Suit filed over reduction in funds for abortion providers

Abortion providers filed suit in federal court Thursday to block a new state law that is designed to cut off other state and federal dollars they get.

Attorneys for Planned Parenthood Arizona and Desert Star Family Planning claim the measure, set to take effect in three weeks, illegally interferes with the right of Medicaid recipients to get family planning services where they want — in this case, specifically from the two agencies. And that, they say, is a violation of federal Medicaid regulations.

Attorney Jennifer Lee of the American Civil Liberties Union said she is asking Judge Roslyn Silver to prevent the statute from taking effect as scheduled on Aug. 6. No hearing has yet been set.

The law, signed by Gov. Doug Ducey, allows the director of the Arizona Health Care Cost Containment System, the state’s Medicaid program, at his “sole discretion” to disqualify any entity that does not fully segregate the tax dollars it receives from those used from other sources to provide abortions. The aim is to ensure none of those taxpayer dollars go to providing elective abortions, right down to all overhead for things like rent, lights and heat.

Attorneys for the challengers claim the statute is flawed.

First, it does not define exactly what it means to “segregate taxpayer dollars from abortions, including the use of taxpayer dollars for any overhead expenses attributable to abortions.”

And then there’s the fact that the AHCCCS director can terminate or suspend participation in the Medicaid program with just 24 hours’ notice.

“Unless enjoined, this impermissible requirement threatens to exclude the provider plaintiffs from the Medicaid program, thereby restricting their ability to provide — and their patients’ … ability to access — vital women’s health services,” the lawsuit states.

This is the second time the ACLU has sued over this issue.

A previous restriction was voided by a federal appeals court, a decision upheld by the U.S. Supreme Court. Lee said this is no better.

“This law has the same effect in that it imposes a requirement that will cause abortion providers to be excluded from the Medicaid program at the discretion of AHCCCS,” she said. “The intent of the law is the same.”

Both state and federal laws already bar use of public funds for abortions that are not medically necessary.

Arizona, as part of its participation in the federal Medicaid program, provides family planning services for needy women. The federal government pays 90 percent, with the state picking up the balance.

Medicaid statutes and regulations also permit eligible women to choose from any qualified provider, which has included Planned Parenthood and Desert Star.

Abortion foes have insisted that Medicaid dollars are still being used, at least indirectly, to underwrite the cost of elective abortions.

A prior version of the law approved in 2012 said any organization that also provides abortions cannot be a “qualified provider” in the Medicaid program. Rep. Justin Olson, R-Mesa, who sponsored that bill, argued that any money the government gives Planned Parenthood for other expenses frees up funds for abortions.

But Judge Marsha Berzon, writing for the 9th U.S. Circuit Court of Appeals, pointed out the law says those enrolled in Medicaid can get the services they need from any qualified provider. And Berzon, in blocking that law, said there is no evidence the Planned Parenthood medical staffers are not “qualified.”

Olson, the sponsor of the new version, contends this one will pass constitutional muster, a contention shared by the governor.

When her boss signed the measure, Christina Corieri, Ducey’s health policy adviser, said the difference is that it does not bar Planned Parenthood from providing family planning services solely because it also does abortions but simply allows the state to suspend any organization that does not adequately segregate its expenditures.

Lee, however, cited the vague language of what abortion clinics would have to prove to the AHCCCS director to keep their family planning dollars flowing.

“It’s not clear at all this is just a bookkeeping requirement,” she said. “Providers don’t really have any guidance on how to comply with this requirement.

And Lee said allowing family planning funds to be suspended strictly at the discretion of the AHCCCS director — and with just 24 hours’ notice — could leave family planning patients without care they need.

Backers of the legislation have brushed aside that concern, saying there are other places for people to get family planning services, places that do not also provide abortions.

The lawsuit, however, said patients have a legal right to choose. And the lawyers said there are reasons people choose Planned Parenthood or Desert Star, including the range of services they offer and the ability to accommodate patients’ schedules.