Scott Forsyth, BridgeTower Media Newswires
Planned Parenthood provides essential medical services to women and men — more than two million every year. It serves a predominantly poor population; 75% of its patients have incomes at or below 150% of the federal poverty level. For a single person that number is $12,060.
For all of the good Planned Parenthood does, Republicans in Congress and many statehouses are out to get the organization. They dislike the fact that it performs abortions. That these services make up only 3% of all services it provides is irrelevant. They seek to “defund” the organization, namely eliminate all federal and state funding of it.
Defund has a catchy ring and implies the presence within the federal and state budgets of a line item appropriating $X to Planned Parenthood. All the legislatures have to do is delete the line item.
In truth budgets do not have such a line item. Instead, Planned Parenthood receives most of its federal funding by way of grants for family planning services under Title X and payments under the Medicaid program for services rendered to the poor. The latter funding totals $500 million.
Remember that number. Also, remember by virtue of the Hyde Amendment, first passed in 1976, Medicaid cannot pay for an abortion, except in cases of rape, incest, and life endangerment.
Until this year Senate Democrats and President Obama have stymied efforts in Congress to eliminate Planned Parenthood’s funding. Consequently, Republicans have focused on the administration of the Medicaid program at the state level.
Republican-controlled legislatures, such as in Indiana and Arizona, have passed laws excluding abortion providers from receiving Medicaid payments, and Republican governors, such as in Louisiana, have cancelled contracts with Planned Parenthood to provide services to Medicaid beneficiaries, “because Planned Parenthood does not represent the values of the” state.
When challenged in court, every one of these state efforts has been struck down as a violation of the federal Medicaid statute. See, e.g., Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962 (7th Cir. 2012) (Indiana), Planned Parenthood of Ariz., Inc. v. Betlach, 727 F.3d 960 (9th Cir. 2013) (Arizona), and Planned Parenthood of Gulf Coast, Inc. v. Gee, 837 F.3d 477 (5th Cir. 2016) (Louisiana).
Medicaid is a cooperative program between the federal government and the states in which the federal government gives funds to the states to provide medical services to the poor. The two levels of government share the costs.
The federal funds come with certain conditions, one of which is known as the free-choice-of-provider requirement. A Medicaid recipient is free to choose any provider so long as the provider is “qualified to perform the service or services required” and the provider “undertakes to provide … such services,” i.e. accepts Medicaid. 42 U.S.C. § 1396a(a) (23) (emphasis added).
The Medicaid statute does not define qualified, but the courts have. Qualified means “to be capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner.” Planned Parenthood of Ind., 699 F.3d at 978. The statute does give a state the authority to cancel a Medicaid provider agreement on the grounds of fraud, drug crimes, and failure to disclose necessary information to regulators.
Performing abortions, the courts have held, does not make Planned Parenthood incapable of providing medical services in a professional manner. Planned Parenthood not reflecting the values of a state, whatever that means, does not make the organization incapable of providing medical services. The Medicaid statute does not give a state the authority to cancel a Medicaid provider agreement for “any reason,” as argued by Louisiana.
The plaintiffs in the Louisiana case were Medicaid beneficiaries and patients of Planned Parenthood. The state’s cancellation of Planned Parenthood’s contract violated their statutory right to choose a provider of their choice. The plaintiffs also asserted claims under the First and Fourteenth Amendments, which the court did not address.
Frustrated at the state level, Republicans are now back before Congress. Tucked within the bill to repeal and replace the Affordable Care Act is a provision that turns an otherwise qualified provider under section 1369a(a)(23) into a “prohibited entity,” i.e., somebody not entitled to federal funds for one year.
What is a prohibited entity? An “entity, including its affiliates,” (1) described in section 501c(3) of the Internal Revenue Code and exempt from income tax, (2) “primarily engaged in family planning services, reproductive health, and related medical care,” (3) “provides for abortions,” and (4) in fiscal year 2014 received under the Medicaid program more than $350 million.
Think about it. How many entities meet the definition? Not a doctor’s group because it is subject to tax. Not a hospital system or a community health clinic because they provide a broad range of medical services. That leaves Planned Parenthood. Why not explicitly name it and save three pages of text?
The bill does permit an otherwise prohibited entity to receive Medicaid payments if the only abortions it performs are in cases of rape, incest, or the life of the woman is endangered. This exception tracks Supreme Court holdings on the subject.
The Congressional Budget Office estimates approximately 15% of the people currently on Medicaid, who visit Planned Parenthood clinics, will lose access to care all together if the bill passes. Particularly hard hit will be persons “resid(ing) in areas without other health care clinics or medical practitioners who serve low-income persons.”
Is this what Republicans want — a less healthy population? Will the poor be collateral damage in their war on Planned Parenthood?
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
