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Missouri Supreme Court weighs funding ban for abortion clinic

Whether Missouri lawmakers can use an appropriations bill to strip Planned Parenthood of funding appears to hinge on whether doing so effectively rewrote the state’s Medicaid payment scheme.

The Missouri Supreme Court heard arguments Dec. 10 on language in the Department of Social Services’ appropriations bill for fiscal year 2019, which barred funding for “any abortion facility.” As a result, Planned Parenthood of the St. Louis Region, whose Reproductive Health Services clinic is the state’s only abortion provider, cannot be reimbursed even for non-abortion health care it provides through Missouri’s Medicaid program, MO HealthNet.

Planned Parenthood is urging the high court to uphold a St. Louis circuit judge’s earlier finding that the funding ban violates the state constitution. Solicitor General John Sauer on Dec. 10 said Planned Parenthood was “inviting the court to engage in a sea change in its traditionally deferential approach to appropriations bills and inaugurate a new era of more searching judicial scrutiny” of that process.

But Chuck Hatfield of Stinson, an attorney for Planned Parenthood, said it was as if the legislature had denied funding to some circuits’ drug courts despite statutes that require them in every county, or taken money from certain schools despite the requirements of the school foundation formula.

“That is not the way the system is supposed to work,” he said.

The Dec. 10 argument dwelled on Article III, Section 23 of the Missouri Constitution, which requires bills to have a single subject. It exempts appropriation bills, noting that they “may embrace the various subjects and accounts for which moneys are appropriated.” Nonetheless, an appropriation bill can direct only where money is spent, and it cannot be used to modify existing laws.

Planned Parenthood argues that the appropriations bill did just that by effectively kicking its clinic off the MO HealthNet provider system. At least two of the court’s judges seemed receptive to that argument.

Judge Patricia Breckenridge said that without the restriction in the appropriations bill, “there would be a different payment of the funds appropriated.”

“How is that not a substantive change of law?” she asked.

Judge Laura Denvir Stith, the only other judge to ask questions during the 35-minute argument, appeared to agree.

“In effect, you’re saying for any statute legislators could fight over particular wording, who’s included, who’s not, what’s included, what’s not — and it would all be irrelevant because the appropriations bill would just say we’re not going to fund those things we didn’t like,” she said.

Sauer said that’s exactly what prior cases have held. “The general statute cannot mandate the appropriation,” he said.

In briefs the parties also argued over the constitution’s Article IV, Section 23, which says every appropriation law must be written “without reference to any other law to fix the amount or the purpose.” The Planned Parenthood provision refers to another statute to define what an abortion facility means. Sauer said no appropriation has ever been invalidated under that part of the constitution.

Hatfield alternatively argued that the court could avoid the case’s constitutional issues by interpreting the funding ban as non-binding guidance. Breckenridge was skeptical, saying that would basically say “it has no meaning.” Hatfield responded that it’s possible that the funding ban could go into effect if lawmakers later were to rewrite the underlying MO HealthNet payment statute.

“I want to be perfectly candid with the court — I’m sure that the General Assembly intended to stop funding to my client. There is no doubt that is the subjective intent,” he said. But based on the language in the appropriations bill, he said, it’s possible that “they didn’t really do it.”

In a statement emailed after the arguments, Yamelsie Rodríguez, president and CEO of Planned Parenthood of the St. Louis Region and Southwest Missouri, said the organization has continued treating Medicaid patients “knowing that solution may not be feasible in the long term.”

“It’s time for Missouri’s political leaders to own up to their responsibility to the citizens of this great state. Governor Parson must immediately stop discriminating against patients who seek care from the largest family planning provider in our region,” Rodríguez said.

The case is Planned Parenthood of the St. Louis Region v. Department of Social Services, SC98020.

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