Despite the House GOP’s failure to defund Planned Parenthood in their budget showdown with the White House back in April, the insidious goal to deny critical health care services to millions of vulnerable American women is now systematically winding its way through the states. Back in April, the most vulnerable women in the District of Columbia sadly became the casualties of the federal budget showdown when the District was banned from using “…its local taxpayer raised-funds for abortions for low-income women.” And now solely because Planned Parenthood provides abortion services, they are once again under attack in many states across the country. Planned Parenthood of Indiana (PPIN) has already been defunded with many more states looking to follow in its footsteps. Can the Obama administration risk a political fight to stop this systematic state defunding campaign with the political consequences over abortion rights inevitably pervading that fight in the 2012 election cycle?
The Obama administration has stated that under federal Medicaid law states cannot deny Medicaid beneficiaries care from any provider simply because that provider also provides abortion services. So how will Indiana, or any other state, be forced to comply with federal Medicaid law? For months now media reports on the PPIN defunding effort have stated repeatedly that if Indiana defunded PPIN they would risk losing $4 million in federal family planning funds. But will the federal government actually take such “corrective action” and withhold that Medicaid funding? The outcome of PPIN’s federal lawsuit and the potential action taken by the federal government in Indiana will set the stage for how the increasing number of states seeking to defund Planned Parenthood will persist in those efforts in the coming months.
On May 10th Indiana Governor Mitch Daniels (R) signed a law defunding PPIN. The legislation also enacted a 20 week abortion ban and “…mandates that doctors tell patients that abortion has been linked to infertility.” The Indiana law violates federal Medicaid law because under Medicaid states cannot restrict a Medicaid beneficiary’s choice as to what provider they seek out for family planning services.
On May 4th, in response to media inquiries regarding the fact that Governor Daniels was planning to sign this controversial law, a spokeswoman for the Centers for Medicare and Medicaid Services told the Los Angeles Times, “[i]f the state denies payment to these providers that would be illegal…There are some options available to us. But I can't say what action will be taken to bring the state into compliance. All we can say now is we will review the matter once Indiana decides.”
Then on Sunday, May 22nd, the New York Times reported that “[t]he Obama administration is raising serious objections to a new Indiana law that cuts off state and federal money for Planned Parenthood clinics providing health care to low-income women on Medicaid.”
There have been some questions raised by Governor Daniels’s administration as to whether Indiana was in fact violating federal Medicaid law; and whether Indiana could have certain federal Medicaid requirements waived to permit this defunding effort. But the New York Times has confirmed that, “[t]he changes in Indiana are subject to federal review and approval, and administration officials have made it clear they will not approve the changes in the form adopted by the state.”
Since the law defunding PPIN has already gone into effect, the Obama administration “…may feel pressure to act sooner…” rather than later even though they technically have 90 days to act to bring the state of Indiana into compliance. Also, with New Hampshire, North Carolina, Oklahoma, Texas, Wisconsin, Minnesota, and Utah considering similar legislative measures, and Kansas Governor Sam Brownback (R) expected to sign a law any day now that “…would redirect about $300,000 in federal family planning money from Planned Parenthood to state and local clinics,” the pressure to take action looms with each passing day.
Some of the political pressure on the Obama administration may have been alleviated by the fact that Governor Daniels announced this past Sunday that he will not be seeking the 2012 GOP presidential nomination. Notably, Sunday was the first time that the Centers for Medicare and Medicaid Services provided any public comment on the Indiana law since the May 4th statement provided to the Los Angeles Times.
The official statement from the Centers for Medicare and Medicaid Services and “cleared by the White House,” was reported by the New York Times, on Sunday, the very same day that Governor Daniels announced he would not be seeking the GOP presidential nomination. The statement reads:
Federal law prohibits federal Medicaid dollars from being spent on abortion services. Medicaid does not allow states to stop beneficiaries from getting care they need — like cancer screenings and preventive care — because their provider offers certain other services. We are reviewing this particular situation and situations in other states.
Governor Daniels was still considering a presidential run up until this past Sunday. Daniels “…had considered a bid for months and was pressured by many in the Republican establishment who longed for a conservative with a strong fiscal record to run.” But with Daniels now out of the presidential race, the Obama administration may have felt more political leeway to not only reinforce their position that Indiana is violating federal Medicaid law but also provide some much needed public support for PPIN’s impending federal lawsuit, which will be decided by July 1st.
The Centers for Medicare and Medicaid Services “…can take corrective action, including ‘the total or partial withholding’ of federal Medicaid money. The mere threat of such a penalty is often enough to get states to comply.” However, the inherent problem in taking such corrective action is that “…the penalty would, in many cases, hurt the very people whom Medicaid is intended to help.”
