Remember Judge Matthew Kacsmaryk? Last month, Kacsmaryk, a Trump appointee to a federal court in Texas, tried to remove mifepristone, a drug used in more than half of all US abortions, from the market. His decision was so poorly reasoned that even the current, very conservative Supreme Court swiftly blocked it.
Now, a new set of right-wing litigants has sought him out again. This time, an anonymous anti-abortion activist has brought a case that effectively seeks to fine Planned Parenthood hundreds of millions of dollars, and give an enormous chunk of that money to a central figure in the Center for Medical Progress, an anti-abortion group. This activist’s lawsuit is backed by Texas’s Attorney General Ken Paxton.
The case, known as Doe v. Planned Parenthood, alleges that Planned Parenthood and its affiliates in Texas and Louisiana engaged in a years-long scheme to defraud those states’ Medicaid systems. When you add up the money the reproductive health provider allegedly owes, plus the various fines and penalties they could be hit with, Planned Parenthood estimates that they could be ordered to pay as much as $1.8 billion, more than enough to bankrupt Planned Parenthood Federation of America — the national organization that unites Planned Parenthood’s local affiliates — and wipe out its affiliates in Texas and Louisiana.
The lawsuit is also entirely without merit, and it seeks to impose draconian penalties on Planned Parenthood for doing nothing more than expecting these two states to comply with a federal court order.
In 2015, Louisiana attempted to terminate Planned Parenthood as a state-approved Medicaid provider, meaning that it could no longer provide health services to Medicaid patients and be paid for those services by the state. Texas attempted to do the same in 2017. But both of these efforts to cut off Planned Parenthood’s Medicaid funding were blocked by federal court orders. And so Planned Parenthood clinics in Texas and Louisiana continued to operate as normal while those court orders were in effect.
Then, in 2020, the far right US Court of Appeals for the Fifth Circuit held that these two states could terminate Planned Parenthood’s Medicaid provider status after all. That decision was joined only by Republican appointees, and its interpretation of federal Medicaid law is at odds with the decisions of five other federal appeals courts. Nevertheless, this 2020 decision meant that Texas could cut off funding to Planned Parenthood (Louisiana reached a settlement with Planned Parenthood which allowed it to continue to serve Medicaid patients).
The Doe lawsuit alleges that Planned Parenthood should have to repay all the money it received for providing care to Medicaid patients in Texas and Louisiana during the period those two states were legally bound to keep working with them — a dubious legal proposition. But that’s not all. They claim that Planned Parenthood is liable for three times the amount of money it received plus a penalty of up to $11,000 for each of the thousands of claims for payment filed with these two states. Hence the massive $1.8 billion figure.
No sensible judge would hold that a litigant can be bankrupted because it acted consistently with a federal court order while that order was in effect. But this case is being heard by Matthew Kacsmaryk, who’s spent his brief time on the bench acting as a rubber stamp for virtually any conservative litigant who comes to him seeking a court order.
A longtime opponent of abortion, birth control, and homosexuality, Kacsmaryk has handed down decisions attacking the right to birth control and attempting to nullify the federal ban on LGBTQ discrimination by health providers. His opinion trying to ban mifepristone faulted the FDA for failing to consider a “study” which found that 77 percent of women who submitted anonymous blog posts to a website called “Abortion Changes You” reported a “negative change.”
Kacsmaryk, in other words, seems to be uniquely incapable of distinguishing what the law actually says from what he wishes that it says. And now he will hear an attack on Planned Parenthood that only gets more ridiculous the deeper one digs into the Doe case.
This whole case arises out of an illegal sting targeting Planned Parenthood
The story of why Texas decided to expel Planned Parenthood from its Medicaid program — or, at least, the pretext which the state offered to justify this decision — begins with a fake medical research company created by anti-abortion activists.
In 2013, according to a federal appeals court decision upholding a more than $2 million jury verdict against these activists, a group of longtime anti-abortion activists formed an organization called the Center for Medical Progress (CMP). They also created a fake company, known as BioMax.
After a year or two attending conferences under the guise of working at this fake company, the anti-abortion activists secured meetings with a few Planned Parenthood officials, ostensibly to discuss obtaining fetal tissue from the abortion provider that could be used in medical research. It is legal for health providers to donate such tissue to researchers, so long as those providers comply with certain ethical constraints.
But, of course, BioMax is not a real medical research company. And the real purpose of these meetings was not to secure tissue for such research. It was to secretly video record these meetings in order to build a legal and public relations case against Planned Parenthood.
The anti-abortion activists obtained hours of footage. Many of their releases were edited, but the sting did obtain a few statements by Planned Parenthood officials that, at least when viewed out of context, seemed to suggest they were willing to engage in illegal activity. In the complaint filed in Kacsmaryk’s courtroom, for example, the lawyers behind Doe point to a statement where a Planned Parenthood employee seems to say that Planned Parenthood would be willing to alter how they perform abortions in order to ensure that the fetus is “intact” and therefore more likely to produce tissue useful to researchers.
