO COUNTY §

TEXAS, INC.; PLANNED

§

PARENTHOOD ASSOCIATION OF

§

LUBBOCK, INC.; PLANNED

§

PARENTHOOD OF CAMERON AND

§

WILLACY COUNTIES; FAMILY

§

PLANNING ASSOCIATES OF SAN

§

ANTONIO; PLANNED PARENTHOOD

§

OF CENTRAL TEXAS; PLANNED

§

PARENTHOOD OF GULF COAST, INC.; §

PLANNED PARENTHOOD OF NORTH §

TEXAS, INC.; PLANNED

§

PARENTHOOD OF WEST TEXAS, INC.; §

AND PLANNED PARENTHOOD OF

§

AUSTIN FAMILY PLANNING, INC.;

§

PLAINTIFFS,

§

7.U2MM 29 PM IL.

ccuT

CL
ESTEP1

TR

O TEXAS

- 8

§

V.

§

CIVIL NO. A-12-CV-322-LY

§

THOMAS M. SUEHS, EXECUTIVE

§

COMMISSIONER, TEXAS HEALTH

§

AND HUMAN SERVICES

§

COMMISSION, IN HIS OFFICIAL

§

CAPACITY,

§

DEFENDANT.

§

ORDER Before the court in the above styled and numbered cause are Defendant's Motion to Clarify Scope of Preliminary Injunction, filed May 11, 2012 (Clerk's Doe. No. 36) and Plaintiffs' Opposition to Defendant's Motion to Clarify Scope of Preliminary Injunction, filed May 23, 2012 (Clerk's Doe. No. 46). Having considered the motion, response, and record in this cause, the court finds that its order granting Plaintiffs' motion for preliminary injunction (Clerk's Doe. No. 25) needs no further clarification. Accordingly,

Case 1:12-cv-00322-LY Document 47 Filed 05/29/12 Page 2 of 2

IT IS HEREBY ORDERED that Defendant's Motion to Clarify Scope of Preliminary

Injunction (Clerk's Doc. No. 36) is DENIED.

SIGNED this

day of May, 2012.

UNI ED STAT DIST CT JUDGE

2

 
 . . Case 1:12-cv-00322-LY Document 49 Filed 08/03/12 Page 1 of 2

F! LE f

IN THE UNITED STATES DISTRICT COUR2IG 3 Pti :
FOR THE WESTERN DISTRICT OF TEXA.E1
AUSTIN DIVISION

PLANNED PARENTHOOD OF AUSTIN

§

FAMILY PLANNING, [NC.,

§

PLANNED PARENTHOOD ASSOCIATION

§

OF HIDALGO COUNTY TEXAS, INC.,

§

PLANNED PARENTHOOD ASSOCIATION OF

§

LUBBOCK, INC.,

§

PLANNED PARENTHOOD OF CAMERON

§

AND WILLACY COUNTIES,

§

FAMILY PLANNING ASSOCIATES OF SAN

§

ANTONIO,

§

PLANNED PARENTHOOD OF CENTRAL TEXAS, §

PLANNED PARENTHOOD GULF COAST, INC., §

PLANNED PARENTHOOD OF NORTH

§

TEXAS, INC., and

§

PLANNED PARENTHOOD OF WEST TEXAS, INC.. §

PLAINTIFFS,

§

By
CASE NO. 1:1 2-cv-00322-LY

§

VS.

§

§

THOMAS M. SUEHS, Executive Commissioner,

§

Texas Health and Human Services Commission, §

in his official capacity,

§

DEFENDANT.

§

ORDER VACATING SCHEDULING ORDER AND TEMPORARILY STAYING PROCEEDINGS The Court has considered the parties' joint motion to vacate the scheduling order and temporarily stay discovery and is of the opinion that the motion should be GRANTED. IT IS ORDERED that the current scheduling order, entered on May 22, 2012 (Docket No. 45), is VACATED and further proceedings are STAYED pending the first of either: (1) the U.S. Court of Appeals for the Fifth Circuit ruling in the appeal of this Court's preliminary injunction; or (2) the adoption of rules for a state-funded Texas Women's Health Program by the Department of State Health Services.

C S Case 1:12-cv-00322-LY Document 49 Filed 08/03/12 Page 2 of 2

IT IS FURTHER ORDERED that within 10 days of either of those events, the parties will meet and confer about what next steps they believe should be taken in this case, and will promptly advise this Court of the results of that conference.

th(daY SIGNED

of August, 2012.

E'(

UNIT STATES

2

 
 Case 1:12-cv-00322-LY Document 56 Filed 11/27/12 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

2U12N0Y27 APi 9:30

PLANNED PARENTHOOD

§

ASSOCIATION OF HIDALGO COUNTY §

TEXAS, INC.; PLANNED

§

PARENTHOOD ASSOCIATION OF

§

LUBBOCK, INC.; PLANNED

§

PARENTHOOD OF CAMERON AND

§

WILLACY COUNTIES; FAMILY

§

PLANNING ASSOCIATES OF SAN

§

ANTONIO; PLANNED PARENTHOOD §

OF CENTRAL TEXAS; PLANNED

§

PARENTHOOD OF GULF COAST, INC.; §

PLANNED PARENTHOOD OF NORTH §

TEXAS, INC.; PLANNED

§

PARENTHOOD OF WEST TEXAS, INC.; §

AND PLANNED PARENTHOOD OF

§

AUSTIN FAMILY PLANNING, INC.;

§

PLAINTIFFS,

§

WTERUU

D1STRCT (U I
DiTRtCT 0FTEXS

T

§

V.

§

CIVIL NO. A-12-CV-322-LY

§

KYLE L. JANEK, EXECUTIVE

§

COMMISSIONER, TEXAS HEALTH

§

AND HUMAN SERVICES

§

COMMISSION,

§

DEFENDANT.

§

ORDER DISMISSING CASE

Before the court in the above styled and numbered cause are Plaintiffs' Motion to Abstain

and Dismiss Without Prejudice, filed November 6, 2012 (Clerk's Doe. No. 52) and Defendant's

Response to Plaintiffs' Motion to Abstain and Dismiss Without Prejudice, filed November 9, 2012 (Clerk's Doe. No. 54)1 By their motion, Plaintiffs inform the court that they have filed a state-court

lawsuit in the 261st District Court of Travis County, Texas, challenging the same administrative

On November 9, 2012, the court granted the Defendant's motion to substitute Thomas M. Suehs with the new Executive Commissioner ofthe Texas Health and Human Services Commission, Kyle L. Janek (Clerk's Doe. No. 55).

Case 1:12-cv-00322-LY Document 56 Filed 11/27/12 Page 2 of 2

regulation that is the subject of this action. See Planned Parenthood of Greater Tex. Family

Planning & Preventative Health Servs., Inc., et al. v. Tex. Health & Human Servs. Comm 'n, et al.,

No. D-1-GN-12-003365. Plaintiffs, therefore, request that the court dismiss this action without

prejudice. Having considered the motion and record in this cause, the court will grant Plaintiffs'

motion to the extent that they seek to dismiss this case without prejudice.

IT IS THEREFORE ORDERED that Plaintiffs' Motion to Abstain and Dismiss Without

Prejudice (Clerk's Doc. No. 52) is GRANTED to the following extent: This cause of action is

DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that each party shall bear its own costs.

SIGNED this

day of November, 2012.

