(CN) - The 9th Circuit seemed unwilling last week to let Arizona enact legislation intended to deprive funding from Medicaid providers who perform abortions.
House Bill 2800, which Arizona voters passed
last year, said the state "may not enter into a contract with or make a grant to any person that performs non-federally qualified abortions or maintains or operates a facility where non-federally qualified abortions are performed for the provision of family planning services."
Planned Parenthood of Arizona, Eric Reuss M.D. and several Jane Does sued
that summer, saying the law would deprive women in Arizona of federally protected rights to family planning services.
The plaintiffs sought a declaration that the Medicaid Act allows patients to receive services from the qualified, willing provider of their choice. Their lawsuit also said that Arizona's bill violates the "Equal Protection Clause because it distinguishes, without adequate justification, between family planning providers who provide abortion outside the Medicaid program and those who do not."
U.S. District Judge Neil Wake halted
enactment of the law earlier this year after finding that Arizona had overreached its authority under the U.S. Medicaid Act to place the condition on the provision of Medicaid services.
"[HB 2800] impermissibly disqualifies a class of providers from the state's Medicaid program for reasons unrelated to provider qualifications," Wake wrote.
"Defendants present a strained interpretation of the word "qualified" that would include any reasonable criteria a state sees fit to impose, regardless of whether the criteria relates to the ability to provide Medicaid services," Wake said.
Arizona's attorney told a three-judge panel of the 9th Circuit on Wednesday, however, that his state could define the term "qualified" as it sees fit.
"The definition of 'qualified,' according to the statutory framework and the explicit regulation, is supplied by the states," said Steven Aden of the Alliance Defending Freedom, who appeared in the 9th Circuit as a special attorney general for Arizona.
"They have the authority to impose reasonable qualifications. The only serious question left is whether HB 2800 is a reasonable qualification on providers, and the state maintains that it is."
Judge Jay Bybee was incredulous. "What's rational about it?" he asked. "What's reasonable about it?"
Aden cited "a couple of reasons."
"The state of Arizona has a longstanding policy against subsidizing elective abortions," he noted.
Bybee, though, doubted that the word "qualified" as used in the Medicaid Act gives states the authority to place requirements on providers beyond the licensing requirements that health care facilities and medical professionals must already meet.
"Arizona hasn't disqualified the providers at Planned Parenthood from practicing medicine in Arizona," he noted.
Planned Parenthood attorney Alice Clapman said that Judge Wake had correctly found that there is nothing vague about the Medicaid Act's qualification requirements.
"Despite defendant's best efforts, the term qualified in the statute does have a specific meaning," she said. "What Congress had in mind when it referred to qualified providers was providers who are competent, who are professionally qualified."
"Congress was referring only to professional qualifications, not to some free-floating state authority to pick and choose which providers could participate," Clapman added.
Judge Marsha Berzon asked Clapman whether states could add any additional requirements, for example involving criminal background checks or proof of financial responsibility.
Clapman replied that states could individually disqualify providers in cases of fraud or abuse under a separate section of the statute than the free-choice provision.
She said that even Arizona had not questioned whether the plaintiffs, Planned Parenthood of Arizona and Dr. Reuss, were professionally qualified under any ordinary sense of the term.
"The free-choice provision is enforceable and it prohibits measures such as Arizona's that attempt to restrict patient choice for reasons that have no relationship a provider's professional fitness to provide the services needed," Clapman said.