Texas’ sneaky plan to defund Planned Parenthood

Should the state succeeded, it'll be unprecedented.

Supporters of Planned Parenthood hold a rally as they protest the US Senate  Republicans' healthcare bill outside the US Capitol in Washington, DC, June 27, 2017. / AFP PHOTO / SAUL LOEB        (Photo credit should read SAUL LOEB/AFP/Getty Images)
Supporters of Planned Parenthood hold a rally as they protest the US Senate Republicans' healthcare bill outside the US Capitol in Washington, DC, June 27, 2017. / AFP PHOTO / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)

Republicans in Congress weren’t able to “defund” Planned Parenthood last year, but some remain hopeful that they can in 2018.

While eyes fixate on Congress, the Department of Health and Human Services (HHS) — an agency packed with anti-abortion sympathizers — signaled it would approve efforts to withhold federal dollars to Planned Parenthood if states asked. Texas has already sought federal permission to do so and the green light could come any day now.

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In June 2017, Texas officials asked the Centers for Medicare and Medicaid (CMS), a division within HHS, to restore federal funding for its family planning program after it gave up the money nearly five years ago as an affront to Planned Parenthood. This is Texas’ second attempt to federally fund Healthy Texas Women, a program intended to provide low-income women and gender minorities care at no cost, while excluding clinics associated with abortion providers.

The state’s efforts this time, however, may prove successful. It’ll also be unprecedented. Moreover, Texas’ strategy to exclude Planned Parenthood is more inconspicuous and complicated than last year’s.

In 2011, the Republican-controlled state legislature decided to remake their family planning program, for which Texas then received $9 in federal money for every $1 it spent on reproductive care, according to The Texas Tribune. Texas asked the Obama administration to change the program by excluding providers who offer abortion services. But the administration denied the Medicaid innovation waiver, the vehicle by which Texas looked to exclude Planned Parenthood and other abortion providers, citing federal law that requires states to fund “any willing provider.”

For years, Texas operated the family program with just state funds, offloading the costs to low-income residents who experienced reduced services. The program’s monthly enrollment dipped by approximately 47,000 after Planned Parenthood and other abortion providers were excluded. Thousands forwent birth control, and Medicaid pregnancies increased by 27 percent between 2011 through 2014, according to research published in the New England Journal of Medicine.

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The Trump administration will likely okay the waiver. Last Friday, while President Donald Trump spoke at the largest anti-abortion rally March for Life, CMS rescinded Obama-era guidance, telling state Medicaid directors that the former administration’s emphasis on “free choice of provider” raised legal issues and “limited states’ flexibility.” On Tuesday, Texas Gov. Greg Abbott reminded the Trump administration that their Medicaid application is still waiting on federal approval.

Executive Director of Planned Parenthood Texas Votes Yvonne Gutierrez blasted Abbott’s letter in a statement Wednesday. “This is taking away rights and opportunities from people who already face unequal and unfair treatment as people of color, LGBTQ people, and women,” Gutierrez said.

Should HHS approve Texas’ waiver, other states could be tempted to follow suit. A few have already blocked state Medicaid funds to Planned Parenthood and other clinics that provide abortion services. 

History suggests there will likely be lawsuits.

“We have to see what CMS does here in the approval and think that through a bit,” said Senior Attorney Catherine McKee, at the National Health Law Program (NHeLP), when ThinkProgress asked if complainants have a good case against the waiver. What’s clear, she said, is “CMS can’t change the Medicaid [amendment] or the Social Security Act through a guidance document.” 

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NHeLP advised HHS to reject Texas’ request as it goes against federal Medicaid law. “Both the Centers for Medicare & Medicaid Services (CMS) and the courts have consistently made clear that [the federal ‘freedom of choice’ protection] prohibits states from excluding providers from Medicaid for reasons other than their fitness to provide covered services or to appropriately bill for such services,” wrote Jane Perkins, NHeLP’s Legal Director, in a comment to HHS.  

Planned Parenthood has taken many hits by Republican lawmakers in Texas, but has proven resilient. Medicaid also reimburses Planned Parenthood clinics for providing health services, like cancer screenings or STD testing, to its beneficiaries. Federal Medicaid funding cannot cover abortion, per the Hyde Amendment. Nevertheless, the state also tried to end these reimbursements last year, but a federal judge blocked that from happening.