LEE AKEL UNI ED STATE DIST CT JUDGE

2

 
 Planned Parenthood Ass’n of Hidalgo County Texas, Inc

2012 WL 1592230 Only the Westlaw citation is currently available.
United States Court of Appeals, Fifth Circuit.
PLANNED PARENTHOOD ASSOCIATION OF HIDALGO COUNTY TEXAS, Incorporated; Planned Parenthood Association Of Lubbock,
Incorporated; Planned Parenthood of Cameron and Willacy Counties; Family Planning Associates
of San Antonio; Planned Parenthood of Central Texas; Planned Parenthood of Gulf Coast,
Incorporated; Planned Parenthood of North Texas, Incorporated; Planned Parenthood of West
Texas, Incorporated; Planned Parenthood of Austin Family Planning, Incorporated, Plaintiffs–Appellees, v.
Thomas M. SUEHS, Executive Commissioner, Texas Health and Human Services Commission, in
His Official Capacity, Defendant–Appellant.
No. 12–50377. | May 4, 2012.
Attorneys and Law Firms
Helene T. Krasnoff, Planned Parenthood Federation of America, Washington, DC, Roger K. Evans, Planned Parenthood Federation of America, New York, NY, Pieter M. Schenkkan, Esq., Attorney, Graves, Dougherty, Hearon & Moody, P.C., Austin, TX, for Plaintiffs–Appellees.
Jonathan F. Mitchell, Solicitor, Office of the Solicitor General, Austin, TX, Andrew S. Oldham, Deputy Solicitor General, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Defendant–Appellant.
Appeal from the United States District Court for the Western District of Texas.
Before DAVIS, SMITH, and PRADO, Circuit Judges.
Opinion

PER CURIAM:

ORDER

*1 Shortly before noon on April 30, 2012, the district court entered the injunction that is appealed, explaining itself in a 23–page order. The State immediately filed a notice of appeal, then prepared a 23–page motion for stay pending appeal that was filed in this court at about 10:30 p.m. In its motion, the State represented that “the administrative provisions at issue are scheduled to go into effect (and Texas will be irreparably injured if they do not) at midnight tonight [April 30].”

A few minutes before midnight, the motion was submitted to a judge of this court who, pursuant to FED. R.APP. P. 8(a)(2)(D),1 temporarily granted the motion for stay based on the stated emergency and in order to provide for an orderly review by the full motions panel after any subsequent filings by the parties. The court, through its Clerk, directed the plaintiffs to file a response to the motion by 5:00 p.m. May 1. Plaintiffs submitted a 20–page response by the deadline.

1

Rule 8(a)(2)(D) reads,

A motion under this Rule 8(a)(2) must be filed

with the circuit clerk and normally will be

considered by a panel of the court. But in an

exceptional case in which time requirements make

that procedure impracticable, the motion may be

made to and considered by a single judge.

Significantly, in their response the plaintiffs substantially relied—as did the district court in its explanatory order—on the important precedent from this court of Planned Parenthood of Hou. & Se. Tex. v. Sanchez, 403 F.3d 324 (5th Cir.2005). Also importantly, on May 2 the plaintiffs filed, with leave of court, a “supplemental opposition” in which they pointed to an affidavit from a state official. Language in that affidavit reasonably calls into question the State’s declaration of an emergency need for a stay, because it states that any injunction will have the effect of requiring the State to cease operating the program at issue “upon termination of federal funding.” Evidence in the record indicates that such funding is continuing until November 2012.

This supplemental filing undermines the State’s assertion of irreparable harm if the injunction is not stayed pending appeal. Regarding the balance of the merits, we cannot conclude, on the present state of the record, that the State has shown a great likelihood, approaching a near certainty, that the district court abused its discretion in entering the injunction.2

2

See Allied Marketing Grp., Inc. v. CDL Marketing, Inc.,

878 F.2d 806, 809 (5th Cir.1989); Greene v. Fair, 314

F.2d 200, 202 (5th Cir.1963).

1

Planned Parenthood Ass’n of Hidalgo County Texas, Inc

Our conclusion rests in part on the State’s continuing reluctance to address the obviously relevant opinion in Sanchez. Despite the plaintiffs’ and the district court’s having relied extensively on that authority, which binds this panel to the extent it is applicable, the State never mentioned it (as far as we can tell from the record) in the district court and did not refer to it in any way in its motion for stay pending appeal. Nor has the State sought leave to supplement its submission with a response to Sanchez or the plaintiffs’ focus on the affidavit referred to above.
Accordingly, a stay pending appeal is no longer appropriate under the current record and in light of the early stage of these proceedings. We notice that an appeal of the injunction remains pending, and the only submission to this motions panel is the motion to stay the injunction pending a decision by a merits panel on the State’s appeal of the injunction. We also notice that the district court, in its thorough order, carefully advised that

it had reached no final decision of the plaintiffs’ suit to prohibit enforcement of the administrative rule in question.
*2 The stay entered on April 30 is VACATED. The motion for stay pending appeal is DENIED. To facilitate the early resolution of the injunction appeal, that appeal is hereby sua sponte EXPEDITED, and the Clerk is directed to place it on the next available regular oral argument docket for decision by a merits panel and to issue an expedited briefing schedule. The merits panel will decide any motions that may be submitted to it in the course of its consideration of the appeal of the injunction.
Nothing in this order is to be construed as a ruling on any issue of law or fact that is presented in this appeal or as a suggestion on how the district court or the merits panel should decide any question.
IT IS SO ORDERED.

2

 
 Case: 12-50377 Document: 00511965051 Page: 1 Date Filed: 08/21/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

F I L E D

August 21, 2012

No. 12-50377

Lyle W. Cayce Clerk

PLANNED PARENTHOOD ASSOCIATION OF HIDALGO COUNTY TEXAS, INCORPORATED; PLANNED PARENTHOOD ASSOCIATION OF LUBBOCK, INCORPORATED; PLANNED PARENTHOOD OF CAMERON AND WILLACY COUNTIES; FAMILY PLANNING ASSOCIATES OF SAN ANTONIO; PLANNED PARENTHOOD OF CENTRAL TEXAS; PLANNED PARENTHOOD OF GULF COAST, INCORPORATED; PLANNED PARENTHOOD OF NORTH TEXAS, INCORPORATED; PLANNED PARENTHOOD OF WEST TEXAS, INCORPORATED; PLANNED PARENTHOOD OF AUSTIN FAMILY PLANNING, INCORPORATED,

Plaintiffs - Appellees v.

THOMAS M. SUEHS, Executive Commissioner, Texas Health and Human Services Commission, in his Official Capacity,

Defendant - Appellant

Appeal from the United States District Court for the Western District of Texas
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.1 E. GRADY JOLLY, Circuit Judge:
The appellees, nine Planned Parenthood organizations that operate health clinics in Texas, obtained a preliminary injunction to block the enforcement of
1 Stewart, Circuit Judge, concurs in the judgment only.

Case: 12-50377 Document: 00511965051 Page: 2 Date Filed: 08/21/2012
No. 12-50377 Texas Health and Human Services Commission regulations. The regulations state that health care providers participating in a Medicaid-like program must not perform or promote elective abortions or be affiliates of entities that perform or promote elective abortions. The district court preliminarily enjoined the enforcement of these regulations against the appellees, reasoning that the regulations likely violate the appellees’ rights to free speech and association, and deny the appellees the equal protection of the laws.
The district court issued the preliminary injunction based on a wholesale assessment of the regulations’ constitutionality, which gave insufficient attention to Texas’s authority to subsidize speech of its choosing within its programs. Accordingly, the order of the district court granting a preliminary injunction is VACATED and the case is REMANDED.
I. In 2005 the Texas Legislature created the Women’s Health Program (WHP) as a project to “expand access to preventative health and family planning services for women.” Act effective Sept. 1, 2005, ch. 816, § 1(a), 2005 Tex. Gen. Laws 2816, 2817. Under the WHP, Texas pays health care providers to provide various services, including counseling about contraceptives, to women who meet certain criteria. Id. § 1(a)-(b). The WHP is funded by both Texas and the federal government as a demonstration project under Medicaid, pursuant to a waiver issued by the United States Department of Health and Human Services.2 See 42 U.S.C. § 1315. Federal funding accounts for most of the WHP’s total cost.
2 Based on the information provided by the parties, we understand that the Department of Health and Human Services intends to wind down federal funding for the WHP by November 2012, at which time Texas intends to carry on the WHP with exclusively state funds. Federal funding will, however, remain in place as long as the Texas Health and Human Services Commission is enjoined from enforcing the regulations that are the subject of this appeal.
2

