On November 23, the Fifth Circuit Court of Appeals ruled that Texas and Louisiana may prevent Medicaid enrollees from accessing family planning services and other health care from Planned Parenthood health centers.

The decision undermines an explicit protection in federal Medicaid law that enrollees have the right to choose any qualified family planning provider. Several other federal appeals courts have found that the protection prohibits states from simply excluding abortion providers like Planned Parenthood from Medicaid for reasons unrelated to their ability to provide services. Essentially, the Fifth Circuit has ruled that enrollees do not have a right to challenge a state’s determination that a particular provider (like Planned Parenthood) is not qualified.

Antiabortion policymakers and advocates have been trying for many years to exclude Planned Parenthood and other providers from offering contraceptive care, STI testing and treatment, cancer screening and other services through Medicaid, the Title X national family planning program and other public programs, because those clinics also provide abortion care or are affiliated with an abortion provider.

These efforts have been most often successful with state-funded programs: 15 states have abortion-related restrictions in place on the allocation of state family planning funds. By contrast, most of their attempts under Medicaid had been stymied in court—four of six federal appeals courts that have ruled in these cases support patients’ rights—and by federal Medicaid officials during the Obama-Biden administration.

However, the Trump-Pence administration made “defunding” Planned Parenthood a high priority, using hypocritical and nonsensical arguments that funding for family planning care “frees up” money for clinics to offer abortion, and trumpeting a series of deceptively edited videos from 2015 that sought to discredit Planned Parenthood as a trusted organization. The administration pushed repeatedly for Congress to take action and rescinded protective Obama administration guidance on the topic. In 2020, the administration approved federal money for a failed Texas family planning program that excludes abortion providers and their affiliates. Combined, the Fifth Circuit ruling and the Trump-Pence administration’s actions provide ominous precedents for further attacks by antiabortion state policymakers across the country.

Harm to Patients

Successful attempts to exclude Planned Parenthood from state Medicaid programs have the potential to be devastating for patients. Without the ability to use Medicaid—their only health insurance—at a provider they trust and rely on, patients would be deprived of contraceptive services and counseling, STI testing and treatment, breast and cervical cancer screenings, and other vital services.

Proponents of these attacks assert that patients could simply go to other health care providers, such as federally qualified health centers (FQHCs) and county health departments. Evidence suggests that is not an equivalent choice: Planned Parenthood health centers are especially likely to offer same-day appointments and extended evening or weekend hours, and they are particularly good at facilitating patients’ timely access to a wide range of contraceptive methods.

Moreover, Planned Parenthood health centers are able to serve much higher volumes of contraceptive patients than FQHCs or health departments, and one-quarter of Planned Parenthood patients report it is the only place they could get the services they need. In order to serve all the women currently obtaining contraceptive services at Planned Parenthood sites nationwide, other types of publicly supported family planning providers would need to increase their patient caseloads by 47%, on average—on top of numerous other pressures, including the COVID-19 pandemic and recession-induced budget shortfalls.

Unfortunately, these harms are not merely theoretical. The Trump-Pence administration’s successful effort to drive Planned Parenthood and many other providers out of Title X has cut the program’s capacity to provide contraceptive services by 46%, jeopardizing care for 1.6 million patients. And Texas’s move to exclude abortion providers and affiliates from its family planning program led to dramatic declines in program enrollment and provision of contraceptive services.

What Might Come Next

The incoming Biden-Harris administration made explicit campaign promises to protect access to and funding for Planned Parenthood, and can do so without congressional help, including by restoring the protective Obama-era Medicaid guidance. The new administration will need to appoint officials in the White House, the U.S. Department of Health and Human Services and the Department of Justice who will stand up for patients’ right to receive care from the family planning provider of their choice, reverse the unjust actions of the Trump-Pence administration and fight off further attacks by conservative state policymakers.

The cases in Texas and Louisiana are not yet over, and Medicaid enrollees have not yet been denied access to Planned Parenthood services. Ultimately, the U.S. Supreme Court may weigh in. The Fifth Circuit decision adds to a split among appellate courts on this issue—a situation that only the Supreme Court can rectify. The addition of Justice Amy Coney Barrett to the Court, leading to a new conservative majority of six justices, makes that prospect worrisome for the millions of people who need high-quality family planning services and are counting on courts to uphold their right to this care.