Nearly two years after being rebuffed by the U.S. Supreme Court, Republican legislators are making a new bid to “defund” Planned Parenthood.
Senate President Andy Biggs said Friday he believes the organization is using the money it receives for providing family planning services to subsidize abortions. Biggs said the only way to keep that from happening is to ensure that Planned Parenthood gets no state dollars at all.
But 2012 legislation designed to do just that was slapped down by the 9th U.S. Circuit Court of Appeals. In a 32-page written opinion, the judges said Arizona cannot cut Planned Parenthood out of its Medicaid program simply because the organization also provides abortions paid for with other funds.
And in early 2014 the nation’s high court, without comment, refused to overturn that ruling.
But Biggs, who is an attorney, said he does not believe that ends the matter.
“There are ways to tighten up the language,” Biggs said. But the Senate president conceded he does not actually have anything drafted.
“We don’t have it quite nailed down yet.”
Bryan Howard, president of Planned Parenthood Arizona, said it really doesn’t matter what new version is being crafted by Biggs and state Reps. Eddie Farnsworth and Warren Petersen, both Gilbert Republicans.
He said the issue is settled law now that the courts have ruled. And Howard said no tweaking of the language will change that, any more than various unsuccessful efforts by Arizona lawmakers to impose new restrictions on abortions.
“They have a record of failing spectacularly at doing end runs on the U.S. Constitution and federal law,” he said. Howard pointed out that, in losing the last lawsuit on this subject, state taxpayers had to reimburse Planned Parenthood for $200,000 in legal fees.
Biggs said he also will sponsor another bill making the sale of fetal tissue illegal under Arizona law. At this point there is no such state law, with the sale of fetal tissue for profit a crime only under federal law.
The only state law on the subject makes it illegal to use a human fetus or any parts after an abortion for any medical experimentation or investigation.
Both measures come months after undercover videos surfaced purporting to show officials from Planned Parenthood organizations — none from Arizona — negotiating the sale of body parts.
Another video claimed to show doctors dismembering a still-moving fetus, though even the person releasing that did not claim the images had anything to do with Planned Parenthood.
Howard said such a measure would not affect his Arizona organization as it does not deal in fetal tissue, whether for sale or donation.
State and federal laws already bar public funds from being used for elective abortions. Instead, Planned Parenthood gets Medicaid dollars — about 90 percent of it from the federal government and the balance from the state — to cover everything from gynecological exams to contraceptive counseling.
In 2012 Rep. Justin Olson, R-Mesa, crafted legislation that said any organization that provides abortions is ineligible for Medicaid funding. Olson argued that any dollars Planned Parenthood receives for those services underwrite the fixed costs of keeping the doors open, which has the effect of state money subsidizing abortions.
Biggs on Friday essentially repeated that contention.
“Planned Parenthood, regardless of what they claim, it appears, anyway, that they are subsidizing their abortion services because they can’t segregate all the money they get from Medicaid and state and federal tax dollars from regular services to their abortion services,” he said.
In the 2013 appellate court ruling, Judge Marsha Berzon, writing for the unanimous three-judge panel, did not address the question of whether Medicaid funds were subsidizing abortions.
Instead, she said, the issue comes down to a simple fact: Federal law allows those enrolled in Medicaid — and that includes the Arizona Health Care Cost Containment System — to get their services from any qualified provider.
Attorneys for the state conceded that point. But they argued that lawmakers can conclude Planned Parenthood is not “qualified” to provide family-planning services because it also provides abortions.
Berzon said that argument has “fatal flaws.”
Perhaps the most glaring, she said, is the whole law says Medicaid recipients can get care from any provider “qualified to perform the service or services required.” Berzon said there is no contention by the state that Planned Parenthood is not medically qualified to perform the services.
It was that ruling the U.S. Supreme Court refused to disturb.
Biggs said he is undeterred.
“I think there is a method of distinguishing from the legislation we’re working on,” he said. But Biggs refused to say how that would work.
“I don’t want to tip my hand,” he said.
One thing Biggs hopes to use as a legal point is his contention that cutting Planned Parenthood out of any publicly funded family planning services will not harm anyone in Arizona.
“I think we can show that there are not just a few but literally hundreds of providers outside the Planned Parenthood network for the family and women’s health services that seem to have been the lightning rod in the case itself,” he said. That, said Biggs, should allow Arizona to “redirect” the funds elsewhere.
That fact, however, does not get around the central conclusion of the appellate court that Medicaid recipients — and not the state — decide where to get their care.
Nor does it address the problem Berzon cited of having state lawmakers decide who is “qualified.”
She said if the court were to accept Arizona’s argument that abortion providers are not qualified, then another state could contend that only doctors who actually do perform abortions are entitled to Medicaid funding.
Similarly, she said, it would open the door to letting states decide that Medicaid services could be provided only by osteopaths, nonsmokers or affiliates of the state’s medical school “on the grounds that only doctors within that category are worthy of receiving Medicaid funds.”
Berzon said there are areas where an otherwise medically qualified physician or health-care provider can be determined to be unqualified. But she said that is limited to things like fraud, patient abuse, criminal activity and improper billing.