Case: 12-50377 Document: 00511965051 Page: 3 Date Filed: 08/21/2012
No. 12-50377 Since the WHP’s inception, the Texas Legislature has prohibited the Texas Health and Human Services Commission (THHSC), which is charged with administering the WHP, from contracting with “entities that perform or promote elective abortions or are affiliates of entities that perform or promote elective abortions.” § 1(h), 2005 Tex. Gen. Laws at 2818. Until recently, however, THHSC had never formally interpreted this restriction on abortion-related activity, and the restriction had not been used to exclude the appellees from receiving WHP funds. Throughout the WHP’s existence, THHSC has paid the appellees for their provision of WHP services, even though the appellees engage in abortion advocacy and have some legal relationship with Planned Parenthood Federation of America. The appellees have understood the restriction on abortion-related activity to mean that if they do not recommend abortion as a health procedure, and if they maintain a separate legal identity from abortionproviding clinics, then they can receive WHP funds.3 Recent developments unsettled the appellees’ understanding and gave rise to the instant controversy. In 2011 the Texas Legislature re-authorized the WHP, and again prohibited THHSC from contracting with “entities that perform or promote elective abortions or affiliate with entities that perform or promote elective abortions.” Act effective Sept.1, 2011, ch. 1355, Rider 62, 2011 Tex. Gen. Laws 4025, 4228; Act effective Sept. 28, 2011, ch. 7, § 1.19(b), 2011 Tex. Gen. Laws 300, 335. After the WHP’s re-authorization, THHSC promulgated regulations interpreting the WHP’s restriction on abortion-related activity. The regulations, like the statute, deny WHP funding for entities that perform or promote elective abortions or are affiliates of entities that perform or promote elective abortions. 1 Tex. Admin. Code § 354.1363(a). Under a limited exception
3 The appellees maintain a separate legal identity from abortion-providing clinics as a result of Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324 (5th Cir. 2005).
3

Case: 12-50377 Document: 00511965051 Page: 4 Date Filed: 08/21/2012
No. 12-50377
within the regulations, however, a clinic receiving WHP funds may affiliate with a hospital that performs or promotes elective abortions. Id.
Unlike the statute, and importantly for this case, the regulations also define “promote” and “affiliate.” The regulations define “promote” as to “[a]dvocate[] or popularize[] by, for example, advertising or publicity.” Id. § 354.1362(6). They define “affiliate” as:
(A) An individual or entity that has a legal relationship with another entity, which relationship is created or governed by at least one written instrument that demonstrates: (i) common ownership, management, or control; (ii) a franchise; or (iii) the granting or extension of a license or other agreement that authorizes the affiliate to use the other entity’s brand name, trademark, service mark, or other registered identification mark. Id. § 354.1362(1). THHSC mandated that recipients of WHP funds, including the appellees, certify their compliance with the new regulations. Believing compliance to be impossible, the appellees instead filed a federal lawsuit against THHSC Commissioner Thomas Suehs in his official capacity (“Texas”) in the Western District of Texas, seeking declaratory and injunctive relief, including a preliminary injunction. The appellees’ complaint alleges that the THHSC regulations violate their constitutional rights of free speech and association, and deny them the equal protection of the laws. Underlying this claim—for purposes of standing to attack these regulations—is the appellees’ implicit concession that, based on the new definitions furnished by the THHSC regulations, they promote elective abortions and are affiliates of entities that promote elective abortions, and therefore cannot receive WHP funds.
4

Case: 12-50377 Document: 00511965051 Page: 5 Date Filed: 08/21/2012
No. 12-50377 On April 30, 2012, the district court granted the appellees’ requested preliminary injunction, blocking THHSC from enforcing the regulations. The court reasoned that the appellees had a substantial likelihood of succeeding on the merits of their lawsuit because the regulations impermissibly require the appellees to forego certain of their constitutional rights of free speech and association in order to receive WHP funds. The court also reasoned that the appellees had a substantial likelihood of succeeding on their equal protection claim because the regulations treat clinics and hospitals unequally. Texas appeals.
II. To obtain a preliminary injunction, the appellees were required to demonstrate (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction were not granted, (3) that their substantial injury outweighed the threatened harm to the party whom they sought to enjoin, and (4) that granting the preliminary injunction would not disserve the public interest. Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012). “[A] preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has clearly carried the burden of persuasion on all four requirements.” Id. (internal marks omitted). In reviewing the issuance of a preliminary injunction, we review the district court’s findings of fact for clear error, its legal conclusions de novo, and the ultimate decision to issue the injunction for abuse of discretion. Bluefield Water Ass’n, Inc. v. City of Starkville, Miss., 577 F.3d 250, 253 (5th Cir. 2009) (quoting Guy Carpenter & Co. v. Provenzale, 334 F.3d 459, 463 (5th Cir.2003)).
III. To focus our review of the district court’s order, we will first identify the merits of the appellees’ lawsuit on which the preliminary injunction is based.
5

Case: 12-50377 Document: 00511965051 Page: 6 Date Filed: 08/21/2012
No. 12-50377 The district court did not determine that the appellees are likely to prove that the regulations violate their right to perform abortions or to affiliate with entities that perform abortions. The right to obtain an abortion and any accompanying right to perform an abortion are not at issue in this appeal.
Instead, the district court held that the appellees are likely to prove that the regulations violate their right to promote abortion or to affiliate with entities that promote abortion. Put another way, the court held that the regulations likely abridge free speech. Specifically, the district court relied on a principle of constitutional law known as the “unconstitutional conditions doctrine,” which we will briefly describe before moving forward.
A. We start with the given premise that the First Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment, prohibits states from enacting laws “abridging the freedom of speech.” U.S. Const. amend. I. The United States Supreme Court has long recognized that the First Amendment prohibits not only direct burdens on speech, but also indirect burdens that are created when the government conditions receipt of a benefit on foregoing constitutionally-protected speech. Perry v. Sindermann, 408 U.S. 593, 597 (1972); Speiser v. Randall, 357 U.S. 513, 518-19 (1958). This principle, known as the unconstitutional conditions doctrine, acknowledges that the government, having no obligation to furnish a benefit, nevertheless cannot force a citizen to choose between a benefit and free speech. Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 59-60 (2006); Perry, 408 U.S. at 597. Such a choice will tend to penalize a constitutionally-protected right. Courts often struggle with when to apply the unconstitutional conditions doctrine, and the doctrine’s contours remain unclear despite its long history. See Dolan v. City of Tigard, 512 U.S. 374, 407 n.12 (1994) (Stevens, J., dissenting). Despite this unfortunate lack of clarity, the unconstitutional conditions doctrine
6

Case: 12-50377 Document: 00511965051 Page: 7 Date Filed: 08/21/2012
No. 12-50377 does involve a clear threshold premise: “[A] funding condition cannot be unconstitutional if it could be constitutionally imposed directly.” Rumsfeld, 547 U.S. at 59-60 (citing Speiser, 357 U.S. at 526). Thus, if the government could directly achieve the result in question, then it is unnecessary to assess the result within the unclear framework of the unconstitutional conditions doctrine. Id. at 60.
B. The district court relied on the unconstitutional conditions doctrine without questioning whether any aspects of the THHSC regulations achieve a direct result permitted by the First Amendment. Particularly, the district court analyzed the regulations as a whole, instead of separately parsing the restriction on promoting elective abortions, and then the restriction on affiliating with entities that promote elective abortions. Because the legal principles applicable to promotion and affiliation differ, it is important to assess these restrictions separately. This separate assessment results in both a clear consideration of the threshold premise of the unconstitutional conditions doctrine and restraint, which should always accompany a remedy as extraordinary as a preliminary injunction. Lakey, 667 F.3d at 574.
1. We begin with the restriction on promoting elective abortions. The THHSC regulations exclude health care providers from the WHP who “promote[] elective abortions as . . . abortion facilit[ies] licensed under [the] Health and Safety Code.” 1 Tex. Admin. Code § 354.1363(a)(2)(A). This restriction, in a sense, imposes a speech-based condition on organizations receiving the benefit of WHP funding. If an organization wishes to receive WHP funding, it may not “[a]dvocate[] or popularize[] [elective abortions] by, for example, advertising or publicity” as a licensed abortion facility. Id. § 354.1362(6).
7

