In Washington, Republicans are threatening to shut down the government to try to halt funding for Planned Parenthood in the wake of the videos regarding fetal tissue research released by the anti-abortion activist group the Center for Medical Progress.
But the fight is also coming to state capitols, where some GOP legislators are trying to block Medicaid funds from going to Planned Parenthood. Alabama and Louisiana took actions last week to attempt to end Medicaid provider agreements with Planned Parenthood (in other words, the states would no longer reimburse the organization as a provider of covered Medicaid benefits). That maneuver appears to violate federal law, setting up a potential showdown between red states and the federal Department of Health and Human Services (HHS).
(To be clear, the Medicaid funds in question involve paying providers for medical services other than abortion; federal dollars don’t pay for abortions except in in cases of rape, incest, or saving the life of the mother.)
The Wall Street Journal reports:
The Obama administration has notified two states that took steps to halt Medicaid funds to Planned Parenthood Federation of America that they may be in conflict with federal law.
The law requires that Medicaid beneficiaries may obtain services, including family planning, from any qualified provider. States that terminate their Medicaid-provider agreements with Planned Parenthood restrict access by not permitting recipients to get services from providers of their choice, according to the Department of Health and Human Services.
The Arkansas legislature banned state funding to Planned Parenthood during the 2015 session, but it specifically exempted Medicaid payments from the law to stay in compliance with federal regs.
So how long before Sen. Jason Rapert and company decide to follow Alabama and Louisiana and try to pull this stunt in Arkansas? Based on the Twitter accounts of Rapert and others in the legislature, it seems like only a matter of time before they join in picking a fight with the feds.
Don’t expect HHS to budge. More from the WSJ:
The agency said that, by restricting providers, women could lose access to critical preventive care, such as cancer screenings.
HHS said it provided both states with guidance it released in a June 2011 memo, which says states aren’t permitted to exclude providers from Medicaid solely on the basis of the range of medical services they provide.
If the feds and states can’t resolve the dispute, HHS could potentially cut federal Medicaid funds to the state if the state’s policies are violating the law.
Politico has good background on the legal challenges that abortion opponents face if they try to cut off Medicaid funds to Planned Parenthood:
When states have tried to expel Planned Parenthood clinics from their Medicaid programs, they’ve ended up in court. The same thing could happen to a federal law.
Attorneys interviewed said Medicaid law has long protected a patient’s right to flexibility in choosing a health care provider (as long as the doctor, clinic or other provider accepts Medicaid). Those safeguards are particularly strong for access to family planning services, said Cindy Mann, an attorney with Manatt, Phelps & Phillips who until recently ran Medicaid for the Obama administration.
“That’s been an important provision to ensure access and allow women to make their own decisions about who to go to,” Mann said.
Planned Parenthood foes say they are confident that any defunding bill would take precedence. This new law, if enacted, would squeeze out prior statutes, said Douglas Johnson, legislative director of the National Right to Life Committee.
“The courts would have to go first to this statute,” Johnson said. “The later enactment always prevails.”
But that isn’t borne out by what’s happened at the state level. Ten states have cut family planning funds, according to the Guttmacher Institute. They include Arizona, Arkansas, Colorado, Indiana, Kansas, Michigan, North Carolina, Ohio, Oklahoma, Texas and Wisconsin.
Yet when several states tried to pull Medicaid funding from Planned Parenthood clinics, courts sided with Planned Parenthood and its backers, and stopped all or part of defunding bids in Tennessee, Indiana, Arizona and North Carolina.
Much more background on this issue from Julie Rovner over at Kaiser Health News.