Arizona’s law banning funds to Planned Parenthood is blocked when Texas’ was upheld. How?

October 24, 2012

UltrasoundLast Friday, a federal judge for the District of Arizona blocked a new state law that would have cut off state funding for family planning and health services delivered by organizations that also offered abortion services.

If you’ve been following the news as it relates to the legal challenges to these state funding cuts to Planned Parenthood (there have been somewhere short of a dozen states that have taken such action), you may be a little confused.

After all, back in August, the Fifth Circuit Court of Appeals upheld Texas’ cuts to Planned Parenthood.

So why the disparity? Ideological differences between the ruling judges?

That’s possible, but the more likely explanation is differences in the laws of the two states.

Arizona’s law prohibits “any health care provider who performs elective abortions from receiving Medicaid funding.”

Texas’ law also prohibits any health care provider who performs abortions (or “affiliates of entities that perform or promote elective abortions”) from receiving federal Medicaid funds.

However, in Texas’ case, the Medicaid funds are, for lack of a better term, “laundered” first.

Specifically, these Medicaid funds are not actually administered by Medicaid itself, but through a state-level program called the “Women’s Health Program” (WHP).

The WHP is a project created in 2005 by the Texas state legislature to “expand access to preventative health and family planning services for women.”

Under the Bush administration, the U.S. Department of Health and Human Services (HHS) issued a waiver to allow Texas access to Medicaid funds for its WHP without Medicaid oversight.

Thus, Medicaid regulations aren’t controlling in the case of the WHP – which is not the case for Arizona’s law.

This makes a big difference with legal challenges to the respective laws.

As mentioned above, Texas’ law was upheld by the federal court of appeals.

The challengers’ (several Planned Parenthood organizations operating in Texas) argument was that the law violated their free speech, free association, and equal protection rights under the Constitution; the appeals court didn’t buy this argument.

The existence of the WHP was pivotal to the challengers’ failure – notwithstanding that the application of relevant Supreme Court precedent in the court’s opinion could have readily been employed to reach the opposite result by an appeals court of a different ideological persuasion.

Although some variance is possible in interpreting the relevant law in the Arizona ruling, the fact that Medicaid rules themselves are implicated makes it much more difficult.

For example, in the ruling blocking the Arizona law, the court found that under a certain provision of Medicaid’s state requirements and a 1980 Supreme Court ruling interpreting that provision, the challengers had a federal right “to choose among a range of qualified providers, without government interference.”

Because of the existence of this right, the challengers were able to bring a § 1983 action against the state, and the court found that the Arizona law did indeed encumber this right (or, rather, found that the challengers were likely to succeed on the merits of their case) and issued a preliminary injunction blocking the law.

Given Texas’ success with the same issue, one may be left wondering why Arizona didn’t take similar action.

The short answer is that it couldn’t.

Texas’ Medicaid waiver was obtained during a presidential administration that was far more friendly to abortion restrictions than the current one.

In fact, because of Texas’ actions in limiting WHP funds to Planned Parenthood, the HHS is terminating its funding for the program by November 2012.

On the other hand, it’s entirely possible that, should the White House change hands in 2013, many more states will follow Texas’ example of imposing funding bans against Planned Parenthood and organizations like it.

Either way, it’s clear that the issue of women’s reproductive health remains a political one. 

UPDATE: Yesterday, the Seventh Circuit Court of Appeals blocked an Indiana law that is very similar to Arizona’s for effectively the same reasons.