At the end of a three-day hearing, a federal district court judge in Austin, Texas, on January 19 issued a temporary injunction blocking state officials from excising Planned Parenthood from the state’s Medicaid program — a move that would deny more than 11,000 of the state’s poorest residents from accessing preventive care from their provider of choice, and would annually strip Texas Planned Parenthood clinics of several million dollars.
The current court action is just the latest in a long string of attempts by the state of Texas to defund local affiliates of the nation’s largest provider of women’s health and reproductive care. And it is part of a larger movement by conservative state and federal lawmakers to cut off Planned Parenthood from all government funding.
If anti-choice lawmakers in D.C. have their way, it may be easier for Texas, and other states, to get their way.
Yanking Medicaid funding from the group is among the top priorities for anti-abortion lawmakers. Planned Parenthood clinics receive $390 million annually as reimbursement for services provided to Medicaid patients, according to the Congressional Budget Office. Together, the group’s clinics serve roughly 1.25 million Medicaid patients per year.
Congress tried to terminate Planned Parenthood from Medicaid last year as part of its bid to dismantle the Affordable Care Act, only to have the measure vetoed by President Obama. Under the new D.C. regime, the measure will return – and it may be harder to stop.
“We don’t want to commit taxpayer funding for abortion, and Planned Parenthood is the largest abortion provider,” House Speaker Paul Ryan said during a recent CNN town hall meeting, arguing that because “money’s fungible” federal dollars “float” Planned Parenthood’s abortion services.
In the pending Texas suit, Stuart Bowen, the inspector general for the state’s Health and Human Services Commission, which oversees the Medicaid program, is hoping to oust from program reimbursement all three of the state’s Planned Parenthood affiliates — Planned Parenthood Greater Texas, Planned Parenthood Gulf Coast, and Planned Parenthood South Texas — which together operate a total of 30 clinics across the state.
In a termination letter dated December 20, 2016, Bowen wrote that it was footage from an undercover video shot inside Planned Parenthood Gulf Coast’s Houston headquarters that prompted his conclusion that all of the state’s providers had demonstrated they’re incompetent to provide care to Medicaid patients. Specifically, Bowen alleges that the footage — shot by activists Sandra Merritt and David Daleiden, founder of the anti-abortion Center for Medical Progress — reveals that PPGC officials were eager to participate in a questionable scheme to harvest and sell fetal tissue removed from abortion patients.
Planned Parenthood’s abortion facilities are legally separate from their medical clinics. And although the footage in question was taken at just one Texas clinic operated by the PPGC, Bowen concluded that all three affiliates should be kicked out of Medicaid because of their umbrella relationship. In other words, Bowen has determined that the mere allegation of wrongdoing by one employee at one clinic is enough to disqualify all 30 clinics from serving government-insured clients. Notably, PPGC has not participated in any tissue-related research since 2011, when it completed a project with the University of Texas Medical Branch that used aborted placental tissue to study the effects of a particular chemical on fertility.
The three Planned Parenthood affiliates of Texas vehemently deny the state’s allegations. From the more than 8 hours of footage that was fraudulently collected in Houston by Daleiden and Merritt while posing as owners of a biotechnology start-up, the state has cherry-picked roughly 12 minutes, most depicting snippets of conversation, in an effort to paint the group as doing something unethical or even illegal, and to further its ongoing mission to cripple Planned Parenthood’s ability to provide preventive care.
Daleiden’s Center for Medical Progress released a number of similar videos in 2015, filmed with various Planned Parenthood officials outside Texas, leading to an uproar among foes of reproductive autonomy and launching a number of investigations — including a months-long investigation by a special panel of the U.S. House of Representatives — despite the fact that the recordings, many heavily edited before online posting, have been widely discredited.
And the videos have been invoked by officials in other states — including Alabama, Arkansas, Kansas, and Louisiana — as they too have attempted to withhold government funds from Planned Parenthood. Each of those bids has failed, in part because Medicaid law contains a “provider of choice” provision that allows each program recipient the ability to seek services from any provider qualified to deliver that care.
Under a longstanding prohibition, no federal funding is used to pay for abortion (except in rare circumstances). But the fact that Planned Parenthood is the nation’s largest abortion provider — at facilities that are legally separate from the medical clinics where Medicaid patients are served — nonetheless vexes foes of reproductive rights, and continues to animate efforts to wrest government funding from the group. Abortion makes up just 3 percent of all services provided by Planned Parenthood; testing and treatment of sexually transmitted infections and contraceptive care make up 45 percent and 31 percent, respectively, while cancer screening and prevention services make up 7 percent.
In an effort to get around this, federal lawmakers have recently tried a new approach: labeling Planned Parenthood a “prohibited entity” excluded from participating in Medicaid. That’s exactly what they did as part of the 2015 budget reconciliation measure attacking the Affordable Care Act. The reconciliation bill defined as prohibited from receiving Medicaid funding any non-profit, “essential community provider” of family planning and reproductive health services that also offers elective abortion, and that has received more than $350 million in federal funds — in other words, only Planned Parenthood.
