Twice recently, the Supreme Court has refused to review decisions – by the 9th and 7th Circuit Courts – overturning state laws (in Arizona and Indiana) that prevented Medicaid funding from going to abortion providers. However, this is not the end of the matter. Citizens can still act to limit such funding through both federal and state law.
The Arizona law precluded abortion providers from receiving taxpayer funding designated for family planning services, including those provided through the Medicaid program. The federal district court and the Ninth Circuit Court of Appeals reviewed only the Act’s application to the Medicaid family planning funding, and held that such a restriction was prohibited by the federal statute.
Importantly, since it is far easier to revise a statute than to amend the Constitution, neither the Seventh Circuit nor the Ninth Circuit held that there was a Constitutional problem with withholding Medicaid or other public funds from abortion providers. Instead, the courts considered the federal Medicaid statute and found it incompatible with state laws like those enacted in Indiana and Arizona—laws that would ensure public funds are directed to healthcare providers who offer comprehensive, life-affirming care to women.
Americans United for Life stands behind the brief we filed in the Ninth Circuit on behalf of 29 Arizona legislators. In it, we argued that the state law’s limitations on family planning funding were not precluded by federal statutory law. However, given the poor decisions by the courts of appeals in the Ninth and Seventh Circuits, it is clear Congress should amend the Medicaid statute to clarify that the states have the authority to do this.
Ideally, Congress should amend the statutes authorizing funding —through Medicaid, Title X, and other programs—to prohibit allocation of the funding to abortion providers. However, more realistically, Congress should at the very least give states more discretion in how they choose to allocate the funds. Clearly, the current U.S. Senate and Obama Administration would not support such an effort. However, if a new Congress and administration are willing to make this change, states are likely to find that courts will not block their efforts to direct healthcare funds away from abortion providers (since there is no Constitutional impediment to doing so).
In the meantime, citizens in the states need not sit quietly waiting for this to happen. First, states can place “program integrity” requirements on federal (as well as state) family planning funds. These requirements should provide that no federal or state family planning funds may be used by recipients to pay the direct or indirect costs (e.g., administrative costs and expenses, overhead, employee salaries, rent, and telephone and other utilities) of performing, inducing, referring for, or counseling in favor of abortions.
Second, states can prohibit abortion providers from receiving state funds. The Seventh Circuit clearly held that bans on public funding of abortion providers, regardless of whether those funds are being used for abortions, do not burden a woman’s “right to obtain an abortion.” In other words, states can prohibit abortion providers from receiving state funds even if those funds have little or nothing to do with the provision of abortion.
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Third, states can establish a “tiering system” for the allocation of family planning funding that prioritizes funding for entities that provide comprehensive healthcare for women. Most abortion clinics do not provide comprehensive care, and would therefore receive fewer or no family planning funds.
While it is disappointing that courts, such as those in the 7th and 9th Circuits, continue to interpret the Medicaid statute in a way that ties the hands of state legislators, there is still much that citizens acting through their legislators can and should do to ensure that limited public funds are used to affirm life, not destroy it.