Truth and Power: Planned Parenthood, HHS, and Indiana Law
June 29, 2011
by Gerard Bradley, Professor of Law at the University of Notre Dame and member of the Indiana Right to Life board of directors
When Republicans win a statehouse, it almost always means that pro-life legislation is coming down the pike. When Democrats win, it never does. The Republican victories last November led to the introduction of several hundred pro-life bills across the nation. Many were enacted into law.
Nowhere did Republicans do more for the unborn this past spring than in Indiana, my home state. The GOP has controlled the state senate here for years, and last fall they took control of the lower house too — prompting, by the way, a five-week Democrat walk-out to Urbana, Illinois. The Republican were nonetheless able to consolidate a flurry of pro-life bills into an omnibus measure. Then they passed it, and Governor Daniels signed it on May 10.
The most important provision of this bill was a comprehensive defunding of Planned Parenthood, the first such measure in the nation. The defunding provision said that any “entity” that performs abortions would be cut off from state funds, including Medicaid funding, even for non-abortion services (pap smears and STD testing, for example). Planned Parenthood of Indiana (PPIN) was the principal “entity” affected.
The reasoning behind the defunding law is threefold. First, because PPIN did not strictly segregate its Medicaid receipts, there was no other way for Indiana to avoid violating the Hyde Amendment, which requires states administering Medicaid to make sure that no federal funds go for elective abortions. Second, even if PPIN kept better books, a complete defunding would still be one way to fully comply with Hyde. Otherwise Medicaid payments for non-abortion services would inevitably defray some of the overhead costs of doing abortions. Third, states are constitutionally entitled to value childbirth over abortion, and to morally stigmatize abortion as undesirable and even wrong. (This is the value judgment behind the Hyde Amendment itself.) Eliminating state subsidies to the state’s biggest abortion provider is one important way to express that value judgment.
The defunding provision went into effect immediately. Within minutes (literally), PPIN sued to force continued Medicaid funding. The next day (May 11), federal district judge Tanya Walton Pratt denied PPIN’s request for a temporary restraining order. Late last Friday night, however — and just as PPIN’s donations to continue Medicaid services ran out — Judge Pratt enjoined the defund law. The Medicaid spigot is now back on for PPIN.
Chalk one up for the Obama administration — for it was the Obama administration that effectively decided the case for Judge Pratt. She all but conceded that Indiana (very ably represented in this case by Solicitor General Tom Fisher, working at the direction of Attorney General Greg Zoellers) had the better of the legal argument about the state’s authority to decide who, or what, counts as a “qualified” Medicaid provider. As well Judge Pratt should concede: There is no doubt that Indianan had the better case. What Indiana lacked was political muscle.
The difference-maker was not anything the Indiana Civil Liberties Union lawyer or Planned Parenthood argued. The deciding factor — as, again, Judge Pratt practically conceded — was the intervention of HHS secretary Kathleen Sebelius. Her deputy in charge of Medicaid, Donald Berwick, publicly announced on June 1 (during the pendency of the plaintiffs’ motion for an injunctive relief) that HHS “rejected” Indiana’s law. And this rejection decided the case for Judge Pratt.
This intervention was transparently political. Sebelius (through Berwick) adopted a novel and highly controversial reading of the Medicaid law, an interpretation which seems to be based not in law but on pro-choice ideology. Moreover, HHS’s reasoning in support of this novel conclusion (and Judge Pratt’s reasoning in turn) traffics in familiar emotional totems, as well as the usual freedom-of-choice and not-discriminating-against-a-Medicaid-provider-because-of-the-range-of-services-it-provides rallying cries, all of which are meant to obscure the presence of an unwrapped ukase. Then there’s the timing. Berwick’s intervention hijacked a settled, intricate process whereby disputes of this sort (between a state administrator of Medicaid and the federal manager of Medicaid funds) are vetted and eventually resolved. Just to emphasize the point, the Justice Department intervened too, at the eleventh hour, making plain the administration’s investment in the outcome.
Judge Pratt recognized that Berwick’s intervention was, shall we say, odd and very provisional. But she did not resist it. Truth be told, she did not try to. Judge Pratt wrote: “Even though [Berwick’s] letter was only the opening salvo in a potentially longer battle, it is still binding in the sense that it is the position of the federal government.” Well, sort of: It’s a “position” all right, but what is its legal force, its standing as an authoritative declaration of what the Medicaid law requires? Especially when 28 U.S. senators (including Orrin Hatch and John McCain) have published a letter expressly adopting Indiana’s reading of its authority under the Medicaid statute? It is not binding (Judge Pratt’s emphasis) at all.
Judge Pratt’s reply to this challenge (made in different words by Indiana’s lawyers) was this: “To use a sports metaphor, just because the final buzzer has not yet sounded does not mean the court must avert its eyes from the scoreboard”.
Well, the Obama administration got the result it wanted in the PPIN litigation, which is the result its abortion constituency wanted. The Obama administration also provided Judge Pratt the cover she needed to reach the result which, as far as one can tell, she wanted. What no one got in this case was a truly independent judiciary willing to speak truth to power.
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