Revealed: outcome of coming election may determine staying power of hard-right activist Leonard Leo’s crusade to reshape US courts

In the second year of Donald Trump’s presidency, a young lawyer with crisply shorn blond hair approached the podium at a gathering for Texas members of the Federalist Society, a conservative legal group that wields immense power in the US judicial system. As vice-president of the group’s Fort Worth chapter, Matthew Kacsmaryk had the honor of presenting the first speaker.

“We are blessed to have Judge Edith Jones,” Kacsmaryk announced. Jones, a longtime judge on the US fifth circuit court of appeals, stepped on stage to introduce the evening’s guest, her friend, the supreme court justice Clarence Thomas. In her introduction, Jones also hailed the four new conservative judges Trump had appointed to join her on the appeals court.

“They’ve raised the bar for the fifth circuit since I got on,” she said. “And that’s thanks to the Federalist Society, to Leonard.”

Leonard Leo needed no last name in his introduction to this crowd as he took his seat in a black leather chair across from Thomas. The justice was the featured speaker but Leo may have been the most important person in the American legal system in that room – a conservative activist who had built the Federalist Society into a political powerhouse and helped Trump create the supreme court majority that, in 2022, erased federal protections for abortion.

His influence continues to be on display now in one of the most consequential cases moving through the American legal system – one that seeks to strike another blow to abortion rights and could possibly bankrupt Planned Parenthood, one of the nation’s leading providers of healthcare for women. It’s a lawsuit that has been filed by an anti-abortion activist tied to Leo and heard by judges – from the lower courts to the fifth circuit appeals court – who are also linked to Leo.

Three of the people on the stage at the Federalist Society event in Fort Worth in 2018 – Kacsmaryk, Jones and Leo – have all played key roles in the case. Though the stakes in this case couldn’t be higher for one of the nation’s oldest healthcare providers, it is about more than abortion or healthcare. The lawsuit is a parable about Leo’s power amid a presidential election season whose outcome will probably determine to what extent Leo will continue to reshape the makeup and ideology of the nation’s courts.

The case was filed in February 2021 by an anti-abortion activist who had conducted what he described as an “extensive undercover investigation” of the organization. He accuses Planned Parenthood of fraud – claiming that it owes $1.8bn in fines, fees and reimbursements to the Medicaid program. It’s an amount that could force the 108-year-old nonprofit healthcare provider to shutter clinics across the country.

The lawsuit is titled USA v Planned Parenthood because it was filed under a federal whistleblower law that allows citizens to sue on behalf of the US government over allegations that federal programs have been defrauded. It is the latest in a series of legal actions that started in 2015 after Texas’s health officials used footage from the activist’s hidden-camera recordings as a basis to expel Planned Parenthood from the state’s Medicaid program.

The activist and his allies claimed the videos showed Planned Parenthood was illegally selling fetal tissue and endangering pregnant people’s health.

Planned Parenthood repeatedly denied wrongdoing. Investigations in multiple states triggered by the video resulted in no disciplinary action against the healthcare provider.

The US government – the source of 90% of the Medicaid funds paid to Planned Parenthood clinics in Texas – disputes that Planned Parenthood owes the federal government money. Federal officials say in a court filing that they found no evidence that Planned Parenthood had improperly billed for its services and that they found no reason Planned Parenthood should have been removed from Medicaid. Experts in healthcare law expected the case to be dismissed quickly.

Yet none of these facts are as important to understanding the significance of this case as knowing where it was filed: in the federal courthouse in Amarillo, Texas – home to zero Planned Parenthood clinics.

This wasn’t an accident.

The US district court in Amarillo is under the purview of the US fifth circuit court of appeals, making it likely that any upward appeals in Planned Parenthood’s case would be heard in the hard-right appeals court, including by judges appointed by Trump or other conservative stalwarts like Jones. And by the time the Planned Parenthood case was filed, Kacsmaryk – that young attorney on stage making introductions at the Federalist Society event in Texas – had been serving as the federal district court judge for Amarillo for nearly two years. Kacsmaryk had been appointed by Trump, who had famously consulted Leo in picking judges for federal appointments.

