While Perry blames Obama for WHP demise, similar rule blocked by Bush

Posted on: March 21st, 2012 by Mary Tuma No Comments

While state officials blame the Obama administration’s “pro-abortion agenda” for ending a Medicaid program that provided basic reproductive care to more than 130,000 low-income women, a similar attempt by the state to restrict provider choice failed under the Bush administration, records obtained by the Texas Independent show.

With heated rhetoric, Gov. Rick Perry continues to wage a politicized attack on the current administration for the program’s collapse, charging President Obama with trampling on states’ rights by not adhering to a Texas rule blocking Planned Parenthood from receiving federal funds because it is an abortion provider.

In a recent editorial titled “Obama Administration Placing Pro-Abortion Politics Over Women’s Health,” Perry fiercely argues that the federal government’s decision displays a “twisted set of values,” reflects “nothing more than its pro-abortion agenda,” and is a “blatant pander to the president’s liberal base, which has made Planned Parenthood’s abortion services a celebrated cause.”

“It is the height of political posturing for the Obama Administration to put the interests of abortion providers and their affiliates, like Planned Parenthood, over the well-being of more than 100,000 low-income Texas women,” echoed Perry in a comparable statement issued shortly after the Centers for Medicare and Medicaid officially declined to renew the federal-state partnership.

“Texans send a substantial amount of our tax dollars to Washington, D.C., and it is unconscionable that the Obama Administration has essentially told Texas it will send our tax dollars back to fund this program only if we violate state law and include its pro-abortion allies.”

While Perry labels the government’s decision an “egregious overreach” meant to pacify the president’s liberal base, a previous attempt by Texas to bar abortion affiliates like Planned Parenthood from the Women’s Health Program failed to be granted under arguably one of the most conservative presidential administrations in history.

When the state signed on to the program in 2005, it requested a provision to ban from the program any abortion providers and centers that affiliate with or promote abortion services. Texas Health and Human Services spokesperson Stephanie Goodman says the state never received a direct denial from the Bush administration on the matter.

“CMS didn’t say anything in response to our request to ban abortion affiliates. Now they are saying they denied the request, but they never clearly excluded it to begin with,” said Goodman.

However, the issue may be a matter of semantics. While there was no explicit denial of the rule, The Centers for Medicare and Medicaid (CMS), under President Bush, approved formal terms and conditions that did not include Texas’ request seeking to waive the freedom of choice of family planning provider–effectively denying the rule by omission, CMS documents dated December 2008 indicate.

Fearing CMS might cut off funding anyway since Planned Parenthood keeps its abortion service operations wholly separate from their family planning clinics, the state didn’t enforce the rule. Largely dormant, the provision was revived in 2011 by some GOP lawmakers who were concerned the law was stagnating, prompting Attorney General Greg Abbott to issue an opinion evaluating its constitutionality. Abbott green-lighted the ban and concluded it didn’t conflict with federal law, granting it renewed power in the eyes of state officials.

With the rule now fully enforced by the Texas HHSC, the federal administration reiterated what was expected for weeks now–the government would discontinue funding the Medicaid program. In a letter sent out Thursday, CMS says Texas’ rule is inconsistent with longstanding law as it restricts freedom of choice of health care providers for women. Texas ignored the terms and conditions for the Medicaid plan and removed a key beneficiary protection–free choice of providers, without having the authority to do so. The center now requests details by April 16 on how the state will implement a three-month phase out period.

“Medicaid law is very clear; a state may not restrict patients’ choice of providers of services like mammograms and other cancer screenings, if those providers are qualified to deliver care covered by Medicaid,” wrote CMS in a statement. “Patients, not state government officials, should be able to choose the doctors and other health care providers that are best for them and their families.”

“In 2005, Texas requested this same authority to restrict patients’ choices, and the Bush Administration did not grant it to them either,” they also note.

The debate over the program’s future accelerated to new heights Friday when the Texas attorney general filed suit against Obama-appointed U.S. Secretary of Health and Human Services Kathleen Sebelius. The suit charges the federal government’s decision to end funding for the program is “unconstitutional” because it seeks to “commandeer and coerce the States’ lawmaking processes into awarding taxpayer subsidies to elective abortion providers.” By denying the waiver renewal and rejecting the state’s abortion-funding restriction, Sebelius’ order to end the program was, “an abuse of discretion and outside the bounds of her statutory authority,” according to the suit.

The state lawsuit claims that because Texas policy prevents taxpayer money from directly or indirectly subsidizing abortions, centers that are affiliated with abortion centers are not “qualified providers.” The claim rests on the idea that when Planned Parenthood centers receive taxpayer funds that money become mixed with money that goes toward their abortion clinics. Planned Parenthood, though, says its abortion and family centers are maintained as separate operations, specifically to prevent the commingling of funds. Additionally, federal and state law prevent taxpayer money from going to abortion services.

The feds have failed to respect state-established qualification standards and are now exerting “unconstitutional leverage over a State’s abortion policies,” the suit contends. By granting waivers to other states that provide taxpayer funds to abortion centers while withholding waivers from Texas, the secretary is “imposing the functional equivalent of a fine” on the state for its decision to prevent public money from going to elective abortion providers.

F. Scott McCown, executive director with Austin-based research and analysis institute the Center for Public Policy Priorities, says the suit doesn’t have legs to stand on. Similar attempts to block Planned Parenthood funding were rejected by district courts in Indiana, Kansas and North Carolina.

“The attorney general took a wrong turn by bringing up the issue of qualified providers,” said McCown. “Texas says Planned Parenthood can’t be included in the program even though they are licensed, professionally certified and authorized to perform services for any woman that needs them. To say they are not qualified because ‘we don’t like who you affiliate with so you’re out of the program,’ is not a logical argument.”

Under the longstanding Social Security Act, states can only blacklist providers convicted of a felony or those at high risk of fraud, waste or abuse.

“It’s like if you had a high school football program and you said you can’t participate in a public funding program because you affiliate with Muslims,” he said. “In America you can’t exclude a public program from funding because they don’t believe what you believe.”

He stresses partisan attacks shouldn’t be part of the equation. The law clearly prohibits what Texas is hoping to enact, and is not a product of the current president’s doing.

“This is not some new rule the Obama administration came up with. This is a longstanding Medicaid statute,” said McCown. “And this is not just a ‘rule’–this is congressional law, enacted years ago and enforced by both Republicans and Democrats. It’s not simply something ‘Obama has done’.”

Image of Texas Gov. Rick Perry: Flickr/Gage Skidmore

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