PHOENIX – Saying it's a matter of the state's rights, Attorney General Tom Horne wants the U.S. Supreme Court to let Arizona cut Medicaid funding to Planned Parenthood simply because that organization also provides abortions with private dollars.
In legal papers filed Wednesday, Horne acknowledges that existing state and federal laws already bar the use of public dollars for elective abortions. That is not being challenged.
But Horne said Arizona lawmakers are entitled to conclude that public funds, which now go to Planned Parenthood to provide family planning services, may also indirectly subsidize the organization's abortion services by helping to keep the doors open. That, he said, entitles the Legislature to deny dollars to Planned Parenthood until it either stops providing abortions or creates an entirely separate legal entity.
That argument has been rebuffed by not only a trial judge but also just this past August by the 9th U.S. Circuit Court of Appeals, both of which have ruled that Arizona cannot enforce the 2012 law.
Judge Marsha Berzon, writing for the unanimous three-judge panel, did not address the question of whether Medicaid family planning funds – 90 percent federal and 10 percent state – might be subsidizing abortions. Planned Parenthood uses the money for things like contraceptive services and gynecological exams for individuals eligible for Medicaid.
Instead, Berzon said the issue comes down to a simple fact: Federal law allows those enrolled in Medicaid, which includes the Arizona Health Care Cost Containment System, to get the services they need from any qualified provider. And she said there is no evidence that Planned Parenthood medical staffers are not “qualified.”
Horne, in the legal brief to the Supreme Court, said principles of federalism allow the state, which did agree to federal regulations, to decide that term means something more than whether a person is licensed and competent. He said that permits lawmakers to decide that organizations which also provide abortions are not “qualified.”
In this case, Horne said, the 2012 law “reflects a public policy preference for childbirth over abortion and gives effect to Arizona's justifiably strong interest and recognizing the inherent difference of abortion from other medical procedures.”
“That decision ... was rational and should be upheld,” he wrote.
Horne also is arguing that the only thing federal law requires is that patients can choose any medical provider “that meets the state's criteria.”
Horne conceded that Arizona, in agreeing to accept federal Medicaid dollars, entered into what amounts to a contract with the federal government, and that contract requires the state to conform to federal rules.
But he said the principles of federalism require that a state “voluntarily and knowingly accepts the terms of the contract.” Horne said that Arizona agreed to participate in the Medicaid program with the understanding that the state – and not the federal government – would be free to decide who is qualified to provide family planning services.
He said the 9th Circuit ruling “usurps Arizona's proper role in implementing its own state law and policy relating to the health and welfare of its citizens.”
But Berzon, in that 9th Circuit ruling, said states do not have unfettered authority to decide who is qualified.
She said if Arizona were allowed to decide that abortion providers are not qualified, then another state could contend that only doctors who do perform abortions are entitled to Medicaid funding. Similarly, it would open the door to letting states decide that Medicaid services could be provided only by osteopaths, nonsmokers or affiliates of the state’s medical school “on the grounds that only doctors within that category are worthy of receiving Medicaid funds.”
Berzon said there are areas where an otherwise medically qualified physician or health-care provider can be determined to be unqualified, but she said that is limited to things like fraud, patient abuse, criminal activity and improper billing.
Bryan Howard, president of Planned Parenthood Arizona, said the 2012 legislation was unjustified.
“Politics should never interfere with a woman's access to vital services just because she is poor,” he said in a prepared statement. Howard also said the state is “continuing to waste taxpayer dollars” in seeking Supreme Court review after losing twice already.