Case: 12-50377 Document: 00511965051 Page: 8 Date Filed: 08/21/2012
No. 12-50377 Although this restriction functions as a speech-based funding condition, it also functions as a direct regulation of the content of a state program, and is therefore constitutional under the reasoning of Rust v. Sullivan, 500 U.S. 173 (1991). In Rust v. Sullivan, the Supreme Court considered federal regulations limiting the abortion-related speech of clinics receiving funds under Title X of the Public Health Service Act. 500 U.S. at 178. The disputed regulations broadly prohibited a Title X project from promoting or advocating abortion as a method of family planning, including advocating abortion in the political arena. Id. at 180. The Court upheld the regulations, reasoning that the government could disfavor abortion within its own subsidized program, and that exclusively subsidizing non-abortion family planning speech did not penalize abortion speech. Id. at 192-93. Subsequent opinions have recognized Rust as affirming the government’s authority to enact viewpoint-based restrictions on speech when the government is, in effect, the speaker. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 540-41 (2001); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833 (1995). “[W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.” Rosenberger, 515 U.S. at 833 (citing Rust, 500 U.S. at 194). Texas’s restriction on promoting elective abortions directly regulates the content of the WHP as a state program. The policy expressed in the WHP is for public funds to subsidize non-abortion family planning speech to the exclusion of abortion speech. § 1.19(b), 2011 Tex. Gen. Laws at 335. Texas’s authority to promote that policy would be meaningless if it were forced to enlist organizations as health care providers and message-bearers that were also abortion advocates. The authority of Texas to disfavor abortion within its own subsidized program is not violative of the First Amendment right, as interpreted by Rust v. Sullivan. Consequently, Texas’s choice to disfavor abortion does not unconstitutionally penalize the appellees’ speech.
8

Case: 12-50377 Document: 00511965051 Page: 9 Date Filed: 08/21/2012
No. 12-50377
We hold that Texas may deny WHP funds from organizations that promote elective abortions.4 This specific restriction on the breadth of the program functions as a direct regulation of the definitional content of a state program, and it is therefore unnecessary to examine it within the framework of the unconstitutional conditions doctrine. The district court erred in enjoining this provision of the regulations.
2. We now briefly turn to the restriction on affiliating with entities that promote elective abortions. The THHSC regulations exclude health care providers from the WHP who are “affiliate[s] of . . . corporate entit[ies] that . . . promote[] elective abortions.” 1 Tex. Admin. Code § 354.1363(a)(2)(B). Under the regulations’ definitions, affiliation results from common ownership, management, or control; franchise; or authorization to use identifying marks. Id. § 354.1362(1). We will only address one prong of the definition of affiliate: the authorization to use identifying marks. We address this prong because it implicates the same conduct as the restriction on promoting elective abortions, which we have already addressed. Using a pro-abortion mark is, after all, a way of promoting abortion.5 Texas’s authority to directly regulate the content of its own program necessarily includes the power to limit the identifying marks that program grantees are authorized to use. Identifying marks represent messages, and
4 To be clear, our holding is limited to the organizations that are the appellees in this appeal and the individuals working for the organizations when they are acting for the organizations. Our holding does not address the speech of the individuals that make up those organizations when they are engaging in speech and other conduct outside their duties with the organizations.
5 It is beyond question that identifying marks are a form of speech. See Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1383 n.6 (5th Cir. 1996).
9

Case: 12-50377 Document: 00511965051 Page: 10 Date Filed: 08/21/2012
No. 12-50377 authorization to use a particular mark is authorization to promote that mark’s message. If the organizations participating in the WHP are authorized to use marks associated with the pro-abortion point of view—like the Planned Parenthood mark—Texas’s choice to disfavor abortion is eviscerated, just as it would be if the organizations promoted abortion through pamphlets or video presentations.
Whether an identifying mark communicates a pro-abortion message as clearly as other speech is not a controlling factor for the purposes of this analysis. “When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.” Rosenberger, 515 U.S. at 833. It takes no expansion of the mind to understand how Texas’s message disfavoring abortion would be garbled if health care providers participating in the WHP could identify and poster their clinics with abortion-related identifying marks.
We therefore hold that Texas may deny WHP funds from organizations that promote elective abortions through identifying marks. The restriction on identifying marks is really a limit on promoting elective abortions, and it is therefore valid as a direct regulation of the content of a state program. Again, because this restriction is lawful as a direct regulation of speech, we have no reason to examine it within the framework of the unconstitutional conditions doctrine. The district court erred in enjoining this provision of the regulations.
The other prongs of the THHSC regulations’ definition of affiliate—read in conjunction with the regulations’ restriction on affiliating with entities that promote elective abortions—do more than limit the promotion of abortion. They limit affiliation in a more conventional sense. 1 Tex. Admin. Code § 354.1362(1). The regulations’ restriction on affiliation is problematic because it is not a direct regulation of the content of a government program. Speech that organizations
10

Case: 12-50377 Document: 00511965051 Page: 11 Date Filed: 08/21/2012
No. 12-50377 carry on in other capacities through affiliated entities is not speech within a government program in which the government has a direct say. See Rust, 500 U.S. at 196.
For now, however, we decline to examine the restriction on affiliation and its potential constitutional infirmities. As stated above, the district court assessed the regulations as a whole, making no distinction between promoting and affiliating, and its assessment resulted in an erroneous application of the unconstitutional conditions doctrine. It is not clear whether the district court would have preliminarily enjoined select provisions of the regulations or not, and we think it better simply to vacate the injunction in its entirety in this respect and, on remand, allow the district court to decide that question for itself.
C. Before concluding, we must briefly address the district court’s holding that the THHSC regulations likely deny the appellees the equal protection of the laws. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend XIV, § 1. The district court reasoned that the regulations likely violate equal protection because they allow affiliation with abortion-promoting hospitals, but not with abortion-promoting clinics, and therefore do not treat all health care providers equally. 1 Tex. Admin. Code § 354.1363(a). Within its equal protection analysis, the district court assumed that the regulations abridge free speech, and that because the regulations abridge free speech, all classifications within them should be subject to heightened constitutional scrutiny. Regan v. Taxation with Representation of Wash., 461 U.S. 540, 547 (1983) (“Statutes are subjected to a higher level of scrutiny if they interfere with the exercise of a fundamental right, such as freedom of
11

Case: 12-50377 Document: 00511965051 Page: 12 Date Filed: 08/21/2012
No. 12-50377 speech . . . .”). The district court’s free speech holding therefore influenced its equal protection holding.
Because the free speech holding was in error for the reasons explained above, we cannot assume that strict scrutiny should apply to the classifications contained within the regulations. Nor can we assume that the district court would reach the same conclusion on equal protection applying some lesser tier of constitutional scrutiny.
IV. The appellees administer a Texas program under the authority of a Texas statute and its regulations, and they receive public funds in return. Texas may limit what the appellees communicate in this capacity. The appellees have not made a clear showing that they are likely to succeed in demonstrating that the THHSC regulations’ restriction on promoting elective abortions violates their First Amendment rights. Because we have determined that the appellees failed to demonstrate a substantial likelihood of success on the merits, we do not need to address the remaining elements necessary for preliminary injunctive relief. La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency, 608 F.3d 217, 225 (5th Cir. 2010). On remand, the district court is to reconsider the constitutionality of the restriction on affiliating with entities that perform elective abortions, specifically the prongs defining affiliation based on franchise and common ownership, management, or control, and to rule accordingly. We VACATE the preliminary injunction and REMAND for further consideration not inconsistent with this opinion.
VACATED and REMANDED.
12

 
 Case: 1:12-cv-322 As of: 09/26/2014 06:14 PM CDT 1 of 11
U.S. District Court [LIVE] Western District of Texas (Austin) CIVIL DOCKET FOR CASE #: 1:12−cv−00322−LY

CLOSED

Planned Parenthood Association of Hidalgo County Texas, Inc. et al v. Suehs Assigned to: Judge Lee Yeakel Related Case: 1:12−cv−01132−LY
Case in other court: USCA Fifth Circuit, 12−50377 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/11/2012 Date Terminated: 11/27/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Planned Parenthood Association of Hidalgo County Texas, Inc.

