Tony Cook and Johnny Magdaleno, Indianapolis Star
Mon, October 17, 2022
A controversial U.S. Supreme Court case that Marion County’s public health agency is pursuing could make it easier for red states across the country to cut off funding for Planned Parenthood.
Although the case began as a dispute over alleged poor nursing home care, the sweeping nature of what the Health & Hospital Corp. of Marion County is asking the Supreme Court to do would have far-reaching repercussions.
Among them: Taking away a key legal tool that Planned Parenthood has used to beat back efforts to defund the organization in Republican-led states, including Indiana.
Health & Hospital, the public agency that operates the Marion County Health Department and the Sidney & Lois Eskenazi Hospital, wants the high court to ban private lawsuits over federal safety net programs like Medicaid. If justices agree, millions of beneficiaries would lose their ability to sue when state and local governments violate their federal rights or improperly withhold benefits.
More:Marion County agency wants SCOTUS to strip protections for millions of vulnerable Americans
But it’s not just individual recipients who would be prohibited from suing. Providers such as Planned Parenthood also would be barred from bringing lawsuits.
That prospect has led Republican states across the country to latch onto Health & Hospital’s case.
A successful legal strategy
For years, Planned Parenthood has successfully used a federal law passed after the Civil War to block efforts to ban the reproductive health care provider from receiving Medicaid funds because it provides abortions.
The law, known as Section 1983, allows citizens to sue when a state or local government violates their rights under federal law. Planned Parenthood has successfully used the law to file lawsuits against states that withhold Medicaid funds, arguing such bans violate the Medicaid Act’s guarantee that recipients can receive care from any qualified provider of their choice.
The first of those cases took place in Indiana.
Although Planned Parenthood was already barred from using federal funds to pay for abortions except in rare cases, Indiana lawmakers wanted to go further. In 2011, they passed a law preventing Medicaid recipients from accessing any health care services at Planned Parenthood clinics.
Planned Parenthood sued to stop the ban and won.
The lawsuit preserved access to Planned Parenthood’s health care services for about 9,000 patients who depend on Medicaid, said Rebecca Gibron, CEO for Planned Parenthood Great Northwest, Hawai‘i, Alaska, Indiana, Kentucky. Those services include cancer screenings, contraception and STD testing.
More:Law banning Planned Parenthood funding is invalidated
“Indiana’s previous attempt to block these patients from accessing family planning services at our health centers was not only rightly found to be unlawful by the courts but also dangerous and cruel, putting at risk our already underserved communities,” Gibron said in an emailed statement.
A ‘perfect opportunity’ to prohibit Planned Parenthood lawsuits
Indiana’s defeat didn’t deter other Republican-led states from trying to implement their own bans. With a few exceptions, courts have sided with Planned Parenthood.
Health & Hospital’s case now pending before the Supreme Court could change that dynamic. A ruling in its favor could prevent lawsuits like the one Planned Parenthood filed in Indiana.
That’s one reason why Indiana Attorney General Todd Rokita and 21 other Republican attorneys general have intervened.
Indiana Attorney General Todd Rokita speaks to about 100 supporters at the Indiana Statehouse who are against government mask mandates, Tuesday, Nov. 16, 2021, during Organization Day.
In a brief submitted to the Supreme Court, Rokita argues that Planned Parenthood’s lawsuit in 2011 interfered in a matter that should have been worked out between the state and federal health officials.
“Political accountability demands … that the federal government be the one to decide in the first instance both whether a material breach has occurred and what the proper remedy is — in short, to put its money where its mouth is,” the brief says.
Rokita’s views are likely to feature prominently in the case because Health & Hospital has granted part of its oral argument time to his office.
State officials from South Carolina have also filed a brief in support of Health & Hospital. That state’s governor, Henry McMaster, issued an executive order to cease any state payments for services provided at abortion clinics. The order was blocked, though, after Planned Parenthood successfully challenged it in court.
Health & Hospital’s case “presents the perfect opportunity” for the Supreme Court to clarify that lawsuits like the one Planned Parenthood filed against South Carolina should not be allowed because Congress has not explicitly authorized them, South Carolina argues in its brief.
Millions of dollars at stake
Even if the Supreme Court bans such lawsuits, Planned Parenthood could still try to sue based on other constitutional claims. The federal government could also intervene. But the organization’s most accessible and successful legal strategy for preserving access to its services for Medicaid patients would be thwarted.
