Arkansas' solicitor general objected Friday to a request that a federal judge speed up her consideration of a request to grant class-action status to a lawsuit over Medicaid funding of Planned Parenthood services.
On Monday, the three "Jane Doe" plaintiffs in a federal lawsuit challenging Gov. Asa Hutchinson's discontinuation of Medicaid funds for Planned Parenthood patients asked to amend the suit into a class-action lawsuit, making them the class representatives for perhaps hundreds of Arkansans.
But in a telephone conference that U.S. District Judge Kristine Baker held Friday, Lee Rudofsky of the state attorney general's office said there are too many questions about the plaintiffs' ability to represent the proposed class to allow the judge to decide at this point whether the suit should proceed as a class action.
He said the judge should first give the state time to conduct discovery, the process of gathering information, at least as far as finding out more details about the three plaintiffs for whom the judge granted a preliminary injunction one week earlier. The injunction prevents the state from discontinuing Medicaid funding of the three women's Planned Parenthood services "until further notice."
The injunction took into account a federal law that allows Medicaid patients to choose the provider of their choice. But the lawsuit, for which the three women and Planned Parenthood of the Heartland are now seeking class-action status, also involves constitutional questions: specifically, whether the governor's decision to eliminate Medicaid funding for Planned Parenthood services violates the women's rights under the First and 14th amendments to the U.S. Constitution. The plaintiffs said the defunding penalizes them for their constitutionally protected association with Planned Parenthood and singles them out for unfavorable treatment.
The constitutional issues haven't been aired yet before the judge.
Jennifer Sandman of New York, an attorney for Planned Parenthood, noted during Friday's telephone conference that there is no injunction in place for other Medicaid recipients in Arkansas who choose to use Planned Parenthood services, leaving them without a way to pay for family planning services unless they go to another provider where wait times can be considerably longer and where not all the services are provided under one roof.
Despite her argument in favor of the judge deciding the class-action request urgently, Rudofsky objected in a written response Tuesday to what he called "a shotgun motion for class certification." He objected to "what appears to be Plaintiffs' attempt to jam through class-certification and avoid the 'rigorous analysis' that the Eighth Circuit," the federal appellate court for Arkansas, "requires of class certification."
He argued that "class certification is supposed to be an important determination made after allowing both sides a full and fair opportunity to contest the issue."
The solicitor general told Baker on Friday that he has concerns about the adequacy of the plaintiffs, whose identities are confidential, to represent an entire class of Arkansans who are insured by Medicaid and use Planned Parenthood services. He said he also has concerns about whether their situations meet the "typicality requirement" to represent the class, and whether they have enough knowledge and familiarity with the issues in the case to ensure that they aren't just straw plaintiffs to allow attorneys to pursue their personal concerns.
Later in the day, Baker allowed the plaintiffs to amend their complaint to include class-action allegations, but she took "under advisement" the issue of whether she will allow limited discovery or require further testimony before deciding whether to grant the case class-action status.
Hutchinson's order to cut Medicaid funding for Planned Parenthood services came after the anti-abortion group Center for Medical Progress released edited clips of conversations among Planned Parenthood executives and staff members in other states discussing how much money the organization would receive for providing fetal tissue for medical research. Fetal-tissue donations aren't allowed in Arkansas, and according to Sandman, have been done by only two of the 60 Planned Parenthood affiliates across the country.
Planned Parenthood of the Heartland, the affiliate that operates one clinic in Little Rock and another in Fayetteville, is a plaintiff in the case before Baker along with the three "Jane Doe" plaintiffs. The affiliate also operates 17 clinics in Iowa, Nebraska and Eastern Oklahoma.
Metro on 10/10/2015