Kacsmaryk was the only judge in the Amarillo court district, and all but guaranteed to hear the Planned Parenthood case.

Hundreds of court files, tax records and judges’ financial disclosure forms reviewed by the Guardian show that Kacsmaryk and most of the other key players in the case to topple Planned Parenthood are tied to Leo via a vast network of nonprofit and for-profit organizations involved in the fight against abortion or other conservative causes.

Tax records analyzed by the Guardian show that a conservative legal nonprofit where Kacsmaryk worked before he was appointed to the bench made at least three payments totaling more than $350,000 to a public relations firm, CRC Advisors, that Leo acquired in early 2020.

That conservative legal group, First Liberty Institute, made a payment of $137,000 before Kacsmaryk was confirmed as a judge in mid-2019 and before Leo took over the PR firm, tax records show. The next two payments – totaling more than $230,000 – were made after Kacsmaryk was sworn in as a district judge, the records show. At least one of those payments was made after Leo had taken over the PR firm, according to First Liberty’s tax filings for 2020 and 2021.

First Liberty’s general counsel Hiram Sasser said his organization has worked with CRC Advisors at least dating back to 2015, long before Leo took over the company. Sasser told the Guardian he has never worked with Leo and that Leo’s business partner, Greg Mueller, was the organization’s point of contact.

Records also revealed that First Liberty had paid the plaintiff’s attorneys who filed USA v Planned Parenthood, Heather Hacker and Andrew Stephens, more than $500,000 in 2023 in consulting fees. First Liberty’s Sasser said the payment was for the attorneys’ work in another, unrelated case.

In other words, Kacsmaryk is ruling in a case in which the attorneys arguing in front of him have received substantial payments from his former employer. First Liberty also employs the spouse of one of the plaintiff’s attorneys.

Hacker and Stephens did not respond to multiple attempts to reach them for comment.

Some legal ethicists and court watchdog organizations contacted by the Guardian say that this case is another example of the ambiguities of the judiciary’s rules about conflict of interest and recusal rules.

The rules require that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned”. But it’s unclear whether any of the connections between First Liberty, Leo and the attorneys on this case meet that threshold.

This case “raises the shortcomings in the recusal law when the ties that exist in this case seem fairly obviously to impugn and implicate the bias of the judge who’s hearing the case”, said Gabe Roth, executive director of Fix the Court, a nonpartisan organization that advocates for increased transparency and accountability within the court system.

Kacsmaryk did not respond to a detailed list of questions provided to him through a court spokesperson. Leo did not reply to most questions sent to him by the Guardian but a spokesperson for him said: “Mr Leo has not spoken to Matthew Kacsmaryk since a public encounter in 2019.”

Records also show that Leo, a lawyer, provided key legal advice to the anti-abortion activist suing Planned Parenthood.

Through generous grants he has provided to law schools and legal organizations, Leo has also helped to underwrite luxury trips to judicial conferences for judges on the fifth circuit court of appeals who have ruled on the Planned Parenthood case.

When nearly every person on one side of a legal case and the judge are connected politically or ideologically, it’s called court capture – a term some legal scholars use to describe USA v Planned Parenthood.

In a captured court, specific judges, lawyers and even plaintiffs align to produce a specific outcome of a case – often an outcome that supports beliefs or preferences that tie each of these legal actors together.

The shared ideology in this case is ending abortion.

“This is a lawsuit that has no merit, but somehow it’s progressing anyway,” said Nicole Huberfeld, the chair of the health law program at Boston University and the co-director of the university’s program on reproductive justice. “It seems to me an attempt to try to limit the activities of Planned Parenthood clinics in Texas and Louisiana by any means possible.”

The presidential election in November will determine who will nominate the next generation of judges to the federal courts: former president Donald Trump, whose nominees to the supreme court played a key role in overturning Roe v Wade – or the vice-president, Kamala Harris, who has staked much of her presidential campaign on restoring abortion rights nationwide.

