Suit Challenges Michigan Medicaid Ban on Abortion Funding

Suit was filed yesterday in the Michigan Court of Claims challenging the exclusion of abortion coverage from the state's Medicaid program. Plaintiff is a local YWCA which operates a Reproductive Health Fund that provides financial support for county residents for reproductive health care, including abortion services. The complaint (full text) Young Women's Christian Association of Kalamazoo, Michigan v. State of Michigan, (MI Ct. Cl., filed 6/27/2024), alleges that the exclusion violates the state Constitutional Amendment protecting reproductive freedom, the Michigan Reproductive Health Act which implemented the Amendment and the ban on sex discrimination. ACLU issued a press release announcing the filing of the lawsuit.

Medicaid Limit on Reimbursing for Family Care Did Not Violate Muslim Family's Free Exercise Rights

In Alsyrawan v. Department of Human Services, (PA Commonwealth Ct., May 20, 2024), a Pennsylvania state appellate court held that Medicaid rules limiting reimbursement of family members providing in-home and companion services to a total of 60 hours per week did not violate a Muslim family's rights under Pennsylvania's Religious Freedom Protection Act. The Medicaid recipient was a non-verbal adult male with Down syndrome and several other disabilities who was being cared for by his mother and sister. According to the court:

... [The] family, including Petitioner, follows Islamic law set forth in the Quran, which forbids ... unrelated males and females from being alone together, and unrelated males from providing personal care involving nudity or exposed private areas....  Therefore, to protect Petitioner from sin, only Mother, Sister, or other closely related female relatives may be alone with Petitioner, and only a father, brother, uncle, or grandfather could provide his more intimate bathroom and shower care....  Mother added that the prohibition of unrelated males and females being alone together likewise prohibits her from being alone with an unrelated male caretaker while he is tending to Petitioner....

... Petitioner also asserts that the Department’s refusal to grant him an exception to the 40/60 Rule violates the RFPA, where he has shown by clear and convincing evidence that placement of an unrelated caregiver in his home would burden his and his family’s religious exercise, and the Department cannot show that its denial of an exception is the least burdensome way to serve a compelling interest....

... [S]substantial record evidence supports that Islamic law allows an unrelated, non-Islamic male aide to assist Petitioner outside Mother’s presence (i.e., either outside the home or when Mother leaves the home to attend to personal business), before and after which Mother could provide Petitioner’s necessary intimate personal care.... 

... Because Petitioner has not shown by clear and convincing evidence that the 40/60 Rule “[s]ignificantly constrains or inhibits conduct or expression mandated by [his] sincerely held religious beliefs[,]” “[s]ignificantly curtails [his] ability to express adherence to [his] faith[,]” “[d]en[ies] [him] reasonable opportunity to engage in activities . . . fundamental to [his] religion[,]” nor “[c]ompels conduct or expression which violates a specific tenet of [his] religious faith[,]” 71 P.S. § 2403, he has failed to meet his initial burden of proving that the application of the 40/60 Rule substantially burdens his free exercise of religion under the Free Exercise Clause or the RFPA.

Excluding Gender-Affirming Care from Governmental Insurance Coverage Violates Equal Protection

In Kadel v. Folwell, (4th Cir., April 29, 2024), the U.S. 4th Circuit Court of Appeals sitting en banc, in an 8-6 decision, held that an exclusion in North Carolina's state employee healthcare plan for treatment "in connection with sex changes or modifications" violates the equal protection clause. The majority held that "the coverage exclusions facially discriminate on the basis of sex and gender identity, and are not substantially related to an important government interest...." The majority held that the exclusion for "transexual surgery" in West Virginia's Medicaid program similarly violates the equal protection clause as well as the Medicaid Act. The majority in its 58-page opinion said in part:

[D]iscriminating on the basis of diagnosis is discriminating on the basis of gender identity and sex.  The coverage exclusions are therefore subject to intermediate scrutiny.  They cannot meet that heightened standard.

Judge Richardson, joined by Judges Wilkinson, Niemeyer, and Quattlebaum, and joined in part by Judges Agee and Rushing, said in part:

The Equal Protection Clause does not license judges to strike down any policy we disagree with.  It instead grants the states leeway to tailor policies to local circumstances, while providing a carefully calibrated remedy for truly illicit discrimination.  No such discrimination appears in these cases.  North Carolina and West Virginia do not target members of either sex or transgender individuals by excluding coverage for certain services from their policies.  They instead condition coverage on whether a patient has a qualifying diagnosis....

Judge Wilkinson filed a dissenting opinion, saying in part:

In the era of Roe, it was substantive due process. Now it is substantive equal protection. Make no mistake. The fundamental rights prong of equal protection is what is at play here, and while constitutionally mandating state-funded transgender rights will please some, it will politicize the courts in the eyes of all as assuredly as its substantive due process predecessor did....

Some States are reluctant to fund emerging treatments until the science can tell us more. Not only is the medical data conflicting, but there is a moral caution in this case as well. Self-righteous folly has long run through us all. The Tower of Babel toppled of its own hubristic weight. Yet still we moderns strive to bend nature to desire.

