PHOENIX -- Attorneys for the state and abortion foes are asking a federal appeals court to let it cut off federal and state funding for Planned Parenthood because it also offers abortions.
In legal briefs filed with the 9th U.S. Circuit Court of Appeals, the lawyers contend a trial judge erred last year (eds: yes, 2012) when he said a new state statute aimed at Planned Parenthood apparently violates federal laws. U.S. District Court Judge Neil Wake ordered the state to continue allowing the organization to get family planning funds while the case goes to trial.
But Steven Aden, an attorney with the privately funded Alliance Defending Freedom which is helping the state defend the law, said allowing the injunction to remain place "would frustrate the public's interest, expressed through its elected representatives, in ensuring that taxpayer dollars do not directly or indirectly support abortions."
And Aden said the state has sovereign rights in determining who can participate in the Arizona Health Care Cost Containment System, the state's Medicaid program. He said it is irrelevant that most of the funds for the program come from the federal government.
The filings by Arizona come as a state judge in Texas on Monday refused to stop that state from cutting off all funds from Planned Parenthood because that organization also performs abortion.
That ruling, however, covers only Texas and does not affect Wake's order. There also are some differences between what Texas is doing to keep funds from going to Planned Parenthood and the 2012 Arizona law.
Ultimately, whatever the 9th Circuit rules, as a federal appellate court, will govern what happens in Arizona unless overturned by the U.S. Supreme Court.
Both Arizona and federal laws already bar the use of public funds for abortions that are not medically necessary.
But the state, as part of its participation in the federal Medicaid program, provides family planning services for needy women. The federal government pays 90 percent of the cost, with the state covering the remainder.
Medicaid law also permits eligible women to choose from any qualified provider. And that has included Planned Parenthood.
Last year, though, lawmakers added a provision to the law to decide that any organization which also provides abortions cannot be a "qualified provider."
Rep. Justin Olson, R-Mesa, who sponsored the legislation, argued that if the government gives money to help Planned Parenthood pay for its other expenses, that frees up that cash for abortions.
Planned Parenthood then sued.
In a 28-page ruling, Wake cited that Medicaid provision allowing recipients to choose among all qualified providers. And he said lawmakers cannot unilaterally decide Planned Parenthood is not a "qualified" provider just because it performs abortions outside the Medicaid program -- and without federal dollars.
"A state's determination of whether a provider is qualified must relate to its ability to deliver Medicaid services," Wake wrote.
Aden, in his arguments to the appellate court, acknowledged that federal law does allow eligible recipients to obtain care from anyone "qualified to perform the service." But Aden said the question of who is qualified makes the whole law "vague and amorphous," making it legally impossible for Planned Parenthood, its patients or its doctors to sue.
But the heart of the argument Aden is making for the state is that Arizona lawmakers -- and Gov. Jan Brewer who signed the measure -- are entitled to decide who is qualified, even if the majority of the funds for the program come from the federal government. The key is that Medicaid is a joint federal-state program -- and that Arizona is a sovereign state.
Aden said giving the final decision to the federal government "would turn federalism on its head and seeks to usurp the proper role of Arizona in furthering its own state public policy relating to the health and welfare of its citizens."
"Any purported surrender of Arizona's sovereignty must be interpreted strictly in favor of the state," Aden wrote.
He also charged that the conclusion by the Centers for Medicaid Services that states cannot disqualify health care providers for outside reasons -- like providing abortion services -- is based not on any longstanding policy but instead was "cobbled together" in 2011 when Indiana enacted a similar measure.
"Politically driven policy positions taken by a federal agency cannot override sovereign authority of the states," Aden wrote.
He also brushed aside contentions that Arizona, in accepting Medicaid funds, implicitly agreed to live by any rules federal officials set. Aden said only when such conditions are clearly stated, up front, can a state be considered to have "voluntarily and knowingly accepted the terms of the contract."
Wake, however, pointed out in his ruling that Aden has never argued Planned Parenthood is unqualified to perform family planning services. Instead, the state is saying Planned Parenthood can continue to be a family planning provider -- but only if it stops performing abortions or creates a separate legal entity.
The judge also was not persuaded that there is somehow a cross-subsidy taking place to underwrite abortion costs.
"This argument ignores evidence that Planned Parenthood Arizona complies with all federal and state requirements to ensure that public funds are not used for abortion services," the judge wrote, something he said is supported by the fact Planned Parenthood has participated in the Arizona Health Care Cost Containment System, the state's Medicaid program, for more than 20 years.
And Wake noted Planned Parenthood is a "fee for service" provider, meaning that it bills AHCCCS only for the specific services it provides to patients.