represented by Carrie Y. Flaxman Planned Parenthood Federation of America 1100 Vermont Avenue NW, Suite 300 Washington, DC 20005 202/973−4800 Email: carrie.flaxman@ppfa.org ATTORNEY TO BE NOTICED

Helene T. Krasnoff Planned Parenthood Federation of America 1110 Vermont Avenue N.W., Suite 300 Washington, DC 20005 (202) 973−4800 Fax: (202) 296−3480 Email: helene.krasnoff@ppfa.org ATTORNEY TO BE NOTICED

P. M. Schenkkan Graves Dougherty Hearon &Moody, PC 401 Congress Ave. Suite 2200 Austin, TX 78701 (512) 480−5673 Fax: 512/480−5873 Email: pschenkkan@gdhm.com ATTORNEY TO BE NOTICED

Roger K. Evans Planned Parenthood Federation of America 434 West 33rd Street New York, NY 10001 (212) 541−7800 Fax: 212/247−6811 Email: roger.evans@ppfa.org ATTORNEY TO BE NOTICED

Susan G. Conway Graves Dougherty Hearon &Moody 401 Congress Suite 2200 Austin, TX 78701 (512) 480−5768 Email: sconway@gdhm.com ATTORNEY TO BE NOTICED

Matthew B. Baumgartner Graves Dougherty Hearon &Moody PC 401 Congress Avenue, Suite 2200 Austin, TX 78701 (512) 480−5603

Case: 1:12-cv-322 As of: 09/26/2014 06:14 PM CDT 2 of 11

Fax: (512) 536−9913 Email: mbaumgartner@gdhm.com ATTORNEY TO BE NOTICED

Plaintiff
Planned Parenthood of Austin Family Planning, Inc.

represented by Carrie Y. Flaxman (See above for address) ATTORNEY TO BE NOTICED

Helene T. Krasnoff (See above for address) ATTORNEY TO BE NOTICED

P. M. Schenkkan (See above for address) ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) ATTORNEY TO BE NOTICED

Susan G. Conway (See above for address) ATTORNEY TO BE NOTICED

Matthew B. Baumgartner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Planned Parenthood Association of Lubbock, Inc.

represented by Carrie Y. Flaxman (See above for address) ATTORNEY TO BE NOTICED

Helene T. Krasnoff (See above for address) ATTORNEY TO BE NOTICED

P. M. Schenkkan (See above for address) ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) ATTORNEY TO BE NOTICED

Susan G. Conway (See above for address) ATTORNEY TO BE NOTICED

Matthew B. Baumgartner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Planned Parenthood of Cameron and Willacy Counties

represented by Carrie Y. Flaxman (See above for address) ATTORNEY TO BE NOTICED

Helene T. Krasnoff (See above for address) ATTORNEY TO BE NOTICED

Case: 1:12-cv-322 As of: 09/26/2014 06:14 PM CDT 3 of 11

P. M. Schenkkan (See above for address) ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) ATTORNEY TO BE NOTICED

Susan G. Conway (See above for address) ATTORNEY TO BE NOTICED

Matthew B. Baumgartner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Family Planning Associates of San Antonio

represented by Carrie Y. Flaxman (See above for address) ATTORNEY TO BE NOTICED

Helene T. Krasnoff (See above for address) ATTORNEY TO BE NOTICED

P. M. Schenkkan (See above for address) ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) ATTORNEY TO BE NOTICED

Susan G. Conway (See above for address) ATTORNEY TO BE NOTICED

Matthew B. Baumgartner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Planned Parenthood of Central Texas

represented by Carrie Y. Flaxman (See above for address) ATTORNEY TO BE NOTICED

Helene T. Krasnoff (See above for address) ATTORNEY TO BE NOTICED

P. M. Schenkkan (See above for address) ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) ATTORNEY TO BE NOTICED

Susan G. Conway (See above for address) ATTORNEY TO BE NOTICED

Matthew B. Baumgartner (See above for address)

Case: 1:12-cv-322 As of: 09/26/2014 06:14 PM CDT 4 of 11

ATTORNEY TO BE NOTICED

Plaintiff
Planned Parenthood of Gulf Coast, Inc.

represented by Carrie Y. Flaxman (See above for address) ATTORNEY TO BE NOTICED

Helene T. Krasnoff (See above for address) ATTORNEY TO BE NOTICED

P. M. Schenkkan (See above for address) ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) ATTORNEY TO BE NOTICED

Susan G. Conway (See above for address) ATTORNEY TO BE NOTICED

Matthew B. Baumgartner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Planned Parenthood of North Texas, Inc.

represented by Carrie Y. Flaxman (See above for address) ATTORNEY TO BE NOTICED

Helene T. Krasnoff (See above for address) ATTORNEY TO BE NOTICED

P. M. Schenkkan (See above for address) ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) ATTORNEY TO BE NOTICED

Susan G. Conway (See above for address) ATTORNEY TO BE NOTICED

Matthew B. Baumgartner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Planned Parenthood of West Texas, Inc.

represented by Carrie Y. Flaxman (See above for address) ATTORNEY TO BE NOTICED

Helene T. Krasnoff (See above for address) ATTORNEY TO BE NOTICED

P. M. Schenkkan (See above for address)

Case: 1:12-cv-322 As of: 09/26/2014 06:14 PM CDT 5 of 11
ATTORNEY TO BE NOTICED
Roger K. Evans (See above for address) ATTORNEY TO BE NOTICED
Susan G. Conway (See above for address) ATTORNEY TO BE NOTICED
Matthew B. Baumgartner (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Thomas M. Suehs Executive Commissioner, Texas Health and Human Services Commission, in his Official Capacity TERMINATED: 11/09/2012
Defendant Kyle L. Janek Executive Commissioner, Texas Health and Human Services Commission

represented by Arthur C. D'Andrea Assistant Solicitor General Office of the Solictor General of Texas P.O. Box 12548 (MC 059) Austin, TX 78711 (512) 936−2868 Email: arthur.dandrea@oag.state.tx.us TERMINATED: 11/09/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan F. Mitchell Office of the Attorney General 209 W. 14th St., 7th Floor (MC−059) Austin, TX 78701 (512) 936−1697 Fax: 512/474−2697 Email: jonathan.mitchell@texasattorneygeneral.gov TERMINATED: 11/09/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristofer S. Monson Office of the Attorney General of Texas 209 W 14th St − 7th Flr Austin, TX 78754 (512) 936−1700 Fax: 512/474−2697 Email: kristofer.monson@texasattorneygeneral.gov TERMINATED: 11/09/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur C. D'Andrea (See above for address) ATTORNEY TO BE NOTICED
Jonathan F. Mitchell (See above for address) ATTORNEY TO BE NOTICED
Kristofer S. Monson (See above for address) ATTORNEY TO BE NOTICED

Case: 1:12-cv-322 As of: 09/26/2014 06:14 PM CDT 6 of 11

Date Filed 04/11/2012 04/11/2012
04/11/2012 04/11/2012 04/11/2012 04/11/2012 04/11/2012

