Arkansas attempts to defund Planned Parenthood

Arkansas, along with fifteen other states, have made moves to stop Medicaid funds from going to Planned Parenthood.

A federal judge on Thursday issued a preliminary injunction blocking Arkansas’ move to forbid Planned Parenthood of the Heartland, which operates two clinics in Little Rock and Fayetteville, to end the clinic’s Medicaid provider contract and preventing the women’s health organization from receiving any Medicaid funds.  Arkansas is among several states that have tried to cut off funds to Planned Parenthood.  U.S. District Court Judge Kristine Baker blocked the Arkansas Department of Health Services (“ADHS”) from suspending Medicaid payments to Planned Parenthood of the Heartland for services rendered to Medicaid users.  The “denial of Medicaid patient’s free choice of provider is irreparable harm,” Baker wrote in the ruling.  That “reduced access to health care, as a result of a state statute restricting access to Medicaid in violation of federal regulations” constitutes irreparable harm, Baker stated.

Arkansas attempted to cut off Medicaid funding for basic medical services because the women’s health organization also provides abortions.

Arkansas Governor Asa Hutchinson directed ADHS to terminate its existing Medicaid agreement with Planned Parenthood in a letter back in 2015.  The state noted that Planned Parenthood received $51,000 in Medicaid funds in the fiscal year before Hutchinson’s decision to terminate the contract. Arkansas attempted to cut off Medicaid funding for basic medical services because the women’s health organization also provides abortions.  However, none of the $51,000 was used to cover abortions because Medicaid does not pay for abortion unless the mother’s life is in danger or the pregnancy resulted from rape or incest.  Planned Parenthood and the three patients, identified as Jane Does Nos. 1-3, sued the state after Governor Hutchinson announced Arkansas would cut off funding to Planned Parenthood.

After the Governor’s letter, Arkansas became the fourth state to move to cut funds to Planned Parenthood Federation of America, despite the Obama administration warnings that severing Medicaid money may violate federal law.  Governor Hutchinson’s  actions follow the release of six videos from an anti-abortion group, the Center for Medical Progress, that display Planned Parenthood officials discussing how fetal tissue is obtained from abortions for use in medical research.

The heavily edited, and at times graphic, video has led to accusations that Planned Parenthood is illegally profiting from the tissue, a charge the organization denies.

The Center for Medical Progress is a California-based non-profit organization, which describes itself as “a group of citizen journalists dedicated to monitoring and reporting on medical ethics and advances.”  The videos purport to show a high-level Planned Parenthood doctor talking about harvesting tissue from aborted fetuses.  The heavily edited, and at times graphic, videos has led to accusations that Planned Parenthood is illegally profiting from the tissue, a charge the organization denies.  The women’s health organization defended itself stating that tissue donation is not out of the ordinary, even after abortion procedures.   Planned Parenthood said the video was heavily edited and misrepresented its work, and that all women who donate tissues after terminating a pregnancy have given their consent.  “In health care, patients sometimes want to donate tissue to scientific research that can help lead to medical breakthroughs, such as treatments and cures for serious diseases,” said Eric Ferrero, who was a vice president of communications at Planned Parenthood Federation of America at the time.  “Women at Planned Parenthood who have abortions are no different.”

Planned Parenthood filed a lawsuit against the Center for Medical Progress, and the maker of the videos individually, for violating both federal and state law.  The lawsuit charges that the center and those affiliated with it, engaged in conduct in violation of the Racketeer Influenced and Corrupt Organization Act (“RICO”), the Federal Wiretap Act, as well as fraud, invasion of privacy, and trespassing.  Planned Parenthood asked for financial restitution for the “unlawful, unfair and fraudulent business practices”, along with compensatory and punitive damages and triple damages for violations under the RICO claim. The women’s health organization noted that the Center for Medical Progress obtained fake government IDs and formed a fake tissue procurement company called Biomax to gain access to clinics and medical conferences.

