2 abortion clinics in Arkansas ask judge to halt state's block on funds

Arkansas' Planned Parenthood clinics, whose Medicaid funding was recently cut off in response to a federal appeals court ruling in November, are asking a federal judge to block the cutoff again, as she did in 2015 and 2016, but this time on different grounds.

In 2015, U.S. District Judge Kristine Baker of Little Rock issued an injunction that blocked the state from cutting off Medicaid funds for three unnamed women who sued over a cutoff announced in August of that year. Then in 2016, after granting class-action status to the lawsuit, Baker expanded the injunction to cover all Medicaid patients in Arkansas.

But last Aug. 16, a divided three-judge panel of the 8th U.S. Circuit Court of Appeals at St. Louis vacated both injunctions. Then on Nov. 13, the appeals court refused to revisit the panel's decision that Arkansas can discontinue Medicaid funding to Planned Parenthood. Gov. Asa Hutchinson ordered the termination of the state's Medicaid contract with Planned Parenthood in 2015, after anti-abortion activists released secretly recorded videos that claimed to show unethical behavior by Planned Parenthood affiliates in other states.

In granting the previous injunctions, Baker said Medicaid patients have a right, under federal law, to be free from government interference with the choice to receive family planning services. She said the discontinuation of funds was disruptive to Medicaid recipients' relationship with their chosen provider. The 8th Circuit disagreed with Baker that the federal Medicaid Act allows individual recipients a right to sue over their choice of any qualified provider.

The services at issue didn't include abortion, because the law already prevented Medicaid from paying for abortions in Arkansas. The services that Medicaid covered included family planning and preventive health services, to both men and women.

In a memorandum filed Friday asking Baker to consider an injunction based on the constitutional claims in the lawsuit, attorneys for Planned Parenthood argued that the 8th Circuit didn't consider whether the state likely violated the Medicaid Act, "but reversed solely because it found that individual Medicaid beneficiaries ... have no private right of action to enforce their Free Choice of Provider rights."

"Plaintiffs therefore now move for preliminary relief on the alternative constitutional grounds pled in their complaint," the new motion states. "Based on substantially the same facts this Court found in granting Plaintiffs preliminary relief on their Free Choice of Provider claim, Plaintiffs are likely to succeed in showing that [the state's] actions both violate the equal protection rights of [Planned Parenthood] and [the clinics' Medicaid patients in Arkansas], and unconstitutionally punish [Planned Parenthood Great Plains] for the exercise of its constitutional rights."

The motion says the Arkansas clinics -- one each in Little Rock and Fayetteville -- and their patients will suffer "irreparable injury" without an injunction. It notes that the state previously said no preliminary injunction was necessary because even if the state's Medicaid contract with the clinics was severed, the clinics could continue providing services and then be reimbursed up to a year later if the court permanently ordered the state to keep providing Medicaid funding for the clinics.

But on Jan. 5, the state "made clear for the first time" that even if Planned Parenthood is willing to take that financial gamble, the state's position is that for as long as the cutoff remains in effect, "the patients would be unable to fill the prescriptions that result from those services, obtain needed test results, or see specialists for follow-up care."

The clarification left Planned Parenthood with "no choice but to stop providing services to patients insured through the Medicaid program, which irreparably harms [Planned Parenthood's] mission, reputation and business operations -- not to mention the harms it causes to the hundreds of low income Arkansans who rely on it for care," the motion states.

To prevent the harms and protect the rights of Planned Parenthood and its Medicaid patients, the court should again block the state from terminating the contract, the plaintiffs argued.

The state is expected to file a response to the motion, but hadn't done so as of Monday.

Metro on 01/23/2018