Federal Judge Kristine Baker has issued a preliminary injunction to stop Arkansas from cutting off Medicaid reimbursement to Planned Parenthood for Jane Doe plaintiffs in a lawsuit challenging Gov. Asa Hutchinson’s directive that the support be stopped.
I’m seeking comments, first on whether this leaves the door open to state denial of Medicaid benefits to those who are not plaintiffs in the suit.
Mike Falkstrom, general counsel for Planned Parenthood, acknowledged that the order was narrowly applied, but he said: “However, it is still a victory, particularly because there may be procedural ways to correct that and get the court to issue more broadly.”
But Gov. Hutchinson sees it differently. His statement:
The Court’s ruling is limited to three individuals. The decision allows the state to prohibit Medicaid funding to Planned Parenthood in all other circumstances. It is my intent to direct DHS to prohibit funding to Planned Parenthood consistent with the Court’s ruling
Said Suzanna de Baca,CEO of Planned Parenthood of the Heartland:
Governor Hutchinson’s order to cancel Planned Parenthood’s Medicaid contract is illegal and it does not reflect the values of Arkansans who care about women’s health. Our doors are open, we are here for our patients, and we will continue to do everything we can to uphold our patients’ right to safe, quality, compassionate care at Planned Parenthood.
Comments are expected from Attorney General Leslie Rutledge, but nothing so far. Planned Parenthood elaborated:
The ruling extends the previously issued temporary restraining order and will remain in place while the case proceeds.
In her decision, the judge agreed that Planned Parenthood is a qualified Medicaid provider and that we are still a part of the Medicaid program while this lawsuit continues. Planned Parenthood is confident in the merits of our case and we are evaluating options for going back to the court quickly and seeking expansion of the preliminary injunction to protect access to care for all of our Medicaid patients. Planned Parenthood’s doors remain open and we will continue to work with individual patients to help them meet their health care needs, regardless of their ability to pay.
Earlier this week, a federal district judge in Utah ruled to protect Planned Parenthood patients’ access to health care and education. To date, two federal Courts of Appeals, the Seventh and Ninth Circuits, have struck down similar requirements, blocking laws enacted in Indiana and Arizona, and the Supreme Court declined to review both of those rulings. Planned Parenthood continues to fight in court on behalf of its patients in Alabama and Louisiana against similar measures.
UPDATE: Statement from Rutledge:
While I respectfully disagree with much in the Court’s order, I am pleased that the injunction the Court issued only applies narrowly to the three individual plaintiffs in the case. The Court was correct in its decision to reject Planned Parenthood’s broader request for an injunction covering all Planned Parenthood Medicaid patients.
”The injunction stays in place until a final hearing, but clearly more action should occur immediately because of the state’s threat to cut off other men and women from their preferred medical provider.
Hutchinson ordered Medicaid reimbursements ended — they provided about $50,000 to Planned Parenthood — last year because of controversy about dishonestly obtained and dishonestly edited anti-abortion videos that made unproven allegations about sales of fetal tissue by a couple of Planned Parenthood affiliates in other states, not Arkansas. Hutchinson said those allegations were sufficient to show Planned Parenthood of the Heartland, a separate organization, wasn’t ethically qualified to do business in Arkansas. It doesn’t represent Arkansas “values,” he said.
Planned Parenthood provides, among others, contraception to some 1,000 men and women and year, most of whom qualify for Medicaid as low-income.
If you’ve time, read the findings of fact. They detail the varied medical services the Jane Doe plaintiffs receive at the Planned Parenthood clinics in Little Rock and Fayetteville and the state’s own admission that similar services are not readily available across the spectrum at community health centers.
Though the state repeatedly cited the unproven videos as reason to terminate the Arkansas payments, the judge noted no investigation in other states had found merit to the allegations.
To grant an injunction, the judge had to find evidence of irreparable harm, the likelihood of success on the merits, the balance of ill effects on the other party and the public interest. It’s an extraordinary test and the judge said it was met.
She said the state’s decision interfered with federal law guaranteeing patients an “absolute right” to choose their own medical provider for family planning without interference. She rejected the state’s argument that individual plaintiffs didn’t have standing for a private right of action. She left open the question of Planned Parenthood’s ability to assert a private right of action. She notes that the named plaintiffs don’t attempt to represent a class of all Planned Parenthood patients and thus only they are covered.
The state argued that Planned Parenthood had not appealed termination and thus should be disqualified. But she said the facts demonstration Planned Parenthood would have lost an appeal had it tried.
In sealed testimony, the state argued that the plaintiffs had other options and weren’t so tied to Planned Parenthood as they indicated. The judge wasn’t persuaded that overcame the women’s testimony of difficult in scheduling and inability to pay out-of-pocket costs elsewhere.
The judge she could find no legal justification for a state to terminate a contract for reasons unrelated to Medicaid law.
To the extent ADHS intends to rely on these provisions, or comparable state provisions, to argue a plenary power of the states to exclude Medicaid providers as the states see fit, this Court is mindful that other courts have soundly rejected such arguments.
To the state’s argument that actions depicted in the anti-abortion videos are sufficient ground to act in Arkansas, the judge said about demonstrating unfitness to receive Medicaid money:
For the reasons its states in this Order, the Court does not strike the videos but gives them little weight. ADHS’s argument about what the statements in the videos demonstrate, even if taken as true and assumed to be in context, which PPH and the Jane Does contest, may overstate this proof.
The judge credited testimony by the head of Planned Parenthood of the Heartland that it complies with the law on disposing of fetal tissue, does not participate in tissue donation and does not appear in any of the videos.
Aside from Ms. de Baca’s statements there remains no contrary evidence in the record about PPH at this stage. For example, there is no evidence that PPH performs surgical abortions in Arkansas from which fetal tissue could be obtained. There is no evidence that PPH performs medication abortions in Arkansas from which fetal tissue can be obtained and donated for any purpose. ADHS seems to acknowledge this when it recognizes that “the vast majority of PPH’s patients in Arkansas are not abortion patients; they are patients seeking run-of-the-mill and uncontroversial decisions like wellness exams, pelvic exams, and birth control. Indeed, there is no indication that the Jane Doe plaintiffs in this case are abortion patients.” Moreover, there also is no evidence that PPH has been cited, reprimanded, or cautioned by ADHS in the past about its qualifications as a provider of the services it offers.
Jerry Cox of the Family Council, an anti-abortion, anti-gay organization termed a hate group by the Southern Poverty Law Center, decried the ruling and issued a statement that claimed similar services were available elsewhere and “to my knowledge none of them has been accused to selling baby parts.” No one has accused Arkansas clinics of selling baby parts because it would be a lie. He also claimed voters don’t want to give money to an abortion provider. State voters, by a narrow margin, did amend the constitution to prohibit government payment for abortion, but it did not prohibit government payments to medical providers that might also provide abortions. Polls show nationally support for government payments to Planned Parenthood and a majority in favor of legal abortion, with varying restrictions.