Planned Parenthood Is Immune From Whistleblower’s Fraud Suit (1)

Planned Parenthood Federation of America Inc. is shielded from a whistleblower suit alleging that the organization defrauded Medicaid by failing to reimburse payments for services in states that had disqualified the organization, the Fifth Circuit said Wednesday.

Planned Parenthood successfully argued that it has attorney immunity from the False Claims Act suit because the alleged misconduct occurred in the organization’s litigation and law department.

A whistleblower, referred to as “Alex Doe,"conducted an undercover investigation to determine whether Planned Parenthood and its affiliates were providing fetal tissue to researchers and tissue-procurement companies. Doe recorded conversations with Planned Parenthood affiliate staff.

Doe’s 2021 suit alleged that Louisiana and Texas terminated the eligibility of the affiliates—Planned Parenthood Gulf Coast, Planned Parenthood of Greater Texas, and Planned Parenthood South Texas—to bill Medicaid because of his report. The affiliates continued to bill Medicaid, in violation of the FCA, Doe said.

Planned Parenthood “is entitled to immunity for the acts of its attorneys,” and therefore is entitled to summary judgment on Doe’s implied-false-certification and conspiracy claim, the US Court of Appeals for the Fifth Circuit’s per curiam panel said in its nonprecedential decision, reversing a lower court’s opinion.

“This politically-motivated case was brought by anti-abortion lawmakers and an anonymous plaintiff to weaponize the law,” said Susan Manning, Planned Parenthood’s general counsel.

“This baseless case has only one goal: to shut down Planned Parenthood and deny patients access to sexual and reproductive health care,” Manning said.

Counsel for Doe didn’t immediately respond to a request comment.

Judge Matthew J. Kacsmaryk of the US District Court for the Northern District of Texas ruled in 2023 that Planned Parenthood is obligated to return Medicaid overpayments to Texas and Louisiana. The decision was initially sealed and then made public last July.

But Planned Parenthood is entitled to summary judgment on claims turning on the actions of its L&L attorney-employees, who have “absolute immunity” from Doe’s claims under federal common law, the appeals court said. It added that the holding here is “a narrow one.”

Doe alleged that Planned Parenthood helped affiliate defendants avoid their obligation to repay Medicaid by implementing a strategy from the L&L attorneys. Those attorneys “are immune from claims filed by third parties for their activities as advocates,” the opinion said.

If private attorneys didn’t have immunity for activities within the scope of litigation, they would be subject to lawsuits from third parties every time they represented an unpopular client or advanced an unpopular issue, the appeals court said.

Private attorneys aren’t immune, however, from suits for actions their own clients file, nor are they immune from suits for activities unrelated to their advocacy, the appeals court said.

The panel added that Planned Parenthood had immunity under Texas and Louisiana law because Doe’s claims related to litigation strategy.

The appeals court also said the district court erred in concluding that the FCA overrode attorney immunity. Common law defenses apply unless statues explicitly exclude them, and nothing in the FCA directly omits the privilege or defense of attorney immunity, the opinion said.

In separate litigation, a federal district court in Texas blocked the state from refusing to pay Planned Parenthood for treatment. But the Fifth Circuit in 2020 vacated the lower court’s preliminary injunction.

Judges Rhesa H. Barksdale, Leslie H. Southwick, and Judge James E. Graves Jr. joined in the decision.

Hacker Stephens LLP represents Doe. O’Melveny & Myers LLP represents Planned Parenthood.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is United States ex rel. Doe v. Planned Parenthood Fed. of Am. Inc., 5th Cir., No. 23-11184, 2/26/25.