While there is no doubt that one of the reason that Planned Parenthood thrives is because Republicans in the House and Senate would rather keep it around as a fundraising tool (see yesterday’s vote to defund Planned Parenthood) the other reason is that their is an official or unofficial cabal of federal district judges who will happily ignore law and facts in order to force states that are trying to prevent state funds going to abortion providers to continue to spend money to kill babies.

In December 2015, the Texas Health and Human Services Inspector General sent a letter to Planned Parenthood telling them that their sale of baby parts and their modification of abortion procedures in order to deliver pre-purchased baby parts to customers was a violation of Medicaid regulations and that Texas intended to bar them from receiving Medicaid funds. Planned Parenthood sued and a federal judge appointed by George H. W. Bush, Sam Sparks, issued an injunction preventing Texas from acting.

Yesterday, a panel of the Fifth Circuit reversed that decision and allowed Texas to proceed with its action to defund Planned Parenthood. The decision is notable for the way it makes very clear that Sparks never intended to do anything but help Planned Parenthood. Read it all, there are zingers everywhere.

The district court stated, inaccurately, that the CMP video had not been authenticated and suggested that it may have been edited.6 The district court also noted that neither the Inspector General nor the Medical director had expert knowledge concerning abortion procedures. And the court discounted Ms. Farrell’s videotaped statements because she claimed on the witness stand that she really had no personal knowledge of the medical aspects of abortion procedures and had never even been in the room when an abortion was performed.

While the court felt free to credit all of the trial testimony from the Provider Plaintiffs—none of which had been offered during the state administrative procedures—the court bound the IG solely to the administrative record and expressly refused to consider any support for termination “not included in the Final Notice and not part of the Inspector General’s termination decision.” Having thus narrowed the evidence, the court concluded that OIG “did not have prima facie . . . evidence, or even a scintilla of evidence, to conclude the bases of termination set forth in the Final Notice merited finding the Plaintiff Providers were not qualified.” The agency timely appealed.

The footnote about the CMP videos is really damning in two regards:

In fact, the record reflects that OIG had submitted a report from a forensic firm concluding that the video was authentic and not deceptively edited. And the plaintiffs did not identify any particular omission or addition in the video footage. Moreover, the district court also suggested that there was no evidence that any of PPGC’s research was federally funded, so the regulations relied on by OIG might be inapplicable. But the record actually establishes that the UTMB study was funded by the National Institute of Health.

Not only was Sparks guilty of making up stuff out of whole cloth and peddling the resulting falsehood to help Planned Parenthood, it also reveals that the person requesting the baby parts, this is the “UTMB” study, is in violation of its grant agreement which, by law, forbids it to be involved in any way with abortion procedures.

Trending

Back to the Circuit Court’s opinion:

It is true that the district court purported to find “not . . . even a scintilla of evidence” impugning PPGC’s qualifications. But this occurred only after the district court credited the plaintiffs’ witnesses’ self-serving testimony about their videotaped statements, while asymmetrically refusing to consider OIG’s post-termination evidence. None of the plaintiffs’ evidence, moreover, was ever presented to the agency through the standard administrative procedures or judicial review required by the Medicaid statutes

This does not even rise to the level of a kangaroo court. It is an utter sham of a proceeding in which Sparks seems to have already written his opinion before he heard the case.

With the governing legal standard in mind, we turn to the proper standard of judicial review. OIG contends that the district court erred procedurally by applying de novo review and allowing the plaintiffs to offer evidence outside the administrative record, because this court held in Abbeville that the “substantive adequacy and reasonableness” of a state agency’s findings in administering the Medicaid Act should be reviewed by courts “using the arbitrary and capricious standard of review.” 3 F.3d at 803–04. Although the district court did not specify the standard of judicial review, the court clearly did not defer to OIG’s findings. Instead, the court distinguished the state’s findings at every opportunity. And by considering and crediting the plaintiffs’ post-termination evidence, while expressly discrediting the state’s witnesses, the court did not limit its review to the agency record. This procedure violates Abbeville’s requirements

