Constitution Check: Cutting funding for Planned Parenthood

Lyle Denniston, the National Constitution Center's constitutional literacy adviser, looks at how the funding controversy surrounding Planned Parenthood could be on a path to the Supreme Court.

The statements at issue:

"As governor, I disagree with the Federal Court's decision. Ethical conduct by Medicaid providers is a relevant factor for the state to consider…. It is disappointing that a judge appointed by President Obama does not give sufficient weight to the morally repugnant conduct of Planned Parenthood displayed in a series of recently released videos."

 – Excerpt from a statement by Arkansas Gov. Asa Hutchinson on Sept. 19, after a federal judge in Little Rock temporarily barred the state from cutting off all state Medicaid funds to a Planned Parenthood affiliate that operates reproductive care clinics in Little Rock and Fayetteville.

"This ruling comes on the heels of federal courts blocking similar efforts across the country. To date, two federal courts of appeals, the Seventh and Ninth Circuits, have blocked similar laws enacted in Indiana and Arizona, and the Supreme Court declined to review both of those rulings."

 – Excerpt from a statement on Sept. 19 by Rita Sklar, executive director of the American Civil Liberties Union of Arkansas, which represented the clinics involved in the new ruling on the state's move to end state funding of those facilities.

We checked the Constitution, and…

When the federal government joins with state governments in a cooperative program to provide a kind of service to individuals, such as health care, the Constitution imposes different limits on the two levels of government if they seek to stop paying for that service, especially if they do so for clearly political reasons. The roiling new controversy over attempts to end public funding for Planned Parenthood may test both of those kinds of limits.

The federal-state Medicaid program is, and has been for years, a major source of funding for some of the pregnancy-related care that Planned Parenthood provides, and it is at the center of the new controversy. Since 1977, however, no part of Medicaid money can be paid for performing abortions, and that congressionally mandated denial (the so-called "Hyde Amendment") was upheld by the Supreme Court in 1980.

The Medicaid program primarily pays for medical services for the poor, and the loss of funds from that source, Planned Parenthood has argued, would seriously curtail its capacity to continue to provide any care for its most needy patients.

Medicaid funds have continued to flow from both federal and state treasuries to Planned Parenthood for services other than the ending of pregnancies. Planned Parenthood has relied upon private funds to finance abortion procedures. In recent years, however, there has been a spreading movement among state governments to cut off remaining Medicaid funding, on the theory that it has the effect of facilitating abortions because it frees clinics to use other funds for abortions.

That movement has gained new momentum, and it is now matched by a similar effort in Congress to stop funding Planned Parenthood in any way, after the public release of underground videotapes that an anti-abortion group made, showing what that group describes as images of clinic staff members discussing the salvaging of fetal tissue from abortions for use in medical research. Republican presidential candidates have picked up on that challenge, too, and it was a vivid feature of last week's televised debate.

Just as it did in passing the Hyde Amendment, Congress does appear to have at least some authority to cut off Medicaid funds in this way. If the current Congress does enact such a denial for Planned Parenthood (and the chances of that seem slim, at least in the Senate), President Obama almost certainly would veto such a measure.

Should a future Congress succeed in adopting such a cutoff, Planned Parenthood has in reserve an argument that it has been making (not yet adopted by a court in its cases) that unconstitutional conditions cannot be attached to public funds – that is, a loss of funds is invalid if its specific purpose it to interfere with the exercise of a constitutional right, such as the right to abortion.

That is an argument that Planned Parenthood also has in its legal arsenal to use against the cutoff of state funding – including state Medicaid funds.

The organization, though, has had more success in challenging fund denials by state governments by using another constitutional provision: the Supremacy Clause of Article VI, in tandem with the language of federal Medicaid law. (The Supremacy Clause makes federal laws superior to conflicting state laws or regulations.)

That argument succeeded last week, at least temporarily, in the first federal court ruling to emerge in the midst of the controversy stirred up by the release of the disputed videotapes about abortions and retrieving fetal tissues.

That case arose in Arkansas. In mid-August, Gov. Asa Hutchinson declared publicly that the release of those tapes showed that Planned Parenthood "does not represent the values of the people of our state."  Other state officials then announced an end to the state's Medicaid contract with Planned Parenthood, to take effect within 30 days.

Planned Parenthood promptly went into federal court. Last Friday, it won an order temporarily blocking the cutoff, while its court challenge continues. U.S. District Judge Kristine G. Baker in Little Rock found that Planned Parenthood was likely to succeed in its legal challenge, on the theory that the Medicaid law gives patients served by it the right to choose a health care provider, and that takes precedence over any contrary state policy – unless there is proof that the provider had violated the terms of funding. The judge found no evidence of a violation by Planned Parenthood at its clinics in Arkansas.  Those clinics, she noted, are not engaged in any fetal tissue research activity.

Judge Baker relied in part upon the fact that the Supreme Court twice before, in 2013 and 2014, had refused to hear appeals by state governments seeking to end all state Medicaid funding of Planned Parenthood affiliates in Indiana and Arizona.

The new funding controversy surrounding Planned Parenthood is just beginning, but it is spreading, and it seems realistic to assume that it will end up in the Supreme Court.

Philadelphia's National Constitution Center is the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. Constitution Daily, the Center's blog, offers smart commentary and conversation about constitutional issues in the news, drawing insights from America's history and a variety of expert contributors.