On Tuesday, a panel of three circuit judges from the Seventh Circuit Court of Appeals upheld in part and reversed in part the 2011 decision of the Southern District Court of Indiana to grant Planned Parenthood a preliminary injunction to prevent enforcement of an Indiana law which would have defunded the organization. The law sought to prevent Medicaid and state block grant funding from going to health care providers who perform elective abortions, including Planned Parenthood. Tuesday's decision in the Seventh Circuit Court upheld the injunction against the Medicaid clause of the law, but reversed the lower court’s injunction preventing the state from withdrawing their block grant funding.
As a result of this ruling, Planned Parenthood affiliates will be able to remain open. Withdrawal of Medicaid reimbursement would require many, if not all, of the state’s Planned Parenthood health centers to shut down.
On Friday, United States District Judge Neil V. Wake granted Planned Parenthood of Arizona their request for a preliminary injunction to prevent the enforcement of Arizona Legislature HB 2800. HB 2800 is a similar law, which sought to deny Planned Parenthood and other abortion care providers from receiving Medicaid reimbursement. The law was originally set to go into effect on August 2, 2012, but the parties agreed to a temporary restraining order to delay implementation until the Court ruled on this motion by the plaintiffs.
To clarify the ruling: a preliminary injunction halts a law from taking effect until a ruling on the merits of a case is reached.
A preliminary injunction is granted if (1) the plaintiffs are likely to succeed on the merits, (2) the movant will suffer irreparable harm if the injunction is not in place, (3) delaying implementation will not harm the other party (or at least as much as implementation would harm the movants) and (4) if the injunction is in the public’s interest.
In the case of Arizona , the judge granted the injunction because "Planned Parenthood is likely to succeed on the merits of their claim that the Arizona law violates the freedom- of-choice provision of the federal law governing the Medicaid program."
Medicaid is run jointly by the federal government and state governments. States are not required to run Medicaid programs, but if they choose to participate they must follow federal regulations in regard to implementation.
Central to the dispute in this case is the “Freedom of Choice” provision of the Medicaid Program, which guarantees Medicaid recipients the right to choose among a range of qualified providers, without government interference. Subparagraph B of this section of law guarantees Medicaid recipients the right to choose a family planning service provider, if they desire.
Attorneys for the state of Arizona and the state of Indiana are arguing that, because states are allowed to decide who is a “qualified” provider, the state can exclude providers for any reason consistent with state law. Planned Parenthood, and the Department of Justice in a statement of interest, argue that the term “qualified” is limited to a provider’s ability to perform and bills for services.
But both Arizona and Indiana’s defunding laws are part of a larger, national trend.
Oklahoma recently moved to exclude Planned Parenthood from a food program, which has been housed in three of the organization’s clinics for nearly two decades. Since 2011, more than a dozen state legislatures have passed laws to cut at least some funding from the organization. A preliminary injunction has been granted in Kansas to prevent implementation of their defunding laws. Earlier this year, a district court granted a preliminary injunction to Planned Parenthood in Texas, but their decision was overruled by the Fifth Circuit.
Thus far, the Supreme Court has not seen a challenge to a defunding law. However, it seems likely that Indiana will petition to Supreme Court for cert over the continuation of the preliminary injunction against the Medicaid Act portion of their law.
Anti-choice legislators argue that state funding of any services provided by Planned Parenthood subsidize the abortion services the organization is able to provide, even if the state funding does not directly cover abortion. Abortion services make up only 3% of the patient care provided by Planned Parenthood. 35% of patient care is providing contraception; another 35% is testing and treating STDs and STIs; 16% is cancer screenings and prevention; and 11% other health services.
In 2011, Arizona passed a law that excluded nonprofit organizations that provided, paid for, provided referrals for, or “promotes” abortion from participating in Arizona’s Working Poor Tax Credit program. The Arizona Coalition Against Domestic Violence, making a First Amendment free speech claim, successfully sued the state of Arizona to have the law permanently enjoined. More recently, some Arizona state legislators have opposed implementing a new sales tax out of fear that future legislatures or executives will use the increased state revenue to provide grants to Planned Parenthood and other women’s reproductive health care providers.