Federal law requires abortion doctors who obtain tissue intended to be used in research to certify that “no alteration of the timing, method, or procedures used to terminate the pregnancy was made solely for the purposes of obtaining the tissue,” so if a Planned Parenthood physician actually did alter how they performed an abortion to ensure that fetal tissue intended for researchers would remain “intact,” that would be illegal.
In any event, after the CMP went public in 2015 with video clips that potentially implicated Planned Parenthood in illegal activity, officials throughout state and federal government launched a simply dizzying array of investigations into the abortion provider.
For the most part, however, those investigations found that the CMP’s evidence didn’t hold up.
In Texas, for example, the Harris County District Attorney’s office, the Texas Rangers, and the Houston Police Department all investigated the Planned Parenthood affiliate that serves Houston, and found no wrongdoing — indeed, a grand jury indicted two of the anti-abortion activists who produced the video, though charges were eventually dropped. Several other states also conducted their own investigations into their local Planned Parenthood affiliates, including red states such as Indiana, Florida, South Carolina, and Missouri, and determined that the abortion provider did not break the law.
In 2019, moreover, a federal court in California ordered the CMP to pay more than $2 million to Planned Parenthood, in part to compensate it for the increased security measures it had to implement because of the anti-abortion activists’ sting. This award was upheld almost in its entirety by a federal appeals court.
Nevertheless, both Texas’s Health and Human Services Commission and Louisiana’s Department of Health and Hospitals pointed to the CMP’s video in their letters informing Planned Parenthood affiliates that they are terminated from those states’ Medicaid programs. Texas’s letter even states outright that “the basis for your termination and the termination of your affiliates stems from an extensive undercover video obtained by the Center for Medical Progress.”
Notably, the only federal judge to evaluate whether this letter offered a valid reason to remove Planned Parenthood from Texas’s Medicaid program, George H.W. Bush appointee Judge Sam Sparks, found that there is “no factual support in the record for the conclusion [Planned Parenthood] violated medical and ethical standards or would be willing to do so.”
The video, Judge Sparks wrote, “features unclear and ambiguous dialogue,” and many of the statements abortion opponents point to in the video to accuse Planned Parenthood of violating the law were made by an individual “who had no personal knowledge of abortion procedures.” With regard to the allegation that Planned Parenthood illegally altered the methods it used to perform abortions in order to yield more intact fetal tissue, Sparks credited the “uncontradicted testimony of Dr. Fine, an experienced OB/GYN who has performed numerous abortions, that it is always clinically desirable to remove the fetus as intact as possible to minimize entries into the uterus.”
Though the Fifth Circuit later reversed Judge Sparks, it did so in an opinion joined only by Republican appointees, and on the basis of a legal argument that was rejected by five other federal appeals courts.
Beginning in February 2021, Texas terminated Planned Parenthood from its Medicaid program. But that seemingly wasn’t enough of a victory for the CMP activists.
So what does this anti-abortion video have to do with the case in Kacsmaryk’s courtroom?
The name of the party suing Planned Parenthood is not identified in court filings — they filed under the pseudonym “Alex Doe” — but their complaint reveals them as a central figure in the Center for Medical Progress who “conducted an extensive undercover investigation of Planned Parenthood.”
Doe claims that Planned Parenthood violated the federal False Claims Act, a law that is typically invoked by whistleblowers with inside knowledge that a company is defrauding the federal government, as well as related federal and state statutes that target this kind of fraud. (For the moment, the Doe case is on hold, because a case involving the False Claims Act is is currently pending before the Supreme Court. But that case will likely be decided by the end of June, at which point the hold will lift.)
Briefly, the False Claims Act allows a private citizen, known as a “relator,” to sue on behalf of the United States to recover money that a company obtained from the government through fraud. (Texas and Louisiana both have similar statutes allowing relators to sue on behalf of their state governments.) To incentivize whistleblowers to bring such claims, a winning relator typically receives a cut of the money that the government recovers from the fraudulent company, potentially as much as 30 percent.
Thus, in the Doe case, a central figure in an anti-abortion group known primarily for its illegal “investigation” into Planned Parenthood, asks Matthew Kacsmaryk — arguably the most publicly anti-abortion judge in the entire federal judiciary — to seize a simply enormous amount of money from one of the nation’s leading abortion providers. And, should this activist prevail, a significant chunk of this money could go straight into their pocket.
Relators often sue health providers, alleging that these providers defrauded Medicare or Medicaid. Often these relators are doctors or other employees of a large health provider who catch their employer in a fraudulent billing scheme. But these cases typically involve allegations that a provider illegally billed the government for health services it did not actually provide.
Indeed, one of the many ways that the Doe case is unusual is that there is no allegation that Planned Parenthood did not provide the medical services it billed Texas or Louisiana’s Medicaid system for providing. Rather, the Doe relator effectively claims that Planned Parenthood should not have been paid for the services it provided to patients in Texas and Louisiana — and that Planned Parenthood must now pay extraordinarily high penalties because it sought payments from these two states that were explicitly allowed by a federal court order, and did not return that money after the court order was reversed by the Fifth Circuit.
