Originally Published: February 1, 2024 1:26 p.m.

Right-wing activists have returned to the well of U.S. District Judge Matthew Kacsmaryk, this time to engineer the demise of Planned Parenthood. 

For Kacsmaryk, the anti-abortion lawyer-turned-Donald Trump appointee, the merits of the arguments before him seem to matter little as long as their outcomes align with his priors. That's good, because, experts told TPM, this newest onslaught against the abortion provider has the structural integrity of a sandcastle at high tide. 

Texas tried to boot Planned Parenthood from its Medicaid program in 2017 after anti-abortion activists carried out an extremely dubious sting operation purporting to find organization officials discussing the illegal sale of fetal remains. A right-wing media firestorm ensued, but twelve states subsequently found no evidence of wrongdoing by Planned Parenthood, and a federal court in California ordered the activists to pay $2 million in damages to the organization in part for the increased security measures it had to put in place after the video's release. A grand jury in Houston also indicted two of the anti-abortion activists behind the heavily edited video, though the charges were eventually dropped.  

Still, the very conservative 5th Circuit Court of Appeals rubber-stamped Texas' expulsion of Planned Parenthood from Medicaid in 2020 (it remained in the program on a grace period until 2021). Similar proceedings unwound in Louisiana, though the state and organization ultimately reached a settlement.

Now, one of the anti-abortion activists behind the "sting" — calling himself a "journalist" — has filed a qui tam lawsuit against Planned Parenthood on behalf of Texas, Louisiana and the federal government. Qui tam lawsuits allow individuals with evidence of fraud to bring cases against those perpetrating it on behalf of the federal government (or certain states). The federal government declined to join the lawsuit, and Louisiana hasn't, but Texas Attorney General Ken Paxton (R), Kacsmaryk's ideological brother-in-arms, gleefully climbed aboard.

The activist, known in the court filings as Alex Doe, claims that, under the federal False Claims Act (which Texas has its own version of), Planned Parenthood had been illegally pocketing Medicaid funds because it was informed that it'd been ousted from Texas' program in 2017, yet kept providing services in accordance with the program until 2021. Here's the rub: In those intermediate years, Planned Parenthood was actively fighting its expulsion in court and had secured a federal court injunction preserving the status quo. In other words, Texas, under federal court order, could not boot Planned Parenthood from Medicaid while the case played out. 

Still, Alex Doe and Texas claim that Planned Parenthood now owes back payment for the Medicaid funds it took in during those years. But that's not all. The reason this newest assault is happening under the banner of the False Claims Act is that it comes with hefty damages. Alex Doe wants three times the amount of money Planned Parenthood received during the period in question as damages, plus up to $11,000 each for the thousands of claims made during those years. Oh, and the whistleblower in successful False Claim suits gets a giant chunk of the money recovered by the government, up to 30 percent. Planned Parenthood has said that, all told, the requested relief would cost a staggering $1.8 billion. It's a large enough sum that it could spell the end of the organization.

"Nobody would be doing this to get $10 million back," Sara Rosenbaum, professor of health law and policy at George Washington University's school of public health, told TPM. "They're doing it to trigger the penalty because they know it'd be the end of Planned Parenthood." 

This lawsuit, filed in 2021, has taken a series of procedural twists and turns, as Planned Parenthood has fought it at nearly every step. Kacsmaryk has rejected Planned Parenthood's motion to dismiss the suit, motion to reconsider that ruling and effort to get the case transferred from Amarillo (which has no connection to the case other than being anti-abortion activists' court of choice) to the more central and accessible Austin. The case is now paused while the 5th Circuit considers the validity of Planned Parenthood's argument that it was simply acting on advice of counsel while continuing to participate in Medicaid during the injunctions.

Beyond the extremely questionable argument that the organization has to pay back money it took in while Texas was enjoined from ending its relationship with Medicaid — which, Planned Parenthood argues, directly contradicts 5th Circuit precedent — there's another striking oddity in the case. Qui tam lawsuits are typically seen when a hospital is taking in funding for services it's not actually providing. 

"Nobody's disputing that Planned Parenthood completely fulfilled its obligation to provide health care services to clients under the Medicaid program," Rosenbaum added. "It's a complete and gross misuse of qui tam law." 

Under Alex Doe and Texas' arguments, Planned Parenthood is not only expected to swallow having provided years of services sans Medicaid funding, but to pay a likely ruinous amount for having done it. The False Claims Act also requires that the organization allegedly committing the fraud be shown to have done it knowingly — something Planned Parenthood flatly disputes, since it was operating in accordance with the court orders. 

Alex Doe's arguments don't linger on these questions, instead rehashing publicly known information about the "sting" to get around the fact that Planned Parenthood didn't misrepresent the services it was providing.

For Doe, his anti-abortion backers and Paxton, though, the doily-ness of the argument hardly matters. Bringing it in the first place is a win-win. At best, they'll get the greenlight from Kacsmaryk and the 5th Circuit, forcing Planned Parenthood to put its best hope for survival in the Supreme Court. At worst, they'll force Planned Parenthood to spend heavily to stave off the legal onslaught in the meantime. Other states have attempted to curtail or end Planned Parenthood's Medicaid access as well, perhaps paving the way for copycat efforts down the line. 

For Texas politicians, the enormous damage they've done to Planned Parenthood in the state already isn't enough. They've restricted abortion, then banned it virtually completely. They've left tens of millions of federal funds on the table rather than let the organization participate in federal-state health care programs. While these officials wouldn't claim to have any quarrel with the cancer screenings or STI testing performed by the organization, keeping Planned Parenthood as a villain is too politically useful to worry about their mostly un- or underinsured constituents who'll lose access to these services. It's all part of the anti-abortion movement's modus operandi: It's not a victory if it's not absolute. 

"Planned Parenthood is a villain in the culture wars. It's a way to call to your voter base to pay attention and it spurs them into action," Graham Gardner, an assistant professor of economics at Texas Christian University, told TPM. "It's not an initiative to make health care better, it's a way for people to protect their seats."  

And with the help of the ever-amenable Judge Kacsmaryk, these soldiers in the culture war may find themselves able to continue unabated, no matter how flimsy the weapons.

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