Federal Judge Hears Attorneys in Suit Challenging New Indiana Law

By Dave Andrusko

Judge Tanya Walton Pratt

Federal District Judge Tanya Walton Pratt heard arguments this morning on a Planned Parenthood request for an injection to stop a new Indiana law that denies state-directed funding for businesses and organizations performing abortions, except for hospitals or ambulatory surgical centers. Judge Pratt said she would rule by July 1.

Judge Pratt gave Indiana Solicitor General Thomas Fischer and Ken Falk of the American Civil Liberties Union (which is representing Planned Parenthood) ten days to file additional written arguments in the case.

Indiana Gov. Mitch Daniels signed the measure into law May 10, which triggered a legal suit by Planned Parenthood of Indiana and veiled threats from the Obama administration.

In a brief, Fischer’s office argued that “the woman’s right to obtain an abortion and to receive Medicaid benefits are completely unaltered. She can simply seek out another provider. All the new law does is ensure that, indeed, taxpayer funds do not indirectly subsidize abortion.”

In court today the ACLU “said the state has no right to disqualify the organization from the Medicaid program just because it performs abortions,” according to the Associated Press (AP). In the 90-minute hearing the heavy hand of the Obama administration was clearly on display.

Last week Medicare and Medicaid Administrator Donald Berwick wrote Patricia Cassanova, the director of Indiana’s office of Medicaid Policy and Planning, that the CMS would not approve changes to Indiana’s Medicaid plan because “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.”  He added, “Such a restriction would have a particular effect on beneficiaries’ ability to access family planning providers.”

The Obama administration is 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.” Berwick wrote that the state had sixty days to appeal CMS’s decision.

Over the weekend Falk told the Indianapolis Star that he hoped Berwick’s decision will have an impact. “Obviously one of the things we’re trying to demonstrate to the court is that this violates federal law.”

The law “would cut off about $1.4 million in Medicaid funds to Planned Parenthood, but Falk and Fisher agreed that as much as $5.3 billion in Medicaid funds to the state could be at risk since Medicaid Administrator Donald Berwick rejected changes in Indiana’s state Medicaid plan brought on by the law,” the AP reported.

“Does that make you nervous?” Judge Pratt asked Fisher this morning. “Of course it does,” he replied.

Pratt initially rejected a request by Planned Parenthood for a temporary injunction to block enforcement of the law. To secure an injunction Planned Parenthood “must show it’s likely to eventually prevail in the case before Pratt will grant an injunction, and Falk said Berwick’s decision does exactly that,” according to the AP.

Sue Swayze, the legislative director for Indiana Right to Life, told the Star, “It is the right of the state to choose its vendors under Medicaid,” adding, “There’s no less dollars being spent, no dollars being removed, just changing providers. In fact, we don’t even have to change providers if Planned Parenthood would cease providing abortion.”

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