# Docket Text
1 COMPLAINT ( Filing fee $ 350 receipt number 0542−4480390), filed by Family Planning Associates of San Antonio, Planned Parenthood Association of Lubbock, Inc., Planned Parenthood of Central Texas, Planned Parenthood of North Texas, Inc., Planned Parenthood of Austin, Family Planning, Inc., Planned Parenthood of Gulf Coast, Inc., Planned Parenthood Association of Hidalgo County Texas, Inc., Planned Parenthood of West Texas, Inc., Planned Parenthood of Cameron and Willacy Counties. (Attachments: # 1 Civil Cover Sheet Civil Cover Sheet)(Baumgartner, Matthew) (Entered: 04/11/2012)
2 MOTION for Preliminary Injunction by Family Planning Associates of San Antonio, Planned Parenthood Association of Hidalgo County Texas, Inc., Planned Parenthood Association of Lubbock, Inc., Planned Parenthood of Austin, Family Planning, Inc., Planned Parenthood of Cameron and Willacy Counties, Planned Parenthood of Central Texas, Planned Parenthood of Gulf Coast, Inc., Planned Parenthood of North Texas, Inc.. (Attachments: # 1 Appendix Appendix TOC, # 2 Appendix Summary of Facts, # 3 Exhibit Texas Affiliate Rule, # 4 Exhibit WHP Summary, # 5 Exhibit HHSC Rider 64 Report, # 6 Exhibit A. Hawkins letter to Sen. Deuell, # 7 Exhibit Tex. Medicaid letter to WHP Providers, # 8 Exhibit 2011 C. Mann letter to B. Millwee, # 9 Exhibit 2012 C. Mann letter to B. Millwee, # 10 Exhibit R. Perry letter to T. Suehs, # 11 Exhibit Declaration of K. Lambrecht, # 12 Exhibit Declaration of P. Gonzales, # 13 Exhibit Declaration of T. Haskell, # 14 Exhibit Declaration of K. Hildebrand, # 15 Proposed Order Proposed Order granting Preliminary Injunction)(Baumgartner, Matthew) (Entered: 04/11/2012)
3 MOTION for Leave to Exceed Page Limitation by Family Planning Associates of San Antonio, Planned Parenthood Association of Hidalgo County Texas, Inc., Planned Parenthood Association of Lubbock, Inc., Planned Parenthood of Austin, Family Planning, Inc., Planned Parenthood of Cameron and Willacy Counties, Planned Parenthood of Central Texas, Planned Parenthood of Gulf Coast, Inc., Planned Parenthood of North Texas, Inc.. (Attachments: # 1 Proposed Order Proposed Order granting Motion to Exceed)(Baumgartner, Matthew) (Entered: 04/11/2012)
Case Assigned to Judge Lee Yeakel. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (td) (Entered: 04/11/2012)
4 NOTICE of Filing Corrected Civil Cover Sheet by Family Planning Associates of San Antonio, Planned Parenthood Association of Hidalgo County Texas, Inc., Planned Parenthood Association of Lubbock, Inc., Planned Parenthood of Austin, Family Planning, Inc., Planned Parenthood of Cameron and Willacy Counties, Planned Parenthood of Central Texas, Planned Parenthood of Gulf Coast, Inc., Planned Parenthood of North Texas, Inc. (Baumgartner, Matthew) (Entered: 04/11/2012)
5 MOTION to Appear Pro Hac Vice by Matthew B. Baumgartner Roger K. Evans ( Filing fee $ 25 receipt number 0542−4482727) by on behalf of Family Planning Associates of San Antonio, Planned Parenthood Association of Hidalgo County Texas, Inc., Planned Parenthood Association of Lubbock, Inc., Planned Parenthood of Austin Family Planning, Inc., Planned Parenthood of Cameron and Willacy Counties, Planned Parenthood of Central Texas, Planned Parenthood of Gulf Coast, Inc., Planned Parenthood of North Texas, Inc., Planned Parenthood of West Texas, Inc. (Baumgartner, Matthew) Modified on 4/11/2012 to add filer (kkc, ). (Entered: 04/11/2012)
6 MOTION to Appear Pro Hac Vice by Matthew B. Baumgartner Helene Krasnoff ( Filing fee $ 25 receipt number 0542−4482802) by on behalf of Family Planning Associates of San Antonio, Planned Parenthood Association of Hidalgo County Texas, Inc., Planned Parenthood Association of Lubbock, Inc., Planned Parenthood of Austin Family Planning, Inc., Planned Parenthood of Cameron and Willacy Counties, Planned Parenthood of Central Texas, Planned Parenthood of Gulf Coast, Inc., Planned Parenthood of North Texas, Inc., Planned Parenthood of West Texas,

Case: 1:12-cv-322 As of: 09/26/2014 06:14 PM CDT 7 of 11

04/11/2012
04/11/2012
04/11/2012 04/11/2012
04/12/2012 04/16/2012 04/16/2012 04/16/2012 04/16/2012 04/16/2012

Inc. (Baumgartner, Matthew) Modified on 4/11/2012 to add filer (kkc, ). (Entered: 04/11/2012)
7 MOTION to Appear Pro Hac Vice by Matthew B. Baumgartner Carrie Flaxman ( Filing fee $ 25 receipt number 0542−4482820) by on behalf of Family Planning Associates of San Antonio, Planned Parenthood Association of Hidalgo County Texas, Inc., Planned Parenthood Association of Lubbock, Inc., Planned Parenthood of Austin Family Planning, Inc., Planned Parenthood of Cameron and Willacy Counties, Planned Parenthood of Central Texas, Planned Parenthood of Gulf Coast, Inc., Planned Parenthood of North Texas, Inc., Planned Parenthood of West Texas, Inc. (Baumgartner, Matthew) Modified on 4/11/2012 to add filer (kkc, ). (Entered: 04/11/2012)
8 REQUEST FOR ISSUANCE OF SUMMONS by Family Planning Associates of San Antonio, Planned Parenthood Association of Hidalgo County Texas, Inc., Planned Parenthood Association of Lubbock, Inc., Planned Parenthood of Austin Family Planning, Inc., Planned Parenthood of Cameron and Willacy Counties, Planned Parenthood of Central Texas, Planned Parenthood of Gulf Coast, Inc., Planned Parenthood of North Texas, Inc., Planned Parenthood of West Texas, Inc. (Baumgartner, Matthew) Modified on 4/11/2012 to add filer (kkc, ). (Entered: 04/11/2012)
9 Summons Issued as to Thomas M. Suehs, Executive Commissioner, Texas Health and Human Services Commission, in his official capacity. (kkc, ) (Entered: 04/11/2012)
10 RULE 7 DISCLOSURE STATEMENT filed by Family Planning Associates of San Antonio, Planned Parenthood Association of Hidalgo County Texas, Inc., Planned Parenthood Association of Lubbock, Inc., Planned Parenthood of Austin Family Planning, Inc., Planned Parenthood of Cameron and Willacy Counties, Planned Parenthood of Central Texas, Planned Parenthood of Gulf Coast, Inc., Planned Parenthood of North Texas, Inc., Planned Parenthood of West Texas, Inc. (Baumgartner, Matthew) Modified on 4/12/2012 to add filer (kkc, ). (Entered: 04/11/2012)
11 ORDER GRANTING 3 Motion for Leave to File Excess Pages. Signed by Judge Lee Yeakel. (kkc, ) (Entered: 04/12/2012)
12 ORDER GRANTING 5 Motion for Roger K. Evans to Appear Pro Hac Vice. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (kkc, ) (Entered: 04/16/2012)
13 ORDER GRANTING 6 Motion for Helene T. Krasnoff to Appear Pro Hac Vice. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (kkc, ) (Entered: 04/16/2012)
14 ORDER GRANTING 7 Motion for Carrie Y. Flaxman to Appear Pro Hac Vice. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (kkc, ) (Entered: 04/16/2012)
15 Minute Entry for proceedings held before Judge Lee Yeakel: Telephone Status Conference held on 4/16/2012 (Minute entry documents are not available electronically). Set Motion Hearing for 2 MOTION for Preliminary Injunction (Motion Hearing set for 4/19/2012 at 3:00 PM before Judge Lee Yeakel). (Court Reporter Arlinda Rodriguez) (kkc, ) (Entered: 04/16/2012)
16 ORDER Setting Hearing on 2 MOTION for Preliminary Injunction: Motion Hearing set for 4/19/2012 at 3:00 PM before Judge Lee Yeakel. Signed by Judge Lee Yeakel. (kkc, ) (Entered: 04/16/2012)

Case: 1:12-cv-322 As of: 09/26/2014 06:14 PM CDT 8 of 11

04/16/2012 04/18/2012 04/18/2012
04/18/2012 04/19/2012
04/19/2012 04/20/2012 04/23/2012
04/30/2012 04/30/2012 04/30/2012 04/30/2012