Judge Quattlebaum, joined by Judges Agee, Richardson and Rushing, filed a dissenting opinion, saying in part:

In order to conclude that no legitimate, non-discriminatory reasons support denying coverage for certain treatments of gender dysphoria, the majority abandons settled evidentiary principles. Properly accounting for the record, questions about the medical necessity and efficacy of such treatments linger. And those lingering questions support the states’ coverage decisions.

NPR reports on the decision.

Pennsylvania Supreme Court Casts Doubt on Abortion Exclusion From State Medicaid Coverage

In Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, (PA Sup. Ct., Jan. 29, 2024) [Majority Opinion], the Pennsylvania Supreme Court remanded to the trial court for strict scrutiny review a challenge to the constitutionality of Pennsylvania's ban on the use of state Medicaid funds for abortion services (except in the case of rape, incest or threat to the life of the mother). Six of the Court's 7 Justices participated in the case.  Justice Donohue's opinion (joined by Justice Wecht) sets out the conclusions of a majority of the Justices in a 219-page opinion. The majority overruled its 1985 decision in Fischer v. Department of Public Welfare that had upheld the ban.  The majority concluded that that pregnancy-related distinctions may violate the state Constitution's Equal Rights Amendment (Art. I, Sec. 28), saying in part:

... [T]he Fischer Court ignored that reproductive functions, by definition, have historically been the primary basis for the distinction between men and women, i.e., physical characteristics that make one a member of the sex. The text of Section 28 does not support the exception created by Fischer that equality of rights can be denied or abridged based on a physical characteristic that makes a person a member of the male or female sex....

 ... [W]e overrule Fischer’s interpretation of the Equal Rights Amendment. We further conclude that when a statute is challenged as violative of Section 28, a sex-based distinction is presumptively unconstitutional, and it is the government’s burden to rebut the presumption with evidence of a compelling state interest in creating the classification and that no less intrusive methods are available to support the expressed policy.

The majority also overruled Fischer's holding that the state Constitution's equal protection provision (Art. I, Sec. 26) does not prevent the state from conferring a benefit unequally.  The majority said in part:

... [A] court, presented with a challenge to a legislative classification that touches on the exercise of a civil right on the basis that it violates Article I, Section 26, must determine whether the classification operates neutrally with regard to the exercise of that right. If it does not, the court shall then conduct a commensurate means-end review.

Writing only for himself and Justice Wecht, Justice Donohue also contended that that the state Constitution substantively protects a woman's right to make reproductive decisions, including abortion.

Justice Wecht also filed a 71-page concurring opinion discussing additional issues. Chief Justice Todd filed a 17-page opinion dissenting in part, concluding that the Fischer decision is binding precedent. Justice Dougherty filed a brief opinion concurring in part, agreeing with the majority's overruling of Fischer. Justice Mundy filed a 24-page opinion dissenting in part, concluding that the funding ban should be upheld on the basis of the Fischer case and strongly criticizing the majority's holding that Art. I, Section 26 requires funding neutrality.

Philadelphia Inquirer reports on the decision.

Florida's Ban On Medicaid Payments For Puberty Blockers and Cross-Sex Hormones Is Invalid

In Dekker v. Weida, (ND FL, June 31, 2023), a Florida federal district court held that Florida Statutes §286.31(2) and Florida Administrative Code Rule 59G-1.050(7) which bar the expenditure of state funds, including Medicaid funds, for puberty blockers and cross-sex hormones violate the Equal Protection Clause and the Affordable Care Act's ban on sex discrimination, as well as provisions of the Medicaid Act. The statute and rule also ban Medicaid coverage for gender-affirming surgery, but none of the plaintiffs had standing to challenge these provisions. The court said in part:

The record establishes that for some minors, including Susan Doe and K.F., a treatment regimen of mental-health therapy followed by GnRH agonists and eventually by cross-sex hormones is the best available treatment. They and their parents, in consultation with their doctors and multidisciplinary teams, have rationally chosen this treatment. The State of Florida’s decision to ban payment for GnRH agonists and cross-sex hormones for transgender individuals is not rationally related to a legitimate state interest. 

Dissuading a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest. The defendants apparently acknowledge this. But the State’s disapproval of transgender status—of a person’s gender identity when it does not match the person’s natal sex—was a substantial motivating factor in enactment of the challenged rule and statute....

The rule and statute at issue were motivated in substantial part by the plainly illegitimate purposes of disapproving transgender status and discouraging individuals from pursuing their honest gender identities. This was purposeful discrimination against transgenders....

Florida Politics reports on the decision.

Mississippi Governor Signs Ban on Gender Transition Procedures for Minors

Yesterday Mississippi Governor Tate Reeves signed into law House Bill 1125, the Regulate Experimental Adolescent Procedures Act (full text). The new law bans providing gender transition procedures (including puberty blockers, hormonal treatments and surgery) for persons under the age of 18.  It also prohibits use of public funds and Medicaid coverage for such procedures and prohibits state income tax deductions for expenses of the procedures.  In a press release announcing his signing of the bill, Governor Reeves said in part:

At the end of the day, there are two positions here. One tells children that they’re beautiful the way they are. That they can find happiness in their own bodies. The other tells them that they should take drugs and cut themselves up with expensive surgeries in order to find freedom from depression. I know which side I’m on.