There are currently 44 federal judgeships vacant, with another 23 judges announcing their plans to step down from the bench.

Lena Zwarensteyn, the fair courts campaign director for the Leadership Conference on Civil and Human Rights describes court capture as a “manufactured and coordinated effort determined to produce specific outcomes”.

Those manufactured efforts, she said, are “jeopardizing the health of pregnant people, jeopardizing even access to contraception, jeopardizing the government’s ability to set forth and enforce civil and human rights protection for access to clean air and water”.

Zwarensteyn said the right’s focus on the courts was a reaction to major wins by the civil rights movement in the 1960s and early 70s, including victories expanding voting rights.

Groups like the Federalist Society – an organization dedicated to reforming the court “to place a premium on individual liberty, traditional values, and the rule of law” – created a pipeline of legal talent ready to fill federal judgeships. In 1986, as a young law student at Cornell Law School, Leo founded a chapter of the group. He eventually ascended the ranks of the organization to become co-chair of its board of directors and build a network of conservative lawyers and law students throughout the country who could be candidates for judgeships throughout the federal system.

After Trump was elected president in 2016, he leaned on a list of judicial nominees provided by Leo to fill vacancies, stacking the courts with conservative judges from the district level, to the appellate courts and the supreme court. Trump named 245 federal judges to the bench in his one term, compared with 334 over Barack Obama’s eight years in office. Trump ultimately appointed six hard-right judges to the fifth circuit appeals court along with appointing 28 judges to district courts in Texas, Louisiana and Mississippi that are under the fifth circuit’s umbrella.

The six circuit court appointments helped create an appeals court that is even more Maga than the US supreme court, which itself has been widely condemned for destroying federal protections for abortion rights and other decisions favored by Trump and his supporters. In its most recent term, the supreme court overruled eight of the 11 fifth circuit decisions it took up for consideration – including reversing rulings by district judge Kacsmaryk and the fifth circuit appeals court that sought to limit access to mifepristone, a drug used in medication abortions. The fifth circuit’s reversals by the high court were the most for any circuit for the second year in a row.

While much public attention is focused on the nominations of supreme court justices and the 100 to 150 cases the high court takes up each year, the workings of the fifth circuit – and the roughly 5,000 cases it decides each year – get far less scrutiny.

The John Minor Wisdom courthouse in downtown New Orleans where the the fifth circuit is headquartered has become the preferred venue for much of the conservative movement – so much so that businesses and advocates outside the fifth circuit’s jurisdiction have filed paperwork to incorporate an organization in Texas that only exists on paper or recruited plaintiffs who are tangential to a case but reside within the court’s boundaries.

One Trump-appointed district court judge, frustrated by the US chamber of commerce filing a case in Texas by recruiting a Texas bank as a plaintiff even though most of the major players in the suit were in Washington DC, wrote that the “venue is not a continental breakfast; you cannot pick and choose on a Plaintiff’s whim where and how a lawsuit is filed”.

District and appeals court judges in the fifth circuit are well known to big businesses trying to skirt financial and environmental regulations, political operatives looking to dilute the voting power of marginalized communities, anti-immigration advocates looking to undercut asylum law and anti-abortion activists seeking to limit legal access to reproductive care – as in the case in Amarillo that attempts to force Planned Parenthood to pay out more than $1.8bn.

The origins of USA v Planned Parenthood trace back to a conservative activist from California named David Daleiden who described his anti-abortion positions as his birthright. In media interviews he described himself as a “child of a crisis pregnancy” and said “there were people who said I should be aborted”.

Daleiden formed an anti-abortion group at his high school. In college he co-authored an article about the emotional toll of abortions on physicians performing them.

By 2013, when was in his mid-20s, he founded a nonprofit called the Center for Medical Progress with the mission of using undercover journalism to “actively oppose the exploitation of any class of human beings, whether born or unborn”, according to its tax filings.

In a draft proposal for a hidden-camera investigation of Planned Parenthood, Daleiden crafted a plan for a “cutting edge exposé of the commercial exploitation of aborted fetuses” using “gotcha undercover videos” that would show doctors “cannibalizing the young and playing God”.