Bear in mind, Governor Daniels was fully aware that this law would violate federal Medicaid law when he signed it on May 10th. He was aware that he was risking the loss of $4 million in federal family planning funding. In fact, Governor Daniels and the Indiana state legislature were informed last month by state Medicaid officials “…that ‘restricting freedom of choice with respect to providers of family planning services is prohibited’ by federal law.” But Governor Daniels repeatedly declared that he was focused on only one thing, making sure that “…tax dollars would not subsidize providers of abortion,” telling PPIN that all they needed to do to have their funding restored is simply stop providing abortions.
PPIN and the ACLU of Indiana will be in federal court in two weeks to challenge the law. The lawsuit asserts that defunding PPPIN constitutes a “…’a blatant violation of the freedom of choice provision’ of federal law.” Last week, PPIN and the ACLU failed to convince the federal district court judge to enjoin the law temporarily while the lawsuit proceeds to trial, thereby allowing the law to go into effect immediately. And even though the federal government has not joined the lawsuit, “…the administration’s statement sends a signal to the court…” and may engender some influence with the court for the fact that Indiana is indeed violating federal Medicaid law.
On Monday, PPIN President Betty Cockrum said she “…welcomed the federal review…[and]…that it might provide a second avenue of relief if a federal judge decides not to grant the organization's request to block the law.”
But practically, what can the Obama administration do to bring Indiana into compliance with federal Medicaid law? The state of Indiana risks losing $4 million in federal family planning dollars, but the real losers in this ongoing political demonization of abortion rights are the Medicaid patients that will be deprived of critical health care services. PPIN said that last year they provided health care services “…to 85,000 patients, including 9,300 on Medicaid. Most received contraceptives.” PPIN “…also performed 5,580 abortions, 21,150 pregnancy tests, 26,500 Pap tests for cervical cancer and 33,000 tests for sexually transmitted diseases.” Since the Indiana state legislature and Governor Daniels were fully aware of the fiscal consequences of enacting a law that violates federal Medicaid law, it seems unlikely that Daniels or any other anti-choice governor or state legislature contemplating defunding Planned Parenthood will be scared off by the threat of losing federal family planning dollars. And it seems likely that if the Obama administration does cut off Indiana’s federal family planning dollars, Indiana will be ready to go without those Medicaid dollars and sacrifice the critical health care services for thousands of Indiana’s most vulnerable citizens.
Interestingly, the federal government appears ready to cut off Medicaid funds in Louisiana if a proposed bill that would violate the Hyde Amendment becomes law. The legislation that was approved by a House committee this week would ban abortions within the first trimester directly contravening Roe v. Wade, and only provides an exception for life endangerment but not for rape or incest. Additionally, the legislation “…would bar the Louisiana Medicaid program from covering any abortion, also with no exception for cases of rape or incest, a move that state health officials said could threaten about $5 billion in federal Medicaid financing.” Stephen Russo, the executive counsel for the Louisiana state Department of Health and Hospitals, said that the Centers for Medicare and Medicaid Services contacted his office on Monday stating that, “…Louisiana cannot continue to receive federal funds for Medicaid if it violates the Hyde Amendment.” Russo explained that the Centers for Medicare and Medicaid Services, “…was ready, willing and able to turn that spigot off and we would have to, I would imagine, put up a legal challenge and try to get a stay of order and somehow keep that spigot going…”
In fact, back in 1993 when Louisiana refused to comply with the expanded Hyde Amendment that included abortion coverage for rape and incest, the Centers for Medicare and Medicaid Services “…said that a state can't participate in Medicaid if it doesn't fund abortions outlined in the Hyde Amendment's exceptions. The federal courts - on both the district and appellate level - affirmed the federal government's position.” In 1995, the Fifth Circuit Court of Appeals in Hope Medical Group for Women v. Edwards affirmed a federal district court ruling that in order for Louisiana to participate in the federal Medicaid program, Louisiana had to comply with the expanded Hyde Amendment and provide Medicaid funding for abortions resulting from rape or incest.
By contrast, South Dakota “…pays for abortions only in cases of life endangerment,” in clear violation of federal Medicaid law. And South Dakota has been permitted to violate federal Medicaid law, without sanction or any form of “corrective action” from the federal government, ever since the Clinton administration established in 1993 that under the Hyde Amendment Medicaid funds must cover abortions not only in cases of life endangerment but also in cases of rape and incest.
So what’s the alternative in Indiana and all of the other states that are planning to defund Planned Parenthood, in clear violation of federal Medicaid law? Can the Obama administration actually stop the defunding of Planned Parenthood in any of these states without simultaneously punishing the most vulnerable Medicaid beneficiaries in this seemingly endless abortion war? Or will the politically powerless constituents throughout Indiana and the rest of the country, once again end up as the predictable losers in this political fight?
Given that any fight over Planned Parenthood will inevitably become a political messaging war over abortion rights, the political reality that the District of Columbia’s most vulnerable women were forced to accept during the April budget showdown may sadly become a political reality for millions more women in the coming months.