17 NOTICE of Attorney Appearance by Arthur C. D'Andrea on behalf of Thomas M. Suehs, Executive Commissioner, Texas Health and Human Services Commission, in his official capacity (D'Andrea, Arthur) (Entered: 04/16/2012)
18 NOTICE of Attorney Appearance by Jonathan Franklin Mitchell on behalf of Thomas M. Suehs, Executive Commissioner, Texas Health and Human Services Commission, in his official capacity (Mitchell, Jonathan) (Entered: 04/18/2012)
19 Response in Opposition to Motion, filed by Thomas M. Suehs, Executive Commissioner, Texas Health and Human Services Commission, in his official capacity, re 2 MOTION for Preliminary Injunction filed by Plaintiff Planned Parenthood Association of Hidalgo County Texas, Inc., Plaintiff Planned Parenthood of Cameron and Willacy Counties, Plaintiff Planned Parenthood of North Texas, Inc., Plaintiff Planned Parenthood of Gulf Coast, Inc., Plaintiff Family Planning Associates of San Antonio, Plaintiff Planned Parenthood Association of Lubbock, Inc., Plaintiff Planned Parenthood of Central Texas (Attachments: # 1 Affidavit Suehs, # 2 Proposed Order)(Mitchell, Jonathan) (Entered: 04/18/2012)
20 Unopposed MOTION for Leave to Exceed Page Limitation by Thomas M. Suehs, Executive Commissioner, Texas Health and Human Services Commission, in his official capacity. (Attachments: # 1 Proposed Order)(Mitchell, Jonathan) (Entered: 04/18/2012)
21 SUMMONS Returned Executed by Family Planning Associates of San Antonio, Planned Parenthood Association of Lubbock, Inc., Planned Parenthood of Central Texas, Planned Parenthood of North Texas, Inc., Planned Parenthood of Austin Family Planning, Inc., Planned Parenthood of Gulf Coast, Inc., Planned Parenthood Association of Hidalgo County Texas, Inc., Planned Parenthood of West Texas, Inc., Planned Parenthood of Cameron and Willacy Counties. Thomas M. Suehs, Executive Commissioner, Texas Health and Human Services Commission, in his official capacity served on 4/12/2012, answer due 5/3/2012. (Baumgartner, Matthew) (Entered: 04/19/2012)
22 Minute Entry for proceedings held before Judge Lee Yeakel: Motion Hearing held on 4/19/2012 re 2 MOTION for Preliminary Injunction (Minute entry documents are not available electronically). (Court Reporter Arlinda Rodriguez.) (kkc, ) (Entered: 04/20/2012)
23 ORDER GRANTING 20 Motion for Leave to File Excess Pages. Signed by Judge Lee Yeakel. (kkc, ) (Entered: 04/23/2012)
24 Proposed Order and supporting letter re 2 MOTION for Preliminary Injunctionby Family Planning Associates of San Antonio, Planned Parenthood Association of Hidalgo County Texas, Inc., Planned Parenthood Association of Lubbock, Inc., Planned Parenthood of Austin Family Planning, Inc., Planned Parenthood of Cameron and Willacy Counties, Planned Parenthood of Central Texas, Planned Parenthood of Gulf Coast, Inc., Planned Parenthood of North Texas, Inc., Planned Parenthood of West Texas, Inc.. (Attachments: # 1 Memo in Support Letter)(Conway, Susan) Modified on 4/23/2012 to add relationship (kkc, ). (Entered: 04/23/2012)
25 ORDER GRANTING 2 Motion for Preliminary Injunction. This case is set for a scheduling conference at 1:30 p.m. on Friday, May 18, 2012. Signed by Judge Lee Yeakel. (kkc, ) (Entered: 04/30/2012)
Set/Reset Hearings: Scheduling Conference set for 5/18/2012 at 1:30 PM before Judge Lee Yeakel. (kkc, ) (Entered: 04/30/2012)
26 Appeal of Order entered by District Judge 25 by Thomas M. Suehs. No filing fee submitted (Mitchell, Jonathan) (Entered: 04/30/2012)
NOTICE OF INTERLOCUTORY APPEAL re 26 Notice of Appeal (E−Filed) by Thomas M. Suehs as to 25 Order on Motion for Preliminary Injunction. Filing fee $ 455 DUE. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink

Case: 1:12-cv-322 As of: 09/26/2014 06:14 PM CDT 9 of 11

05/01/2012 05/03/2012 05/04/2012 05/04/2012
05/07/2012 05/07/2012 05/09/2012
05/09/2012 05/09/2012
05/10/2012 05/10/2012 05/11/2012 05/11/2012

above. (kkc, ) (Entered: 04/30/2012)
27 USCA Appeal Fees received $ 455 receipt number 100013704 re Notice of Appeal − Interlocutory, filed by Thomas M. Suehs. (kkc, ) (Entered: 05/01/2012)
28 MOTION for Extension of Time to File Answer by Thomas M. Suehs. (Attachments: # 1 proposed order)(Mitchell, Jonathan) (Entered: 05/03/2012)
29 Certified and Transmitted Record on Appeal to USCA Fifth Circuit re Notice of Appeal − Interlocutory. Record consists of 2 Volumes of the Electronic Record on Appeal. (kkc, ) (Entered: 05/04/2012)
NOTICE: Due to the EXPEDITED nature of 26 Notice of Appeal, the Clerk has preemptively forwarded the electronic record on appeal via an e−mail with a link to all counsel without waiting for a request. PLEASE NOTE: When the record is SUPPLEMENTED, the supplemental record will only be forwarded to counsel who request it. This appeal record link is active for seven days and counsel has been instructed to access the file and save it for use in preparing their brief. (klw)(klw, ) (Entered: 05/04/2012)
30 ORDER GRANTING 28 Motion for Extension of Time to Answer re 1 Complaint; Thomas M. Suehs answer due 5/10/2012. Signed by Judge Lee Yeakel. (kkc, ) (Entered: 05/07/2012)
31 TRANSCRIPT REQUEST by Thomas M. Suehs for dates of 4/19/2012. Proceedings Transcribed: Hearing on Motion for Preliminary Injunction. Court Reporter: Arlinda Rodriguez. (kkc, ) (Entered: 05/07/2012)
32 Transcript filed of Proceedings held on April 19, 2012, Proceedings Transcribed: Preliminary Injunction Hearing. Court Reporter/Transcriber: Arlinda Rodriguez, Telephone number: 512−916−5143. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 5/30/2012. Redacted Transcript Deadline set for 6/11/2012. Release of Transcript Restriction set for 8/7/2012. Appeal Record due by 5/24/2012. (Rodriguez, Arlinda) (Entered: 05/09/2012)
NOTICE of SUPPLEMENTAL Certified Record on Appeal was sent to the USCA via e−mail re Notice of Appeal − Interlocutory. Record contains 1 Volume of the Supplemental Electronic Record on Appeal; 1 Volume of Supplemental Transcript (dkt 32). (kkc, ) (Entered: 05/09/2012)
33 Agreed MOTION to Continue Scheduling Conference by Family Planning Associates of San Antonio, Planned Parenthood Association of Hidalgo County Texas, Inc., Planned Parenthood Association of Lubbock, Inc., Planned Parenthood of Austin Family Planning, Inc., Planned Parenthood of Cameron and Willacy Counties, Planned Parenthood of Central Texas, Planned Parenthood of Gulf Coast, Inc., Planned Parenthood of North Texas, Inc., Planned Parenthood of West Texas, Inc.. (Schenkkan, P.) (Entered: 05/09/2012)
34 MOTION to Appear Pro Hac Vice by Kristofer S. Monson ( Filing fee $ 25 receipt number 100013835) on behalf of Thomas M. Suehs. (kkc, ) (Additional attachment(s) added on 5/10/2012: # 2 Corrected Receipt) (kkc, ). (Entered: 05/10/2012)
35 ANSWER to 1 Complaint,, by Thomas M. Suehs.(D'Andrea, Arthur) (Entered: 05/10/2012)
36 Opposed MOTION to Clarify Scope of Preliminary Injunction re 25 Order on Motion for Preliminary Injunction by Thomas M. Suehs. (Mitchell, Jonathan) (Entered: 05/11/2012)
37 DEFICIENCY NOTICE: re 36 Opposed MOTION to Clarify Scope of Preliminary Injunction re 25 Order on Motion for Preliminary Injunction. (kkc, ) (Entered:

Case: 1:12-cv-322 As of: 09/26/2014 06:14 PM CDT 10 of 11

05/11/2012 05/11/2012 05/15/2012 05/15/2012
05/15/2012 05/15/2012 05/18/2012 05/22/2012 05/23/2012
05/29/2012 08/02/2012
08/03/2012

05/11/2012)
38 ATTACHMENT (Proposed Order) to 36 Opposed MOTION to Clarify Scope of Preliminary Injunction re 25 Order on Motion for Preliminary Injunction by Thomas M. Suehs. (Mitchell, Jonathan) (Entered: 05/11/2012)
39 ORDER GRANTING 34 Motion for Kristofer S. Monson to Appear Pro Hac Vice. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (kkc, ) (Entered: 05/14/2012)
40 ORDER DENYING 33 Motion for Continuance of the May 18 Scheduling Conference. Signed by Judge Lee Yeakel. (kkc, ) (Entered: 05/15/2012)
41 Unopposed MOTION for Extension of Time to File Response/Reply to Defendant's Motion to Clarify Scope of Preliminary Injunction by Family Planning Associates of San Antonio, Planned Parenthood Association of Hidalgo County Texas, Inc., Planned Parenthood Association of Lubbock, Inc., Planned Parenthood of Austin Family Planning, Inc., Planned Parenthood of Cameron and Willacy Counties, Planned Parenthood of Central Texas, Planned Parenthood of Gulf Coast, Inc., Planned Parenthood of North Texas, Inc., Planned Parenthood of West Texas, Inc.. (Attachments: # 1 Proposed Order Order Granting Plaintiffs' Unopposed Motion for Extension of Time to Respond to Defendant's Motion to Clarify Scope of Preliminary Injunction)(Baumgartner, Matthew) (Entered: 05/15/2012)
42 SUPPLEMENT TO ORDER GRANTING PRELIMINARY INJUNCTION: this court restates its conclusion that no bond shall be required of Plaintiffs. Signed by Judge Lee Yeakel. (kkc, ) (Entered: 05/15/2012)
43 ORDER GRANTING 41 Motion for Extension of Time to Respond to 36 Motion to Clarify Scope of Preliminary Injunction; response due 5/23/2012. Signed by Judge Lee Yeakel. (kkc, ) (Entered: 05/16/2012)
44 Minute Entry for proceedings held before Judge Lee Yeakel: Scheduling Conference held on 5/18/2012 (Minute entry documents are not available electronically). (Court Reporter Arlinda Rodriguez.) (kkc, ) (Entered: 05/18/2012)
45 ORDER SETTING BRIEFING SCHEDULE AND TRIAL: Discovery due by 8/17/2012. Plaintiffs' trial brief due 9/7/2012. Defendant's response due 9/28/2012. Plaintiffs' reply due 10/5/2012. Bench Trial set for 10/19/2012 AT 9:00 AM before Judge Lee Yeakel. Signed by Judge Lee Yeakel. (kkc, ) (Entered: 05/22/2012)
46 Response in Opposition to Motion, filed by Family Planning Associates of San Antonio, Planned Parenthood Association of Hidalgo County Texas, Inc., Planned Parenthood Association of Lubbock, Inc., Planned Parenthood of Austin Family Planning, Inc., Planned Parenthood of Cameron and Willacy Counties, Planned Parenthood of Central Texas, Planned Parenthood of Gulf Coast, Inc., Planned Parenthood of North Texas, Inc., Planned Parenthood of West Texas, Inc., re 36 Opposed MOTION to Clarify Scope of Preliminary Injunction re 25 Order on Motion for Preliminary Injunction filed by Defendant Thomas M. Suehs (Attachments: # 1 Affidavit Declaration of Sarah J. Wheat)(Schenkkan, P.) (Entered: 05/23/2012)
47 ORDER DENYING 36 Motion to Clarify Scope of Preliminary Injunction. Signed by Judge Lee Yeakel. (kkc, ) (Entered: 05/29/2012)
48 Joint MOTION to Stay Case Temporarily, Joint MOTION to Vacate Scheduling Order by Family Planning Associates of San Antonio, Planned Parenthood Association of Hidalgo County Texas, Inc., Planned Parenthood Association of Lubbock, Inc., Planned Parenthood of Austin Family Planning, Inc., Planned Parenthood of Cameron and Willacy Counties, Planned Parenthood of Central Texas, Planned Parenthood of Gulf Coast, Inc., Planned Parenthood of North Texas, Inc., Planned Parenthood of West Texas, Inc., Thomas M. Suehs. (Schenkkan, P.) Modified on 8/3/2012 to add filer (kkc, ). (Entered: 08/02/2012)
49 ORDER Vacating Scheduling Order and Temporarily Staying Proceedings; GRANTING 48 Motion to Stay Case; GRANTING 48 Motion to Vacate. Signed

Case: 1:12-cv-322 As of: 09/26/2014 06:14 PM CDT 11 of 11

08/03/2012 08/22/2012 09/04/2012 11/06/2012
11/08/2012 11/09/2012
11/09/2012 11/27/2012 12/11/2012

by Judge Lee Yeakel. (kkc, ) (Entered: 08/03/2012)
Case Stayed. (kkc, ) (Entered: 08/03/2012)
50 Minute Entry for proceedings held before Judge Lee Yeakel: Conference held on 8/22/2012 (Minute entry documents are not available electronically). (Court Reporter Arlinda Rodriguez.) (kkc, ) (Entered: 08/22/2012)
51 Minute Entry for proceedings held before Judge Lee Yeakel: Telephone Conference held in Chambers on 9/4/2012 (Minute entry documents are not available electronically). (Court Reporter Arlinda Rodriguez.) (kkc, ) (Entered: 09/04/2012)
52 MOTION to Dismiss and Abstain by Family Planning Associates of San Antonio, Planned Parenthood Association of Hidalgo County Texas, Inc., Planned Parenthood Association of Lubbock, Inc., Planned Parenthood of Austin Family Planning, Inc., Planned Parenthood of Cameron and Willacy Counties, Planned Parenthood of Central Texas, Planned Parenthood of Gulf Coast, Inc., Planned Parenthood of North Texas, Inc., Planned Parenthood of West Texas, Inc.. (Attachments: # 1 Proposed Order)(Conway, Susan) (Entered: 11/06/2012)
53 Unopposed MOTION to Substitute Party by Thomas M. Suehs. (Attachments: # 1 Proposed Order)(Monson, Kristofer) (Entered: 11/08/2012)
54 RESPONSE to Motion, filed by Thomas M. Suehs, re 52 MOTION to Dismiss and Abstain filed by Plaintiff Planned Parenthood of Austin Family Planning, Inc., Plaintiff Planned Parenthood Association of Hidalgo County Texas, Inc., Plaintiff Planned Parenthood of Cameron and Willacy Counties, Plaintiff Planned Parenthood of North Texas, Inc., Plaintiff Planned Parenthood of West Texas, Inc., Plaintiff Planned Parenthood Association of Lubbock, Inc., Plaintiff Planned Parenthood of Gulf Coast, Inc., Plaintiff Planned Parenthood of Central Texas, Plaintiff Family Planning Associates of San Antonio (Attachments: # 1 Proposed Order)(Monson, Kristofer) (Entered: 11/09/2012)
55 ORDER GRANTING 53 Motion to Substitute Party. Kyle L. Janek added. Signed by Judge Lee Yeakel. (dm) (Entered: 11/13/2012)
56 ORDER GRANTING Plaintiff's 52 Motion to Dismiss without Prejudice as parties have also filed an action in State Court. Signed by Judge Lee Yeakel. (klw) (Entered: 11/27/2012)
57 Certified copy of USCA JUDGMENT/MANDATE re 26 Notice of Interlocutory Appeal: VACATING the preliminary injunction and REMANDING for further consideration not inconsistent with this opinion.(kkc) (Entered: 12/12/2012)