After hearing arguments Thursday about whether the state can legally withhold Medicaid funding from Planned Parenthood clinics in Little Rock and Fayetteville because of concerns about "unethical" actions by clinics in other states, a federal judge took the matter under advisement.
U.S. District Judge Kristine Baker said she will issue a written order on whether to grant a temporary injunction that would require the state to keep providing the funding for at least 14 days. She didn't say when she will issue the ruling.
If she grants the injunction, she may then hold a second hearing on a request for a preliminary injunction -- a longer-term temporary solution until the merits of a lawsuit filed by Planned Parenthood of the Heartland can be decided.
The lawsuit was filed last Friday on behalf of three Medicaid patients who use the Little Rock clinic's services. They are identified only as Jane Doe 1, Jane Doe 2 and Jane Doe 3. The patients are challenging the legality of a directive from Gov. Asa Hutchinson that prompted the state to notify the clinics Aug. 14 that its Medicaid provider agreements would be terminated in 30 days.
The 30 days expired Sunday, but the termination won't begin affecting patients until Monday because of previously scheduled staff training and clinical vacations.
Hutchinson said in an Aug. 14 news release that he directed the state Department of Human Services to terminate the agreements because it "is apparent 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 contacts with them."
The governor was referring to edited video clips, released by the anti-abortion group Center for Medical Progress, of conversations between Planned Parenthood executives, doctors and staff members in other states about how much money the organization would receive for providing various fetal body parts for medical research.
Jennifer Sandman, an attorney for Planned Parenthood Federation of America in New York City, told the judge Thursday that each of the 60 Planned Parenthood affiliates across the country are independent organizations with separate boards of directors, finances and decision-making procedures, though all agree to common principles. She said Planned Parenthood of the Heartland operates the two Arkansas clinics as well as clinics in Nebraska, Iowa and Oklahoma.
She said the videos, which were heavily edited to be misleading, don't have anything to do with the Planned Parenthood clinics in Arkansas, which have "never engaged in" fetal tissue donation.
"PPH in Arkansas does not even do abortions of the type that makes fetal donation possible," Sandman said, noting that the number of Planned Parenthood affiliates that donate fetal tissue is "very small." In fact, she said, there are only two such clinics.
Arkansas Medicaid doesn't pay for abortions except in extremely narrow circumstances, such as cases of rape, incest or when the mother's life is endangered. The lawsuit doesn't concern Medicaid reimbursement for abortion.
It contends that by discontinuing Medicaid funds from the clinics -- which provide birth control, breast and cervical cancer screenings, and other services -- the state is violating the Medicaid Act as well as the First and 14th amendments to the U.S. Constitution.
It says federal law -- specifically, Section 1396a(a)(23) of Title 42 of the U.S. Code, also known as the Medicaid Freedom of Choice Provision -- says Medicaid enrollees may seek family planning and other preventive health services from a participating provider of their choice and have those services covered by Medicaid, a state-administered federal health-care program for the poor.
The plaintiffs, it says, prefer Planned Parenthood to other Medicaid providers.
In a 320-page response filed Wednesday night to the plaintiffs' motion for a preliminary injunction, Arkansas' solicitor general, Lee P. Rudofsky, argued that the Department of Human Services terminated Medicaid funding for Planned Parenthood of the Heartland after determining the provider's practices don't conform to "professionally recognized standards for health-care in Arkansas." For that reason, he said, the provider agreements have been lawfully terminated.
But Sandman said the state doesn't appear to have a problem with the quality of Medicaid-covered services provided by the Planned Parenthood clinics.
An amended lawsuit filed Wednesday noted that the department's first notice about terminating Medicaid funding "gave no reason for the termination," although Hutchinson issued a news release providing the reason the same day. The amended complaint notes that the department later sent a second termination letter "purporting to terminate PPH's Medicaid agreements 'for cause.'"
The second letter says the "for cause" finding is "based in part upon troubling circumstances and activities that have recently come to light regarding the national Planned Parenthood organization, Planned Parenthood of the Heartland, and other affiliated Planned Parenthood entities, all of which are affiliated," and that "there is evidence that [PPH] and/or its affiliates are acting in an unethical manner and engaging in what appears to be wrongful conduct."
"This 'terminate first and ask questions later' approach is the opposite of a determination of wrongdoing," Sandman said Thursday.
Rudofsky said the plaintiffs will suffer no "irreparable harm" -- one of the requirements for being granted a temporary restraining order -- because they have up to 365 days to be reimbursed by Medicaid for services if Medicaid funding is restored. He also took issue with the plaintiffs' complaint that they would have to visit several different clinics and wait in long lines to find all the services offered by Planned Parenthood and covered by Medicaid, saying that doesn't constitute irreparable harm.
Sandman scoffed at the idea that waiting three hours for birth control isn't a problem, saying, "These are very real and immediate harms that would cause great disruptions" in people's lives.
When Rudofsky acknowledged that "not every provider provides every service that PPH does," Baker referred to an affidavit from a Department of Human Services deputy director that said other clinics provide "similar services." She asked, "How similar is it?"
Rudofsky directed her to data in the affidavit describing numbers of other clinics in the state that individually provide certain services.
He said, "We are not saying that every single family-planning clinic provides each of these services, but cumulatively ..."
"We think," Sandman argued, "that it is very important that patients have access to a full range of services."
She said they shouldn't have to go to more than one place to receive different services that they could receive in one visit to a Planned Parenthood clinic.
Rudofsky also argued that a recent U.S. Supreme Court ruling prevents the plaintiffs from pursuing a "private right of action" in disputes over Medicaid funding, though Baker said the ruling was "very fractured" and that she disagreed with his synopsis of it.
Rudofsky said Planned Parenthood hasn't administratively appealed the termination of Medicaid funding, which is a prerequisite to suing. But Baker noted that the appeals process isn't available to the Jane Does who are the plaintiffs, and Rudofsky agreed that was correct.
After the judge asked and Rudofsky confirmed that the first letter of termination was sent at the direction of the governor, the solicitor general argued, "Whether or not the state had the authority to send the 'for-convenience' letter, it was superseded by the 'for-cause' letter."
The state's response to the lawsuit includes transcripts of the videos that sparked backlash against Planned Parenthood across the country. Baker noted them, but said, "As a matter of course, I don't have anything in front of me to suggest that PPH ever engaged in this conduct."
Upon questioning from the judge, Rudofsky agreed that Arkansas law, in fact, prohibits fetal-tissue donation.
In addition to the national federation, which Sandman said offers legal services to all its affiliates, Planned Parenthood of the Heartland and the three women also are being represented by attorney Bettina Brownstein on behalf of the Arkansas Civil Liberties Union Foundation.
Metro on 09/18/2015