Planned Parenthood filed a lawsuit Tuesday against Louisiana to prevent the state from cutting off Medicaid funding to the organization. Some say other lawsuits might soon follow.
The lawsuit, filed in federal court by Planned Parenthood Gulf Coast and three unnamed women enrolled in Medicaid, alleges that eliminating funding to Planned Parenthood violates federal law. Louisiana Gov. Bobby Jindal announced earlier this month that his state would stop sending Medicaid dollars to Planned Parenthood after the release of edited videos by a pro-life group showing Planned Parenthood staff talking about providing fetal remains for research.
The lawsuit alleges that Louisiana's actions will harm Planned Parenthood and its Medicaid patients “who will lose their provider of choice, will find their family planning services interrupted and will be left with few or no alternative providers.”
Planned Parenthood doesn't currently provide abortions in Louisiana, but offers cancer screenings, birth control, gynecology exams, sexually transmitted disease treatment and other health services.
“This political grandstanding could have real devastating consequences for the women, men and teens who rely on us,” Raegan Carter of Planned Parenthood Gulf Coast said Tuesday during a press call.
Carter said the clinics were reimbursed nearly $730,000 during the organization's last budget year for services provided to Medicaid patients. The lawsuit says without the Medicaid revenue, the clinics may be forced to reduce staff and hours and the Baton Rouge clinic may shut down entirely.
Jindal spokesman Mike Reed, however, said in a statement Tuesday that Planned Parenthood is “flailing.”
“This lawsuit is without merit and the state will aggressively defend our right to cancel the contract,” Reed said. “The Medicaid provider contract between the Louisiana Department of Health and Hospitals and Planned Parenthood gives either party the right to cancel the contract, at will, with a 30-day notice.”
The Republican governors of Alabama and Arkansas have also pledged to stop sending Medicaid dollars to Planned Parenthood. The organization has not yet filed lawsuits in those states, but Carrie Flaxman, a senior staff attorney with the Planned Parenthood Federation of American said Tuesday, “Our affiliates are looking at all available options in states where efforts are being taken against us.”
Some experts say lawsuits like the one in Louisiana might have a decent chance of succeeding.
Susan Berk Fogel, director of reproductive health for the National Health Law Program, which advocates for the health rights of low-income people, said pulling Medicaid money from Planned Parenthood violates Medicaid law, which gives enrollees the freedom to choose any qualified Medicaid provider. Planned Parenthood makes that argument in its Louisiana lawsuit.
“To just pick a particular provider group, and say we're going to defund this group when they are qualified Medicaid providers is a violation of Medicaid law,” Fogel said. “In this case, what these states are doing is they're making up a category of qualification based on videotapes, not based on whether or not these are qualified providers providing quality care.”
The CMS has already notified officials in Louisiana, Alabama and Arkansas that defunding Planned Parenthood may break federal law. The CMS forwarded copies of 2011 guidance that says states can exclude providers for committing fraud or certain criminal acts but not based solely on the range of medical service they provide.
“Long-standing Medicaid laws prohibit states from restricting individuals who have coverage through Medicaid from receiving care from a qualified provider,” an HHS spokesperson said in a statement. “By restricting which provider a woman could choose to receive care from, women could lose access to critical preventive care, such as cancer screenings.”
Planned Parenthood already sued the state of Indiana several years ago after it tried to defund the organization. In that case, the 7th U.S. Circuit Court of Appeals blocked Indiana from withholding the cash. Planned Parenthood also won a case in Arizona when that state tried to defund the provider, Flaxman said.
Still, Casey Mattox, senior counsel with the Alliance Defending Freedom, a conservative legal organization, said states are allowed under Medicaid law to decide which providers should be considered qualified.
“Planned Parenthood tends to react negatively whenever it loses money, so it will not surprise me if Planned Parenthood or the Obama administration try to take some sort of action, but I think the states are on firm legal" ground, Mattox said.
He added that Planned Parenthood providers often make up only a small part of healthcare in states.
In Arkansas, for example, Planned Parenthood operates two clinics that received $51,000 in Medicaid reimbursements in fiscal 2014, said J.R. Davis, a spokesman with the Arkansas governor's office. Louisiana has two Planned Parenthood health centers.
“There are multiple other states that have taken similar action, and we don't expect federal repercussions on the state's Medicaid program,” Davis wrote in an e-mail regarding the decision to pull Medicaid funding from the organization.
The CMS has the power to withhold funding from states that fail to comply with their interpretation of federal law. But Nicole Huberfeld, a law professor at the University of Kentucky, said that's not typically the CMS' first choice.
The CMS "is always aware if they're withholding funding that they're potentially harming Medicaid beneficiaries because they're the ones who still need access to care whether or not the state is playing games with who the provider can be,” Huberfeld said.
Sara Rosenbaum, a law professor at George Washington University, also said actually getting to the point of withholding funding can be a long process—making legal action potentially more appealing for Planned Parenthood or beneficiaries.
“It's very long and drawn out,” Rosenbaum said of the CMS actually withholding funding. “This is why, generally speaking, it's much easier, when a legal right is involved on the part of beneficiaries, that they go to court.”
