They have a cheat code available, so they use it.
For more than a decade, the state has been trying and failing to chase Planned Parenthood out of Texas.
Texas restricted and then banned abortion. The state removed Planned Parenthood affiliates from state-funded health programs and turned down federal dollars rather than allow Planned Parenthood to receive them. Planned Parenthood has been cut out of funding for cancer screenings, contraception, HIV prevention and sex education.
Despite this concerted effort from the highest levels of state government, Planned Parenthood’s clinic doors have remained open in Texas.
“My mantra is, every day that I show up to the clinic, I’m winning,” said Dr. Amna Dermish, the chief operating and medical services officer at Planned Parenthood of Greater Texas.
But now, the organization is facing a potentially existential threat from its longtime tormentor.
Last year, the state filed a federal lawsuit claiming Planned Parenthood improperly billed Medicaid for $10 million in payments during the period when the state was trying to remove the organization from the program.
Texas is seeking more than $1.8 billion in reimbursement, penalties and fees.
Planned Parenthood has called the lawsuit meritless, pointing out that there was an injunction in place that allowed it to continue to bill Medicaid during that time.
U.S. District Judge Matthew Kacsmaryk, a conservative who previously worked on anti-abortion cases as a religious liberty lawyer, [heard] arguments from both sides [on Tuesday] in Amarillo.
“We have weathered a lot of storms, but we’ve always been able to come through and be there for our patients,” Dermish said. “That ultimately is why I come to work every single day, and it’s just my biggest fear if one day we’re not able to do that.”
Here are a couple of stories about the hearing. I will note that this all started in 2017 with an attempt to claw back $10 million in payments. The state gets to $1.8 billion by asking for penalties and interest payments and so on. How good is their case? From the second report on the hearing:
Jacob Elberg, a former federal prosecutor who specialized in health care fraud, described Texas’ argument as weak.
He called the False Claims Act the government’s most powerful tool against health fraud. Cases involving the law in recent years have included a health records company in Florida and a Montana health clinic that submitted false asbestos claims.
Elberg said it is “hard to understand” how Planned Parenthood, the nation’s largest abortion provider, was knowingly filing false claims at a time when it was in court fighting to stay in the program and Texas was still paying the reimbursements.
“This just isn’t what the False Claims Act is supposed to be about,” said Elberg, faculty director at Seton Hall Law School’s Center for Health & Pharmaceutical Law.
That doesn’t really matter, though, because as noted the state has a cheat code. This is Ken Paxton going to Amarillo to ask one of his favorite judges to give him some candy. The Fifth Circuit will give him some more candy and will ask him if he’d like a pony as well. In the end, SCOTUS may or may not step in and take some of the candy away. This is the world we live in now.