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Another AZ Abortion Law Falls; Would've Defunded Planned Parenthood

By William Peacock, Esq. on August 23, 2013 | Last updated on March 21, 2019

Three months ago, the Ninth Circuit struck down Arizona's ban on abortions performed after 20 weeks, citing stare decisis that set the line for constitutional restrictions on abortion at the point of viability. Twenty weeks, both sides agreed, was not viable, even though the state and the reluctant concurrence agreed that fetuses, at twenty weeks, could feel pain.

That wasn't Arizona's only controversial restriction on abortion, however. Both the 20-week ban and another law, that prevented Medicaid patients from receiving care from medical providers that perform elective abortions, were passed in 2012, and both are now defunct.

Arizona Law

Ariz. Rev. Stat. § 35-196.05(B) (or HB 2800) bars Medicaid patients from obtaining covered family planning services from any provider that performs "nonfederally qualified" abortions (those performed for reasons other than medical necessity, rape, or incest).

Though the Hyde Amendment already forbids states from using federal funds to pay for most nontherapeutic abortions, this statute would have completely denied Medicaid funding for any family planning services if the provider, using non-Medicaid funds, performed nontheraputic abortions.

Planned Parenthood provides family planning services, and five of thirteen Planned Parenthood clinics in the state perform nontheraputic abortions as well. Along with individual plaintiffs, three of whom are women who receive family planning services at Planned Parenthood, and one of whom is an obstetrician-gynecologist who maintains a private practice in the state, the collective plaintiffs sued, arguing that Arizona's law conflicted with the Medicaid Act's free-choice-of-provider requirement.

Federal Laws

The free-choice-of-provider provision, in short, gives the patient the right to chose their provider, so long as that provider is "qualified to perform the service ... required."

The term "qualified" isn't defined by statute, but the Seventh Circuit, and now the Ninth Circuit, each used the ordinary meanings pulled from the Oxford English Dictionary ("having an officially recognized qualification to practice as a member of a particular profession; fit, competent.") or Black's Law Dictionary ("[p]ossessing the necessary qualifications; capable or competent").

Further support for using common sense (or the dictionary) comes from the terms that follow "qualified:" " perform the service."

Arizona urges the court to adopt the a Medicaid-specific term-of-art definition for "qualified," as "any reason supplied by State law," but such a reading would render meaningless the words "to perform the service" found in the statute itself.

Courts typically give words their ordinary meaning, rather than a strained term-of-art interpretation. Furthermore, courts have a "duty to give effect, if possible, to every ... word of a statute."

Not Close

The plain test of the federal statute gives patients the right to choose their provider. When a state law conflicts with a federal law, the state law falls. This case was decided unanimously, while the nearly-identical Seventh Circuit case cited by the court had only a partial dissent by one judge, on a different block-grant issue. The U.S. Supreme Court denied certiorari in that case earlier this year, according to SCOTUSblog.

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