HHS: Planned Parenthood Defunding by States Illegal

This comes in the important news that fell through the cracks category from last week. The Department of Health and Human Services just sent a strong message to culture warriors in state houses: No screwing with Medicaid to de-fund women's health care services. You see, Republican legislatures and governors, in their culture warrior true form, are likely violating federal law by trying to deny Medicaid funding to Planned Parenthood. And HHS made that very clear to Indiana, after its governor and former Bush budget director Mitch Daniels signed a regressive, culture-warrior law denying all Medicaid funding to any provider that performs legal abortion services, even though the abortion services are not funded by any government funding. HHS, in essence, ordered Indiana to shape up:
In a letter sent to Indiana's Medicaid director, Medicaid Administrator Donald M. Berwick said Indiana's plan will improperly bar beneficiaries from receiving services. Federal law requires Medicaid beneficiaries to be able to obtain services from any qualified provider.

"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," Berwick wrote in a letter to Patricia Cassanova, the director of Indiana's office of Medicaid Policy and Planning. "Such a restriction would have a particular effect on beneficiaries' ability to access family planning providers."
Of course, Administrator Berwick pointed out that Republicans in Indiana decided to screw with federal law, knowing full well that their assault on women's health care and family planning would not be legally tolerable. In fact, Indiana's own legislative services agency that what they were about to do would not pass legal muster.
"We assume this decision is not unexpected," Berwick wrote. "As the Indiana Legislative Services Agency indicated in its April 19, 2011, fiscal impact statement, ‘While states are permitted to waive a recipient's freedom of choice of a provider to implement managed care, restricting freedom of choice with respect to providers of family planning services is prohibited.'"
At the same time, HHS warned other states not to try it.

The ACLU and Planned Parenthood are advancing a lawsuit on a parallel track, asking a judge to decide once and for all that a women's constitutional right to medical services, including abortion, is meaningless if providers are not allowed to perform it, or if providers are prevented from receiving any funding even if they are not using that funding for abortion services. The judge in the case has promised a ruling within two weeks.

The big argument from the Right - other than Jon Kyl's not-intended-to-be-factual statements - on this, of course, is that money is fungible. The argument goes something like this: if you provide federal funding to an entity that provides abortion services, then it frees up other moneys they would have used for the services that the federal/state funding is paying for, and then they can use the freed up money for abortions instead. Therefore, no government funding should go to any organization providing abortion services. This was essentially the same argument they used when they tried to slip the Stupak amendment into federal health reform.

It would be a powerful argument, if it were an honest one. The same culture warriors and the religious wrong that make this argument also fall over themselves to argue that government should fund community services provided by Churches and religious institutions, so long as that funding is not used to proselytize and so long as the programs they are funding follow federal/state guidelines. Well, ok, so they don't care about the guidelines part so much, but you get the point. But isn't Church money fungible? Doesn't government funding for some programs free up the money the Church would otherwise spend on that program and instead enable its use for proselytizing?

The fact is that that is not how government funding works, and it wouldn't be practical for it to work that way. You can take this argument down to something very absurd: if you receive a federal tax credit - let's say the mortgage interest deduction or even your standard deduction - it makes you have more money, which you can donate to your Church, which they can use to proselytize (or money can use to pay for an abortion you need). Therefore, you should not get any tax deductions if you go to Church or have ever sought family planning services or contraceptives.

The unprecedented Republican political assault on a women's medical privacy and freedom has reached new heights as "jobs" and "fiscal responsibility" Republicans candidates of 2010 have turned into culture warrior Republican office-holders in 2011. The only thing, it seems, that is standing in the way of that assault is the Obama administration. The Obama administration has now indicated that it's ready for a fight, and that it won't let states get away with fighting their culture wars through Medicaid. This administration will protect women's health care services and women's health care providers from predatory states.