States Should Continue Efforts to Defund Abortion Businesses

State   |   William Saunders and Mary Harned   |   Dec 7, 2012   |   12:56PM   |   Washington, DC

In the blink of an eye, 2012—with its victories and defeats—will be behind us, and the 2013 legislative session will be in full swing across the country. Many state legislators are grappling with whether to continue previous efforts or begin new campaigns to defund abortion providers within their states. A path forward exists for those legislators who can learn from the events and legal actions of this year.

A review of news stories would lead one to believe that 2011 and 2012 brought little progress in this area of pro-life legislation: the defunding laws in at least five states are enjoined and/or are in litigation,[i] and the Obama Administration has directly interfered in defunding efforts in at least seven states by withholding or threatening to withhold federal funds,[ii] undermining state laws by directly contracting with abortion providers,[iii] or becoming involved in court proceedings through filing documents with the courts.[iv]

However, these challenges do not paint the complete picture. A minimum of 12 states that have either enacted defunding laws or have taken administrative actions to defund abortion providers have achieved at least partial success.[v] By examining these state efforts and analyzing recent federal judicial decisions, states that want to defund can, and with confidence.

In fact, the AUL legal team has developed concrete guidelines for assisting states in defunding abortion providers based on this research. The following guidelines can help legislators who are navigating through current rulings and federal actions.

First, states should tread carefully when restricting Medicaid funding. If states prohibit abortion providers from receiving Medicaid funds, the Obama Administration may cut off – and will certainly threaten to cut off – the state’s Medicaid funding and the new law will likely be challenged in court. The recent decisions on Arizona’s and Indiana’s laws indicate that other courts will likely interpret a provision in the federal Medicaid statute as a legal impediment to prohibiting abortion providers from receiving federal Medicaid funding.

Second, states can place “program integrity” requirements on federal (as well as state) family planning funds. In other words, states can enact laws providing 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.

Third, states can place prohibitions on the ability of abortion providers to receive state funds. The Seventh Circuit clearly stated in the Indiana case that bans on public funding of abortion providers, regardless of whether those funds are being used for abortions, “cannot” 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 nothing to do with the provision of abortion.

Fourth, states can establish a “tiering system” to prioritize the allocation of family planning funding in a manner that promotes women’s health and keeps funding out of the hands of abortion providers. States can prioritize funding for government entities (e.g., county health departments) and private entities that provide comprehensive health care for women, rather than just limited “family planning” services.

Finally, states can redirect funds previously earmarked for family planning to other areas of healthcare. With limited resources, states may choose to assist with different healthcare needs.

While following these guidelines cannot guarantee that a law will not be challenged in court, they should help states enact laws that are effective and constitutional.




[i] Arizona, Indiana, Kansas, North Carolina, and Texas.

[ii] Indiana and Texas.

[iii] New Hampshire, New Jersey, North Carolina, and Tennessee.

[iv] Arizona and Indiana.

[v] Colorado, Michigan, Minnesota, Montana, New Hampshire, New Jersey, North Carolina, Ohio, Oklahoma, Tennessee, Texas, and Wisconsin.