Judge open to session in clinic dispute
If a dispute over state Medicaid funding of Planned Parenthood clinics in Little Rock and Fayetteville isn’t resolved next week, at least temporarily, a federal judge said she will hear evidence Thursday to consider extending a temporary order prohibiting the state from cutting off the funds.
But if she does hold a preliminary-injunction hearing, U.S. District Judge Kristine Baker said she won’t permit testimony from the three unidentified women who, along with Planned Parenthood of the Heartland, are plaintiffs in a Sept. 11 lawsuit contesting Gov. Asa Hutchinson’s decision to terminate the state’s Medicaid contract with the clinics.
The lawsuit contends that Hutchinson’s directive violates the women’s statutory rights under the Medicaid Freedom of Choice provision in the U.S. Code. That issue is Baker’s immediate concern, though the lawsuit also alleges that the governor’s action is unconstitutional — specifically, that it violates the First and 14th amendments to the U.S. Constitution.
A temporary restraining order Baker issued Sept. 18, prohibiting the state from terminating its Medicaid contracts with Planned Parenthood of the Heartland, which operates both clinics, is set to expire at 4:55 p.m. next Friday.
In an order signed Friday, Baker cited input from attorneys during a telephone conference Wednesday on how to proceed if the order expires before a temporary resolution is reached — such as the state agreeing to continue providing Medicaid funding until the points in the lawsuit are resolved.
She said she is open to
holding a hearing Thursday, or if attorneys prefer, she would allow them to file additional pleadings under an expedited deadline for her to consider alongside other materials in issuing a written ruling on whether to grant a preliminary injunction. If imposed, the injunction would prevent the state from terminating the contracts until the case is decided in its entirety, which could take months.
Either way, Baker said, she wants to ensure that despite the time-sensitive nature of the case, each side is able to adequately state its case and rebut the other side’s response.
Arkansas’ solicitor general, Lee Rudofsky, said Wednesday that he wanted a chance to cross-examine the three women who are identified in the lawsuit only as Jane Doe 1, Jane Doe 2 and Jane Doe 3.
He said he also wanted to take testimony from Suzanna de Baca, chief executive officer of Planned Parenthood of the Heartland, and Mark White, deputy director of the state Department of Human Services. The Department of Human Services is the agency that oversees Medicaid. Hutchinson ordered it to terminate the state’s Medicaid contracts with the health care provider.
Attorney Jennifer Sandman, who is representing the plaintiffs, said she doesn’t think it’s necessary at this stage of the case to take testimony from the Jane Does, whose families and employers don’t know they are involved in the case and who wish to keep their identities confidential. She indicated it may be difficult for her to contact them ahead of a hastily called hearing or arrange for them to be present at a hearing.
“We believe the record the court has is enough to decide,” Sandman said, noting that the women’s sworn statements are available and “the issues are legal issues.”
Sandman also argued that it’s “not appropriate to require their participation in live testimony,” even in a sealed courtroom, because of difficulties they would have with child care, their jobs and maintaining confidentiality. She noted that they “live close to the poverty line” and can’t afford to take time off work or hire baby sitters.
If the women’s testimony is necessary to the outcome of the case, Sandman said, it would be best to have them testify at a later stage of the
proceedings.
But Rudofsky said there are some “inconsistencies, vague statements and omissions in the statements of the Jane Does, and it’s important to hear what they say when confronted with those.” Besides, he said, “These are not just witnesses. … These are plaintiffs. … As a matter of fundamental fairness, they really should be required to testify.”
He said the judge’s suggestion of having the women respond in writing, when they could have help structuring their answers, “really wouldn’t take the place of a true preliminary-injunction hearing.”
Baker noted that she had already imposed a protective order, that the state didn’t object to, to keep the women’s identities confidential.
In the order she issued Friday after considering the arguments, Baker said it appears that unless Rudofsky is allowed to take live testimony from the women, the state will forgo a hearing and instead opt to submit a more thorough reply to the lawsuit, “standing on its findings for this Court’s consideration.”
She noted that the plaintiffs maintain there is no need for an evidentiary hearing “at this stage of the proceeding,” and that they believe the judge can and should consider additional documentary evidence to make her ruling.
While those statements indicate that the plaintiffs’ request for a preliminary injunction will be addressed without a hearing, Baker emphasized that she remains open to one if attorneys decide to take that route.
Arkansas’ solicitor general, Lee Rudofsky, said Wednesday that he wanted a chance to cross-examine the three women who are identified in the lawsuit only as Jane Doe 1, Jane Doe 2 and Jane Doe 3.