Texas purports to cut Planned Parenthood funding, which is illegal.

Texas Purports to Cut Planned Parenthood Funding, Which It Cannot Legally Do

Texas Purports to Cut Planned Parenthood Funding, Which It Cannot Legally Do

The XX Factor
What Women Really Think
Dec. 21 2016 1:33 PM

Texas Purports to Cut Planned Parenthood Funding, Which It Cannot Legally Do

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Safe ... for now.

Andrew Burton

Texas health officials announced on Tuesday that the state would revoke Planned Parenthood’s Medicaid funding. Planned Parenthood affiliates in Texas received about $3.1 million in Medicaid funds last year, which helped to fund non-abortive health care services for low-income men and women. (Public funds may not be used to finance abortions.) Now, however, the Texas Health and Human Services Commission—the same agency that required women to bury or cremate aborted or miscarried fetuses—has informed the organization that its funding will cease in 30 days.

As Texas must surely understand, this attempt to defund Planned Parenthood directly contravenes federal law. The U.S. Court of Appeals for the 5th Circuit—which encompasses Texas—has already ruled that states may not defund Planned Parenthood because some affiliate clinics provide abortion services. Medicaid’s “free choice of provider” requirement permits patients to receive medical care from any facility that is “qualified to perform the service or services required.” States may set “reasonable standards relating to the qualifications of providers,” but these standards must relate to the facility’s ability to perform competent, safe, legal care. A political disagreement with the facility’s affiliates, like opposition to abortion, simply isn’t relevant to a provider’s “qualifications.”

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Texas cites the notorious smear videos against Planned Parenthood as proof that the organization is not “qualified to provide medical services in a professionally competent, safe, legal and ethical manner.” This claim might hold water if Planned Parenthood actually did what Texas accuses it of doing—“deviating from accepted standards” to procure fetal tissue and “charg[ing] more than the costs incurred for procuring” the samples. But since those heavily doctored videos did not actually show Planned Parenthood breaking the law, this argument cannot withstand judicial scrutiny. The obvious reality, barely concealed by Texas’ irate letter, is that the state opposes abortion and doesn’t want to let federal health care funds go to organizations that terminate pregnancies.

That leads to the second reason why Texas’ move against Planned Parenthood is illegal: It very likely violates the Constitution. As the 10th Circuit Court of Appeals as well as federal judges in Florida and Ohio have ruled, efforts to revoke Planned Parenthood’s funding because it provides abortions violates the First Amendment. Under the “unconstitutional conditions” doctrine, the government cannot deprive a group of funds because it exercises a fundamental right that the government detests or because it promotes an idea that the government doesn’t like. Texas is attempting to rescind Planned Parenthood’s funding because the group performs abortions—a fundamental right protected under the 14th Amendment—and advocates for greater abortion access. The state is constitutionally barred from punishing Planned Parenthood for engaging in these activities.

Of course, a Republican-dominated Congress could create a Planned Parenthood exception to Medicaid’s “free choice of provider” requirement, and GOP-dominated courts could uphold such a rule. Moreover, Rep. Tom Price, Donald Trump’s anti-abortion nominee for secretary of health and human services, can fairly easily undo the extra safeguards President Barack Obama has instituted to protect Planned Parenthood funding. Abortion rights are gravely imperiled by Trump’s presidency, and the legal landscape protecting women from states’ anti-abortion crusades could change quickly. Still, for now, Texas’ attempt to defund Planned Parenthood is indisputably unlawful, and it stands essentially no chance of surviving the coming court challenge.

Mark Joseph Stern covers courts and the law for Slate.