Any day now, Republican Indiana Gov. Mitch Daniels is expected to sign a bill that strips state and federal family planning dollars from Planned Parenthood of
As The American Independent previously reported, House Bill 1210 has elicited confusion among the governor’s office as to whether or not the law will hold up in court, particularly because it challenges the terms of Medicaid, a program jointly funded by state and federal governments.
Indiana Legislative Services Agency (LSA), which assessed the fiscal impact of HB 1210 (PDF), came away from their research with questions.
In an impact statement LSA wrote:
The Family and Social Services Administration (FSSA) reports that federal law requires state Medicaid plans provide any eligible individual medical assistance and that they can obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service(s) required. … Federal law permits states to define a qualified provider, but requires that this definition is related to a provider’s ability to perform a service and not what services are provided. … It is uncertain how this bill will interact with federal regulations concerning the Medicaid program.
Jack Ross, executive director of LSA, told TAI that within HB 1210 there is a lot of “room for interpretation.” He said the intent to is to prevent federal money from going to Planned Parenthood but could not say for sure if the money would be diverted to other Medicaid providers that do not offer abortion services. He was also unsure as to whether HB 1210 would affect social service block grants.
“It’s not clear,” Ross said. “But an argument could be made that it doesn’t apply. Ultimately it will be up to a court.”
Kathy Norris, fiscal analyst at LSA, told TAI that the new law primarily affects Medicaid recipients. So, for example, if a woman insured through Medicaid went to a Planned Parenthood clinic for a pap smear, the state would deny Planned Parenthood’s claim for a reimbursement. Then it would be up to Planned Parenthood to sue the state, she said.
The Centers for Medicare and Medicaid Services (CMS) is saying that HB 1210 violates the federal policy.
“If the state denies payment to these providers, that would be illegal,” CMS spokesperson Mary Kahn recently told The Baltimore Sun. ”There are some options available to us. But I can’t say what action will be taken to bring the state into compliance. All we can say now is we will review the matter once Indiana decides.”
And as to PPIN’s claim that it will be losing approximately $3 million once the law goes into effect, Ross said: “I don’t know that it’s crystal clear. … It’s unclear how the money flows,” Ross said.
Despite doubt that the law will pass muster and avoid confusion about funding, Ross said the only people who are not confused about the new law are the ones who wrote the bill.
“I think that law says what the authors wanted it to say,” Ross said. “It may be easier said than done.”
And that’s definitely the case when it comes to state Sen. Scott Schneider, who drafted the amendment (PDF) that was a last-minute insert into a broader bill about abortion matters. Schneider said the law is very clear in what it does — prevent Indiana taxpayers from funding the state’s Planned Parenthood affiliate. He said that PPIN currently receives about $4 million in federal funding, but that only about $32,000 of that is state funding, paid for by Indiana taxpayers.
“Taxpayers should not be forced, through tax dollars, to support performing abortions or any organization that performs abortions,” said Schneider, who called the service “morally objectionable.”
He said the CMS claim that Indiana will not be able to deny Planned Parenthood reimbursement of Medicaid claims is a ”false alarm” and is confident the bill will pass all legal tests, bolstered by legal opinions from the Christian legal network the Alliance Defense Fund and James Bopp, Jr., an attorney for the Terre Haute, Ind.-based law firm Bopp, Coleson and Bostrom.
Bopp told TAI that the main principle behind any challenge to HB 1210, in particular the defunding provision, would be based on the Supreme Court decision in Rust v. Sullivan, which ruled the state can prefer child birth over abortion when it comes to the allocation of public funds, and therefore it’s not unconstitutional to mandate that state agencies do not fund entities that perform abortion.
Steve Aden, senior counsel for the Alliance Defense Fund, said the notion that Indiana would be the first state to deny federal funding to abortion providers is inaccurate. He said Texas and Missouri* have already passed similar legislation, and, to his knowledge, have not been threatened with discontinuation of federal matching funds for family planning under Title X.
(*According to the Guttmacher Institute, in the mid-1990s, Missouri enacted legislation intended to ban any state revenues from going to an entity that “provides or promotes” abortion. The only organizations affected — because they received state family planning funds and provided abortion services — were Planned Parenthood of Kansas and Mid-Missouri and Planned Parenthood of the St. Louis Region. Both challenged the law, which was struck down in federal court, and the pattern repeated annually until 1999. However, according to the Columbia Missourian, a recent bill proposed by Rep. Stanley Cox has attempted to try to defund the state’s Planned Parenthood affiliates again.)
“I think opponents to this measure are just blowing smoke,” Aden said.
In a legal opinion sent to Gov. Daniels last week, the ADF said:
[I]n our opinion, enactment of H.B. 1210 should not cause the State to forfeit eligibility for Medicaid family planning funds, since it neither contravenes federal supremacy nor targets Planned Parenthood or any other particular provider for exclusion from the Medicaid Program.
The Schneider Amendment does not by its terms render Planned Parenthood of Indiana or any other abortion provider ineligible for Medicaid family planning reimbursements. The Amendment simply provides that no State agency shall enter into a contract with (e.g., the Medicaid Provider Agreement) or make a grant to (e.g., funds approritated under Title X for the federal family planning program) to “any entity that performs abortions or maintains or operates a facility where abortions are performed that involes the expenditure of state funds or federal funds administered by the state.”
Contrary to Schneider and the ADF, Gayla Winston, president of the Indiana Family Health Council, said that because the state does not control Title X and does not distribute that money to providers, Planned Parenthood of Indiana should still receive that money.
Though it’s listed nowhere in the bill, Schneider said family planning funds would be diverted from Planned Parenthood to other providers that do not perform abortion services. He said there are more than 100 family health clinics in the state that would qualify for the newly diverted funds.
“We’re not cutting appropriations for women’s health or family planning,” Schneider said. “Planned Parenthood acts like they are the only provider of these services. Absolutely they are not.”
Asked about the comprehension of the family planning and STD-prevention services these other providers offered, Schneider said: “We didn’t do a comprehensive evaluation of all of the [providers] … They offer family planning and women’s health services. It includes a lot of things. I’m not sure if they offer the same services as Planned Parenthood. I’m not intimately familiar with what [Planned Parenthood] offer[s]. I know what they claim to offer.”
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