The state of Indiana is trying to reinstate its controversial law banning Medicaid funds from going to Planned Parenthood of Indiana and other health agencies that provide abortions.
The state’s lawyers Thursday went before a three-judge panel of the 7th Circuit Court of Appeals at the Dirksen Federal Building in Chicago.
Last June, a federal judge in Indianapolis approved a preliminary injunction reinstating Medicaid funds to Planned Parenthood that had been cut off after Indiana passed its anti-abortion law. That legislation is now being mimicked by other conservative-leaning states.
“I think it’s going to have some significant impact. Certainly, if our arguments don’t prevail, that may put a damper on what other states want to do,” said Indiana Solicitor General Thomas M. Fisher. “But if we prevail, it could have some national significance.”
At issue is whether Indiana has a right to alter qualifications concerning which health care providers can or can’t receive Medicaid, funding that is used to provide health care to low-income people.
In the spring, the Indiana General Assembly approved a measure to prevent Medicaid funds going to any health provider that also performs abortions. The law was drafted broadly, but is seen to be directly aimed at Planned Parenthood of Indiana.
Indiana’s own Legislative Services Agency warned lawmakers that the rule change may violate federal law, a position that's also taken by the U.S. Department of Health and Human Services. Fisher says Indiana is still in the right.
“Under the Medicaid Act, the states have the authority to set the qualifications for Medicaid providers. The argument from Planned Parenthood has been that we are not allowed to reduce patient choices,” Fisher said. “We think the law is on our side that - just because one provider (Planned Parenthood) may not continue being a Medicaid provider - that itself is not a fatal reduction in patient choice. There are over 800 other providers where Planned Parenthood has clinics. That still leaves plenty of choice for patients.”
Indiana Civil Liberties Union attorney Ken Falk is defending Planned Parenthood. He disagrees with the state’s stance.
“This has been couched, I believe, as an abortion issue. But really it’s an issue of the state asserting a right that it simply doesn’t have to determine provider qualification,” Falk said. “The state next year could decide what else can be made a provider qualification. The point is that the state can regulate matters which have some impact on Medicaid. This is not that type of qualification.”
Judge Diane Sykes asked Falk if Planned Parenthood would be willing to separate the organization, basically dividing its health services from its abortion services, as the state of Indiana has suggested.
“It’s not clear if that can occur under the current statute in Indiana,” Falk said. “Freedom of choice belongs to the recipient of Medicaid.”
Fisher said the whole issue is really up to Planned Parenthood.
“Planned Parenthood can make the choice itself on whether it wants to be a Medicaid provider or an abortion provider. It’s not exactly the case that the statute itself commands any provider to go out of business,” Fisher said. “Planned Parenthood makes that choice. The law is on our side. Reducing the range of choices by one? That doesn’t mean the law is invalid.”
A temporary injunction has barred Indiana from fully implementing its ban on Medicaid funds from going to Planned Parenthood.
The state faces another complication, in that it must also appear before an administrative law judge with the U.S. Department of Health and Human Services. That hearing will address some of the same issues taken up by the federal courts. That hearing takes place Dec. 15 in Chicago.