July 07, 2012
The Huffington Post
Did John Roberts Accidentally Save Planned Parenthood?
By: Mike Sacks
By rewriting the rules that govern which strings the federal government can attach to its spending on the state level, Chief Justice John Roberts may have inadvertently prevented a future Tea Party-dominated Congress from executing one of its top priorities, defunding Planned Parenthood.
At the same time, it raises the question of whether the federal government can withhold Medicaid money if a state decides on its own to defund Planned Parenthood. Before Roberts' ruling, no legal scholar would have questioned whether the federal government had the authority to spend its own money or tie any strings it deemed appropriate to it. But after the ruling, it's an open question that will likely be decided in court, legal experts told The Huffington Post.
"I perceive NFIB v. Sebelius as throwing the courthouse doors open to coercion claims," said Nicole Huberfeld, a University of Kentucky law professor. "Because the holding is so dependent on the somewhat unusual facts of Medicaid, and because the court set forth no theory of coercion, I think we will see a lot of challenges in an effort to discover the contours of the coercion doctrine."
The issue raised by Roberts' opinion is whether the federal government can coerce a state into using its federal grant money in a particular way by threatening to withhold that money. For instance, if Congress voted to defund Planned Parenthood through the Title X federal family planning program, but New York wanted to continue sending its federal Title X dollars to Planned Parenthood clinics in the state, could the government withhold all Title X money from New York?
Andrew Koppelman, a Northwestern University law professor who writes for Salon, said lower courts are likely to see such questions before them. "It depends on whether the court can fairly conclude that the amount of money is so large that the state has no choice but to acquiesce in the federal government's terms," he said. "There is language in both Roberts and the four dissenters' opinions to suggest that the federal program has to be really huge, as Medicaid is, in order for the offer to be coercive. But we'll have to see what lower courts do with this precedent. One can say, at a minimum, that challenges to conditional funding that would have been frivolous a week and a half ago now must be taken seriously."
Ilya Shapiro, editor and chief of the Cato Supreme Court Review, said he believes such a case wouldn't stand up in court because the new conditions would only specify which contractors the Medicaid program can use, which is not an unconstitutional string for Congress to apply to one of its programs.
"I would think that the mere specification of what contractors you can use doesn’t rise to the level of transforming Medicaid and so ... NY's hypothetical challenge would fail," he wrote to HuffPost. "It’s really no different than 'buy American' clauses inserted in all sorts of contracting regs."
The coercion issue could also work against Planned Parenthood in its court battles with state governments. Under current federal Medicaid law, a state cannot withhold its Medicaid money from a capable health care provider such as Planned Parenthood for political reasons. Several states have attempted to defund Planned Parenthood through Medicaid, but district judges blocked such efforts after the federal governmentthreatened to take away the states' entire Medicaid programs.
The language in Roberts' opinion could prevent the federal government from coercing a state into funding Planned Parenthood by threatening to withhold all of that state's federal Medicaid money.
"States could easily choose to pay for or not to provide family planning clinics, which is the ... goal of Title X funding," Huberfeld told HuffPost. "I think it’s much harder to argue states could ignore the poor who would lose coverage if Medicaid funding is lost -- which seems to be at the heart of the votes for coercion."
A spokesperson for Planned Parenthood would not comment on the specific impact of the Supreme Court decision on the organization's government funding, but said he is confident the courts are on Planned Parenthood's side.
“We know that opponents of women’s health will keep trying new tactics to insert politics and ideology into these issues of basic health and economic well-being for millions of American women," said Eric Ferrero, vice president of communications at Planned Parenthood Federation of America. "The public overwhelmingly opposes efforts to defund Planned Parenthood and cut millions of people off from the preventive health care we provide, and every time politicians have ignored public opinion and tried to defund Planned Parenthood anyway, courts have uniformly rejected these efforts.”