By 2014, he was secretly recording healthcare providers discussing fetal tissue procedures at abortion conferences in California and Maryland.

Though the Center for Medical Progress listed Daleiden as its only employee on its tax forms, he had help from Leo and other conservative activists during his undercover investigation in 2014 and 2015. In an affidavit, Daleiden said he consulted Leo “about how to ensure successful prosecutions of various entities illegally profiting from the sale of fetal tissue”.

To handle public relations for his group, Daleiden hired Leo’s business partner, Mueller, a political consultant and messaging specialist.

Daleiden did not reply to multiple emails and phone messages seeking comment for this story.

In April 2015, Daleiden talked his way into a tour of a Planned Parenthood office in Houston. He and another activist posed as representatives of a company that specialized in procuring fetal tissue for researchers. Scientists use the tissue to try to develop cures for diseases such as Alzheimer’s and cancer. The advocates surreptitiously recorded their conversations with Melissa Farrell, a Planned Parenthood research coordinator, and a physician with the clinic.

Daleiden asked Farrell about how the tissue would be treated and preserved. Farrell gave a rambling, sometimes confusing answer, telling Daleiden the Planned Parenthood Gulf Coast affiliate had extensive experience in working with researchers to meet their needs.

At one point, she told Daleiden that in meeting the needs of researchers, there were times when “we deviate from our standards”.

Daleiden saw that phrase and other parts of the recordings as evidence that Planned Parenthood was violating federal laws governing the collection of fetal tissue.

Farrell later explained in a sworn statement that she meant clinic procedures – not medical procedures – could be altered to minimize disruption at the clinic and “would never be done in a way that involves suboptimal care for patients”.

In July and August 2015, Daleiden shared the videos with state officials in Texas and released them publicly. He went on Fox News to accuse Planned Parenthood of “harvesting and selling” baby parts.

The officials who received the videos included Ken Paxton, the state attorney general, and Stuart Bowen, the then inspector general for the state’s health and human services department. Bowen was a longtime Republican operative in Texas who had worked for George W Bush when Bush was governor and later president.

Bowen later testified that he watched the roughly eight hours of video Daleiden provided five times. He determined that Planned Parenthood Gulf Coast didn’t follow mandatory safety requirements for handling fetal tissue and that the clinic violated medical standards by agreeing to alter the method or timing of an abortion in order to obtain fetal tissue.

Federal law prohibits changing the time or manner of an abortion for the purposes of collecting fetal tissue. The idea behind these provisions is to ensure the pregnant person’s wellbeing is prioritized over the researcher’s interest in getting tissue samples.

Bowen sought a second opinion from his agency’s chief medical officer – an orthopedic surgeon who admitted he wasn’t familiar with abortion procedures – before concluding that the state’s Planned Parenthood clinics were “no longer capable of performing medical services in a professionally competent, safe, legal, and ethical manner”.

Bowen’s office sent a letter in October 2015 terminating the Planned Parenthood clinic in Houston, where the video was filmed, from receiving funds though the Texas Medicaid program. The same termination letter also went to Planned Parenthood chapters based in Dallas and San Antonio – which oversee dozens of clinics across the state that had not been included in the undercover videos and were not involved in fetal tissue donations.

Bowen’s decision meant that roughly 11,000 Texas women enrolled in Medicaid would have to seek care somewhere other than Planned Parenthood – not only for abortions but also for breast cancer screenings, wellness exams and other services provided by the clinics.

The clinics with headquarters in Houston, Dallas and San Antonio operate under the Planned Parenthood name and follow marketing, legal and safety requirements set by the national federation, but say they are separate entities, each with its own board of directors and leadership teams.

Bowen did not return multiple messages seeking comment.

The Planned Parenthood affiliates in Texas, with help from lawyers from the national federation, responded to Bowen’s edict by filing a lawsuit in federal court based in Austin. Along with the affiliates, the suit listed 11 Jane Doe patients as plaintiffs. The suit – Planned Parenthood v Smith – charged that these Medicaid patients were being denied the right, under federal law, to choose a qualified medical provider.

