Planned Parenthood wants the U.S. Supreme Court to block a last-ditch effort by the state to cut off its Medicaid funds.
In legal briefs filed late Tuesday, attorney Alice Clapman said there is no legal basis for arguments by Attorney General Tom Horne that Arizona can pick and choose who is legally qualified to provide family planning services.
She said federal law spells out that Medicaid recipients can choose where to get care as long as the doctor or medical staff is professionally qualified. And Clapman said the state has presented no evidence that anyone at Planned Parenthood fails to meet the standards.
But Horne insists that Arizona lawmakers are entitled to decide the mere fact that Planned Parenthood also performs abortions is reason to disqualify the organization from getting any state or federal money. He said those dollars can be used to effectively subsidize abortions.
That argument has not worked until now. In fact, Horne is petitioning for high court intervention because both a trial judge and the 9th U.S. Circuit Court of Appeals said the state's logic is flawed.
Both Arizona and federal laws already bar the use of public funds for abortions that are not medically necessary. But the state, as part of its participation in the federal Medicaid program, provides family planning services for needy women. The federal government pays 90 percent, with the state covering the balance.
Medicaid law also permits eligible women to choose from any qualified provider. And that has included Planned Parenthood.
In 2012, though, lawmakers amended law to say that any organization that also provides abortions cannot be a "qualified provider.'' Rep. Justin Olson, R-Mesa, who sponsored the legislation, said any money the government gives Planned Parenthood pay to for other expenses frees up funds for abortions.
In seeking Supreme Court review, Horne argued it's a question of state's rights for Arizona to decide who is qualified to provide family planning services. He said the 2012 law “reflects a public policy preference for childbirth over abortion and gives effect to Arizona's justifiably strong interest and recognizing the inherent difference of abortion from other medical procedures.”
Clapman, however, said the only role for the state is to decide if a provider is “medically qualified,” and she said that Arizona, in accepting federal dollars, has agreed to live by federal rules.
“So in this area, when we're talking about Medicaid funds, there is no role for them to impose external policy preferences on providers,” Clapman said. “They have to follow the Medicaid Act.”
That was also the conclusion of the 9th Circuit.
Judge Marsha Berzon, writing for the court, said accepting Arizona's argument would allow another state to contend that only doctors who perform abortions are entitled to Medicaid funding. Similarly, it would let states decide that Medicaid services could be provided only by osteopaths, nonsmokers or affiliates of the state's medical school “on the grounds that only doctors within that category are worthy of receiving Medicaid funds.”
Horne acknowledges that Arizona, in taking federal dollars, entered into a contract that requires the state to conform to federal rules. But he contends Arizona never knew that contract would allow the federal government alone to decide who is qualified to provide family planning services.
Clapman said that argument holds no water. “This freedom-of-choice provision has been in law for decades,” she said. Clapman said if it wasn't obvious to lawmakers in 2012, it should be obvious to them — and Horne — now. She noted a federal appellate court reached a similar conclusion that year about a nearly identical Indiana law, a decision the U.S. Supreme Court refused to review just last year.
It will be several weeks, if not longer, before the justices consider whether to agree to Horne's petition to review the 9th Circuit ruling.