Planned Parenthood took a body blow at the Fifth Circuit Court of Appeals last night — and so did the national news media. Despite the universally adopted narrative that the videos produced by David Daleiden and the Center for Medical Progress had been “debunked,” the appellate court unanimously ruled that the videos were not deceptively edited and presented compelling evidence of misconduct. They vacated the district court’s injunction that forced Texas to keep Planned Parenthood on its Medicaid rolls and ordered a new review on the merits.
Sparks was skeptical. Texas contended the videos showed Planned Parenthood discussing the illegal sale of fetal tissue of aborted babies, an interpretation Planned Parenthood has disputed. Sparks, in turn, said the state had not produced “even a scintilla of evidence” suggesting Planned Parenthood should be disqualified from Medicaid based on the videos.
But on Thursday, the U.S. Court of Appeals for the 5th Circuit said Sparks is the one who had it all wrong. The three-judge panel found he used the incorrect standard of review, vacating Sparks’s 2017 preliminary injunction that had blocked Texas from defunding Planned Parenthood, and remanding the case back to the district court for further review.
The ruling from the 5th Circuit effectively gives weight to the sting videos and the conclusions Texas reached based on them in a way the court hasn’t offered before. It comes just one month after the Supreme Court left in place a previous ruling by the 5th Circuit in favor of Planned Parenthood. In that case, the 5th Circuit rejected Louisiana’s effort to defund the health-care provider that had been based in part on the sting videos, mostly because the state hadn’t actually cited the videos in writing when announcing its decision to terminate the Planned Parenthood contract and lacked other adequate reasoning. (The Supreme Court also declined to hear a similar effort from Kansas.)
But Texas did cite the videos, in a state report — and that’s the big difference.
Indeed it is, and it opens up another opportunity to have the Supreme Court take up the case.
The opinion itself takes a sharply critical tone toward Judge Sam Sparks’ attitude toward the state’s HHS Office of Inspector General and scolded him for discarding their opinion in favor of Planned Parenthood’s witnesses. In her concurring opinion, Judge Edith Jones notes that the state has empowered the OIG to “investigate and penalize Medicaid program violations,” and is due deference from the courts — especially with the evidence they had at hand.
The court rebuked Sparks for assuming the videos were unauthenticated:
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. …
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.
In footnote 6, the court dispensed with the “debunked” narrative:
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.
In other words, the videos have been authenticated. Far from being “debunked,” they depict exactly what they appear to depict — abortion providers discussing how to illegally jigger abortion methods in order to maximize revenue on fetal tissue. The court ruled that the state’s inspector general made a reasonable decision to rely on this evidence in disqualifying Planned Parenthood locations from its Medicaid program, and even more ruled that Sparks acted unreasonably and arbitrarily in discounting the video evidence in favor of post hoc rationalizations from Planned Parenthood.
The ruling remands the case back to the district court for a new review. This time, Sparks is restricted to the question of whether the OIG acted arbitrarily and capriciously in striking Planned Parenthood from the state’s Medicaid program based solely on the administrative record. Since Planned Parenthood never responded to the administrative action but filed a lawsuit instead, the answer to that is likely to be a resounding no. Planned Parenthood will need to appeal this decision to prevent that standard from being applied, which runs the risk that the Supreme Court will finally step into the CMP videos case and affirm states’ rights to deny Medicaid funding on the basis of that evidence.
In other words … pass the popcorn. And alert the media.