Clinics ask judge to halt suit

2 other cases cover similar issues, Planned Parenthood says

Planned Parenthood has asked a federal judge in Little Rock to temporarily halt proceedings in its lawsuit challenging the state’s discontinuation of Medicaid funding for the provider’s services.

In a motion filed Monday night, attorneys for the provider cited two court cases involving similar issues — one from Kansas and the other from Louisiana — that are awaiting requests to be heard by the U.S. Supreme Court, which began a new term this month.

The attorneys asked U.S. District Judge Kristine Baker to stop movement in the Arkansas case at least until the nation’s high court decides whether to take up either of the other cases. They also asked Baker, in the event the justices agree to hear either or both of the other cases, to extend a stay on the Arkansas case until the other case or cases are resolved.

If the high court agrees to hear either of the other cases, its ruling or rulings could “significantly alter the issues” before Baker, they argued.

Planned Parenthood attorneys told the court they expect the state to oppose its request. No response had been filed as of Tuesday evening, but attorneys for the state have several days to respond.

With a trial date tentatively set for Feb. 3, 2020 — more than 15 months from now — the case has largely been proceeding slowly and quietly since July 30, when Baker denied Planned Parenthood’s latest request for a preliminary injunction that would have restored the funding while the case was litigated.

On Oct. 2, 2015, Baker issued an injunction requiring the Arkansas Department of Human Services to reimburse Planned Parenthood for Medicaid-eligible services that its clinics in Little Rock and Fayetteville provided to three unidentified women who sued after Gov. Asa Hutchinson ordered the funding to be cut off. Baker ruled that the women had a right to challenge the cutoff under the Medicaid Act’s Free Choice of Provider requirement.

After the case was certified as a class action to represent all patients in Arkansas seeking Medicaid coverage for health services provided by the Arkansas clinics, Baker expanded the injunction Sept. 29, 2016, to apply to the entire class.

But after the state appealed, the 8th U.S. Circuit Court of Appeals vacated the injunction Aug. 16, 2017, saying the Free Choice of Provider requirement doesn’t give rise to a private right of action for individual Medicaid beneficiaries. The 8th Circuit didn’t consider the merits of the case: whether the state’s discontinuation of Medicaid funds for Planned Parenthood services violated the Medicaid Act.

Baker hasn’t issued a final ruling on Planned Parenthood’s claim based on the Free Choice of Provider requirement. But on Jan. 19, Planned Parenthood sought another preliminary injunction based on different grounds: that the state’s actions violated the Unconstitutional Conditions Doctrine and the Equal Protection Clause. That’s the request Baker denied July 30.

While attorneys on both sides prepared for a trial at which Baker will examine both arguments more carefully and decide if a permanent injunction is in order, Kansas and Louisiana filed petitions — in May and June, respectively

— asking the Supreme Court to decide the Free Choice of Provider issue in the context of rulings by the 10th Circuit Court of Appeals in Denver and the 5th Circuit in New Orleans.

Those appellate courts issued rulings at odds with the 8th Circuit but in line with three other federal appeals courts — for the nation’s 6th, 7th and 9th circuits, based in Cincinnati, Chicago and San Francisco, respectively.

Planned Parenthood attorneys wrote in their motion that petitions from the 10th Circuit, which also encompasses Kansas, Oklahoma, New Mexico, Utah and Wyoming, and the 5th Circuit, which also encompasses Texas and Mississippi, have been fully briefed and were distributed for Supreme Court conferences as recently as Friday, though no action has been taken on them yet.

Hutchinson’s Aug. 14, 2015, order directing the state to discontinue Medicaid funding for non-abortion services provided by Planned Parenthood cited videos that had just been released nationally by the Center for Medical Progress that appeared to show that Planned Parenthood clinics in other states violated medical guidelines. However, government investigations later found no wrongdoing on the clinics’ part.

Medicaid funds were already prohibited from being used in Arkansas for abortions. The clinics also provide family planning and preventive health care services including contraception; cancer screenings and colonoscopies; and tests and treatments for sexually transmitted diseases.

Last month, Baker denied the state’s request to decertify the class.