Although Obama stopped that provision from taking effect, there is concern that Trump, whose opinions on women’s reproductive rights are by turns enigmatic and deeply troubling, would not block it. And the reconciliation process allows the Senate to vote out budget matters impacting entitlements by a simple majority.
But whether that would necessarily end all funding for Planned Parenthood remains unclear. Lawmakers would likely still have to rewrite the freedom of choice provision to somehow make Planned Parenthood unqualified to provide the kind of preventive care it has been delivering for nearly 100 years.
It seems likely that whatever mechanism lawmakers use to try to exclude Planned Parenthood from Medicaid funding — or other sources of government funding — would be met with legal challenge. “Something of this magnitude I guess would be challenged in court,” said Sara Rosenbaum professor of health law and policy and the founding chair of the Department of Health Policy at the George Washington University Milken Institute School of Public Health. “I can’t comment on the legalities of it, but it does raise serious questions of an organization being excluded from a federal program not because it’s not qualified to provide the services that the program pays for, but because of its views and because it does things unrelated to what Medicaid pays for.” The move could raise not only due process and equal protection claims, but also First Amendment issues.
Planned Parenthood President Cecile Richards (daughter of former Texas governor Ann Richards) has repeatedly said that the group would fight attempts to defund it, reiterating at the Women’s March on Washington that “our doors stay open.”
Of course, Speaker Ryan and others enamored with the idea of defunding Planned Parenthood — including Vice President Mike Pence, who while in Congress led the fight to do so — don’t seem to see value in Planned Parenthood’s doors remaining open. Lawmakers have argued that if Planned Parenthood wants government funding, it should simply stop providing abortion care. “If Planned Parenthood wants to be involved in providing counseling services and HIV testing they ought not be in the business of providing abortions,” Pence said in 2011. “As long as they aspire to do that, I’ll be after them.”
But perhaps more important, they insist that the millions in taxpayer funds that go to Planned Parenthood would be better spent on community health centers, which provide a broader range of services and therefore, they argue, can act as a medical home for low-income patients. “We want to make sure that all women get the kind of care they need, like preventative screenings and services,” Ryan said at the town hall meeting. “We believe this can better be done by putting these dollars in federal community health centers,” which Ryan said provide the same services provided by Planned Parenthood, but “without all the controversy surrounding this issue.”
That plan has its own problems, including that there are likely not enough health centers to fill the gap. As of 2010 there were 19 million women in need of publicly supported contraceptive services, according to the Guttmacher Institute, which last year was asked by the CBO to provide information on the role Planned Parenthood plays in delivering services to this group of women. Researchers found that in two-thirds of the 491 counties where they operate, Planned Parenthood clinics serve half of all low-income women in need of contraceptive and preventive reproductive care; in roughly 21 percent of those counties, Planned Parenthood is the only clinic available to provide these services to low-income women.
This leads to a second problem with this plan, which is that community health centers are not in a position to expand operations in order to absorb the population of women (and men) in need of publicly-supported reproductive care should the rug be yanked out from underneath Planned Parenthood — nor, in many cases, would they want to, says Rosenbaum, who has spent decades working with these health centers.
Community health centers — which are tasked with providing a wide range of services from dental care to diabetes management — often work in tandem with other specialists,like family planning clinics to manage the client load. “They don’t have the capacity to absorb a huge hit to another part of the health care safety net,” Rosenbaum said. “And, of course, in a lot of communities they work together, precisely because not everybody can do everything.”
In Texas there is ample evidence that a plot to defund Planned Parenthood by funneling money to community health centers has not worked. After Texas lawmakers slashed the state’s family planning funds and retooled the matrix by which it dolled out those dollars in such a manner that favored health centers and effectively ousted Planned Parenthood (along with other smaller clinics), some 128,000 patients lost access to care.
And when the state then sought to deny funding to Planned Parenthood by withdrawing altogether from federal funding to support a special Medicaid-paid Women’s Health Program, 40,000 clients were immediately denied access to their provider of choice.
In the wake of that move, the number of women in the state receiving long-acting reversible contraceptives — or LARCs, among the most effective forms of birth control — decreased 35 percent. Moreover, the number of women receiving injectable contraceptives — also highly effective — decreased by 31 percent, while the rate of subsequent Medicaid-paid childbirth among this group of women increased by 27 percent, according to research done by the Texas Policy Evaluation Project at the University of Texas at Austin.
This is not an insignificant issue in a state where Medicaid pays for more than 50 percent of births, as is the case in a number of states. Nationally, Medicaid pays for nearly half of all births.
Among the issues the CBO pointed out in its 2015 assessment of what would happen if Medicaid funding was denied to Planned Parenthood is that the government would actually see a net increase in spending of some $130 million due to an increased number of births paid for by Medicaid.
“Today we’re here to deliver a message: We’re not going to take this lying down. And we will not go back,” Richards said at the D.C. march. “For the majority of people in this country Planned Parenthood is not the problem, we’re the solution.”