After a two-hour hearing, federal Judge Kristine Baker did not rule on Planned Parenthood of the Heartland’s request for a temporary injunction against the state Department of Human Services to keep Medicaid reimbursement flowing to PPH affiliates in Little Rock and Fayetteville. Baker said she is “taking the matter under advisement” and will notify lawyers when her written ruling is prepared.
Planned Parenthood of the Heartland (the parent of Arkansas’s Planned Parenthood), which with the Arkansas chapter of the ACLU is suing DHS director John Selig for stopping Medicaid reimbursement to the family planning agency, argued today that such patients will suffer irreparable harm by not being able to use Planned Parenthood for their medical care. The state argued that Planned Parenthood could see Medicaid patients and keep the receipts for later reimbursement in case they prevail in their suit against the state.
If Baker doesn’t rule by the end of the day tomorrow, the issue will be moot, because Planned Parenthood has its first scheduled Medicaid patients on Monday, Sept. 21.
Gov. Asa Hutchinson ordered DHS Aug. 4 to stop Medicaid payments to Planned Parenthood within 30 days after anti-abortion sting videos of Planned Parenthood executives talking about selling fetal tissue. The order went into effect Monday. Alabama and Louisiana, which also issued bans on reimbursement to Planned Parenthood, are also being sued.
Planned Parenthood attorney Jennifer Sandman argued that Planned Parenthood in Arkansas does not procure or sell fetal tissue — it does not offer surgical abortions — and is a qualified family healthcare provider under Medicaid rules. She cited several cases in which courts have ruled that states may not limit which providers Medicaid patients may use as long as the providers are qualified. Planned Parenthood has offered family planning services in Arkansas for 30 years. In fiscal year 2015, Medicaid patients made more than 1,000 visits to the clinic and received more than 1,100 prescriptions through the clinic. (Those numbers were 1,600 and 2,600 in fiscal year 2014.) Planned Parenthood does pap smears, tests for cancer and sexually transmitted diseases and offers contraception. Its abortion services in Arkansas are limited to early medical abortions.
Sandman also characterized the videos that prompted the termination of funding as edited to misrepresent the Planned Parenthood staff being interviewed, including cutting 10 instances in which the staff stressed that the agency could not profit by the sale of fetal tissue, which is legal under federal law. Sandman also sought to draw a distinction between Planned Parenthood of the Heartland and the Planned Parenthood Federation of America, saying that the regional agency has its own board and is independent.
Arkansas law prohibits sale or donation of fetal tissue, so Planned Parenthood in Arkansas could not engage in the practice anyway.
Lee Rudofsky, the state’s new solicitor general, hired by Attorney General Leslie Rutledge, argued that the videos showed that the Planned Parenthood affiliates involved in the videos engaged in “ethically questionable conduct” — including possibly performing partial birth abortions — and that should disqualify the organization as a provider. He also argued that Planned Parenthood and the three Jane Does who are plaintiffs may not have standing to bring a case, citing the U.S. Supreme Court’s ruling in Armstrong v. Exceptional Child Center, a position plaintiffs did not agree on.
Questioned by Baker whether the state had evidence that Planned Parenthood of the Heartland had engaged in unethical conduct, Rudofsky said, “I don’t have anything that says PPH never engaged in that conduct.” She also asked Rudofsky whether the state’s position that Medicaid patients have access to “similar services” and so will not be harmed by lack of access to Planned Parenthood meant that they have access to the same services. He responded that the state was not saying that every clinic provides all the services that PPH provides, but that cumulatively services were available. Sandman responded, saying that Planned Parenthood offers a wide array of birth control devices that may not be available elsewhere.