Three patients of Arkansas' two Planned Parenthood clinics have asked the full 8th U.S. Circuit Court of Appeals in St. Louis to reinstate an injunction that prevented the state from cutting off Medicaid funding for the clinics' services.
On Aug. 16, a divided three-judge panel of the federal appeals court vacated a 2015 injunction that kept the state from cutting off Medicaid funds for the three women and a 2016 expansion of the injunction that covered all Medicaid patients in Arkansas.
Both injunctions were issued by U.S. District Judge Kristine Baker in Little Rock in response to a lawsuit that was filed by the three anonymous women and later given class-action status to include as plaintiffs all Medicaid recipients in the state who use Planned Parenthood services. The lawsuit challenged Gov. Asa Hutchinson's Aug. 14, 2015, announcement that the state would terminate the clinics' Medicaid contracts in response to purported "unethical" behavior at Planned Parenthood clinics in other states that was reported by advocates against abortion.
The majority opinion undoing those injunctions was written by U.S. Circuit Judge Steven Colloton of Des Moines, Iowa, while U.S. Circuit Judge Bobby Shepherd of El Dorado issued a concurring opinion with a slightly different interpretation, and U.S. Circuit Judge Michael Melloy of Cedar Rapids, Iowa, issued a 10-page dissent saying he would have followed in the footsteps of other appellate courts in the country and affirmed Baker.
Planned Parenthood Great Plains, which operates the clinics in Little Rock and Fayetteville, said Thursday in a news release that the three women sought the "en banc" hearing "to protect their access to birth control, cancer screenings, STI [sexually transmitted infection] testing and treatment, and other preventive health care" at the Arkansas clinics.
The "en banc" court includes all 14 appellate judges in the 8th Circuit.
"In an extreme departure from every prior court to consider the issue," the provider said, the three-member panel issued a ruling "that would allow a dangerous law to take effect that would block access to care for Arkansas Medicaid patients who rely on Planned Parenthood for their health care."
It noted that so far, seven other states -- Alabama, Arizona, Indiana, Kansas, Louisiana, Mississippi and Texas -- have been blocked by federal judges from preventing Medicaid funds for being used for Planned Parenthood services.
"This has been affirmed by every other circuit court to consider the issue," the announcement said, naming the U.S. courts of appeal for the 5th, 7th and 9th circuits.
Planned Parenthood said it wanted to get the word out that it will continue to fight for health care access in Arkansas.
While state law had already prevented Medicaid funds from being used to pay for abortions, which Planned Parenthood provides in the form of medication-induced abortions only, the clinics also provide many other services. In addition to the services mentioned above, they provide a variety of preventive care to nearly 4,500 patients in Arkansas each year, a significant number of whom receive that care through Medicaid.
"There is already an unmet need for health care in Arkansas," the provider's news release said. "In 2014, 204,850 women in Arkansas were in need of publicly supported contraceptive services and supplies."
It quoted one of the plaintiffs, who had said in a declaration to the court that she works for a family business that cannot provide health insurance and that she uses hormonal contraception for birth control and to help with severe cramps and a history of ovarian cysts.
"Planned Parenthood is my only medical provider," the unnamed patient said. "I don't have a general physician. If I could no longer get reproductive health services at Planned Parenthood, I do not know where I would go or what I would do. I want to continue to get my care at Planned Parenthood, but if they could no longer accept Medicaid I could not afford to pay for these services out of pocket."
Aaron Samulcek, interim president and chief executive office of the Great Plains branch of Planned Parenthood, said, "Medicaid patients deserve the right to access care at a provider they know and trust, just like anyone else. Our doors are open today and will remain open as we continue to see Medicaid patients in Fayetteville and Little Rock and fight for them in court."
The reports of "unethical behavior" that Hutchinson cited in directing the state Department of Human Services to discontinue Medicaid funding claimed that some clinics profited from allowing patients to donate fetal tissue to medical research after abortions.
Planned Parenthood said Thursday, "To date, 13 states have concluded investigations" into those claims, "and officials in each one have cleared Planned Parenthood of wrongdoing; another eight states have declined to launch investigations, citing lack of evidence to substantiate claims of wrongdoing. A grand jury convened to look at Planned Parenthood in Texas found that Planned Parenthood did nothing wrong."
The 8th Circuit panel's majority opinion found that the plaintiffs don't have a judicially enforceable right under Section 23 (A) of the Medicaid Act to the provider of their choice. Shepherd said he agreed that the plaintiffs have a right to use the qualified provider of their choice without governmental interference but that he sees the right as much narrower -- that is, as a right to choose among a "range of qualified providers."
Melloy, the dissenter, said he believes that the Medicaid Act "unambiguously confers an individual right to Medicaid-eligible patients" and that under the targeted provision, states "must provide the free choice of providers" to Medicaid patients.
Medicaid is a state-administered health care program for the poor and disabled that is mostly funded by federal dollars.
Metro on 09/01/2017