Texas’s Women’s Health Program provides preventative health services to more than 130,000 low-income women a year. Today the program is in jeopardy, with U.S. Health and Human Services Secretary Kathleen Sebelius announcing Friday that the federal government will stop funding it at the end of March.
The problem? Under a Texas law adopted last year, no funds used in the program can go to abortion providers or their affiliates. The Obama administration recently cut off funding for similar programs in Indiana for the same reason.
The federal government’s actions raise state sovereignty concerns that go beyond the politically charged issue of abortion. The Supreme Court has been very clear that if the federal government wants to put conditions on federal grants to states, it must do so explicitly so that a state can make an informed decision about whether federal dollars are worth the strings attached. In this case, the Obama administration is attempting to retroactively impose on states a restriction that can be found nowhere in federal law.
To justify its decision, the Obama administration has relied on Section 1902(a)(23) of the Social Security Act, which provides that state Medicaid programs “shall not restrict the choice of the qualified person from whom the individual may receive services.”
Nothing in this requirement, however, denies states their traditional authority to determine who is a qualified provider. As federal courts have repeatedly held, Section 1902(a)(23) is designed to prevent states from eliminating all choice of providers, and does not apply to state actions that have only an incidental burden on individuals’ right to choose.
HHS’s own regulations state that “[n]othing contained in this part [regarding State-initiated exclusions from Medicaid] should be construed to limit a State’s own authority to exclude an individual or entity from Medicaid for any reason or period authorized by State law.” Not surprisingly, therefore, both the federal courts and HHS have upheld state Medicaid programs that disqualify providers based on independent state restrictions.
For example, one federal court of appeals upheld a state restriction disqualifying a Medicaid provider who dumped medical supplies into a river. Maintaining pristine rivers is undoubtedly an important state interest, as is safeguarding human life. But federal law does not impose any such restriction nor does it directly bear on the quality of services provided.
Likewise, the Centers for Medicare & Medicaid Services approved a Georgia Medicaid program that disqualified all individual providers from providing certain mental health services in its program, despite the fact that this clearly limits the number of providers from which participants may choose.
Neither federal law nor its own past practice can justify the Obama administration’s termination of federal funding for the Women’s Health Program. One is therefore left with the suspicion that it is ideology, rather than a concern for women’s health, that is motivating the Obama administration’s decision to cut off funding to the program.
While Texas Gov. Rick Perry has affirmed his intention to use state general revenue to replace the lost federal funds while upholding the clear preferences of Texas voters, the administration’s decision threatens the care of hundreds of thousands of low-income women and is a reminder of the dangers conditional federal funding poses to Texas and other states.
In United States v. Butler, the U.S. Supreme Court warned that unless the power of the federal government to condition federal grants is checked, it could “become the instrument for total subversion of the governmental powers reserved to the individual states.” Allowing the federal government to retroactively impose new conditions on federal grants after the states have accepted them would dangerously erode state sovereignty, and dramatically diminish the constitutional protections that all Americans rely upon to secure their liberties.
Josiah Neeley is an analyst with the Armstrong Center for Energy & the Environment at the Texas Public Policy Foundation, a non-profit, free-market research institute based in Austin.