On August 16, 2017, the U.S. Court of Appeals for the Eighth Circuit issued a ruling
upholding Arkansas’ decision to deny public Medicaid funding to Planned Parenthood. The court reasoned that the federal Medicaid statute did not confer on the abortion provider a statutory right to access state funding.
The 8th Circuit decision was a break from a string of contrary holdings by other circuit courts that suggested the Medicaid law allowed an individual to choose a provider and sue the state if it would not work with that provider.
The backdrop for this series of cases are video disclosures that Planned Parenthood employees appeared to be engaging in the sale of body parts obtained through abortions. To these have been added additional videotaped conversations with executives of Planned Parenthood speaking in callous and shocking ways about a callous and shocking business they are engaged in, including, apparently, trafficking body parts obtained through abortions of unborn children.
In the wake of the initial disclosures, a number of states acted to end their contractual relationships with Planned Parenthood. Utah’s governor, for instance, ordered state agencies to end the practice of funneling federal grants to Planned Parenthood’s Utah affiliate by declining to renew four contracts with the group. The states involved in the lawsuits referenced above took similar actions.
This, of course, led to litigation, most of which has gone Planned Parenthood’s way. In fact, Utah’s Planned Parenthood claimed that the state had violated the federal constitution when it declined to continue its contracts with them. The trial court rejected this argument, but a panel of judges on the Tenth Circuit Court of Appeals seemed to take it seriously and the state gave up its fight.
The split between the circuits, caused by the Eighth Circuit ruling, about what federal law requires may lead to a U.S. Supreme Court case that would resolve the differing interpretations. That, in turn, should lead to a serious conversation about the underlying assumption Planned Parenthood has been acting on — that it has a right under federal law or the U.S. Constitution — to access taxpayer funding.
Surely there cannot be a constitutional right of a vendor to get the government’s business. If there is a statutory right, which is doubtful, should there be one? Such a right would require a state to implicitly approve of activities that it is likely the overwhelming majority of citizens of the state find shocking and reprehensible.
With these disclosures in the background, sending a check to Planned Parenthood would be understood as either approval of the behavior of the employees in the videos or at least a belief that it was not bad enough to justify distancing themselves from it. Conversely, an announcement that a person would no longer donate because of the videos would be understood as an expression of disapproval. Why should one kind of opinion, approval or nonchalance, be favored in the law over the expression of the other, disapproval or repugnance.
It is not, as Planned Parenthood would have it, that the answer should turn on whether the videos showed a legal violation. If, somehow, the kinds of things disclosed in the videos were legal, that would not make them any less horrifying to many citizens and the ability of these people to express their disapproval through their elected representatives is a right that needs protection.
Many states have decided that they no longer want to do business with an organization tainted by these practices. A traffic in body parts of unborn children, or callous talk about taking an unborn life, are fundamentally at odds with basic standards of human decency. These states were right to try to keep themselves untainted by association with a group implicated in such practices.
That is a decision consistent with the constitution and with basic moral sanity. That this fact has not been more widely recognized is an ominous sign.
Bill Duncan is director of the Center for Family and Society at Sutherland Institute in Salt Lake City, Utah. To read more of his reports — Click Here Now.
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