Like Napoleon forging into the Russian winter, anti-choice politicians are loath to give up on abortion restrictions, however minor, until the Supreme Court forces them to. On Wednesday, Arizona Attorney General Tom Horne asked the Supreme Court to reinstate a law that would strip Medicaid funding from doctors and clinics who perform abortions. Poor women already can’t use federal dollars to cover abortion procedures—that’s been illegal since the late 1970s. The law, which was struck down by the Ninth Circuit Court of Appeals in August, instead would prevent the state’s abortion providers from being reimbursed by Medicaid for providing any kind of care to low-income women, whether it’s breast exams, cervical cancer screenings, or contraceptive services.
The law’s supporters allege that public money is trickling into abortion providers’ pockets because they offer preventive care services, enabling them—however indirectly—to perform more procedures. If it hadn’t been overturned, the law would have presented Arizona’s abortion providers with a stark choice: Stop offering abortions or figure out a way to absorb the cost of low-income women’s reproductive care without Medicaid’s help.
Arizona is not the only state that’s tried to force abortion providers to make this calculation, although its law, because it targets any doctor or clinic that offers abortion, is more indiscriminate than those in many other states. Generally, the sole bogeyman in these schemes is Planned Parenthood. Over the past three years, North Carolina, Kansas, Tennessee, and Texas have all passed laws designed to keep federal dollars out of Planned Parenthood’s coffers.
The result has, in almost every case, been a slow spiral through the courts toward eventual defeat. Most courts—including the 9th Circuit—agree that excluding abortion providers from Medicaid coverage violates the federal law, which stipulates that Medicaid patients must be able to choose from all qualified providers. Meddling with this provision could, judges have worried, create a nasty precedent, giving states wide leeway to decide which doctors are “qualified” to receive federal funds. Texas, the one exception, won a decidedly pyrrhic victory when, in 2011, it decided to forgo federal funding—which had previously paid for 90 percent of the cost of women’s health services—in exchange for the privilege of excluding Planned Parenthood from its health coverage for low-income women. Dozens of clinics closed in the aftermath of the shift from federal to state funding, cutting off health care for hundreds of thousands of women. Researchers estimate that 30,000 fewer unintended pregnancies were averted in 2012 than in 2010. It was not until the 2013 legislative session that lawmakers righted the balance, pouring millions of state dollars into women’s health services.
Indiana made a similar bid for the Supreme Court’s attention after the 7th Circuit Court of Appeals struck down its law, which prohibited Planned Parenthood from receiving state or federal funds. But the justices refused to hear the case. Caitlin Borgmann, a professor of law at the City University of New York, says it’s unlikely, given the justices’ unwillingness to hear Indiana’s appeal, that Arizona’s petition will be successful. “To read the statute as broadly as Arizona wants would allow the state to exclude providers for any reason,” says Borgmann. “Such a precedent ought to give the Supreme Court pause too, because its implications extend far beyond abortion.”
Regardless of their likelihood of success, the proliferation of laws like Arizona’s raise a bigger and more troubling question. Why would politicians who are ostensibly concerned with ending abortion fight tooth and nail for a doomed law that would almost certainly increase the number of unintended pregnancies?
Advocates for the law say taxpayers’ rights are at stake. Attorney General Horne declined to comment, but the Alliance Defending Freedom (ADF), a conservative legal group that has been co-counsel on the Arizona case released a statement. “Taxpayers should not be forced to subsidize the work of abortionists,” ADF senior counsel Steven H. Aden said in the statement. “Arizona should be free to enforce its public policy against the taxpayer funding of abortion and in favor of the best health care for women.” But Elizabeth Nash, state issues director for the Guttmacher Institute, a reproductive issues think tank, says that claim flies in the face of common sense. “It’s the ultimate anti-public health move, to kick out an organization that provides such a vital service so well, simply because there’s an ideological difference about some of the other services the organization offers,” she says. “Fund family planning and you reduce the need for abortion.”
It’s undeniable that without programs like Medicaid, which help low-income women afford contraception, the abortion rate in the country would be much higher. Over the past two decades, unintended pregnancy has increasingly been concentrated among poor women, making access to inexpensive birth control even more important for preventing abortion. According to the Guttmacher Institute, publicly funded family planning services helped Arizona women avoid an estimated 24,400 unintended pregnancies in 2010, which would have resulted in more than 8,000 abortions.
In other words, in an attempt to prevent the government from indirectly subsidizing abortion, Arizona’s law could actually increase the number of patients in abortion providers’ clinics. “Laws like these reveal the anti-abortion rights movement for what it is,” Borgmann says. “Their goal is to be punitive and prevent access to abortion, not come up with solutions to help women make autonomous decisions about their health.”
Not all publicly funded family planning clinics also offer abortion, so the impact of the proposed law would likely be smaller than the Guttmacher estimates. The law would affect all 13 of Planned Parenthood of Arizona’s clinics, even though abortions are only available at three of the facilities, as well as any hospital, private physician, or clinic that currently takes Medicaid patients and offers abortion. About 3,000 Medicaid patients are served Planned Parenthood of Arizona every year—a number that will only increase when the Affordable Care Act’s Medicaid expansion goes into effect. Aden told the Prospect that these patients will have plenty of other options for contraception and preventive health care. But Bryan Howard, the president of Planned Parenthood of Arizona, isn’t so sure. Many providers, he points out, don’t want to take on additional Medicaid patients; rural women may have to travel long distances to find another provider; and women seek out Planned Parenthood for nonjudgmental care.
Howard also points out that taxpayer dollars are at stake in pursuing a potentially fruitless legal battle. Meanwhile, regardless of the outcome, every minute that Planned Parenthood spends fending off another restrictive law is a loss for the organization. “Why are our opponents fighting?” he says. “Is it just to drain resources? While we focus on this case, we’re not working on sex education or reproductive health services. I can’t think what else it would be, because there is not a lot to suggest that their legal strategy can win.”