In January 2017, US district court judge Sam Sparks convened a hearing to determine whether Planned Parenthood should be allowed to remain in the Medicaid program while the case was pending.

Sparks, a Republican appointed to the bench in 1991 by George HW Bush, listened to three days of testimony from Bowen, Planned Parenthood employees and other witnesses.

In a 42-page opinion, Sparks wrote that the secretly recorded videos and aliases used by the film-makers gave the case the feel of a “best-selling novel rather than a case involving the interplay of federal and state authority through the Medicaid program. Yet rather than a villain plotting to take over the world, the subject of this case is the State of Texas’s efforts to expel a group of health care providers from a social health care program for families and individuals with limited resources.”

He summarized Daleiden’s video as “nothing more than confused and ambiguous dialogue”. The Planned Parenthood employee who commented about deviating from the organization’s standard shifted between talking about administrative and medical processes, making the comments “open to interpretation”, the judge wrote.

All that was certain, according to Sparks, was that Bowen and his department did not have “even a scintilla of evidence” to prove Planned Parenthood had done anything wrong.

Sparks granted Planned Parenthood an injunction that allowed the Texas clinics to continue providing care to Medicaid patients – at least until the entire case could be heard.

Lawyers for the state of Texas didn’t give Sparks a chance to hold a full hearing of the case.

Instead, they pushed the case to a higher authority: the fifth circuit court of appeals.

In June 2019, about a year after the fifth circuit judge Edith Jones took the microphone to introduce Leo and supreme court justice Thomas at the Federalist Society event in Fort Worth, she and two other appeals judges took the bench to hear the state of Texas argue that Sparks was wrong in granting Planned Parenthood an injunction.

Jones, who had been appointed to the fifth circuit by Ronald Reagan in 1985, had stirred some controversies during her more than three decades on the court. In 2013, attendees at a talk she gave at a Federalist Society event in Pennsylvania alleged she told the crowd that Black and Latino people were more “prone” to commit acts of violence.

An investigation led by the future US attorney general Merrick Garland determined there was insufficient evidence to establish whether Jones had violated any rules or substantiate what she had told the crowd.

Hacker, who at the time was serving as a lawyer for the state attorney general’s office, told the three judges that Sparks had erred in determining that there wasn’t evidence that Planned Parenthood had ever sold any fetal tissue or broken any laws in obtaining it. He should have looked at the case strictly from an administrative perspective and how the policies and procedures allow the state of Texas to control its Medicaid program, Hacker said.

As Planned Parenthood’s attorney, Jennifer Sandman, tried to lay out why Sparks’ ruling was sound, Jones interrupted her with an example that seemed far afield from the dispute over fetal tissue and Medicaid payments.

She brought up a Philadelphia doctor convicted of first-degree murder for killing three babies born alive by stabbing them with scissors.

Using the Philadelphia doctor as an example, Jones asked if a state could ever be allowed to make a judgment to expel a provider.

Then she switched gears and described a Planned Parenthood provider on one of the undercover videos who “giggled” as she discussed procuring fetal tissues.

“Your honor, I would deeply disagree with that characterization,” Sandman said.

“She definitely smirked,” Jones shot back.

Six months after the hearing, the panel issued its ruling. The decision, written by Jones, acknowledged that Judge Sparks hadn’t found any evidence of wrongdoing by the Planned Parenthood Gulf Coast employees captured on video, but complained that the judge had accepted “self-serving” testimony from Planned Parenthood’s witnesses while “refusing to consider” evidence from Bowen’s office.

The case wasn’t about abortion, she wrote, “despite being litigated with the trappings of the abortion debate, this is fundamentally a statutory construction case, not an abortion case”. Twenty-six pages earlier in her opinion, she included a screengrab from Daleiden’s video that showed fetal parts – with a tiny finger and partial limb visible swimming in a clear, glass baking dish.

Through a court spokesperson, Jones declined to comment for this story.

