SADOW: The Fifth Circuit’s Medicaid Decision Is A Big Pro-Life Win

It sounds like great news: a U.S. Fifth Circuit Court of Appeals affirmed that federal law allows Louisiana and other states to cut off Medicaid funding to facilities “not qualified” under their regulations. However, the impact in Louisiana, particularly concerning abortion provision, is unclear, while directly affecting Democrat Gov. John Bel Edwards’ political future.

This week, the full Circuit held that Medicaid recipients of services had no cause of action in federal court to contest the decisions of Texas and Louisiana to withhold Medicaid reimbursement funding from Planned Parenthood. In the wake of 2015 revelations of body part-harvesting going on in the organization’s clinics – contested by it but, as the Circuit noted, demonstrably verifiable – both states declared the organization unqualified and would not reimburse for any Medicaid procedure. This would have meant denying the organization around $300,000 annually in Louisiana.

That has yet to happen, since the organization successfully garnered an injunction against that. With the Circuit’s decision, that denial now may proceed as it has in Arkansas, where a different circuit court upheld its cutoff. Five other circuits have ruled the other way, meaning a denied provider can rally Medicaid recipients to intervene on their behalf in federal courts, which would be expected to overturn state denials under another part the Medicaid statute that grants freedom of provider choice for recipients, in those states in addition to pursuing administrative relief in state executive and judicial forums.

Normally, a clash of circuits rulings would prompt Supreme Court intervention, which would occur if four of the justices concur in a case from one. Oddly, that didn’t happen when petitioned by the defendants from one of the circuits, which drew only the support of Assoc. Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas. In the dissent from the no-call, Thomas referred back to a previous Fifth Circuit ruling involving Louisiana, which mirrored the Texas case the Circuit decided.

This presents Planned Parenthood with a dilemma. Also a party to the case in Arkansas, there it didn’t appeal to the Supreme Court – which a year later denied review in the other case brought by defendants (the state of Kansas) – which costs it about $50,000 yearly. Perhaps had it known review wouldn’t have been granted for the other, it would have tried with its case. Its problem now is the Court has changed with the ascension of Assoc. Justice Amy Coney Barrett, who likely would vote for review and thereby trigger a hearing.

Notably, Chief Justice John Roberts voted against granting review, along with Assoc. Justice Brett Kavanaugh, who in his short time on the Court has displayed an unwillingness to have the Court consider the issue, perhaps as a way to distance himself from his contentious Court nomination process. Although Planned Parenthood doesn’t perform abortions in Louisiana, it does in Texas and makes the majority of its revenues from that. It has a pending application to open an abortion mill in New Orleans that it alleges the state has obstructed, but in light of this ruling it may walk away from that.

Roberts may have gone along with that dismissal to provide cover for Kavanaugh, as he has a history of siding with state regulations that have the effect of discouraging abortion. But if Barrett voted for review, neither could duck the issue. Thus, Planned Parenthood could lose it all by appealing: accept the recent ruling and a handful of states could deny it Medicaid funding, or lose an appeal enabling all of them do so, theoretically.

So, the ruling likely will stand for Louisiana. If so, Edwards will determine how its impact ripples through the state, by deciding whether to deny Planned Parenthood Medicaid funding as his predecessor intended.

Always careful to cultivate a pro-life image, nonetheless Edwards has come off as an uncertain ally. He has signed bills whose practical effect has been to limit abortion, but these always attracted almost, if not, unanimous legislator support and he knows to not to appear pro-life would have doomed his reelection chances and those for attaining any subsequent statewide office. Counterbalancing this was certain votes he took as a legislator and his unguarded remarks made in the context of a potential 2006 run for Congress that indicated support for abortion.

Were Edwards now to disavow the denial, not only might this not dissuade Planned Parenthood from trying to open the abortuary, but because of its strong association with abortion, the action would take on to many in the public – an impression certainly potential future opponents would encourage –an implicit air of supporting abortion. And, he would thrust an unwilling saleswoman into the controversy, Department of Health Secretary Courtney Phillips whose name is on the case just decided by the Circuit, as she headed the Texas equivalent at the time.

It comes down to this: Planned Parenthood probably will let the ruling go and ratchet back its efforts to license the New Orleans abattoir, in concert with Edwards likely maintaining the funding denial. That wins a small victory for pro-life Louisianans.



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