Judge Hears Final Arguments In Indiana Funding Law

By Dave Andrusko

Indiana Solicitor General Thomas Fisher

U.S. District Judge Tanya Walton Pratt of the Southern District of Indiana received final briefs Tuesday in a suit brought by Planned Parenthood of Indiana (PPI) against a new state law that denies state-directed funding for businesses and organizations performing abortions, except for hospitals or ambulatory surgical centers.

The lawsuit is separate from the offensive unleashed by the Obama administration against the measure, which was signed into law by Gov. Mitch Daniels on May 10. However the decision by  Dr. Donald Berwick, head of the Centers for Medicare and Medicaid Services, not to  approve changes to Indiana’s Medicaid plan was front and center.

Judge Pratt, appointed by President Obama, heard oral arguments June 6 and promised to rule by July 1. Yesterday, however, she suggested she might rule by Monday. PPI told Pratt that was the day they anticipated running out of donations that  PPI  says has funded care for Medicaid clients since the bill was signed into law by Gov. Mitch Daniels on May 10. According to published accounts, PPI would  lose $1.4 million of its funding if it chooses to continues to perform abortions.

Ken Falk of the American Civil Liberties Union, representing PPI, “argued the judge should defer to Medicaid Administrator Donald Berwick,” according to the Associated Press (AP). In a June 1 letter Berwick wrote Patricia Cassanova, the director of Indiana’s office of Medicaid Policy and Planning, that his agency would not approve changes to Indiana’s Medicaid 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,” Berwick said. “Such a restriction would have a particular effect on beneficiaries’ ability to access family planning providers.”

Indiana Solicitor General Thomas Fisher, “in his final, eight-page brief filed Monday, said Berwick’s letter was ‘merely the first step’ in a lengthy process that could last months over whether Indiana can legally disqualify Planned Parenthood,” reported AP’s Ken Kusmer. (You can read Fisher’s brief at http://indianalawblog.com/documents/chevronresponseState6-14-11.pdf)

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.”

A major contention in the lawsuit was that vitally important health services would be unavailable, a contention vigorously denied in and out of court.  For example, in a prior brief Fischer told the Court 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.”

Indiana Congressman Marlin Stutzman pointed out that “Indiana Family and Social Services Administration identified approximately 800 provider locations that will still provide non-abortion, health and family planning services under the new law.”  Stutzman added, “I take it very seriously when any administration tells a State that it cannot administer its own programs. Health and Human Services should respect the will of Hoosiers who simply ask that their tax dollars do not subsidize an entity that maintains an abortion clinic.”

Planned Parenthood is the recipient of an enormous amount of state and federal money. According to Planned Parenthood Federation of America’s annual report for 2008-2009, which reported over $1 billion in revenues, the amount it received in “Government Grants & Contracts” has grown from $165 million in 1998 to $363.3 million in the organization’s fiscal year ending June 30, 2009.

During the same time, and at roughly the same rate, abortions have more than doubled at Planned Parenthood, from 165,509 in 1998 to 332,278 in 2009. With just over 1.2 million abortions performed annually nationwide, abortions done in Planned Parenthood clinics account for more than 25% of the national total.

“Using the average estimates for the cost of a first-trimester abortion ($451), Planned Parenthood clinics derived more than one-third ($149.9 million) of their reported $404.9 million in clinic income from abortions in 2008-2009,” National Right to Life President Carol Tobias noted.

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