Jones and the other two judges on the panel voted 3-0 to vacate the injunction that allowed Planned Parenthood to remain in Medicaid. Jones’s opinion also called for the entire fifth circuit – not just a three-judge panel – to consider an issue that Texas’s attorney, Hacker, had raised in her argument. Did the women receiving care at Planned Parenthood even have a right to sue over the state’s decision to block the healthcare provider from Medicaid?

By 2020, Trump, with help from Leo, has pushed the fifth circuit court of appeals from a conservative court to a far-right bastion. All six of the judges that Trump appointed to the appeals court had claimed membership in Leo’s Federalist Society.

One of them, James Ho, wrote on a questionnaire during his confirmation process that he hadn’t missed the group’s annual conference in 20 years and had met his future wife at a gathering of the group.

Four of the Trump appointees also accepted trips to legal conferences underwritten by the law school at George Mason University, to which Leo was a regular and generous contributor.

Most of the judges appointed to the fifth circuit by Trump also had ties to conservative politics or politicians. Ho served in the George W Bush White House in the Office of Legal Counsel and as solicitor general of Texas, a post in which he fought against same sex marriage. Stuart Kyle Duncan had also come out of the Texas solicitor general’s office known as a laboratory in which to test ultra conservative legal strategies in cases involving transgender rights, voting rights, and same sex marriage. Don Willett worked on the 2000 Bush-Cheney presidential campaign and transition team before landing on the Texas state supreme court.

All six came to the court with avowed anti-abortion stances.

Appeals from district court cases to federal circuit courts generally are decided by a three-judge panel selected from the larger pool of appellate judges within the circuit court – like the panel led by Jones in 2019 that ended Planned Parenthood’s bid to remain in the Medicaid program while the case was pending. But rulings by these three-judge panels can be reviewed by the full contingent of appellate judges in that circuit.

In November 2020, four of the Trump-appointed judges were among the 16 fifth circuit jurists who addressed Jones’s request that the full circuit court determine whether Planned Parenthood’s patients had the right to sue in federal court to challenge Texas authorities’ decision to banish the healthcare provider from Medicaid.

The lawyers arguing the Medicaid recipients’ claims had a large body of law supporting their position. Six federal circuit courts had previously ruled that Medicaid beneficiaries have a right to sue if they had been denied access to their medical providers – including a ruling three years earlier by a three-judge panel within the fifth circuit. Only one circuit court had ruled in the other direction.

The fifth circuit ruled that the Jane Doe plaintiffs didn’t have standing to sue in federal court, saying that most other circuits’ reasoning on the issue was “demonstrably incorrect”. That majority ruling was supported in whole or in part by 14 judges, swamping the two judges who voted against the decision.

Planned Parenthood’s appeals to remain in Texas’s Medicaid program were over.

For Daleiden, the anti-abortion activist, the appeals court ruling was the first victory after a string of defeats in other venues.

Investigations inspired by his videos in at least 13 states didn’t produce actions against Planned Parenthood affiliates in their jurisdictions. Probes by the Texas Rangers and the Harris county district attorney’s office – whose jurisdiction includes Houston – also found no wrongdoing by the clinics.

Daleiden also suffered repercussions in his home state. In 2016, Kamala Harris, then the California attorney general, sent investigators to raid Daleiden’s home. That probe provided the evidence used by Harris’s successor, Xavier Becerra, to file a 15-count criminal complaint against Daleiden accusing him of illegal eavesdropping and recording people without their consent. His criminal trial is slated for December. Daleiden has pleaded not guilty.

Meanwhile, a federal judge in San Francisco hit Daleiden and the Center for Medical Progress with a $2m judgment in a civil case filed by the National Abortion Federation, ruling he had violated the law by secretly recording Planned Parenthood employees and other attendees at conferences organized by the NAF around the country.

But as the defeats piled up, two members of the Federalist Society advanced a new strategy that tested the strength of the captured courts Leo had spent over two decades building – and pushed forward Daleiden’s campaign against Planned Parenthood on a new legal front.

