Thursday, June 02, 2011

Federal Government's Position On Indiana Abortion Funding Law Contradictory

The U.S. Department of Health & Human Services has sent the administrator of Indiana's Medicaid program a letter advising it that a new law signed by Gov. Mitch Daniels that bars funding to family planning clinics and facilities that provide abortion services violated federal Medicaid law and has threatened to cut off billions of Medicaid dollars that flow into the state budget each year. From the Star:

An HHS official would not comment on what might happen if Indiana does not change its law, though one possible ramification would be withholding funding.

Indiana relies on about $4 million in federal Medicaid family-planning funds and more than $4 billion in total Medicaid dollars.

The state Family and Social Services Administration -- caught between state and federal law -- said it would seek guidance from Indiana Attorney General Greg Zoeller.

"For now, our lawyers advise us that we must continue to follow the law the Indiana General Assembly passed," said FSSA spokesman Marcus Barlow.

Zoeller spokesman Bryan Corbin said that the office is working with FSSA to determine its options, "but we will continue to defend the statute."

Gov. Mitch Daniels, who signed the bill into law, declined to comment Wednesday.
The ACLU of Indiana has already gone to the federal district court of Southern Indiana seeking to block enforcement of the new state law. A federal judge denied the ACLU's request for a temporary injunction against enforcement of the law, holding that the affected parties would suffer no immediate, irreparable injury if enforcement of the new law was not blocked because women seeking abortions still had other options for obtaining abortions in Indiana. The threat of a cutoff of federal funding is no doubt intended to bolster the ACLU's case in the federal district court, which is scheduled to hold a hearing in the case next week.

The federal government's position seems to contradict existing federal law. The annual appropriation for the Department of Human Services' budget has contained a rider known as the Hyde Amendment that prohibits expenditure of federal dollars on abortions since 1976. Federal employees and military personnel are required to pay for abortions out-of-pocket. And Obama's new health care law includes a ban on the expenditure of any federal funds for any health insurance plan that includes coverage for abortions. It's not like there is anything in this law that is inconsistent with current federal law. States have always had the right to fund abortion services out of their own funds, and a number of states do fund them despite the Hyde Amendment. Federal law has consistently barred use of federal funds for abortions for more than 35 years.


Koz said...

The issue is that the Indiana law is not an abortion ban (which would be redundant to federal law as you state), it is a ban on funding for a whole organization that also offers (non-government funded) abortions.

If Pence would have succeeded in changing the federal law and banned all organizations that provide abortion from federal money, they could achieve their goal. The way Medicaid law is currently written, HHS says Indiana's version of Pence's law is illegal.

Paul K. Ogden said...

I'll have to read up more about the law in this area. At first glance, the feds seem to think Indiana has a voucher type system for Medicaid and Hoosiers are picking the provider of Medicaid services. That's not my understanding of how it works in Indiana. Rather, Indiana has contracted with particular providers to provide these services. It's not a voucher type program at all. With regard to the latter, it makes perfect sense that government can choose to contract with other providers and is not obligated to contract with PP.

Paul K. Ogden said...

Koz, I don't think it's quite that simple for the reasons I note above. Here in Indiana, it seems the government is picking the Medicaid service provider, not the individuals seeking service.

Nonetheless, I agree that Congres scan pull the string on any rules and regs that might prohibit what Indiana did. I think they're quite likely to do that given the support for defunding PP at the national level.