Appeals Court Rules Arkansas May Exclude Planned Parenthood From Medicaid Program

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LITTLE ROCK, Ark. — The Eighth Circuit Court of Appeals has ruled that officials in Arkansas may exclude the abortion and contraception giant Planned Parenthood from the state’s Medicaid program, overturning a lower court ruling issued nearly a year ago.

“We conclude … that Congress did not unambiguously confer the particular right asserted by the patients in this case,” Judge Steven Colloton, appointed to the bench by then-President George W. Bush, wrote on behalf of the 2-1 majority.

As previously reported, in 2015, Arkansas Gov. Asa Hutchinson directed the state Department of Human Services to terminate its Medicaid contract with Planned Parenthood. He said that the decision was influenced by the Center for Medical Progress’ video exposes outlining Planned Parenthood’s alleged harvesting and sale of aborted baby organs.

“It is apparent that after the recent revelations on the actions of Planned Parenthood, that this organization does not represent the values of the people of our state and Arkansas is better served by terminating any and all existing contracts with them,” Hutchinson outlined in a statement. “This includes their affiliated organization, Planned Parenthood of Arkansas and Eastern Oklahoma.”

But Planned Parenthood opined that by revoking the agreement, states like Arkansas were aligning themselves with “extremists.”

“The politicians behind these reckless policies have allied themselves with extremists who will stop at nothing to end access to abortion—breaking laws, pushing misinformation, and violence and harassment of women and doctors,” it said.

It filed a federal lawsuit along with three anonymous plaintiffs, seeking an injunction against the state’s revocation of its inclusion in the Arkansas Medicaid program. U.S. District Judge Kristine Baker granted an injunction to the three specific complainants, but Planned Parenthood soon asked that the order be expanded to the entire state.

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In September 2016, Baker then again sided with the organization, opining that “harms” from excluding Planned Parenthood from the Medicaid program “would affect the patient class as a whole.” The state had argued that women will not suffer since there are other providers in the state that provide women’s health and reproductive services.

At the center of the case was a section of the federal Medicaid Act, which states that “any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required … who undertakes to provide him such services.”

The Planned Parenthood plaintiffs argued that this means they have the right to obtain services from whomever they wish and that the state’s exclusion of Planned Parenthood from the program deprives them of that right.

However, the Eighth Circuit concluded on Wednesday that “Section 1320a-2 does not show that § 23(A) of the Medicaid Act creates an enforceable right” intended by Congress in passing the law.

Yet, “[t]he lack of a judicially enforceable federal right for Medicaid patients does not mean that state officials have unfettered authority to terminate providers,” Colloton wrote.

“Medicaid providers whose contracts are terminated but who wish to continue providing services have an obvious incentive to pursue administrative appeals and judicial review in state court if the alternative avenue of recruiting patients to sue in federal court is not available. Providers and patients also may urge the Secretary to withhold federal funds from a state that fails to comply substantially with the condition of § 23(A).”

Planned Parenthood decried the ruling in a statement, claiming that “often without Planned Parenthood, patients would have nowhere else to turn for reproductive health care.”

“Medicaid patients deserve the right to choose their doctors and nurses, just like any other insured patient in our healthcare system,” said Aaron Samulcek, Planned Parenthood Great Plains Interim President and CEO. “PPGP health centers in Fayetteville and Little Rock will continue serving Medicaid patients while we find a path to affirm our patients’ rights to access healthcare when and where they need it. PPGP will leave no stone unturned.”

But Gov. Hutchison said that he is pleased the decision affirms states’ rights to determine which organizations should be included in the Medicaid program.

“I am pleased with the ruling of the Eighth Circuit today reversing Judge Baker on her injunction that blocked the state from proceeding,” he remarked. “The decision allows the state to proceed with the termination of Planned Parenthood as a Medicaid provider.”

“This is a substantial legal victory for the right of the state to determine whether Medicaid providers are acting in accordance with best practices and affirms the prerogative of the state to make reasoned judgments on the Medicaid program,” Hutchison stated.

“[T]he question is, should the state of Arkansas do business with an organization that aborts babies when they don’t need to,” Jerry Cox of the Arkansas Family Council also told reporters.

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