A federal judge indicated Friday's he's not buying the state's argument that it can cut off family planning funds for Planned Parenthood.
The federal Medicaid program includes coverage for needy women for family planning and similar services. The federal government kicks in 90 percent, with 10 percent from state taxpayers. Earlier this year lawmakers voted to deny Medicaid dollars to any organization that also performs abortions under the premise that state funds would help pay for fixed costs like utilities and rent and, therefore, help subsidize abortions. Planned Parenthood sued. On Friday, Steven Aden, an attorney from the Christian legal firm of Alliance Defending Freedom, appointed a special assistant attorney general, told Judge Neil Wake the restriction is justified.
"It was the decision of the taxpayers of Arizona, speaking through the Legislature, that when taxpayer dollars go to a facility that is doing both family planning and elective abortion, and it goes into the same big pot, it pays the expenses out of the same big pot, it's common sense it's paying for elective abortion," Aden said.
But Planned Parenthood President Bryan Howard said that's not necessarily true.
"When we're reimbursed for services for the provision of family planning services, we include turning on the lights in the health center to provide family planning services," Howard said. "We're not billing for keeping the lights on when we're providing abortion care."
But during the nearly three-hour hearing where recording is not permitted, Wake seemed to care less about how the money is divided up than he did about whether the legislation runs afoul of federal laws and regulations. They say, in essence, that Medicaid recipients are entitled to get their care from ANY qualified provider. Aden said the Legislature has the right to decide that those who also provide abortions are not qualified providers. Wake reacted with a certain amount of incredulity. He pointed out abortions are legal in Arizona. And he wanted to know how the decision by Planned Parenthood to engage in legal services should prevent them from getting Medicaid dollars for family planning. That could provide grounds for Wake to enjoin the state from enforcing the law and cutting off funds, at least for the time being. Aden said that would be a bad result.
"If he issues the injunction, then the will of the taxpayers of Arizona to see fewer elective abortions, to see them not funded by taxpayer dollars, and to see more future Arizona citizens born alive is thwarted," Aden said. "And taxpayer dollars continue to fund the killing of unborn children."
But Wake said there's another side to the story: If he does NOT issue the injunction, it will force women now getting family planning from Planned Parenthood to have to find a new medical provider elsewhere. There's another issue that concerned Wake. He said the legislation appears designed to force Planned Parenthood to choose between either dropping the Medicaid women as clients -- or getting out of the abortion business. Aden assured the judge that was not the case. But state Rep. Justin Olson, the sponsor of the legislation, told Arizona Public Radio earlier this year his measure was in fact aimed straight at Planned Parenthood. Aden said after the court hearing that's irrelevant.
"It's very clear that the view of one legislator doesn't make that the purpose of the statute," Aden said. "You would have to poll all the legislators and have to understand what's in their heart and mind. That's why, ordinarily, federal courts don't even go there because what the statute says is what the statute meant. And I think Judge Wake will agree."