Given that Indiana was the first state to ban Medicaid patients from using Planned Parenthood’s services — and the first state Planned Parenthood defeated in court — it is not surprising that Rokita and other Republican leaders have glommed onto the Health & Hospital case, said Sara Rosenbaum, a health law and policy professor at George Washington University.
“The state has been smarting from that ever since,” she said. “This is their retribution I suppose.”
More:Here's why Nancy Pelosi, Todd Rokita, Biden administration care about Indiana nursing home case
Federal health care programs are a key source of funding for Planned Parenthood. Last year, the organization received $633 million in government funding, according to the organization’s latest annual report. That’s about 37 percent of its total revenue. Most of that government funding comes from Medicaid and the Title X family planning program.
In Indiana, Planned Parenthood received about $1.68 million in Medicaid payments during the last fiscal year, according to the Indiana Family and Social Services Administration.
“If they can get the Supreme Court to knock out (Section) 1983 not just for nursing home beneficiaries, but more generally, then they can eliminate Planned Parenthood tomorrow,” Rosenbaum said.
Planned Parenthood isn’t the only provider who would be affected. For example, lawsuits from hospitals or other health care providers who claim their state governments improperly denied or delayed Medicaid payments would also be barred from suing in federal court for alleged violations of the Medicaid Act.
What’s next
The Supreme Court has scheduled oral arguments in Health & Hospital’s case for Nov. 8.
In the meantime, a coalition of liberal activists and advocates for low-income, elderly and disabled people are putting pressure on Health & Hospital to withdraw the case.
They are outraged that Health & Hospital, a Democrat-led public health agency, is teaming up with staunch anti-abortion opponents such as Rokita to scrap the legal rights of millions of vulnerable Americans, along with providers like Planned Parenthood.
The pressure has led several members of the Indianapolis City-County Council, which appoints two of Health & Hospital’s board members, to call on the agency to withdraw its Supreme Court case. At least two Democrats in the General Assembly ― Sen. Fady Qaddoura and Rep. Cherrish Pryor ― have also publicly called for a withdrawal.
Others in their party have criticized Health & Hospital’s pursuit of the case, but stopped short of demanding it retreat from the high court.
In a statement posted to Twitter, Congressman André Carson of Indianapolis said on Thursday he was “very concerned and disappointed to see a lawsuit filed that could make it harder for low-income patients to exercise their rights if they’ve been mistreated.”
Andre Carson, U.S. House of Representatives member, speaks at the national convention for the Young Democrats of America, held in Indianapolis, Friday, July 19, 2019.
“I am also concerned about the lack of community input, which is critical when a public agency is making such a critical decision,” he said.
Indianapolis Mayor Joe Hogsett, who appoints three of Health & Hospital's board members, broke his silence on the case last week when he told IndyStar the agency's Supreme Court petition was “a step too far.”
More:Mayor Hogsett says health agency went 'a step too far' with SCOTUS case, calls for change
So far, Health & Hospital has refused to comment publicly on the sweeping nature of its request. The agency’s board never held a public meeting or vote regarding the decision to petition the Supreme Court.
A spokesman for the agency did not respond to an interview request for this story. Nor did Rokita’s office.
Instead, he doubled down on his support for the case in a lengthy news release Friday.
“When individual beneficiaries bring unauthorized lawsuits to enforce federal grant conditions, they invite unelected federal judges to interfere with how state and federal officials carry out the jobs the public expects them to perform," he said. "The proper functioning of democracy requires that such judicial interference not occur unless Congress has expressly authorized it."
He concluded: “Our office is proud to fight for the fiscal integrity of the state when administering federal programs. We look forward to combining forces with the Marion County Health and Hospital Corporation to argue this case in the U.S. Supreme Court next month.”
Health & Hospital’s next board meeting is scheduled for Tuesday at 2 p.m. at Eskenazi Hospital. The board plans to discuss the case in an executive session prior to the meeting, but it’s unclear if it will discuss the case publicly or take any action.
Contact IndyStar reporter Tony Cook at 317-444-6081 or tony.cook@indystar.com. Follow him on Twitter: @IndyStarTony.
Call IndyStar courts reporter Johnny Magdaleno at 317-273-3188 or email him at jmagdaleno@indystar.com. Follow him on Twitter: @IndyStarJohnny.
This article originally appeared on Indianapolis Star: Supreme Court case could help red states defund Planned Parenthood
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