HHS vs. Texas: The Spending Clause In Action

Cross-posted with permission from Think Progress

On Wednesday, the Supreme Court heard arguments on why the Medicaid expansion under the Affordable Care Act (ACA) may or may not be unconstitutional. For anyone familiar with the Spending Clause, it is perplexing to think that somehow the federal government might not have the power to give the states more money for Medicaid and in turn require them to provide more low-income people with access to health care. As has been pointed out already, if the Medicaid expansion under the ACA is unconstitutional now, that means it was also unconstitutional the four other times Medicaid was expanded, three of which occurred under President Reagan, and it was unconstitutional when the program was first enacted in 1965. That seems highly unlikely.

Because these arguments have been made mostly in the realm of theory and hypotheticals, it might be useful to take a look at a very current example of how the Spending Clause works in practice. Those who have been following the war on women’s health will know that Texas recently passed a law that disqualifies Planned Parenthood from participating in the state’s Medicaid Women’s Health Program (WHP) because some of its clinics provide abortion care, even though the organization is barred from using federal or state money to pay for abortion care. Instead, the state’s action cut off funds that Planned Parenthood used to provide contraceptive services and counseling, cancer screenings, diagnosis and treatment for sexually transmitted infections, and other preventive care.

The federal government pays for 90 of the WHP’s $40 million budget. From where does this money come? The Medicaid program. And why does federal Medicaid pay 90 percent of the cost? Because in 1972, Congress deemed family planning to be so important that it wanted to ensure every state would include those services and supplies in its Medicaid program. By the same token, Congress was so eager to ensure that every state adopt the Medicaid expansion under the ACA, that it will pay for more than 90 percent of the cost for that expansion. Yet the conservative justices on the bench yesterday questioned that incentive as “coercive.”

Unfortunately, in a game of political chicken that puts the health of 130,000 Texan women on the line, Texas has violated a core tenet of the Medicaid program in excluding Planned Parenthood from the WHP. Federal law requires states to allow beneficiaries to seek care from “any willing provider” that is qualified to provide the needed services. Because of Texas’ discriminatory action, the Health and Human Services (HHS) Department has had no choice but to cut off federal Medicaid family planning funds for the state.

It is incredibly frustrating that the very women the federal Medicaid law is intended to protect are the ones who are hurt the most, but those sanctions are the only tool HHS has at its disposal to enforce the law. It is the bargain that is struck when Congress uses its Spending Clause power to act, and it is a poignant reminder that the legal theories that have been debated in the halls of justice this week could have an all too concrete effect on the lives of everyday women.

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