Biden Issues Executive Order On Access To Reproductive Health Care Services

Yesterday, President Biden issued an Executive Order on Securing Access to Reproductive and Other Healthcare Services (full text). The White House also issued a Fact Sheet explaining the Executive Order.  The Executive Order reads in part:

There have been numerous reports of women denied health- and life-saving emergency care, as providers fearful of legal reprisal delay necessary treatment for patients until their conditions worsen to dangerous levels.  There are also reports of women of reproductive age being denied prescription medication at pharmacies — including medication that is used to treat stomach ulcers, lupus, arthritis, and cancer — due to concerns that these medications, some of which can be used in medication abortions, could be used to terminate a pregnancy.  Reportedly, a healthcare provider, citing a State law restricting abortion, even temporarily stopped providing emergency contraception.

As it remains the policy of my Administration to support women’s access to reproductive healthcare services, including their ability to travel to seek abortion care in States where it is legal, I am directing my Administration to take further action to protect access to reproductive healthcare services and to address the crisis facing women’s health and public health more broadly.

The Executive Order among other things directs the HHS Secretary to advance access to Medicaid coverage for patients traveling across state lines for medical care. It also directs the Secretary to promote compliance with non-discrimination laws in obtaining medical care. 

5th Circuit En Banc Holds Medicaid Patients Cannot Challenge Planned Parenthood Defunding

In a procedurally complex holding, the U.S. 5th Circuit Court of Appeals en banc in Planned Parenthood of Greater Texas Family Planning and Preventive Health Services, Inc. v. Kauffman, (5th Cir., Nov. 23, 2020), vacated a preliminary injunction that had prevented Texas from terminating its Medicaid contracts with Planned Parenthood. Eleven of the 16 judges joined the majority opinion in full.  Three others joined it in part. Two dissented. The termination was prompted by a controversial video from a pro-life organization involving procurement of fetal tissue for research. In vacating the injunction, the majority said in part:

[T]he district court grant[ed] the Providers and Individual Plaintiffs’ [who were Medicaid patients] motion for a preliminary injunction and prohibit[ed] the termination of the Providers’ Medicaid provider agreements. The district court held that § 1396a(a)(23) granted rights to the Individual Plaintiffs upon which a § 1983 action challenging the OIG’s termination decision could be based. The district court concluded ... [that] the OIG “did not have prima facie . . . evidence, or even a scintilla of evidence, to conclude the bases of termination set forth in the Final Notice merited finding the . . . Providers were not qualified.” This appeal ensued.

A three-judge panel of this court held ... that the Individual Plaintiffs [Medicaid patients] could maintain a § 1983 suit.... We granted en banc review.

The preliminary injunction issued by the district court was based solely on the claims of the Individual Plaintiffs. The district court did not consider whether the Providers were entitled to a preliminary injunction. The question before us is whether the Individual Plaintiffs may bring a § 1983 suit to contest the State’s determination that the Providers were not “qualified” providers.... We hold that they may not. We accordingly vacate the preliminary injunction.

Because the district court did consider the Providers’ claims, no aspect of those claims is before us in this interlocutory appeal. Accordingly, we do not reach an issue addressed by JUDGE HIGGINSON’s opinion concurring in part and dissenting in part, which is whether the Medicaid agreements of entities affiliated with PP Gulf Coast were properly terminated.

UPDATE: Law & Crime reports on the decision.

Supreme Court Denies Review In Attempted Cutoff of Medicaid Funds To Planned Parenthood

Over the dissent of Justices Thomas, Alito and Gorsuch, the U.S. Supreme Court today denied certiorari in Gee v. Planned Parenthood of Gulf Coast, Inc., (cert. denied, 12/10/2018). (Order list with dissenting opinion by Thomas, J.)  In the case, the 5th Circuit in a 2-1 decision (full text) upheld the district court's preliminary injunction against the state of Louisiana's termination of Medicaid contracts with Planned Parenthood. At issue in the case is whether Medicaid recipients have a private right of action to challenge the state's action, (SCOTUSblog case page).

11th Amendment Dismissal Avoids Ruling On Free Exercise Challenge To Medicaid Rule

In Scott v. Virginia Department of Medical Assistance Services, (WD VA, Oct. 19, 2018), a Virginia federal district court dismissed on 11th Amendment grounds a suit challenging a state Medicaid rule that deny payment for in-home care services rendered by the parent of a minor child. Here the state refused to grant an exception to allow a child's stepfather to be paid as an attendant caregiver.  The child's mother had argued that her religious beliefs require that only a male relative can help bathe her son, that parents be the primary caretakers of their children, and that no male other than her husband, father, or brother be in the house alone with her. Avoiding a ruling on the merits, the court held:

Scott brought her suit against DMAS itself, rather than the appropriate state official charged with the specific duty of enforcing the contested DMAS policy. Thus, the Ex Parte Young exception does not apply, and her suit is barred regardless of the relief sought.