The state must resume providing Medicaid funding for all patients who are insured by Medicaid and use Planned Parenthood services in Arkansas, U.S. District Judge Kristine Baker declared Thursday.
The order expands a preliminary injunction that has prevented the state from cutting off the funding for three women who are plaintiffs in a federal lawsuit.
The women, known only as Jane Does 1, 2 and 3, joined Planned Parenthood of the Heartland, which operates the state's two clinics in Little Rock and Fayetteville, in suing the state last September over Gov. Asa Hutchinson's defunding directive.
Hutchinson cited videos that a national anti-abortion group released in July 2015 claiming to show that some Planned Parenthood clinics in other states had profited from the sale of fetal tissue after abortions. However, Planned Parenthood said the videos were heavily edited to misrepresent the situation, and a grand jury in Houston later indicted the video-makers on tampering charges.
[DOCUMENT: Read the judge’s order]
In Arkansas, Medicaid funds already couldn't be used to pay for abortions. Hutchinson's directive prevented the use of Medicaid funds for any services that beneficiaries of the federal- and state-funded insurance program sought at the Arkansas clinics, including well-woman exams, cancer screenings, testing and treatment for sexually transmitted infections, HIV testing and risk reduction counseling, Food and Drug Administration-approved birth-control methods, pregnancy testing and options counseling, and other preventive health services.
"This is a win for the Arkansans who rely on Planned Parenthood of the Heartland for birth control, cancer screenings and other essential health care," the provider announced Thursday, shortly after Baker filed the order.
"Every person deserves access to quality, affordable health care from the provider they know and trust, and today, the court recognized that," said Suzanne de Baca, chief executive officer of the Heartland affiliate. "For our patients, it's not about politics. It's about their health, and about going to the health care provider they know and trust. Gov. Hutchinson has no business telling Arkansas women where they can and cannot go for essential care."
At Arkansas Attorney General Leslie Rutledge's office, which is defending the state in the lawsuit, Rutledge spokesman Judd Deere said, "Attorney General Rutledge is disappointed with Baker's decision. Her order unfortunately allows Planned Parenthood to continue to use its patients to pad its bottom line at taxpayers' expense. Thankfully, the ultimate issues in this case will be decided by the Court of Appeals."
Deere was referring to the 8th U.S. Circuit Court of Appeals in St. Louis, which last week heard oral arguments on whether the preliminary injunction applying to the three women should stand.
The state's solicitor general, Lee Rudofsky, argued at the St. Louis federal courthouse that the state had the right to discontinue Medicaid funding to a particular provider for ethical reasons. Jennifer Sandman, an attorney for Planned Parenthood, argued that the state's basis for defunding the services violates federal Medicaid laws.
Rudofsky also argued that the plaintiffs should have exhausted administrative appeals at the state level before taking the case to federal court. Sandman noted that the state never cited any wrongdoing by the regional Planned Parenthood affiliate, so there was nothing to appeal at the state level.
A three-judge panel said it would issue a ruling "in due time."
Medicaid patients who obtain Planned Parenthood services in Arkansas have been treated for free while the issues in the lawsuit are pending, but the provider has said it cannot continue to provide services for free if the injunction is vacated, as the state has requested. The state has argued that the provider may be able to seek reimbursement for services within a year of providing them, depending on the outcome of the lawsuit. But Baker noted in her order Thursday that the one-year reimbursement period that began with her issuance of the preliminary injunction ends on Saturday.
Planned Parenthood and the American Civil Liberties Union of Arkansas, which is supporting the lawsuit, are hopeful that a Sept. 14 ruling by the 5th U.S. Circuit Court of Appeals in Atlanta is a good indicator of how the 8th Circuit, which legal observers regard as less conservative than the 5th Circuit, will rule. The 5th Circuit affirmed a preliminary injunction issued by a federal judge in Louisiana that prevented the state from terminating a Planned Parenthood affiliate's access to the Medicaid program.
"Everyone deserves access to care and the opportunity to control their own reproductive health," Rita Sklar, executive director of the ACLU of Arkansas, said Thursday. "The high-quality reproductive health care Planned Parenthood provides is vital to the communities they serve, especially here in Arkansas which has the highest teen pregnancy rate in the nation, contributing to the fact that nearly 1 in 5 people live below the federal poverty level."
Planned Parenthood noted in its news release that earlier this year, the Centers for Medicare and Medicaid Services issued guidance to lawmakers in all 50 states, "once again making it clear that recently politically motivated efforts to block Planned Parenthood patients from accessing care through Medicaid violates long-standing federal law."
The two Planned Parenthood clinics in Arkansas serve about 4,400 patients a year, and "a significant proportion of these patients in Arkansas receive this care through Medicaid," the provider said.
Medicaid paid about $51,000 for services at the two Arkansas clinics in the fiscal year that ended in 2015, according to court documents.
Baker granted class-action certification to the case on Jan. 25, with the class consisting of "patients who seek to obtain, or desire to obtain, health care services in Arkansas at PPH through the Medicaid program."
Her ruling Thursday applies the preliminary injunction to the entire class, protecting all Planned Parenthood patients in Arkansas who are covered by Medicaid from being affected by the state's defunding order. The injunction applies "until further notice," or until the merits of the lawsuit are decided.
In extending the injunction, Baker noted that the plaintiffs have said that without it, they would lose access to services, lose their provider of choice, have their family planning services interrupted and would be left with few or no adequate alternative providers. Planned Parenthood also said it might be required to lay off staff members or reduce services.
She noted that since the preliminary injunction applying to the three women took effect on Oct. 2, 2015, Planned Parenthood hasn't reduced its services, hours or staffing.
She cited the plaintiffs' reports about calls made to other clinics in the state seeking appointments for Medicaid patients. The Little Rock Family Practice Clinic, which has two locations in Little Rock and provides services similar to Planned Parenthood's, said it wasn't accepting Medicaid patients. A private clinic said Medicaid patients seeking birth control must have a referral from a primary care physician.
Two Arkansas Department of Health clinics said they didn't provide birth-control services on a walk-in basis and that patients must have a pelvic exam before obtaining birth-control pills. A third said it didn't offer birth-control services, the order noted.
Baker noted that Medicaid patients have a right, under federal law, "to be free from government interference with the choice" to receive family planning services. She said that just as she had found that the discontinuation of Medicaid funding is disruptive to the three women's relationship with their chosen provider, the entire class would be affected by being deprived of access to Planned Parenthood's services, as well as its "flexible and convenient scheduling."
Metro on 09/30/2016