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The Legal Complexities of
Defunding Planned Parenthood
Jennifer Popik, J.D. | 16 July 2020
In a recent interview with NPR, Planned Parenthood CEO Alexis McGill Johnson stated that the upcoming 2020 presidential election “is literally a life and death election."1 On this point, many pro-life voters would agree. For many years, Planned Parenthood, the nation’s largest abortion provider, has drawn heavy criticism from pro-life citizens and lawmakers. They argue that this organization should not be receiving massive taxpayer subsidies due to its provision and promotion of abortion.
While defunding Planned Parenthood may sound like a straightforward concept, a closer look at the sources and authority of tax dollars that flow to the abortion giant reveals a more complicated situation. Although the current administration has made some progress in reducing the dollars that flow to Planned Parenthood and other abortion providers, there are statutory hurdles.
Utilizing data from the Guttmacher Institute and the U.S. Centers for Disease Control and Prevention, the number of abortions has dropped to an estimated 862,320 annually – the lowest number recorded since 1973, and nearly 800,000 less than the all-time high of 1.6 million in 1990.2
This effort can, in large part, be attributed to the continuing passage of state and federal pro-life legislation. These laws range from women's right to know laws, protections for pain-capable unborn children, and efforts to steer state funding away from organizations that perform abortions, including Planned Parenthood.
However, one seemingly achievable goal remains out of reach at either the state or federal level-- fully defunding the abortion giant, Planned Parenthood.
Planned Parenthood promotes itself as a healthcare organization; however, year after year, the actual health services like cancer screenings dwindle while abortions increase.
Planned Parenthood reported over $1.6 billion in revenues in 2018-2019 while posting over $240 million in "excess revenue." The organization is estimated to have made nearly $160 million, performing over 40% of all abortions in the United States annually. In its most recent 2018-2019 Annual Report, Planned Parenthood reports performing 345,672 abortions for 2018, the most the organization has ever reported.2 This continues to cement Planned Parenthood’s reputation as the country’s top abortion performer and promoter.
Part of the issue of public funding lies with the complicated way in which Planned Parenthood accesses state, federal, and local monies. No federal spending bill includes any "line item" designating money for Planned Parenthood. There is no earmark, "set aside," or explicit authorization for Planned Parenthood in any federal funding bill. However, what occurs is Planned Parenthood affiliates are able to tap into funds from various long-standing health programs – programs that also fund many other entities.
The greatest amount of federal money to Planned Parenthood flows through so-called "mandatory spending" programs, mostly Medicaid, which is a huge healthcare program (mainly for low-income recipients) created by federal law, in which states collaborate. At least 70%, and by some estimates 90%, of Planned Parenthood's aggregate federal funding, comes from those sources, with something on the order of $350 million/year coming through Medicaid.
In the Medicaid program, states set eligibility standards, covered services, and administer individual programs within broad guidelines set by federal statutes. One of these statutory guidelines is known as the "free-choice-of-provider provision," which guarantees patients access to qualified and willing medical providers. Numerous courts have ruled that states cannot exclude Planned Parenthood based on this provision.
While the Hyde Amendment has protected federal dollars from funding elective abortions for over 40 years, the state "matching portion" of that money is used in a minority of states to pay for abortions. Also, the Hyde Amendment is not permanent law, but an annual rider attached to yearly appropriations.
The federal Hyde Amendment (and the majority of state policies) prevent direct reimbursement of elective abortions through Medicaid. The Hyde Amendment does not prevent abortion providers from using these federal payments from freeing up huge portions of their budgets, which can then be used to fund abortion.
There is no Planned Parenthood specific item to strike in any budget, no place where insertion of a zero would have done the trick. Rather, to deny federal funds to Planned Parenthood, a new law must be enacted to specifically block funding, either for Planned Parenthood by name or for abortion providers however described. To pass such a law would require 60 votes in the U.S. Senate, but at the moment, the Senate is well short of enough votes to accomplish this goal.
Notwithstanding, the Trump Administration has indicated they would sign such a law.
While Medicaid money remains a large and difficult pot of Planned Parenthood funding to navigate, the Trump administration has made progress in areas under its control.
In February 2019, the Trump administration finalized the Protect Life Rule, which has since been upheld by the courts.3 This rule prevents American taxpayers from having to subsidize abortion clinics through the Title X family planning program. Under the Protect Life Rule, abortion facilities may not be in the same location where family planning services are delivered. The rule also states that Title X grantees may not refer for elective abortion. The rule does not cut one dime of funding for family planning but ensures that funding goes to health facilities that do not perform or promote abortion as family planning. Under the Obama Administration policy, Title X consistently provided funding to facilities that performed and promoted abortions. Ultimately, Planned Parenthood, rather than comply with the rule, withdrew from the program, and as a result, the organization will lose about $60 million a year in federal funding.
In another positive move, in 2018, the Trump Administration rescinded Obama-era guidance, allowing states to attempt to defund Planned Parenthood of Medicaid dollars. How this would work is that rather participate in the conventional Medicaid program, a state can elect to attempt to submit what is known as a Medicaid waiver. A state may have numerous reasons for doing this - believing they have some alternate model that can provide the required care, but in an unique way (often less expensively). In January 2020, the administration granted the state of Texas a Medicaid waiver to fund the Healthy Texas Women program which does not include abortion providers, including Planned Parenthood.4
In short, while there is a strong desire on the part of pro-life Americans and numerous lawmakers, hurdles remain to fully defund Planned Parenthood.
Planned parenthood backs Biden, seeing a 'Life and death election' ahead. (2020, June 15). NPR.org. https://www.npr.org/2020/06/15/876893948/planned-parenthood-backs-biden-seeing-a-life-or-death-election-ahead
Planned Parenthood Annual report 2018-2019 https://www.plannedparenthood.org/uploads/filer_public/2e/da/2eda3f50-82aa-4ddb-acce-c2854c4ea80b/2018-2019_annual_report.pdf
HHS releases final title X rule detailing family planning grant program. (2019, February 24). HHS.gov. https://www.hhs.gov/about/news/2019/02/22/hhs-releases-final-title-x-rule-detailing-family-planning-grant-program.html#:~:text=S.%20Department%20of%20Health%20and%20Human%20Services%20%28HHS%29,where%20abortion%20is%20a%20method%20of%20family%20planning.
4. Healthy Texas women 1115 waiver | Texas health and human services. Texas Health and Human Services |. https://hhs.texas.gov/laws-regulations/policies-rules/waivers/healthy-texas-women-1115-waiver
Jennifer Popik, J.D.
Federal Legislative Director, National Right to Life Committee