June 7, 2011 — Indiana Solicitor General Thomas Fisher argued in federal court Monday that a dispute over a new Indiana law should be resolved by government administrators rather than by the courts, the AP/Forbes reports. The law in question imposes new restrictions on abortion providers and blocks state grants and contracts to organizations that provide abortion services, specifically, clinics affiliated with Planned Parenthood of Indiana.
U.S. District Judge Tanya Walton Pratt is expected to rule on the case by July 1. She granted Fisher and Ken Falk -- an American Civil Liberties Union of Indiana lawyer representing PPIN -- 10 days to file additional written arguments (Kusmer, AP/Forbes, 6/6). She said the arguments should include their interpretations of past case law on whether the federal government's interpretation of federal law should trump other interpretations (Gillers, Indianapolis Star, 6/7).
Background on Case
Pratt previously rejected a request by PPIN and ACLU-Indiana to issue an immediate injunction to block enforcement of the measure. The funding ban took effect May 10. The law effectively prohibits Medicaid reimbursements for services provided in clinics affiliated with PPIN. For years, federal law has prohibited the use of federal Medicaid funds to pay for abortion services. Prior to enactment of the law, PPIN could receive reimbursement from Medicaid for the non-abortion-related services it provides.
To implement the new law, Indiana needed to amend its state Medicaid plan -- an action that requires federal approval. On June 1, CMS Administrator Donald Berwick sent a letter to Patricia Cassanova, director of Indiana's Office of Medicaid Policy and Planning, warning that "Medicaid programs may not exclude qualified health care providers from providing services that are funded under the program because of a provider's scope of practice." He continued, "Such a restriction would have a particular effect on beneficiaries' ability to access family planning providers." The Indiana law "would eliminate the ability of Medicaid beneficiaries to receive services from specific providers for reasons not related to their qualifications to provide such services," the letter said. Berwick added, "We assume this decision is not unexpected." The state has not said whether it will appeal the decision (Women's Health Policy Report, 6/6).
On Monday Pratt said, "Time is of the essence" in the case, noting that PPIN on June 20 expects to run out of donated funds it is using to offer non-abortion health services to Medicaid beneficiaries. Betty Cockrum, PPIN president, wrote in an affidavit filed Friday that if Pratt rejects the injunction, the organization will close seven of its 28 health center and lay off 24 employees.
To obtain the injunction, PPIN must demonstrate that it is likely to prevail in the underlying lawsuit against the state. Falk said Berwick's letter and a bulletin issued the same day by Cindy Mann -- director of the CMS Center for Medicaid, CHIP and Survey & Certification -- show that PPIN is likely to prevail in the lawsuit. The bulletin warns other states against replicating the Indiana law and reminds state officials that Medicaid programs may not exclude qualified health providers because they also provide abortion services.
The state argued that that by allowing payments to PPIN, Medicaid indirectly funds abortion, which it said violates federal law prohibiting the use of government funds for the procedure. The state also said Planned Parenthood's financial statements show that the organization commingles its Medicaid dollars with other revenues, suggesting that Medicaid might end up paying the electricity bill for rooms where abortions are performed, for example, Fisher noted. "We don't want state funds incidentally used to support abortions," he said (AP/Forbes, 6/6).
In addition, Fisher suggested that Planned Parenthood could remain eligible for Medicaid funding by spinning off its abortion clinics into separate corporate entities, the Indianapolis Star reports. "In Texas, Planned Parenthood does have separate forms for its abortion and other entities," he said. According to the Star, that suggestion "did not sit well" with observers on either side of the debate.
Fisher also presented arguments regarding a provision in the law that requires doctors to make certain statements to women seeking abortion services, including that fetuses can feel pain at or before 20 weeks of pregnancy, even though medical evidence does not support that assertion. Questioned by Pratt, Fisher said he has no evidence that fetuses can feel pain at 12 weeks or fewer -- when the vast majority of abortions occur. "Who knows where the science will take us?" he said. He argued that the provision does not violate free speech protections because doctors could make the statements and follow up with remarks about the patient's individual circumstances (Indianapolis Star, 6/7).