Editor’s note: UT law professor Stefanie Lindquist is the associate dean for external affairs, whose research focuses on judicial behavior in state and federal appeals courts. We asked her about the recent developments in the litigation between Planned Parenthood affiliates in Texas and the state of Texas playing out in a federal appeals court.

Daily Texan Editorial Board: On Sept. 4, Planned Parenthood asked the entire Fifth U.S. Circuit Court of Appeals to reconsider a ruling by a three-judge panel that allows Texas to withhold state women’s health care funding from its clinics. Does this news surprise you and what was the significance and the reasoning behind the three-judge panel’s ruling?

Stefanie Lidquist: En banc review [when a case is heard by all the judges] is always a very rare event (in the Fifth Circuit, generally less than 10 cases are heard en banc per year), and typically only in cases of “exceptional importance.” It is not surprising that Planned Parenthood would seek review by the court en banc in this high profile case. The Fifth Circuit ruled that the district court’s preliminary injunction — suspending the enforcement of a state regulation forbidding the funding to PP clinics­­ — would be vacated. Without the injunction, the State of Texas could enforce this state regulation that prohibits state funding to entities that “perform or promote elective abortions or affiliate with entities that perform or promote elective abortions.” The panel’s decision upheld the state’s right to spend state tax dollars only on health clinics that do not share an “identifying mark” with an abortion provider or that otherwise “promote” abortion. Thus, even though the plaintiffs in the case did not offer abortion services, the court held that to the extent they “promoted” elective abortions or were affiliated with other Planned Parenthood clinics that do so, they fell within the ambit of the regulation. Moreover, the panel held that the plaintiffs had not demonstrated a substantial likelihood of success on the merits of their claim that the regulations violated their rights to free speech and association.

DT: What are the odds that Planned Parenthood will be granted a hearing before the full court?

SL: For most cases, the odds are extremely low. This case may qualify, however, as one of “exceptional importance” that might warrant en banc review. A majority of the active judges on the Fifth Circuit must vote in favor of a rehearing en banc.

DT: If it is allowed to make its case before the entire Fifth Circuit, what do you expect Planned Parenthood to argue?

SL: Planned Parenthood will argue that the three-judge panel applied improperly the prior constitutional rulings in this area (particularly a decision called Rust v. Sullivan from the Supreme Court) and violated the clinics’ rights to free speech (by informing their clients of the option to obtain an abortion) as well as their rights to freely associate with Planned Parenthood’s other abortion-providing clinics.

DT: Are there alternative paths, apart from litigation, to a resolution between the state and Planned Parenthood? If yes, what are they and what are the advantages and disadvantages of those for poor women seeking health care?

SL: It may be possible for the clinics to disassociate from Planned Parenthood in some way (to avoid the “identifying mark”) but to comply with the ruling, they might also have to forgo informing women about their right to an elective abortion. The panel held that the plaintiff clinics had implicitly conceded that they promote abortion within the meaning of the regulation. But the decision is not lengthy or detailed — so it is hard to tell exactly what options might be available short of litigation. Moreover, it is important to remember that the panel was not addressing the merits of the dispute, but only the preliminary question whether the law could be enjoined while the case proceeded to trial in the district court. To obtain a preliminary injunction, plaintiffs must demonstrate a substantial likelihood of success on their claim. The panel clearly determined that Planned Parenthood had not met that burden to obtain the injunction — although the panel’s decision does support the constitutionality of Texas’s regulation. Nevertheless, the case must still go to trial in order to determine any factual disputes about the clinics and their affiliations.

DT: Why would Texas lawmakers want to defund clinics that don’t provide abortions?

SL: Because the Texas legislature does not want to spend state dollars on any institution that provides abortions or is affiliated with abortion providers based on the concern that, in doing so, it might appear that the Texas legislature supports elective abortions.

DT: The panel’s ruling states that the name Planned Parenthood “equates” with abortion, and Texas isn’t obligated to fund a clinic it associates with abortion. But Planned Parenthood’s abortion clinics were already receiving no taxpayer funding. Why did the panel overlook that?

SL: The panel did not necessarily overlook that fact. Their ruling simply did not turn on the source of funding for the abortion clinics. The regulations prohibit funding to clinics that affiliate with abortion providers, regardless of the manner in which the abortion-providing affiliate is funded.

DT: What are the likely effects of a protracted litigation on low-income women in Texas?

SL: Unless the injunction is reentered by the circuit court en banc, funding cannot be restored to the clinics unless and until Planned Parenthood prevails in the trial court — and perhaps even until all appeals are final.

DT: Are other states likely to follow in Texas’ footsteps? Which ones?

SL: One of the key elements to the Texas situation is that the state has chosen to forgo federal funding for its Women’s Health Program. Governor Perry did so to avoid a federal regulation that specifically allows federal dollars to be spent in support of non-abortion-providing clinics that affiliate with abortion providers. Texas would be constrained by those federal regulations in the Women’s Health Program if it accepted federal financial support. In short, Texas can do what it is doing, while continuing a women’s health program, only because it is willing to leave federal money on the table. Thus other states could follow in Texas’s footsteps if they were similarly willing to spend state rather than federal money on these health programs. .

DT: What should we be looking for in the coming months with regard to the Texas legislature and Planned Parenthood?

SL: Continuing conflict.