Hacker, the attorney who had once represented Texas – arguing in front of Judge Jones that the Jane Doe patients of Planned Parenthood didn’t have the standing to sue – had left the attorney general’s office and entered private practice.

She and another former attorney in the attorney general’s office, Stephens, had formed their own private firm. Both were members of the Federalist Society, and have represented organizations that have received funding from Leo’s non-profit network.

Through a spokesperson, Leo said he has never met Hacker or Stephens.

In 2021, Hacker and Stephens used the US False Claims Act to file a suit in Kacsmaryk’s federal district court in the Texas Panhandle alleging Planned Parenthood owes more than $1.8bn to the government for the payments it received from the time Planned Parenthood clinics were first given notice of their termination in 2015 until the fifth circuit ended Sparks’s injunction in 2020.

In court records, the person initiating the case is identified by a pseudonym, Alex Doe. But the details described in the lawsuit and other court documents – including the undercover video sting – make it clear that Alex Doe is Daleiden.

By filing in Amarillo, the lawyers landed Daleiden’s case in a courtroom presided over by a judge who embraces a family legacy of staunch anti-abortion beliefs – Kacsmaryk’s mother worked at crisis pregnancy centers that pushed alternatives to abortions, and his wife once posted a photo online of one of their children in a T-shirt that read “I survived Roe v. Wade.”

Hacker and Stephens’ former boss, Paxton, a member of the Republican Attorneys General Association that receives funding from Leo’s organizations and had appointed Leo to his transition team after taking office, signed on to the lawsuit.

Experts interviewed by the Guardian struggled to come up with other examples of when a court ordered an organization to pay back funds it had collected during an injunction.

Lawyers for Planned Parenthood have pointed out that the US government has repeatedly asserted in court records that Planned Parenthood should not have been disqualified from the program.

The False Claims Act usually applies when healthcare providers bill for services they didn’t provide.

“This is just not an appropriate False Claims Act case,” said Dr Abigail R Moncrieff, a professor of health and constitutional law at Cleveland State University. “If Texas and Louisiana wanted their money back, they should just ask for their money back. But they didn’t.

“The whole concept of a whistleblower is that it’s supposed to reveal secret information that the state didn’t know about, and the states here knew about it, and they have not asked for their money back,” she said.

Kacsmaryk seems unconvinced. In October 2023 he declined to dismiss the case, writing that Planned Parenthood clinics “were not entitled to the payments and were obligated to return them at least within 60 days” of their expulsion, he wrote. “No other argument advanced by Defendants convinces the Court otherwise.”

Kacsmaryk reached back to a 1919 supreme court decision about injunctions to support his reasoning. That case predated women’s right to vote by nearly a year.

The case is on hold in Kacsmaryk’s court as the Planned Parenthood Federation of America – the administrative headquarters rather than medical providers – fights Kacsmaryk’s refusal to dismiss the federation from the lawsuit. Since the federation in New York doesn’t provide procedures or bill Medicaid, it shouldn’t be subject to Daleiden’s suit, the national group has argued.

The appeals court’s decision could come any day. Then the larger questions about whether Planned Parenthood should have to repay Medicaid will resume in Kacsmaryk’s courtroom. If Kacsmaryk finds in Daleiden’s favor, the activist can collect as much as 30% of the fees and fines imposed on Planned Parenthood.

On the other side, legal fees keep mounting for the clinics.

“Every dollar, every moment, spent on anything but our mission to provide … care is a distraction,” said Laura Terrill, Planned Parenthood South Texas’s chief executive officer.

Meanwhile, as Planned Parenthood’s fate depends on the courts, the teen birth rate in Texas rose in 2022 for the first time in 15 years. Infant deaths have increased nearly 13%, compared with a 2% jump nationwide. Researchers from the University of Texas found that terminating Planned Parenthood from Medicaid “adversely affected low-income residents’ access to essential reproductive health services, resulting in delayed care and increases in births”, many of which researchers identified as “likely unintended”.

Should Planned Parenthood lose the case in Kacsmaryk’s court, they would find themselves in familiar territory again: appealing in front of the fifth circuit court.