The 8th U.S. Circuit Court of Appeals today overturned a lower court decision forbidding the state from ending Medicaid payments to Planned Parenthood affiliates in Arkansas.
Judge Kristine Baker had ruled that three plaintiffs had a right to choose any provider for services under Medicaid and wanted to continue to be covered by Medicaid when seeking medical services (other than abortion) from Planned Parenthood.
The 8th Circuit said, however,
The provision of the MedicaidAct does not unambiguously create a federal right for individual patients that can beenforced under § 1983. We therefore vacate the injunctions.
The state Human Services Department had fought the lower court decision. Gov. Asa Hutchinson ordered Medicaid funding for conventional medical services cut off from Planned Parenthood because of dishonest videos made of Planned Parenthood operations in other states that suggested improper dealing in fetal remains. Arkansas Planned Parenthood wasn’t implicated, but Hutchinson ordered them cut off anyway. It meant the loss of about $50,000 worth of services — health screening, family planning and the like — for poor women.
Similar cases are winding through federal courts in other states, with most, but not all, of the decisions saying Medicaid couldn’t be cut off because a government didn’t like some of the activities of the national organization. Congress has been debating trying to make the law say explicitly that Planned Parenthood can be cut off, but even some Republican moderates have objected.
Rita Sklar of the Arkansas ACLUcommented:
“Politicians have no business telling women where they can and can’t get their birth control and cancer screenings. We disagree with today’s ruling and are evaluating all options for protecting Arkansans’ access to Planned Parenthood and the essential health services it provides.”
Attorney General Leslie Rutledge and the governor will soon cheer the ruling. Those served by Planned Parenthood might have a different view. UPDATE: Indeed Rutledge smeared the local Planned Parenthood chapter in the process by linking it to videos unconnected to Arkansas:
“The 8th Circuit rightfully agreed with me in my defense of Governor Asa Hutchinson’s decision to terminate the contract with Planned Parenthood after videos surfaced allegedly showing Planned Parenthood could be involved in selling aborted fetal body parts for profit,” said Attorney General Rutledge. “The Court found that Planned Parenthood and the three patients it recruited could not contest in federal court Arkansas’s determination that a medical provider has engaged in misconduct that merits disqualification from the Medicaid program. All patients should have access to ethical, quality and responsible health care, and should never be beholden to a company that is only seeking to protect its profits.”
Here’s Hutchinson’s comment, which also misleadingly implies wrongdoing by Planned Parenthood:
“In 2015, the state terminated its Medicaid provider agreement with Planned Parenthood because there was evidence that Planned Parenthood and its affiliates were acting in an unethical manner and engaging in what appeared to be wrongful conduct. I am pleased with the ruling of the 8th Circuit today reversing Judge Baker on her injunction that blocked the state from proceeding.
“The decision allows the state to proceed with the termination of Planned Parenthood as a Medicaid provider. This is a substantial legal victory for the right of the state to determine whether Medicaid providers are acting in accordance with best practices and affirms the prerogative of the state to make reasoned judgments on the Medicaid program.”
I asked the governor’s office for evidence of unethical activities by Planned Parenthood of Arkansas. I don’t expect a response.
This is only the latest in a string of cases indicating the extreme rightward tilt of the 8th Circuit Court. Judges participating in this decision included Bobby Shepherd of El Dorado. Judge Michael Melloy dissented and noted differing opinions elsewhere, including by four other circuit courts. The 8th Circuit’s reversal likely means this case is heading to the U.S. Supreme Court.
The majority noted that Planned Parenthood had sued rather than first going through an administrative procedure for challenging state Medicaid decision. And it suggested the decision didn’t necessarily foreclose a remedy.
The lack of a judicially enforceable federal right for Medicaid patients does not mean that state officials have unfettered authority to terminate providers. Patients can receive services only from a willing provider. Medicaid providers whose contracts are terminated but who wish to continue providing services have an obvious incentive to pursue administrative appeals and judicial review in state court if the alternative avenue of recruiting patients to sue in federal court is not available. Providers and patients also may urge the Secretary to withhold federal funds from a State that fails to comply substantially with the condition of § 23(A). The absence of a remedy for patients under § 1983, therefore, does not make the free-choice-of-provider provision an empty promise. We conclude only that Congress did not unambiguously confer the particular right asserted by the patients in this case.