Court Blocks Law Stripping Medicaid Contracts From Planned Parenthood
Earlier this week, a federal district court issued a preliminary injunction partially striking down a new Congressional provision, slipped through in the 'big budget bill,' to cut off Medicaid health care contracting for Planned Parenthood affiliates. It was highly significant for the Republican Congress to try to defund, as government health contractors, Planned Parenthood's state affiliates, and the case will have major repercussions. A review of the court's 36 page opinion shows the battle to be expected as the case goes on appeal.
On the one hand, Judge Indira Talwani cautiously limited her shielding only to ten of the forty-seven Planned Parenthood affiliates. These ten do not provide abortions (or are below a statutory funding threshold). While the decision disappointed Planned Parenthood by not extending protection to all affiliates, the judge's narrow focus could make the opinion more resilient on appeal. As the case proceeds, the challengers of the provision argue the case is not about reducing abortions, but about ending Planned Parenthood's providing of Medicaid health care to poor women. On the other hand, if and when the Trump Administration takes this case beyond the court of appeals to the Supreme Court, the question is both how the 6-3 conservative majority will treat Planned Parenthood, and whether the Court will use its 'shadow docket' to rule on the case with minimal due process.
The measure, section 71113, is basically the latest of a number of legislative efforts to end government health care contracting with Planned Parenthood. It was no surprise after the 2024 election that there would be another such try by President Trump and the majority Republican House and Senate. The striking approach was to draft the provision in a way to focus just uniquely on Planned Parenthood, and to have it relate enough to Medicaid spending that it could go aboard a budget bill that did not require 60 votes to get past a Senate filibuster.
Section 71113 describes as a 'prohibited entity' barred from Medicaid funding either an organization that conducts abortions or is connected to such an abortion provider, i.e., Planned Parenthood's overall Federation, or any 'affiliates' – clearly meaning the 47 Planned Parenthood affiliates – even, and especially, the affiliates that themselves do not conduct any abortions. (No entity can receive Medicaid funding for abortions, narrow exceptions aside, but Planned Parenthood affiliates receive extensive Medicaid funding for women's health and the like.)
The provision took effect for Medicaid bills starting the day of passage, the case was immediately filed, and Judge Indira Talwani of the U.S. District Court of Massachusetts issued initially a temporary restraining order on July 7, and then a preliminary injunction with the 36 page opinion on July 21. Presumably the Trump Administration will take an appeal to the First Circuit, although it may also proceed to take an emergency appeal to the Supreme Court, a step known as the 'shadow docket.'
By the standards of the past, there might not seem to be an emergency, since what is taking place, in terms of affiliates providing Medicaid health care, has been going on in the same fashion for many years. But, the Trump Administration has had great success rushing cases for such emergency treatment, in the view it would take it would need to affect Medicaid spending immediately, and, as discussed below, there are important tactical advantages to the emergency approach.
The court describes the importance of Planned Parenthood's services as a government medical contractor. 'An estimated one out of every three women and one in ten men nationally has received care from a Planned Parenthood Member at least onc in their lifetime, and this number is even higher among individuals with Medicaid, 43% of whom have received services from a Member health center.' (Opinion at 7.)
'Approximately 51% of Planned Parenthood Members' patients rely on Medicaid for their healthcare, and half of visits to Planned Parenthood Members health centers are covered by Medicaid.' (Opinion at 8). With narrow exceptions, Medicaid cannot pay for abortions, even in states where they are legal, and 'Abortions comprise approximately 4% of Planned Parenthood Members' services nationwide.' (Opinion at 7.)
As the court analyzed, 'Plaintiffs argue that if Section 71113 covers Planned Parenthood Members that do not provide abortions, the law impose an unconstitutional condition on those Members and Planned Parenthood Federation's First Amendment right of association.' (Opinion (Op.) at 16.) 'Contrary to [the Trump Administration's] assertion, Section 71113 does not merely 'withhold[] funding based on whether entities provide abortion services' but also based on whether 'an entity, including its affiliates,' provides abortion services.' (Op. at 18 (quoting the provision).
The court found 'the record demonstrates that Members' affiliation via their membership in Planned Parenthood Federation is express.' Op. at 19. After reviewing the mission and advocacy, the court said 'Membership in Planned Parenthood Federation –and corresponding affiliation with other Members – is thus part and parcel with Planned Parenthood Members' associational expression.'
The Administration had justified the law thusly: 'the law effectuates a congressional desire 'to reduce abortion and government subsidization of abortions.'' Op. at 23. Rejecting from the record the Administration's contention that money moved around to abortion, 'the record is devoid of evidentiary support for Defendants' suggestion that Planned Parenthood entities share funds that are ultimately used for abortions.' (Op. at 21) The court also noted that the provision was tailored not to touch others besides Planned Parenthood.
'Defendants do not dispute that conjunctive criteria leave 'virtually all abortion providers who participate in Medicaid—other than Planned Parenthood Members—unaffected' by the legislation.' Op. at 27 (underlining in original).
The court's order appears to block section 71113 as to ten affiliates, but does not resolve the case as to the other affiliates. (Then ten protected ones are mainly those not providing abortions, but also those under the statutory threshold of $800,000 in Medicaid funds). It might seem at first that the opinion cautiously proceeded for now as far as to be affirmable on appeal. But, it must be considered what the pattern of the current 6-3 Supreme Court is, particularly since the start of the Trump Administration, but also keeping in mind its pattern ever since overruling Roe v. Wade in the Dobbs decision.
No doubt, the 6-3 Court majority would uphold freedom of association for the affiliates of the National Right to Life Committee or the National Rifle Association. To say there is a lack of sympathy for Planned Parenthood is an understatement. Moreover, it would not be impossible for this Court to decide to treat the case as an 'emergency.' The defendants are the Administration, represented in court by the Solicitor General, and he has had signal success to getting the Court's majority to treat cases of injunctions against Administration action as 'emergencies.' He would argue that every day that goes by, the Planned Parenthood affiliates protected by the court's order are wrongly billing services to Medicaid which must be stopped.
Moreover, he will get to argue here something he usually cannot: it is not just the Administration's will getting frustrated, it is the will of Congress. For a Court majority that was by itself during the Biden Administration years, it may feel like a welcome moment to have the Trump Administration plus the Republican Congress, albeit by a provision slipped into a big budget bill, seeming to ask it for action. As has been seen so often, if the Court majority treats a case as an 'emergency,' it can forego oral argument – meaning, forego a press and public window – and even forego providing any majority opinion at all.
It does not have to explain why it would defund Medicaid care for poor women even by affiliates that perform no abortions. That would seem the wrong way to handle a case worthy, if taken, of full legal treatment – maybe one of the most constitutionally significant government contracting cases for poor women of the Court's year -- but, it could happen. Then again, maybe Judge Talwani's narrow order just addressing ten affiliates will head this off.
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