In any event, there is no question that the OIG here made factual findings after viewing the videos and related evidence. On the basis of the administrative record—not the post hoc justifications offered by plaintiffs’ witnesses in the district court—the OIG determined that video discussions “centered on clinic processes and tissue packaging rather than the abortion procedure itself; the video featured repeated discussion about the position of the fetus in the uterus, the risk to the patient, and the patient’s pain tolerance.” The OIG further concluded, based on the videos, that the Provider Plaintiffs at a minimum violated federal standards regarding fetal tissue research and standards of medical ethics by allowing doctors to alter abortion procedures to retrieve tissue for research purposes or allowing the researchers themselves to perform the procedures. The plaintiffs’ briefing with regard to the substance of the discussions contained in the videos (as opposed to their trial witnesses’ post hoc justifications) is curiously silent.

The plaintiffs finally insinuate that arbitrary and capricious review should not apply because OIG has insufficient expertise to determine the qualifications of abortion providers. On this point, the district court was also dismissive, suggesting that the Inspector General and OIG’s Chief Medical Officer were insufficiently informed regarding how to perform abortions. We reject this argument. OIG is the agency that the state of Texas has empowered to investigate and penalize Medicaid program violations. The agency is in the business of saying when providers are qualified and when they are not. That the Chief Medical Officer is a surgeon—and not himself an abortion provider—does not mean that he deserves no deference when deciding whether a provider has failed to meet the medical and ethical standards the state requires. It is even odder to claim that federal judges, who have no experience in the regulations and ethics applicable to Medicaid or medical practice, much less in regard to harvesting fetal organs for research, should claim superior expertise.

So the case in now back with Planned Parenthood’s minion for reconsideration under the appropriate standard and having been put on notice that his antics are being watched.

Seth Chandler, a law professor at the University of Houston, said the ruling spells trouble for Planned Parenthood. The 5th Circuit will now require Sparks to apply a different standard of review — a much higher one, assessing this time whether Texas’s decision to defund Planned Parenthood was “arbitrary and capricious.” To rule against Texas, Chandler said, Sparks would have to find the state had virtually no good reason for its decision to terminate the contract.

The problem, Chandler said, is even if Sparks still believes based on the evidence that the sting videos are bogus, the state can likely demonstrate they were still a good enough rationale for its decision to cut ties with Planned Parenthood. The videos are largely subject to interpretation, Chandler said, but the 5th Circuit would be more likely to give Texas the benefit of the doubt.

“I think it’s going to be quite difficult for Planned Parenthood to prevail,” Chandler said. “The standard the 5th Circuit has set down is one that, given the evidence and the history in this case, and a clear signal from the 5th Circuit in this case, Planned Parenthood going to be hard-pressed to meet. The $3.4 million Planned Parenthood receives from Texas pursuant to the Medicaid program is very likely going to go away.”

This is a typical example of how federal judges who are sympathetic to various progressive causes, like killing babies, pervert the justice system to protect their favored plaintiffs and thwart the enforcement of the law. Sparks literally made up things to include in the record. He didn’t make a mistake, he manufactured evidence to help Planned Parenthood. He refused to follow the legal standard for review. Again, not a mistake but a conscious decision. During the hearing he refused to allow Texas to diverge from the case they had submitted but allowed Planned Parenthood to present a parade of witnesses to downplay their legality. We don’t know if Sparks knew their testimony was fraudulent…he could just be stupid…but we do know that Planned Parenthood was sufficiently concerned that their legal team did not include it in their response to Texas’s appeal: “The plaintiffs’ briefing with regard to the substance of the discussions contained in the videos (as opposed to their trial witnesses’ post hoc justifications) is curiously silent.”

If the executive and legislative branches care at all about the aggrandizement of power by the judiciary, this is the kind of case where the judge should be impeached. It doesn’t matter if he’s removed from office but he should be forced to incur the personal costs of mounting a defense and have to live with the odium of having been impeached. I submit that just a few such actions would make the entire of the judiciary much more circumspect about wading in to policy debates and acting as a hired gun for a cause they support.

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