Clinics’ funding lawsuit resumes

With stay lifted, state must reply

A federal judge has said legal activity may resume on a request that the state of Arkansas be required to resume funding of Planned Parenthood’s family planning and preventive health care services for Medicaid recipients.

Gov. Asa Hutchinson ordered Medicaid funding for the services cut off in 2015, citing widely distributed, secretly recorded videos that claimed to show unethical behavior at Planned Parenthood affiliates in other states. Though the videos were later discredited, a lawsuit that sought to void the directive led U.S. District Judge Kristine Baker to temporarily enjoin the state from cutting off the funds — first for three anonymous women who sued, and later for all Medicaid patients in Arkansas.

A divided three- judge panel of the 8th U. S. Circuit Court of Appeals in St. Louis reversed Baker last August. By January, Planned Parenthood’s two Arkansas clinics — one each in Little Rock and Fayetteville — had reluctantly stopped serving Medicaid patients. The clinics already couldn’t use Medicaid funds for abortions.

Also in January, Planned

Parenthood refocused its lawsuit that led to the injunctions, this time applying a different legal theory to resume its quest to void Hutchinson’s directive. The case was still open before Baker, because she didn’t have jurisdiction of the case while the preliminary injunctions were tied up on appeal and she wasn’t able to schedule a trial on the lingering request for a permanent injunction.

Attorneys for the state have argued that Planned Parenthood dragged out the case, creating more work for the state’s attorneys at the public’s expense by raising constitutional arguments it included in the original lawsuit but didn’t pursue at the preliminary hearing.

While conceding that the equal protection and due-process claims are still pending, the state asked the judge last month to halt activity in the renewed case until disagreements on how to proceed could be worked out, and Baker agreed to issue a stay.

Attorneys for the state also asked Baker to decertify the case as a class-action.

On Tuesday, Baker denied Planned Parenthood’s request for limited expedited discovery — which would require the state to quickly gather information in defense of the constitutional claims — and lifted the stay, requiring the state to respond to the renewed arguments within 14 days.

After the state responds and the plaintiffs reply to that response within seven days of it being filed, Baker said she will set a hearing on the renewed preliminary injunction request.

She declined to combine a hearing on the constitutional claims with the pending trial on the claims that led to the injunctions. She said the state’s motion to decertify the class is still pending.

The earlier injunctions were based on Planned Parenthood’s arguments that in cutting off Medicaid funding, the state had violated the patients’ federal right under the Medicaid Act to choose any qualified provider. This argument is known as the Free Choice of Provider claim.

Meanwhile, Planned Parenthood filed a brief this week arguing against the state’s request that Baker dismiss the lingering Free Choice of Provider claim in a written order, negating the need for a permanent injunction hearing.

Planned Parenthood argued that even though Baker’s preliminary rulings were overturned by the 8th Circuit, the appellate court “did not consider the merits of whether [Planned Parenthood] likely violated the Medicaid Act, but rather reversed based solely on its holding that individual Medicaid beneficiaries … have no private right of action to enforce their Free Choice of Provider claims.”

Attorneys for the state have cited Baker’s reversal by the 8th Circuit, which sets precedent for federal courts in Arkansas. But Planned Parenthood attorneys say the 8th Circuit is in the minority of the country’s circuit courts of appeal on the issue.

“Every circuit other than the Eighth Circuit to consider the issue — namely, the Fifth, Sixth, Seventh, Ninth and

Tenth circuits — has determined that individual Medicaid beneficiaries do have a private right of action to bring the Free Choice of Provider claim,” Planned Parenthood attorneys argued this week.

They said the state’s request that Baker dismiss that issue “ignores that the question of whether individual Medicaid beneficiaries have a private right of action to enforce the Free Choice of Provider provision remains in flux.” They cited the state of Louisiana’s recent stated intention to appeal the 5th Circuit’s recent ruling to the U.S. Supreme Court.

Louisiana’s petition is due at the U.S. Supreme Court by April 27, the Planned Parenthood attorneys noted.

In addition, a recent ruling by the 10th Circuit on the same issue may lead the state of Kansas to appeal to the nation’s highest court, argued attorneys Bettina Brownstein of Little Rock, Jennifer Sandman of New York and Richard Muniz of Washington, D.C., on behalf of Planned Parenthood Great Plains, which oversees the Little Rock and Fayetteville clinics.

“Thus, while Plaintiffs naturally do not dispute that the Eighth Circuit’s ruling is binding on this court in the absence of future developments in the Supreme Court, [the state] overstates the degree to which the issue of whether Medicaid beneficiaries have a private right of action under the Free Choice provision has been finally resolved,” they wrote.

The attorneys contend that the 8th Circuit’s reversals, issued before Baker has issued a final ruling, likely aren’t the final word on the case.