Mitch Daniels: Whatever happened to his call for a "truce" in the culture wars?

The law, lawyers, and the court.
June 3 2011 6:24 PM

Mitch Daniels, Culture Warrior

Indiana's abortion-funding law makes a mockery of his call for a "truce" in the culture wars.

Planned Parenthood waiting room. Click image to expand.
Will this Indiana Planned Parenthood be shuttered?

When Gov. Mitch Daniels of Indiana signed House Bill 1210 on May 10, he did so knowing full well that he was courting an expensive and time-consuming lawsuit. He also knew that his signature would threaten federal funds for the most vulnerable and needy citizens in his state. He signed the bill into law anyway.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The law, which, among other things, bars Planned Parenthood from receiving any Medicaid funds, was immediately challenged in court by Planned Parenthood and the ACLU. A hearing in that case is scheduled for Monday. It also shocked nobody when, this week, the Obama administration told Indiana that if it defunded Planned Parenthood, it would be in violation of federal law (and would open the state up to unspecified future harms, possibly including the loss of $4 billion that funds its Medicaid program). * As Centers for Medicare and Medicaid Services Administrator Donald Berwick explained in a letter on Wednesday, Indiana can either rethink its new law, or violate the Medicaid statute. It can't do both.

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Daniels pretends to find this federal action surprising, claiming that he has no idea what Berwick's letter even means. He purports to be shocked, shocked to learn that federal funds conditioned on state compliance with federal laws might be jeopardized when a state deliberately violates those laws. But Daniels had ample warning. This law was not subtle or even all that original. As this 2002 report from the Guttmacher Institute indicates, efforts to deny family planning funding to any agency that also provides abortions go way back:  The "campaign—to ban both direct and 'indirect' government support for abortion—was conceived almost before the ink was fully dry on the 1973 Roe v. Wade decision."  The report also makes clear such efforts have failed time and again in both state and federal courts.

So if—by requiring the state attorney general to continue to defend it—Daniels succeeds only in squandering millions of dollars in federal funds to the poorest residents of his state, it won't be a noble victory for states' rights. It will be a shameful example of a state using its most vulnerable citizens to score a symbolic victory in the culture wars.

Apparently the Mitch Daniels of June 2011 no longer believes in the Mitch Daniels of June 2010, who memorably called for a "truce" in the culture wars.

Daniels and his fellow supporters believe that taxpayer funding of Planned Parenthood is immoral. But since no tax dollars go to providing abortions in the first place, they are actually taking a stand against something else entirely: Primary care and reproductive services for the tens of thousands of women in the state who depend on Planned Parenthood for medical care that has no connection to abortion at all. This assault on preventive care—including pap smears, breast exams, cervical cancer screens, and other critical care for women, especially poor and minority women—all amounts to sacrificing women's real lives to promote a culture of life.

This showdown was not just expected by the governor and his allies. It was invited with open arms. This is another example of a state law that pushed the boundaries of permissible abortion regulation in order to force the issue in the courts. Indiana's Family and Social Services Administration secretary, Michael Gargano, opined before the new law was passed that he believed it might violate federal rules and imperil the state's Medicaid funding.  Indiana's Legislative Services Agency seconded that conclusion.

But the state legislators who were pushing for the bill went ahead and enacted it on the strength of letters like this one, from the Alliance Defense Fund, which didn't quite promise that the proposed bill was legal, but argued instead that the federal government has never before penalized a state by cutting off federal funds. Citing similar legislation passed in Texas and Missouri, the letter neglected to add that the Missouri statute was struck down in the courts, and that the Texas case was resolved when Planned Parenthood met the conditions demanded of it and created wholly separate abortion facilities.

One fact that neither side appears to dispute is that the Medicaid statute plainly states that "qualified providers" may not be disqualified based on the other services they perform. Yet that is precisely what Indiana's law does.  As Berwick explains in his letter this week, "Medicaid programs may not exclude qualified health care providers from providing services that are funded under the program because of a provider's scope of practice. …  Such a restriction would have a particular effect on beneficiaries' ability to access family planning providers." It is not in dispute at all that "Medicaid does not allow states to stop beneficiaries from getting care they need—like cancer screenings and preventive care—because their provider offers certain other services."

Sen. Dianne Feinstein and 29 of her colleagues in the Senate recently explained in a letter that these "free choice of provider" rules, "which have remained constant despite significant changes in the flexibility of the Medicaid program through both Democratic and Republican administrations, clearly establish the protections that require state Medicaid programs to provide beneficiaries with the same opportunity to choose and receive covered health care services from any qualified provider in the same way as any member of the general population seeking health care services."

The whole purpose of the rules is to ensure that women have a broad range of choices in vital health care. That's why perhaps the most damning piece of information in this whole mess comes from state Sen. Scott Schneider, who drafted the amendment that became the bill. Schneider asserted recently that family planning funds would be diverted from Planned Parenthood to nonabortion providers and that family health clinics in the state would now qualify for the newly diverted funds. That's not true:  State Republicans, asked to show where these other family planning services were located, offered up a list last month of alleged providers that included "a Salvation Army addiction center, a homeless shelter, several mental health centers, a juvenile detention center and the Indiana Women's Prison." When asked if he even knew what other services Planned Parenthood offered, Schneider couldn't answer. Maybe on his planet, if women can't get a pap smear at the Salvation Army, she didn't need one anyhow. In any event, there's always Walgreens.

Don't be fooled by the argument that if only 4 percent of Planned Parenthood's services are abortions, they can just stop doing them to comply with Indiana's new law. Once again: Abortion is legal. President Obama isn't holding poor Hoosiers hostage to his pro-abortion whims. The opposite is true: The governor is holding them hostage to his attempt to circumvent the law of the land.

Oh, and don't be fooled by Daniels' and Schneider's plaintive claims that this is all somehow a fight over states' rights. Truth be told, it's a fight over states' rights to take federal funds while violating federal law. That doesn't sound like high-minded federalist principle so much as bald-faced hypocrisy. We just happen to live at a moment in which it can be hard to tell the difference between the two.

Correction, June 7, 2011: The article originally stated Indiana could lose $4 million in Medicaid funds. The figure is, in fact, $4 billion. (Return to the corrected sentence.)

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