Federal Judge Grants Indiana PP Preliminary Injunction

By Dave Andrusko

Indiana Solicitor General Thomas Fisher

Three days after a federal judge granted Planned Parenthood of Indiana’s request for a preliminary injunction of a new state law that denies state-directed funding for businesses and organizations performing abortions, except for hospitals or ambulatory surgical center, the CQ Heartbeat is reporting this morning that the Indiana solicitor general is requesting a rehearing through the federal administrative appeals process of the Centers for Medicare & Medicaid Services’ rejection of the state’s plan.

“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,” CMS Administrator Dr. Donald Berwick had written 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.”

Judge Tanya Walton Pratt

Berwick upped the ante, broadly hinting that noncompliance could threaten the loss of billions in Medicaid money provided by the federal government–and that other states could face the same fate. “We’ve sent out a bulletin to all of the states notifying them of the finding in Indiana,” Berwick said. “And I expect that states will comply.”

Judge Tanya Walton Pratt, whose decision the state of Indiana is likely to appeal, cited the ruling by CMS administrator Donald Berwick in her decision, which was handed down Friday.

“Thus, denying the injunction could pit the federal government against the State of Indiana in a high-stakes political impasse,” Pratt wrote. “And if dogma trumps pragmatism and neither side budges, Indiana’s most vulnerable citizens could end up paying the price as the collateral damage of a partisan battle.”  (As bioethicist Wesley Smith keenly observed, “So, she chose which side’s ‘dogma’ should prevail.”)

Marcus Barlow, a spokesman for the state’s Family and Social Services Administration, “said that while the injunction is in effect, Planned Parenthood will be able to provide services and apply for Medicaid reimbursement as it did previously,” the New York Times reported on Friday.

Today, “It’s business as usual at all of our health centers,” said Kate Shepherd, spokeswoman for Planned Parenthood of Indiana.

Meanwhile, according to CQ Heartbeat, if CMS denies its rehearing request, Indiana Solicitor General Thomas Fisher’s office says the state will appeal Pratt’s decision to the Seventh U.S. Circuit Court of Appeals.

“The state contends that the administrative appeals process the federal government set up is where the dispute over Medicaid funding should be decided — and not in a lawsuit filed by a private provider in federal district court,” the office wrote in a statement.

Fisher wrote in a brief that the law “is not targeted at managed care organizations, nor is it directed at family planning choice,” adding, “It is targeted at preventing indirect subsidy of abortions, which Congress expressly excludes as a form of ‘family planning’ payable by Medicaid.”

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