Arkansas Decision Puts Urgency On GOP Promises To Cut Planned Parenthood Funding

August 22, 2017 | Published first in The Federalist

While pro-life Americans should be pressing Congress to defund Planned Parenthood, they are instead focusing on inside-the-court-room strategizing.

Last week, conservative and pro-life outlets gleefully relayed news that a federal appellate court had upheld Arkansas’s exclusion of Planned Parenthood from the state’s Medicaid program. In Does v. Gillespie, in a 2-1 decision, the Eighth Circuit held that the three Jane Doe plaintiffs could not sue under the Medicaid Act to challenge the Arkansas Department of Human Services’ decision to terminate its Medicaid contract with Planned Parenthood.

The Right’s triumphant reaction is understandable: Every other court to date has held that states could not ban Planned Parenthood from participating in the Medicaid program, based on the so-called “free-choice-of-provider requirement,” codified at 42 U.S.C. § 1396a(a)(23)(A). That section of the Medicaid Act provides that state Medicaid plans “must ..․ provide that ..․ any individual eligible for medical assistance ․.. may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required.”

Further, the circuit decisions allowed individual Medicaid patients to file suit on their own behalf. Planned Parenthood was not required to join the lawsuit or even challenge the decision to terminate the Medicaid contract through the state’s administrative process.

Specifically, the Seventh Circuit in Planned Parenthood of Ind., Inc. v. Comm’r of the Ind. State Dep’t of Health held that Indiana’s statute excluding abortion providers from state grants and contracts violated the “free-choice-of-provider requirement.” The Ninth Circuit in Planned Parenthood Ariz. Inc. v. Betlach, struck a virtually identical statute in Arizona, and the Fifth Circuit in Planned Parenthood of Gulf Coast, Inc. v. Gee, held that the Louisiana Department of Health and Hospital’s termination of its Medicaid contract with Planned Parenthood violated the “free-choice-of-provider requirement.”

Don’t Break Out the Champagne Yet

With Arkansas’ victory in the Eighth Circuit last week, the Right has heralded in a new hope of defunding Planned Parenthood. For instance, The Daily Signal, in its comprehensive analysis of the Eighth Circuit decision, cheered the possibility that the Fifth Circuit could follow the Eighth Circuit’s lead and uphold the decision by Texas’ Health and Human Services Department to end its Medicaid provider contract with Planned Parenthood.

From there, the Daily Signal authors set their sights higher, writing: “If the 5th Circuit joins the 8th Circuit in ruling against allowing private rights of action to enforce the Medicaid ‘free choice of provider’ provision, that would tee the issue up for Supreme Court review. A split among the federal appeals courts increases the odds that the justices will decide to review a case. . . . A Supreme Court ruling that allowed states to freely terminate Medicaid agreements would deal a major blow to Planned Parenthood, which receives half a billion dollars from taxpayers each year.”

However, this hope is misplaced. This court victory in Arkansas is at best temporary and at worst pyrrhic. Here’s why.

The Legal Deck Is Stacked Against This Decision

The Eighth Circuit’s opinion, which upheld Arkansas’ defunding decision, was a split decision, meaning one of the three judges on the panel dissented. That court’s holding also directly conflicts with three other federal appellate court decisions. These circumstances scream for a rehearing by the entire Eighth Circuit Court of Appeals. Given the dearth of precedent supporting the panel’s decision, on rehearing it is highly likely that the full court will reverse course and strike Arkansas’ defunding decision.

Further, while Texas’s decision to defund Planned Parenthood is pending before the Fifth Circuit, that court has already struck Louisiana’s attempt to block Planned Parenthood from its Medicaid program. While Texas presents some new arguments in support of its decision, federal appellate courts are hesitant to reverse course so quickly, especially when that would conflict with other circuit courts. Thus, it is unlikely that Texas will prevail on appeal.

So notwithstanding last week’s flash of good news, six months to a year from now, the pro-life movement will likely see the full court vacate the Eighth Circuit decision in favor of Arkansas’s defunding, and the Fifth Circuit uphold the lower court’s decision striking Texas’s defunding.

The upside potential is not much better: Assuming the defunding position prevails, at best that would prompt the Supreme Court to resolve the circuit split. But victory for the defunding cause in the Supreme Court is far from assured, given the current 4-1-4 ideological breakdown of the justices.

Further, unlike the typical abortion case involving penumbras and balancing tests, the defunding decisions concern statutory interpretation, which bodes for a narrow and strict interpretation from the conservative wing of the Supreme Court. As The Daily Signal noted, one of President Trump’s short-listers for the Supreme Court, Diane Sykes, authored the Seventh Circuit decision striking Indiana’s law, which barred abortion providers from state contracts.

Further, even if the Supreme Court rules in favor of the states and holds that they may defund Planned Parenthood, the blow, at best, would be glancing: Planned Parenthood will only lose Medicaid funding in states that decide to bar the abortion provider from Medicaid.

Focus on Congress, Not the Courts

This is how the recent win in the Eighth Circuit is a pyrrhic victory. Does v. Gillespie creates a false hope and a harmful distraction for pro-life advocates. While conservatives and pro-life Americans should be pressing Congress to defund Planned Parenthood, they are instead focusing on inside-the-court-room strategizing. Rather than leading the defunding charge, the most staunchly pro-life congressmen are filing amicus curie (friend-of-the court) briefs, while admitting their attempt to fulfill their campaign promise to finally defund Planned Parenthood is “in complete disarray.”

But Congress needs to stand up, not stand down. While the complicit media buried the sickening Planned Parenthood videos almost as deep as it buried the horrifying details of the Kermit Gosnell abortionist trial, the pro-life community knows the truth those recordings exposed: Planned Parenthood is running a baby-part-selling human chop-shop.

Have we learned nothing from the Supreme Court’s refusal to bail our country out from the Obamacare debacle? For once, Congress must cease its evergreen abdication of authority. And citizens fighting for life must stop placing their faith in the courts to rescue the unborn from Congress’ inaction.