WASHINGTON - By rewriting the rules that govern which strings the federal government can attach to its spending on the state level, Chief Justice John Roberts may have inadvertently prevented a future Tea Party-dominated Congress from executing one of its top priorities, defunding Planned Parenthood.
At the same time, it raises the question of whether the federal government can withhold Medicaid money if a state decides on its own to defund Planned Parenthood. Before Roberts' ruling, no legal scholar would have questioned whether the federal government had the authority to spend its own money or tie any strings it deemed appropriate to it. But after the ruling, it's an open question that will likely be decided in court, legal experts told The Huffington Post.
"I perceive NFIB v. Sebelius as throwing the courthouse doors open to coercion claims," said Nicole Huberfeld, a University of Kentucky law professor. "Because the holding is so dependent on the somewhat unusual facts of Medicaid, and because the court set forth no theory of coercion, I think we will see a lot of challenges in an effort to discover the contours of the coercion doctrine."
The issue raised by Roberts' opinion is whether the federal government can coerce a state into using its federal grant money in a particular way by threatening to withhold that money. For instance, if Congress voted to defund Planned Parenthood through the Title X federal family planning program, but New York wanted to continue sending its federal Title X dollars to Planned Parenthood clinics in the state, could the government withhold all Title X money from New York?
Andrew Koppelman, a Northwestern University law professor who writes for Salon, said lower courts are likely to see such questions before them. "It depends on whether the court can fairly conclude that the amount of money is so large that the state has no choice but to acquiesce in the federal government's terms," he said. "There is language in both Roberts and the four dissenters' opinions to suggest that the federal program has to be really huge, as Medicaid is, in order for the offer to be coercive. But we'll have to see what lower courts do with this precedent. One can say, at a minimum, that challenges to conditional funding that would have been frivolous a week and a half ago now must be taken seriously."
Ilya Shapiro, editor and chief of the Cato Supreme Court Review, said he believes such a case wouldn't stand up in court because the new conditions would only specify which contractors the Medicaid program can use, which is not an unconstitutional string for Congress to apply to one of its programs.
"I would think that the mere specification of what contractors you can use doesn’t rise to the level of transforming Medicaid and so ... NY's hypothetical challenge would fail," he wrote to HuffPost. "It’s really no different than 'buy American' clauses inserted in all sorts of contracting regs."
The coercion issue could also work against Planned Parenthood in its court battles with state governments. Under current federal Medicaid law, a state cannot withhold its Medicaid money from a capable health care provider such as Planned Parenthood for political reasons. Several states have attempted to defund Planned Parenthood through Medicaid, but district judges blocked such efforts after the federal government threatened to take away the states' entire Medicaid programs.
The language in Roberts' opinion could prevent the federal government from coercing a state into funding Planned Parenthood by threatening to withhold all of that state's federal Medicaid money.
"States could easily choose to pay for or not to provide family planning clinics, which is the ... goal of Title X funding," Huberfeld told HuffPost. "I think it’s much harder to argue states could ignore the poor who would lose coverage if Medicaid funding is lost -- which seems to be at the heart of the votes for coercion."
A spokesperson for Planned Parenthood would not comment on the specific impact of the Supreme Court decision on the organization's government funding, but said he is confident the courts are on Planned Parenthood's side.
“We know that opponents of women’s health will keep trying new tactics to insert politics and ideology into these issues of basic health and economic well-being for millions of American women," said Eric Ferrero, vice president of communications at Planned Parenthood Federation of America. "The public overwhelmingly opposes efforts to defund Planned Parenthood and cut millions of people off from the preventive health care we provide, and every time politicians have ignored public opinion and tried to defund Planned Parenthood anyway, courts have uniformly rejected these efforts.”
Supreme Court Correspondent Mike Sacks contributed reporting. Actually, he did most of it.
99 Problems (JAY-Z)
Eric Fehrnstrom, senior campaign adviser for Mitt Romney, <a href="http://thinkprogress.org/politics/2012/06/03/494238/fehrnstrom-shiny-objects-women/" target="_hplink">said on Sunday</a> that issues pertaining to women's reproductive rights, such as abortion and birth control, were "shiny objects" meant to distract voters from the real issues. "Mitt Romney is pro-life," he told ABC's George Stephanopoulos. "He'll govern as a pro-life president, but you're going to see the Democrats use all sorts of shiny objects to distract people's attention from the Obama performance on the economy. This is not a social issue election."
The Senate will vote Thursday on the Paycheck Fairness Act, which would expand and strengthen the Equal Pay Act of 1963 and make it illegal for employers to punish women for bringing up pay disparity issues. Dana Perino, a Fox News contributor and former press secretary for President George W. Bush, <a href="http://www.rawstory.com/rs/2012/04/30/perino-equal-pay-issue-is-a-distraction-for-just-48-hours/" target="_hplink">called the equal pay issue</a> "a distraction" from the country's real financial problems last week. "Well, it's just yet another distraction of dealing with the major financial issues that the country should be dealing with," Perino said. "This is not a job creator."
Just My Imagination (The Temptations)
Sen. John McCain (R-Ariz.), whose home state's legislature recently defunded Planned Parenthood and voted to pass a bill that would allow employers to deny women birth control coverage, <a href="http://www.huffingtonpost.com/2012/04/26/john-mccain-war-on-women_n_1455591.html" target="_hplink">delivered a floor speech</a> in which he insisted that the war on women is something imaginary for Democrats to "sputter about." "My friends, this supposed 'War on Women' or the use of similarly outlandish rhetoric by partisan operatives has two purposes, and both are purely political in their purpose and effect: The first is to distract citizens from real issues that really matter and the second is to give talking heads something to sputter about when they appear on cable television," he said.
Butterfly Fly Away (Miley & Billy Ray Cyrus)
Republican National Committee Chairman Reince Priebus tried to trivialize concerns about the legislative "war on women" by comparing it to a "war on caterpillars." "If the Democrats said we had a war on caterpillars and every mainstream media outlet talked about the fact that Republicans have a war on caterpillars, then we'd have problems with caterpillars," Priebus <a href="http://www.bloomberg.com/news/2012-04-05/priebus-says-gender-battle-as-fictonal-as-caterpillar-war.html" target="_hplink">said in an April interview</a> on Bloomberg Television. "It's a fiction."
Distraction (Angels And Airwaves)
Missouri U.S. Senate candidate Sarah Steelman (R) took heat from her opponents in May when she contended that Democratic lawmakers' focus on the reauthorization of the Violence Against Women Act was "a distraction" from the issues they should be dealing with instead. "I think it's unfortunate that the Democrats have made a political football out of this thing, which I think is what they keep doing to distract from real problems that are facing our nation," she said in an interview with St. Louis Public Radio.
We Don't Care (Kanye West)
South Carolina Gov. Nikki Haley (R) defended the Republican Party in April for going after insurance coverage for contraception by arguing that women don't actually care about contraception. "Women don't care about contraception," she said on ABC's The View. "They care about jobs and the economy and raising their families and all those other things."