Judge says no to plaintiff testimony

LITTLE ROCK — If a dispute over state Medicaid funding of Planned Parenthood clinics in Fayetteville and Little Rock 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 women who, along with Planned Parenthood of the Heartland, are plaintiffs in a lawsuit contesting Gov. Asa Hutchinson’s decision to terminate

the state’s Medicaid contract with the clinics.

The lawsuit contends 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 the governor’s action is unconstitutional — specifically, 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, which operates both clinics, expires at 4:55 p.m. Oct. 2.

In an order signed Friday, Baker cited input from attorneys during a conference Wednesday on how to proceed if the order expires before some sort of resolution is reached — such as the state agreeing to continue providing Medicaid money until the issues in the lawsuit are resolved.

She said she is open to holding a preliminary injunction hearing Oct. 1, or if attorneys prefer, she would allow them to file additional pleadings under an expedited deadline for her to consider alongside other material 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 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 P. Rudofsky, said Wednesday he wanted a chance to cross-examine the three women identified in the lawsuit only as Jane Doe 1, Jane Doe 2 and Jane Doe 3.

He said he also wanted testimony from Suzanna de Baca, chief executive officer of Planned Parenthood, and Mark White, deputy director of the state Department of Human Services. The department 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 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 identifies confidential. She said it may be difficult for her to contact with 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 the women’s sworn statements are available and, “The issues are legal issues.”

Sandman also argued 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 obligations, their jobs and maintaining their confidentiality. She noted they “live close to the poverty line” and can’t afford options such as taking off work or hiring babysitters.

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 to written questions, when they could have help structuring their answers, “really wouldn’t take the place of a true preliminary injunction hearing.”

Baker noted she already imposed a protective order and the state didn’t object to keeping the women’s identities confidential.