- The Washington Times - Sunday, August 27, 2017

Planned Parenthood had been on a legal winning streak, piling up decisions from judges who have ruled that states can’t stop the country’s largest abortion clinic network from receiving federal grant money.

But they suffered a major setback last week when a federal appeals court ruled that Arkansas can kick Planned Parenthood out of its network of Medicaid-approved health providers.

The 8th U.S. Circuit Court of Appeals ruled that Medicaid recipients are entitled to care, but cannot dictate to the states where they get that care — meaning Planned Parenthood customers can’t protest the removal of the network from Arkansas’s list of approved clinics.

“The plaintiffs are asserting a right — the absolute right to a particular provider of their choosing — that [the law] does not grant them,” Judge Steven Colloton wrote in the majority opinion.

Planned Parenthood can still protest its removal through the regular administrative process, but its customers can’t force it to be added back into the mix of medical services providers, the court said in the 2-1 ruling.

That’s at odds with rulings in a number of other appeals courts, which said the Medicaid Act prohibits states from cutting out providers without giving sufficient cause.

States had rushed to punish Planned Parenthood after a series of undercover videos seemed to show clinic executives negotiating the sale of tissue from aborted fetuses — sparking outrage among conservatives who said the conduct was morally objectionable, and perhaps illegal.

Republicans in Congress failed to cut off money but GOP-led states picked up the slack, enacting policies in more than a half-dozen states to prevent Planned Parenthood from getting Medicaid provider money.

But attempts to cut off funding in Texas, Louisiana and elsewhere were struck down by courts that said Medicaid customers can choose their providers, and the videos weren’t conclusive enough to serve as a reason to kick Planned Parenthood off the approved list.

Planned Parenthood said the 8th Circuit’s ruling on Arkansas’s policy was an “extreme departure” from other court rulings and the organization is evaluating all options to make sure its patients can continue to access its services.

“To date, seven other states (Alabama, Arizona, Indiana, Kansas, Louisiana, Mississippi, and Texas) have sought to bar Planned Parenthood from Medicaid and all have been blocked by federal courts,” the clinic network said in a statement.

Louisiana, part of the 5th Circuit, has asked the entire appeals court to rehear its loss. Texas is also appealing.

Like Arkansas, Texas and Louisiana barred Planned Parenthood from receiving Medicaid funding after the videos from the Center of Medical Progress went viral.

“It is hard to say whether this new circuit split will result in a successful petition for certiorari. The court does not often take reproductive rights-related or Medicaid-related cases, but with a new justice on the bench renewed interest may exist,” said Nicole Huberfeld, a law professor at Boston University.

But Lawrence Gostin, a law professor at Georgetown, said the high court may very well take up the case if Planned Parenthood were to appeal because the justices have been interested in who has access to the courts.

“These are patients that want to access services and otherwise have a right under Medicaid to access those services,” said Mr. Gostin.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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