PHOENIX -- Lawyers for the state and a privately financed anti-abortion group go to federal appeals court today (wednesday) in a bid to restore a ban on Medicaid funding for Planned Parenthood.
And they're hoping the judges do not pay too much attention to the recent activities of the U.S. Supreme Court.
Steven Aden of the Alliance Defending Freedom will argue that Arizona lawmakers are entitled to decide that Planned Parenthood is not "qualified'' to offer family planning services using Medicaid dollars.
Aden is not questioning the medical qualifications of Planned Parenthood staff. Instead he wants the 9th U.S. Circuit Court of Appeals to rule that legislators can declare it ineligible because it also offers elective abortions, even if they are not funded by Medicaid.
He tried that argument in federal court here, only to be rebuffed by U.S. District Judge Neil Wake. So Aden, with the blessing of Attorney General Tom Horne, decided to appeal.
Only thing is, the 7th U.S. Circuit Court of Appeals rejected a virtually identical Indiana law as illegal. Potentially more significant, the U.S. Supreme Court less than a month ago refused to disturb that ruling.
Aden would not discuss how he hopes to convince appellate judges in San Francisco that, despite all that, they should uphold the Arizona law.
Horne and his agency have taken a back seat in the legal fight.
"It will be argued by someone from a pro-life organization,'' he told Capitol Media Services, rather than his own solicitor general who instead will simply sit at the table with Aden. But Horne said no one should read too much into last month's decision by the Supreme Court justices to leave undisturbed the 7th Circuit decision -- and leave as void the Indiana law.
Today's court fight comes as anti-abortion interests are seeking what amounts to a work-around of Wake's ruling.
A measure approved by the House Appropriations Committee earlier this week would ban Medicaid dollars from subsidizing abortions, even just to pay the utilities in the building. That would be enforced by both audit requirements and a ban on any woman who gets family planning from Planned Parenthood from later getting an abortion there, even with her own funds.
Another provision would let health officials inspect abortion clinics without a warrant.
But SB 1069 may be effectively dead for this year. Rep. Eric Meyer, D-Paradise Valley, said Tuesday he has the votes to strip out those provisions and instead have the issues studied by a committee to report back next year and make recommendations for any appropriate changes in the law.
That leaves today's court hearing as the sole venue in the fight to restrict funding of Planned Parenthood.
Federal and state laws already prohibit public funds for elective abortions.
The state, as part of its participation in Medicaid, provides family planning services for needy women. The federal government pays 90 percent, with the state covering the balance.
Medicaid laws also permit eligible women to choose from any "qualified provider.'' And that has included Planned Parenthood.
Last year, though, state lawmakers voted that any organization that also provides abortions cannot be a "qualified provider.'' Rep. Justin Olson, R-Mesa, said if the government gives money to Planned Parenthood, that frees up other funds for abortions.
But Wake, in his ruling, said lawmakers cannot unilaterally decide Planned Parenthood is not "qualified'' just because it performs abortions outside the Medicaid program. "A state's determination of whether a provider is qualified must relate to its ability to deliver Medicaid services,'' he wrote.
In his appeal, Aden does not dispute that federal law allows Medicaid recipients to obtain care from anyone "qualified to perform the service.'' But Aden argued that phrase is "vague and amorphous,'' meaning Planned Parenthood, its patients and its doctors have no standing to sue.
But the Obama administration, in its own legal briefs in the case, wants the 9th Circuit to uphold Wake's ruling.
Stuart Delery, an assistant attorney general, said the Arizona law bears no relation to Planned Parenthood's ability to provide family planning services. He cited that 7th Circuit ruling -- the one left untouched by the Supreme Court -- in rebuffing the claim that Arizona has authority to exempt otherwise medically competent Medicaid providers from the program.
"If the states are free to set any qualifications they want -- no matter how unrelated to the provider's fitness to treat Medicaid patient -- then the free-choice-of-provider requirement (of Medicaid law) could be easily undermined by simply labeling any exclusionary rule as a 'qualification,' '' Delery wrote, quoting from that 7th Circuit ruling.
Aden, however, argued that the Legislature is entitled to conclude that Planned Parenthood is subsidizing abortions with Medicaid dollars.
"Arizona taxpayers, acting through their elected representatives, have a strong interest in ending these taxpayer subsidies of abortion,'' Aden wrote.
Alliance Defending Freedom describes itself as a "servant ministry'' to "keep the door open for the spread of the Gospel by transforming the legal system and advocating for religious liberty, the sanctity of life, and marriage and family.''