Needless to say, there are quite a few problems with this legal theory. In a brief to Kacsmaryk, for example, Planned Parenthood cites an array of federal court cases establishing that, when a party complies with a federal court’s injunction, it cannot be forced to pay for that compliance if the injunction is later lifted.
As the Fifth Circuit said in In re: J.D. Jewell (1978), “unless a bond has been executed upon the granting of an injunction,” (a “bond” refers to a special court order that requires a party to post money in advance, in case an injunction is later invalidated), “the person enjoined can have no recovery against the moving party.” In other words, the only way Planned Parenthood would have had to return the money is if Judge Sparks initially required them to set aside funds when he issued the injunction against Texas. That didn’t happen.
This rule governs the Doe case because Judge Sparks’s injunction applied to the state of Texas (and a similar injunction from another court bound the state of Louisiana), and the Doe relator claims to be suing on Texas and Louisiana’s behalf, both of which are within the Fifth Circuit.
If Jewell weren’t sufficient reason to terminate this lawsuit, the Supreme Court’s decision in Universal Health Services v. Escobar (2016) also casts a cloud of doubt over many of Doe’s claims. That case held that certain False Claims Act suits may proceed if the “defendant submits a claim for payment that makes specific representations about the goods or services provided, but knowingly fails to disclose the defendant’s noncompliance with a statutory, regulatory, or contractual requirement.”
In such a case, “liability may attach if the omission renders those representations misleading.”
But the Doe relators do not claim that Planned Parenthood made misleading claims about the specific services they provided to Medicaid patients — services that are unrelated to abortion because Texas and Louisiana’s Medicaid programs generally do not cover abortion. At most, the Doe relators may have demonstrated that, while Planned Parenthood’s health providers were lawfully providing non-abortion related care to Medicaid patients, some other officials within Planned Parenthood may have said they would violate legal and ethical constraints on collecting fetal tissue for use in medical research. That’s not enough to prevail under Escobar.
Additionally, the False Claims Act requires a relator to show that a defendant “knowingly” made a false statement to the government in order to obtain a payment. But there’s no plausible allegation that Planned Parenthood knew it was seeking illegal payments when it sought money that it was entitled to under a federal court order.
It is very difficult to imagine, in other words, that this lawsuit would have legs if it were heard by a fair and impartial judge — a less biased judge would almost certainly hold that the case should be tossed out before it reaches a jury. But it is being heard by Matthew Kacsmaryk, and that means that Planned Parenthood could be ordered to pay a simply astonishing amount of money at trial.
Kacsmaryk will keep sowing chaos and distrust in the judiciary until a higher power stops him
You may wonder why Kacsmaryk, who is one of hundreds of federal district judges strewn about the country, hears so many cases involving abortion, sexuality, and similar lawsuits brought by parties who share his far-right stance on these issues. Federal judges, after all, often sit on the bench for years or even decades without hearing a single case about abortion.
The reason is, under a local order governing case assignments filed in Kacsmaryk’s Texas-based court, 100 percent of all lawsuits filed in Amarillo, Texas, are automatically assigned to Kacsmaryk. This means that right-wing litigants who want to ensure that their lawsuit will be heard by a sympathetic ear can guarantee this outcome simply by bringing their suit in Amarillo.
Worse, Kacsmaryk’s decisions appeal to the Fifth Circuit, which is dominated by Republican appointees who frequently use their authority to tear down institutions loathed by the political right.
That means that, when Kacsmaryk rubber stamps a court order requested by a far-right litigant, the defendant forced to comply with this order often has little recourse unless they can convince the Supreme Court to take up their case — and even if the Supreme Court wasn’t itself dominated by very conservative Republicans, the Court typically hears only about 60-80 of the over 8,000 cases brought to its attention each term.
The likelihood that a higher court will step in every time Kacsmaryk issues an error-laden order punishing a left-leaning litigant, in other words, is quite small.
And the cost of litigating a federal case, especially if the case is appealed to multiple higher courts, can be astronomical. In the California litigation that ended with a more than $2 million verdict against the Center for Medical Progress, for example, Planned Parenthood incurred nearly $13 million in attorneys’ fees.
Admittedly, the judge in that case ordered the CMP to pay for Planned Parenthood’s lawyers, so that bill will not be paid by the abortion provider. But there is obviously no guarantee that Kacsmaryk — or his conservative superiors on the Fifth Circuit or Supreme Court — will hand down a similar order if Planned Parenthood (or any other party forced to defend itself in Kacsmaryk’s courtroom) ultimately prevails in its lawsuit.
The fact that virtually any litigant can ensure their lawsuit will be heard by this biased judge, in other words, places a sword of Damocles over the head of pretty much any organization that is reviled by conservatives.
It should be noted that the Supreme Court could solve this problem at any time. The federal Rules Enabling Act permits the justices to write rules of procedure for all federal courts, so the justices could write a new rule that effectively requires cases filed in Amarillo to be assigned randomly to one of the many judges who sit on Kacsmaryk’s court, or that allows a party like Planned Parenthood to request a transfer of their case when they are the victim of this kind of judge-shopping.
So far, they haven’t bothered.