Republicans in state legislatures have been trying for years to strip funding from Planned Parenthood. In January, the Trump administration gave them a gift, reversing Obama-era guidance regarding Medicaid funds.
The change could make it harder for low-income patients in red states to get reproductive health care at Planned Parenthood, and some fear it could ultimately affect patients in blue states as well. But that’s not all.
According to documents provided to Rep. Elijah Cummings (D-MD) by a whistleblower and released earlier this month, the move by the Trump administration may have been inspired by a letter from the right-wing legal group Alliance Defending Freedom. Congressional Democrats now say they fear the Trump administration essentially let an anti-abortion group write its health care policy. Cummings’s office is now requesting all documentation leading up to the January decision, including any communications with ADF.
The January change appears to be part of a larger pattern in the Trump administration: policies on everything from birth control coverage to reproductive health access for unaccompanied minors are being forged by people with deep ties to anti-abortion groups, and sometimes, apparently, by those groups themselves.
The Trump administration is sending a signal to states that want to strip funding from Planned Parenthood
To understand the Trump administration’s decision and its impact, you need to go back to 2015. That year, an anti-abortion group released hidden-camera videos in an effort to convince the public that Planned Parenthood was selling fetal tissue for a profit, which is illegal. The videos actually did not include evidence of this, and multiple investigations thereafter did not uncover any. But the videos touched off a wave of calls, at the state and federal level, to strip funding from Planned Parenthood.
One way states have tried to do this is by barring Planned Parenthood from being reimbursed for treating Medicaid patients. In 2016, the Obama administration sent a letter to states advising them that this was illegal; states could not bar providers from receiving Medicaid reimbursements unless those providers were unfit to perform medical services or to bill appropriately for those services.
On January 19, 2018, the Centers for Medicare and Medicaid Services, part of the Department of Health and Human Services, issued a short letter rescinding the Obama administration’s 2016 guidance, arguing that it “limited states’ flexibility with regard to establishing reasonable Medicaid provider qualification standards.”
The new letter doesn’t change the law; instead, it explains how the Trump administration plans to interpret and enforce it. Essentially, the Trump administration is signaling that it considers stripping Medicaid funding from Planned Parenthood to be at least potentially legal, and is probably not going to try to stop states from doing it. That opens the door for states to keep Medicaid patients, many of whom are low-income, from using their insurance coverage at Planned Parenthood clinics.
When the Trump administration heard from Alliance Defending Freedom, it appears to have acted fast
The rescission of the Obama administration’s guidance would be worrisome enough to reproductive rights advocates on its own, but House Democrats are also concerned about how the decision came about. That’s where Alliance Defending Freedom comes in. A legal organization that takes opposition to abortion as one of its key tenets, the group states on its website that “the pro-life movement needs a strong legal defense—especially if we ever hope to overturn Roe v. Wade at the Supreme Court.” One of the organization’s main goals is to “defund Planned Parenthood.”
ADF appears to have sent HHS officials a draft letter rescinding the Obama-era guidance on Medicaid and Planned Parenthood in mid-January, according to documents provided by a whistleblower to the office of Rep. Cummings, the ranking Democrat on the House Oversight Committee. As Politico reports, the four-page long letter offers a legal rationale for rescinding the guidance.
And the letter is more than just advice. It is addressed to state Medicaid directors and written as though it comes from the Trump administration, even including a signature block with the names of two HHS officials.
The Trump administration appears to have acted extremely quickly on the letter. In an email provided by the whistleblower to Rep. Cummings’s office and dated January 11, the acting chief of staff of HHS tells other staffers they will receive a letter that day. “Please make sure your clearance process is ready to go on this,” the email says. “We will need a very quick turnaround. Consider an utmost priority.” This appears to refer to the draft letter from ADF. The Trump administration’s official letter rescinding the Obama guidance was sent on January 19, just eight days later.
For comparison, you can look at the process that led to the Obama administration guidance. The hidden-camera Planned Parenthood videos began coming out in July 2015, and states started reacting that summer, with Alabama, for instance, moving to strip Medicaid funding from Planned Parenthood in August. The Obama administration didn’t send its letter to states until April 19, 2016.
Ordinarily, a letter like the Obama guidance or the Trump administration’s rescission would need to go through multiple offices at HHS for approval and comment, since the policy issues involved are complicated. That process can take months. In the case of the Trump administration rescission, things seem to have moved a lot faster.
In an effort to investigate the process, Cummings’s office is requesting that HHS produce, by February 26, all documentation regarding the Jan. 19 letter, as well as any communications between HHS and ADF over the past year.
The change could have nationwide implications
“The documents provided by the whistleblower raise serious concerns about whether the Trump Administration is now taking orders from an extreme right-wing interest group that is trying to deny American citizens the ability to exercise their right to obtain family planning services from the provider of their choice,” Rep. Cummings wrote to the deputy secretary of HHS in a letter earlier this month. “In addition, the documents raise grave questions about the legitimacy of the Trump Administration’s letter to state Medicaid directors on January 19, which appears to be a clandestine effort to tip the scales of justice in favor of states that are targeting Planned Parenthood in violation of federal law.”
The congressman was referring, in particular, to Arkansas and Louisiana, which are both engaged in court battles to strip Medicaid funding from Planned Parenthood. The Trump administration’s letter, Cummings wrote, might be an attempt to help these states win in court. In fact, he noted, Louisiana recently filed a motion for a 60-day extension in its state Supreme Court based on the new letter.
In theory, the new letter could also make it easier for other Republican-controlled states to strip Medicaid funding from Planned Parenthood. They would still be vulnerable to court challenges — reproductive rights advocates have long maintained that excluding a provider from Medicaid for ideological reasons is illegal — but now states know that if they want to lock Planned Parenthood out of Medicaid funding, the Trump administration is probably on their side.
Cummings also outlines another nationwide concern. If one state locks a provider out of Medicaid “for cause” — that is, because of concerns about fraud or poor quality of service — other states are required to do the same. The Trump administration’s letter could make it easier for a state to claim it is stripping funding from Planned Parenthood “for cause” — forcing all states to drop Planned Parenthood as a Medicaid provider.
This would have serious consequences for low-income patients, many of whom rely on Planned Parenthood for reproductive health care from birth control to Pap smears to STD testing. (Federal Medicaid funds cannot be used to pay for abortions except in rare cases.) As of early last year, Planned Parenthood was the only full-service provider of contraception in 105 counties across America.
A spokesperson for HHS told Vox that the department has received Cummings’s letter and plans to respond.
In addition to raising concerns about patient access, the Trump administration’s response to the ADF letter appears to be yet another part of a pattern, in which anti-abortion advocates and groups are allowed to write the administration’s reproductive health policy. Another example is the Office of Refugee Resettlement, now headed by E. Scott Lloyd, a longtime anti-abortion and anti-contraception advocate.
ORR has been attempting to restrict abortion access for undocumented, unaccompanied minors since shortly after Trump took office. A nonprofit legal services group for immigrant children was recently told by an HHS employee not to provide information about abortion to minors it counsels, according to emails obtained by the Washington Post (an HHS spokesperson told the Post that HHS “has not issued a new directive on the matter of abortion” to the legal group).
Other anti-abortion and anti-contraception advocates currently helping to set policy in the Trump administration include Katy Talento, an adviser on health care who once wrote that hormonal birth control could “ruin your uterus for baby-hosting,” and Matthew Bowman, who reportedly helped write the Trump administration’s regulations weakening the contraceptive coverage mandate. As recently as October 2016, Bowman served as senior counsel at Alliance Defending Freedom.
Update: This story has been updated to include a comment from HHS regarding Cummings’s letter.