June 6, 2011 — On Monday, U.S. District Judge Tanya Walton Pratt will hear arguments from Indiana's attorney general and Planned Parenthood of Indiana in a case challenging a state law that imposes new restrictions on abortion providers and blocks state grants and contracts to organizations that provide abortion services, the Indianapolis Star reports. Pratt has said she will decide by July 1 whether to halt enforcement of the law (Schneider, Indianapolis Star, 6/4).
Pratt previously rejected a request by PPIN and the American Civil Liberties Union of Indiana to issue an immediate injunction to block enforcement of the measure. The funding ban took effect May 10 (Women's Health Policy Report, 6/2).
The Indiana law effectively prohibits Medicaid reimbursements for services provided in clinics affiliated with PPIN. For years, federal law has prohibited the use of federal Medicaid funds to pay for abortion services. Prior to enactment of the law, PPIN could receive reimbursement from Medicaid for the non-abortion-related services it provides.
To implement the new law, Indiana needed to amend its state Medicaid plan -- an action that requires federal approval. On Wednesday, CMS Administrator Donald Berwick sent a letter to Patricia Cassanova, director of Indiana's Office of Medicaid Policy and Planning, warning that "Medicaid programs may not exclude qualified health care providers from providing services that are funded under the program because of a provider's scope of practice." He continued, "Such a restriction would have a particular effect on beneficiaries' ability to access family planning providers." The Indiana law "would eliminate the ability of Medicaid beneficiaries to receive services from specific providers for reasons not related to their qualifications to provide such services," the letter said. Berwick added, "We assume this decision is not unexpected" (Women's Health Policy Report, 6/3). The state has not said whether it will appeal the decision.
In a brief supporting its case, the state attorney general's office argues that "the woman's right to obtain an abortion and to receive Medicaid benefits are completely unaltered. She can simply seek out another provider. All the new law does is ensure that, indeed, taxpayer funds do not indirectly subsidize abortion."
PPIN and ACLU-Indiana argue that the law is unconstitutional and violates federal Medicaid law. They also will argue against a provision of the law that requires doctors to tell women seeking abortion care that life begins at fertilization and that a fetus can feel pain at or before 20 weeks of pregnancy. According to PPIN and ACLU-Indiana, the provision forces doctors to give information they consider false and misleading, violating the First Amendment's protection of free speech. The provision takes effect July 1.
Betty Cockrum, PPIN president and CEO, said that Medicaid "patients come to Planned Parenthood for birth control, Pap tests and STD testing and treatment," adding, "Every day that we are not a Medicaid provider, women are put at risk of unintended pregnancy. Making it more difficult for our patients to get birth control will cause some to go without it." The group has been using donations to offer care to Medicaid patients, but "this kind of financial support is already waning and cannot be sustained," she added (Indianapolis Star, 6/4).
According to the Indianapolis Star, Berwick's letter could bolster the plaintiffs' case because it supports their argument that the law violates federal policy barring states from selecting Medicaid providers. Health policy experts say it is rare for the federal government to withhold Medicaid funds. Timothy Jost -- a professor of health law at Washington and Lee University -- said the federal government is taking an especially strong stance because other states considering similar laws are watching (Gillers, Indianapolis Star, 6/5).
Slate Piece Examines Daniels' Hypocrisy
Although Indiana Gov. Mitch Daniels (R) purports to be "shocked to learn that federal funds conditioned on state compliance with federal laws might be jeopardized when a state deliberately violates those laws," he has "had ample warning," Dahlia Lithwick writes in Slate. According to a 2002 Guttmacher Institute report, efforts to block direct and "indirect" government support for abortion have failed repeatedly in state and federal courts. Indiana officials also warned Daniels that they believe the law violates federal Medicaid rules and therefore could risk the state's funding from the federal government.
According to Lithwick, if "Daniels succeeds only in squandering millions of dollars in federal funds to the poorest residents of his state, it won't be a noble victory for states' rights. It will be a shameful example of a state using its most vulnerable citizens to score a symbolic victory in the culture wars." She adds that since "no tax dollars go to providing abortions in the first place," Daniels and his supporters "are actually taking a stand against something else entirely: Primary care and reproductive services for the tens of thousands of women in the state who depend on Planned Parenthood for medical care that has no connection to abortion at all."
The "whole purpose" of the federal rule in question is to ensure the Medicaid beneficiaries have options in seeking medical providers. State Sen. Scott Schneider (R), author of the bill, has claimed that family planning money would be redirected to other providers, but this is "not true," Lithwick writes. She notes that a list of alleged providers offered by state Republicans last month includes a Salvation Army addiction center, a homeless shelter, several mental health centers, a juvenile detention center and a prison.
Lithwick goes on to note that regardless of the outcome of the Indiana case, abortion remains legal. "President Obama isn't holding poor Hoosiers hostage to his pro-abortion whims. The opposite is true: The governor is holding them hostage to his attempt to circumvent the law of the land," she says. She concludes by cautioning that the public should not be fooled by plaintive claims that this is a fight over states' rights. "Truth be told, it's a fight over states' rights to take federal funds while violating federal law. That doesn't sound like high-minded federalist principle so much as bald-faced hypocrisy. We just happen to live at a moment in which it can be hard to tell the difference between the two" (Lithwick, Slate, 6/3).
Debra Ness, publisher & president, National Partnership
Andrea Friedman, associate editor & director of reproductive health programs, National Partnership
Melissa Safford, associate editor & policy advocate for reproductive health, National Partnership
Perry Sacks, assistant editor & health program associate, National Partnership
Cindy Romero, assistant editor & communications assistant, National Partnership
Justyn Ware, editor
Amanda Wolfe, editor-in-chief
Heather Drost, Hanna Jaquith, Marcelle Maginnis, Ashley Marchand and Michelle Stuckey, staff writers
Tucker Ball, director of new media, National Partnership