PHOENIX -- A federal judge indicated Friday's he's not buying the state's argument that it can cut off family planning funds for Planned Parenthood.
During a nearly three-hour hearing, Judge Neil Wake repeatedly peppered attorney Steven Aden about his contention that lawmakers can disqualify any organization from getting Medicaid dollars for services it provides simply because it also performs legal abortions. Wake pointed out that federal law specifically bars states from limiting where Medicaid recipients can get care.
Aden said those rules do allow states to decide who is "qualified" to provide Medicaid services.
But Wake said he is having a hard time seeing how Planned Parenthood's other non-Medicaid funded activities, all of which are legal, makes the organization unqualified for being reimbursed for Medicaid services.
The judge's questioning of Aden at times was quite pointed, with Wake appearing visibly perturbed at the responses he was getting.
"I'm not feeling like a heard a specific answer," Wake told Aden at one point.
Wake did not formally indicate he will grant the request by Planned Parenthood for a preliminary injunction, blocking enforcement of the law approved earlier this year.
But the judge did note that one thing he has to consider is who is likely to be harmed by his ruling. And Wake said allowing the state to cut family planning funds for Planned Parenthood would have a real and detrimental effect on the women who now get their care there, as they would have to go somewhere else.
As part of its participation in Medicaid, Arizona provides family planning services for needy women. The federal government picks up 90 percent of the cost, with the state covering the balance.
Under both state and federal laws, none of those funds can be used for elective abortions. But lawmakers voted to deny all family planning funds -- both state and federal -- to any organization that also performs abortions.
The defense of the law was made by Aden, who actually is an attorney with Alliance Defending Freedom, a Christian law firm that advocates against abortion, gay marriage and similar issues. Solicitor General David Cole agreed to appoint Aden as a special assistant attorney general.
Aden argued that lawmakers have the right to restrict where funds can go, saying there is evidence that some of the funds Planned Parenthood gets for its Medicaid services at least indirectly subsidize abortions. If nothing else, he said, those funds pay for a share of the rent, utilities and staff.
Bryan Howard, president of Planned Parenthood Arizona, disputed there was any subsidy.
But Wake was seemed to care less about how the money is divided up than he did about whether the legislation runs afoul of federal laws and regulations. They say, in essence, that Medicaid recipients are entitled to get their care from any qualified provider.
Aden said the Legislature has the right to decide that those who also provide abortions are not qualified providers. Wake reacted with a certain amount of incredulity.
"How is a state policy to not have anybody get any money from the state if they're also engaged in legal and constitutional abortion services ... what does that have to do with Medicaid?" he asked.
Aden said states can decide that qualifications go beyond the ability, training and licensure to provide the services. For example, he said, the state of New York disqualified a Medicaid provider for allegedly violating state water pollution laws.
Wake countered that involved someone engaged in illegal pollution. And, at the moment, abortion remains legal in Arizona and the United States.
The judge also said he suspects there really is a hidden motive behind the legislation: By threatening to cut off Medicaid dollars, it would force Planned Parenthood to choose between either dropping the Medicaid women as clients or getting out of the abortion business.
"Isn't that the obvious effect and the intended effect," Wake asked.
Aden assured him that was not the case.
In fact, though, Rep. Justin Olson, R-Mesa, sponsor of the legislation, said at the time he was pushing it that it was strictly aimed at Planned Parenthood.
The law actually has never taken effect. After Planned Parenthood sued, the state agreed not to cut funding until Wake had a chance to hear from both sides.
This next step is to seek a preliminary injunction to stay the law while the case winds its way through the court system, something that could take years.
Wake pointed out that one thing he has to consider is whether letting Arizona cut funding would result in "irreparable harm" to anyone. The immediate result, he said, is that women now getting care at Planned Parenthood would be forced to find new health care providers.
"All that would be irreparable," Wake said, especially if an appellate court ultimately finds the law illegal.
Aden conceded some people would be inconvenienced. "That doesn't mean that patients can't go a few blocks farther," he said.
"That sounds like you are admitting the irreparable harm," Wake shot back.
The U.S. Department of Justice has sided with Planned Parenthood in attacking the law as illegal. And the federal government has challenged similar regulations in Texas and Indiana.
Wake did not say when he will rule.