Planned Parenthood Defeats Defunding in Indiana
The U.S. Court of Appeals for the 7th Circuit on Oct. 23 said Indiana could not enforce a 2011 state law that barred abortion providers – including Planned Parenthood – from receiving any state or federal funds. It would have stripped all Medicaid funding from any health care provider that provides abortion services, among many others.
The appellate court barred enforcement of the law, based on Planned Parenthood’s objection that the state defunding law violates a federal Medicaid law that ensures patients can choose their doctors. But the court did not agree with Planned Parenthood that the law violates women’s constitutional right to an abortion.
Freedom to Choose . . . a Doctor
Planned Parenthood, along with several Medicaid-eligible plaintiffs, had sued to block the law, arguing that it violates Medicaid’s general provision allowing patients to freely choose their doctors and that it put unconstitutional conditions on Planned Parenthood’s funding: the organization would have to choose between providing abortion services and receiving public funding.
The United States government also got involved in the case, adding that the Indiana law should be overridden by a federal statute that allows the Department of Health and Human Services to make block grants to states for STD programs.
The 7th Circuit only bought the “free-choice-of-provider” argument, which means that if the state can rewrite the law, it will be free to strip women of the freedom to seek an abortion. The Supreme Court has long held that states can constitutionally bar publicly-funded family planning organizations from advocating abortion as a method.
“The government’s refusal to subsidize abortion does not unduly burden a woman’s right to obtain an abortion,” says the court. “Indiana’s ban on public funding of abortion providers – even for unrelated services – cannot indirectly burden a woman’s right to obtain an abortion.”
Focus on Funds, not Abortion Rights
The ACLU downplayed that part of the opinion. “This case was not an abortion case,” says Kelly Sharp, a spokesperson for the ACLU of Indiana. “We hope this case will put an end to similar defunding efforts across the country.”
The ACLU cast the case as being about provider choice, noting in a press release that the 7th Circuit blocked a law that would have denied Medicaid funds from going to any entity that offered abortions, “even though the Medicaid funds go to necessary reproductive health services and do not support abortion services.”
“The Appeals Court decision is a victory for the ACLU of Indiana, for Planned Parenthood of Indiana, and for the hundreds of thousands of people who receive services through Planned Parenthood that are reimbursed by Medicaid,” says Sharp. “To allow those services to be denied solely because a state does not like other things Planned Parenthood does can cause harm to people who depend on the organization for basic medical needs.”
Since the injunction affirmed by the appellate court was a preliminary one, the case is not over yet. “The trial court will have to decide whether to make the preliminary injunction permanent,” notes Sharp. If it declines to do so, abortions will effectively be defunded in Indiana.
If the trial court agrees to permanently keep the defunding law from going into effect, the state could rewrite the law. And since a federal court has already said it doesn’t violate women’s constitutional right to an abortion, it’s not likely to be challenged on those grounds.
It seems the plaintiffs are holding their breath for now, even as they enjoy their victory. “We will not speculate what the State may or may not do,” says Sharp.
The 7th Circuit’s decision creates a circuit split with the 5th and possibly the 9th Circuits, according to the Wall Street Journal. “So don’t be surprised if this issue makes its way up to the Supreme Court,” observes Jonathan Adler, a law professor at Case Western Reserve University School of Law, in a post on the Volokh Conspiracy.
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