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Does Medicaid Mandate State Funding of Planned Parenthood?
Rachel N. Busick, J.D. 13 September 2018
Does the Medicaid Act require states to fund Planned Parenthood? States and Congress ask Supreme Court to weigh in.
It is well established that states (as well as the federal government) are not required to fund elective abortions. But do they have to fund abortion providers for other services that they provide? After all, since money is fungible, giving abortion providers money for other services allows them to use those funds to create an infrastructure that supports abortion and redirect money that they would have otherwise spent on those services toward abortion.
This is why, in part, the U.S. Department of Health and Human Services has recently proposed a rule that to receive Title X funds there must be clear financial and physical separation between Title X funded projects and abortion services.[i]
And if that is not reason enough to redirect public funds away from abortion providers, over the past several years Planned Parenthood has come under increased public scrutiny and criticism for its dubious business practices.
You have probably heard about the undercover Center for Medical Progress videos that appear to show Planned Parenthood officials haggling over the body parts of aborted babies, but you may not have heard about the massive fraud, waste, and abuse alleged against Planned Parenthood affiliates,[ii] or how the abortion industry endangers women.[iii]
For example, in Kansas, Planned Parenthood of Kansas and Mid-Missouri refused to allow the Kansas Department of Health and Environment to complete an inspection and photograph portions of its facility as required under state law. In Louisiana, Planned Parenthood of Gulf Coast failed to report several Medicaid fraud law suits, as well as a settlement in which Planned Parenthood, despite disclaiming all liability, paid back over $4.3 million to federal and state Medicaid programs.
In response to these actions and others, Kansas and Louisiana determined that giving Planned Parenthood state Medicaid funds was not a wise use of their limited resources and that they could better serve their citizens by reallocating those funds to other comprehensive and preventative health organizations that are run more responsibly and offer a broader range of services.
But Planned Parenthood seems to think that it has a right to perpetually receive tax payer dollars—regardless of its flagrant waste, abuses, and disregard for commonsense health and safety laws. So instead of going through Medicaid’s ordinary administrative review process for disqualified providers, Planned Parenthood and some of its patients sued in federal court, alleging that the Medicaid Act requires states to give Planned Parenthood state Medicaid funds.
Both the Court of Appeals for the Fifth Circuit (Louisiana) and the Tenth Circuit (Kansas), following similar decisions in two other circuits, found that the Medicaid Act grants individual patients a right to receive care from any provider who is able and willing to perform the requested services, all on the state’s dime. This so-called “right” persists—judging from the experience of Kansas and Louisiana—even if the provider engages in fraud, flagrantly violates state regulations, or intentionally thwarts state inspections.
On the other hand, the Eighth Circuit Court of Appeals in Does v. Gillespie[iv] upheld Arkansas’s right to terminate its Medicaid provider agreement with Planned Parenthood and successfully deny state taxpayer dollars to the abortion giant. As the court explained, the Medicaid Act only allows individuals to choose a qualified provider, and under the Act, states are given not only great leeway to create their own state Medicaid programs, but also broad authority to determine whether providers are qualified to participate.[v]
Interestingly, Planned Parenthood chose not to appeal its loss in the Eighth Circuit to the Supreme Court. Perhaps they did not think that they could win.
In contrast, Kansas and Louisiana have both asked the Supreme Court to hear their cases (Andersen v. Planned Parenthood of Kansas and Mid-Missouri and Gee v. Planned Parenthood of Gulf Coast). Americans United for Life filed a “friend of the court” brief in support of Kansas,[vi] as well as a brief in support of Louisiana on behalf of 24 Senators and 66 Representatives in Congress.[vii] The briefs urge the High Court to review the cases, recognize the sovereign authority of states, and rule that states cannot be forced to use their limited public funds to subsidize abortion businesses.
Both cases are scheduled for a vote by the Supreme Court justices in conference September 24, 2018. These cases are likely the first opportunity a future Justice Kavanaugh will have to weigh in on an issue related to abortion.
Medicaid funds are vital to many women, and both Kansas and Louisiana should be applauded for seeking to spend their limited funds responsibly and provide their citizens with comprehensive preventative women’s health care of the kind not offered by Planned Parenthood. States should be free to decide where their own Medicaid dollars are best spent. It is simply common sense that states should be allowed to prioritize taxpayer money in ways that best serve women and their citizens. Without intervention by the Supreme Court, however, states like Kansas and Louisiana will be forced to continue to provide tax dollars to the nation’s largest abortion business.
[i] Press Release, U.S. Dep’t of Health & Human Servs., HHS Announces Proposed Update to Title X Family Planning Grant Program (May 22, 2018), https://www.hhs.gov/about/news/2018/05/22/hhs-announces-proposed-update-to-title-x-family-planning-grant-program.html.
[ii] See, e.g., Catherine Glenn Foster, Charlotte Lozier Inst., Profit. No Matter What.: 2017 Report on Publicly Available Audits of Planned Parenthood Affiliates and State Family Planning Programs (2017), http://www.adfmedia.org/files/ProfitNoMatterWhatReport2017.pdf.
[iii] See Ams. United for Life, Unsafe: America’s Abortion Industry Endangers Women (2018 ed.), http://www.unsafereport.org.
[iv] 867 F.3d 1034 (8th Cir. 2017).
[v] Id. at 1040–42.
[vi] Brief available here: https://www.supremecourt.gov/DocketPDF/17/17-1340/44260/20180423103023537_17-1340%20Amicus%20Brief%20of%20American%20United%20for%20Life.pdf.
[vii] Brief available here: http://www.aul.org/wp-content/uploads/2018/05/17-1492-Amcus-BrIef-of-90-Members-of-Congress3.pdf.
Rachel N. Busick, J.D., is Staff Counsel at Americans United for Life