In response to the lawsuit, the Center for Medical Progress sought to dismiss the case outright, arguing that Planned Parenthood had not alleged adequate or plausible facts to support any of its fifteen claims.  United States District Judge William Orrick ruled that Planned Parenthood could proceed with its lawsuit against the anti-choice front group.  “Defendants have raised a number of arguments that may cause the claims in this case to be narrowed after discovery,” Orrick wrote.  For now, “plaintiffs have alleged sufficient facts to plausibly state their claims at this juncture,” he continued.  Judge Orrick’s ruling means that Planned Parenthood can begin the discovery process in an attempt to uncover all the pertinent information, including questions about how Center for Medical Progress perpetrated the operation, who was involved, who infiltrated Planned Parenthood’s private conferences, who funded the project, and who received reports on the center’s activities.

Judge Baker ordered the state to continue paying for services…

Judge Baker ordered the state to continue paying for services for three women who sued over the defunding move, and Planned Parenthood asked her to expand that decision to cover any Medicaid patients who want to obtain health care services through the organization.  The plaintiffs filed a second amended complaint adding class action allegations and moved to certify the class.  They defined it as “the Jane Doe plaintiffs and all other persons similarly situated, namely: patients who seek to obtain, or desire to obtain, health care services in Arkansas at PPH through the Medicaid program.”

The state has appealed the ruling to the U.S. Court of Appeals for the Eighth Circuit.  Judge Baker ruled that any future Medicaid patient who seek services at Planned Parenthood would suffer irreparable harm if she didn’t expand that order.  “This is a win for the Arkansans who rely on Planned Parenthood of the Heartland for birth control, cancer screenings, and other essential health care,” Suzanna da Baca, chief executive officer of Planned Parenthood of the Heartland, said in a statement.  “Every person deserves access to quality, affordable health care from the provider they know and trust, and today, the court recognized that.”

Fifteen states—Alabama, Arkansas, Arizona, Florida, Kansas, Louisiana, Mississippi, Missouri, New Hampshire, North Carolina, Ohio, Oklahoma, Texas, Utah, and Wisconsin—have moved to defund Planned Parenthood in wake of the videos. In Alabama and Utah, federal judges ordered the state to restore Medicaid funding to Planned Parenthood.  In other states, including Kansas, the federal government reduced the overall Medicaid funding as a result of the state’s defunding of the women’s health organization.

As a result of these defunding attempts, the Centers for Medicare and Medicaid (“CMS”) issued guidance that made it clear states could not block Planned Parenthood funding because of political opposition to abortion, which remains legal.  In addition, the Obama administration sent a letter to states trying to defund Planned Parenthood, warning all 50 states that attempt to strip Medicaid funding from the women’s health care provider is most likely violating the law.  This cautions lawmakers that “providing the full range of women’s health services… shall not be grounds for a state’s action against a provider in the Medicaid program.”  In other words, the fact that Planned Parenthood provides abortion services in addition to other women’s health services is not legal grounds to cut it off from Medicaid funding.  It stipulates that the only justifiable reason to remove a provider’s Medicaid funding is if that provider isn’t able to bill for or perform covered medical services.

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About Olga Ivanushko, Senior Staff Writer Emeritus (13 Articles)
Olga Ivanushko is a 2017 graduate of Campbell Law School and served as a Senior Staff Writer for the Campbell Law Observer. Olga is originally from Belarus, but has lived in Hollywood, Florida, then Raleigh, North Carolina for the past 13 years. She earned BA in Political Science from the University of North Carolina at Chapel Hill. Between undergrad and law school Olga worked as a paralegal at a plaintiffs’ medical malpractice and personal injury firm in Chapel Hill, North Carolina. After her first year in law school, Olga interned at the North Carolina Medical Board. Olga now interns with the Honorable John M. Tyson at the North Carolina Court of Appeals.