Planned Parenthood continued its legal successes this month against states that attempt to cut its funding.
U.S. District Court Judge Kristine Baker in the Eastern District of Arkansas issued a temporary restraining order on Sept. 18 that prevents the Arkansas Department of Human Services from terminating its Medicaid provider agreement with Planned Parenthood of the Heartland, which has clinics in Fayetteville and Little Rock. For the fiscal year that ended June 30, Planned Parenthood received about $51,000 in Medicaid payments in Arkansas. The previous year, it was $120,000.
No reason was given for the contract termination. But an anti-abortion group, Center for Medical Progress of Los Angeles, had released several undercover videos claiming “Planned Parenthood’s sale of baby body parts.” Planned Parenthood denied the allegations, and Planned Parenthood of the Heartland wasn’t implicated in the videos.
“It is apparent that after the recent revelations on the actions of Planned Parenthood, that this organization does not represent the values of the people of our state and Arkansas is better served by terminating any and all existing contracts with them,” Gov. Asa Hutchinson said in an Aug. 14 news release.
Planned Parenthood is seeking a permanent injunction that would prevent the funding from being cut. As of Wednesday, a court date hadn’t been set.
Two law professors, who have not reviewed the lawsuit in Arkansas but are familiar with the issues, said that Planned Parenthood has been successful in court when states made similar attacks on funding.
“You can choose not to allow a provider in your state, but you have to do it for certain kinds of things, like they’re not qualified to provide the service,” said Robin Fretwell Wilson, a law professor at the University of Illinois College of Law. “But other than that, you don’t get to pick and choose among them once they are already Medicaid participating providers.”
Nicole Huberfeld, a professor of law at the University of Kentucky College of Law, also said the Medicaid provisions say that anyone who is qualified to participate in Medicaid can do so and treat Medicaid beneficiaries.
“It means that you can’t on ideological grounds decide that you’re not going to reimburse certain health care providers for their services, because health care providers and beneficiaries have a right to those Medicaid dollars, so long as they are able to provide safe services,” she said.
The Arkansas Department of Human Services said in its court filings that the contract with Planned Parenthood “may be voluntarily terminated” by either party by giving 30 days’ written notice to the other party, which DHS did.
But Huberfeld said that clause in the contract won’t make a difference to the judge.
Both the courts and the U.S. Department of Health & Human Services, which oversees Medicaid, have said these “at-will contract provisions do not allow you to bypass the statutory requirement that any willing provider can provide these services,” Huberfeld said. “So you can’t negate the statutory requirements with contractual provisions.”
Planned Parenthood also has lawsuits pending in Alabama and Louisiana that challenge the attempt to defund the program.
In the Louisiana case, which was filed by Planned Parenthood Gulf Coast Inc., the U.S. government took the unusual step of filing its own brief in the case.
The government’s filing “made the point that this is settled law and you can’t do this,” said Wilson, the law professor. “Louisiana can’t do this. Arkansas can’t do this.”
Hutchinson disagreed.
“Ethical conduct by Medicaid providers is a relevant factor for the state to consider,” Hutchinson said in a statement provided to Arkansas Business. “Hopefully, the Court or a higher court will reconsider the preliminary decision once the facts are fully developed. It is disappointing that a judge appointed by President Obama does not give sufficient weight to the morally repugnant conduct of Planned Parenthood displayed in a series of recently released videos.”
But Planned Parenthood of the Heartland told Arkansas Business in an email that the U.S. Courts of Appeals for the 7th Circuit and the 9th Circuit have blocked similar attempts by Indiana and Arizona to end funding to Planned Parenthood.
Huberfeld said she expects the case in Arkansas to be decided in Planned Parenthood’s favor on a motion for summary judgment.
“There are no facts that appear to support the state’s moves here,” she said. “And Medicaid doesn’t pay for abortions anyway.”
