Indiana Defends Planned Parenthood De-Funding in Legal Papers

State   |   Steven Ertelt   |   Jun 15, 2011   |   10:13AM   |   Washington, DC

A federal judge received the final legal papers today from Indiana officials defending a new state law that revokes taxpayer funding for the Planned Parenthood abortion business under Medicaid. U.S. District Judge Tanya Walton Pratt also received documents from Planned Parenthood.

Governor Mitch Daniels signed the law, which would cut off anywhere from $2 million to $3 million the Planned Parenthood abortion business receives in federal funds via the Indiana government through Medicaid. Judge Pratt initially declined to issue the injunction while she takes more time to analyze the legal issues involved in the lawsuit. That type of decision is usually an indicator that the judge will eventually issue a ruling against the party bringing the lawsuit.

The final legal papers both sides filed set the stage for a decision expected within days on whether Planned Parenthood will continue to receive funding. The abortion business says it needs the money soon or it will have to close some of its 28 centers across the state.

Indiana Solicitor General Thomas Fisher outlined the case for the state, saying Planned Parenthood does not try to segregate its funds to ensure the taxpayer money is not paying for abortions. He said President Barack Obama’s Medicaid Administrator, Donald Berwick, was wrong to send Indiana a letter threatening to cut off billions in Medicaid funding and Fisher defended the state’s right to determine the best recipients for the family planning dollars distributed through Medicaid.

Berwick’s office issued a letter to Indiana threatening to cut off Medicaid funding if it follows through with enforcement of its new law de-funding Planned Parenthood and that letter went out to 49 other states threatening to revoke their Medicaid funding if they follow Indiana’s lead.

The state also argues that it can’t be sure Planned Parenthood is not using the federal money to pay for abortions or staff or medical supplies releated to abortions because there is “no record that PPIN makes any effort to either segregate Medicaid reimbursements from other unrestricted revenue sources or to allocate the cost of its various lines of business, whether abortion, family planning, cancer screenings, or other services.”

“This indicates that, while PPIN may not receive Medicaid reimbursements directly related to abortions, the Medicaid reimbursements it does receive are pooled or comingled with other monies it receives and thus help to pay for total operational costs,” the state said, making it so abortions or costs related to abortions are indirectly funded.

According to AP, in its final papers, Planned Parenthood attorney Ken Falk of the American Civil Liberties Union contended Judge Pratt should defer to Berwick and agreed with him that the fact that Planned Parenthood does abortions should not disqualify it from the family planning funding.

During the oral arguments both sides presented last week, Judge Pratt asked each side to respond to the legal test called the Chevron test, AP indicated. The test, coming down from the Supreme Court via the Chevron v. Natural Resources Defense Council ruling says federal judges should not substitute their views for a reasonable interpretation a federal agency like Medicaid makes about its own rules.

Fisher responded by saying the Berwick letter about the rules should not be construed as final because the state has the right to appeal his assesment of the rules and what Indiana can do. Falk argued for the permanent injunction saying that Berwick’s letter should be respected.

Twenty-eight members of the U.S. Senate signed a letter recently defending the state.

The letter, orchestrated by Sen. Orrin Hatch of Utah and which received, reads, “We disagree with your narrow interpretation of Title XIX of the Social Security Act and believe this represents a significant departure from Medicaid’s longstanding practice of having the states — not the federal government — set reasonable standards for qualified providers.”

“While the Indiana law does not change the family planning benefits offered to beneficiaries, it may change where certain services can be received — and with good reason,” the letter continues.

The letter cites a recent memorandum from the Indiana Attorney General filed for the state in its defense of the law from the lawsuit the Planned Parenthood abortion business filed against it. The letter indicates Planned Parenthood of Indiana mixes the federal and state taxpayer funding it receives with its other income and revenue in a way that co-mingles abortion funds with funds meant for family planning.

As a result, the letter says the Indiana law “closes a concerning loophole that has allowed taxpayer dollars to support operation costs for abortions” and places the state in better compliance with the Hyde Amendment, which prohibits direct taxpayer funding of abortions, except in very rare circumstances, under Medicaid.

“We ask for your swift reconsideration of Indiana’s SPA 11-110.  Indiana’s proposal should not only be approved, we believe it serves as an important model for every state.  We fully support the intent of HEA 1210 to prevent taxpayer dollars from subsidizing the operational costs of abortions; and more broadly, we support the right of states to administer their Medicaid programs in a manner consistent with the values and needs of their citizens,” the Senators wrote.

Leading pro-life groups strongly support the Indiana law.
“Indiana’s law says tax dollars can’t go to any entity that performs abortions, but benefits remain the same, as does healthcare access.  In fact,  there are approximately 800 provider locations in affected counties that are eligible to provide Medicaid clients with non-abortion services. This letter renews the call for the President and his Administration to stop strong-arming the states,” Marjorie Dannenfelser, president of the Susan B. Anthony List, said.
The law also contains several pro-life provisions that directly affect abortion, such as banning abortions after 20 weeks of pregnancy based on fetal pain and provisions to opt-out of abortion coverage in any state health exchanges required under the new federal health law, to require that women considering abortion be given full, factual information in writing, and to require doctors who do abortions, or their designees, to maintain local hospital admitting privileges in order to streamline access to emergency care for women injured by abortion.
Three pro-life legal groups have weighed in on the case — including the American Center for Law and Justice, Alliance Defense Fund and Thomas More Society — and they have said the law is constitutional.