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Opinion: Medicaid FRA renewal and abortion funding

  

Since at least March of this year, halfway through the 101st session of the Missouri General Assembly, renewal of the Medicaid federal reimbursement allowance, or FRA, has been hotly debated. I do not doubt the sincerity of those on both sides of this debate. But I would like to correct some commonly held misconceptions, ones I hear repeated both by legislators and the press.

What is the FRA? This program, often referred to as the FRA tax, involves a tax voluntarily paid by hospitals that, through a program approved by the federal Center for Medicare and Medicaid Services (CMS), “draws down” much more money than the hospitals pay. Hospitals support this tax because they receive much more from the federal funding than they pay in the tax. This amount is estimated at $2 billion. For the past seven years this program has been renewed annually, and it expires on Sept. 30.

Sen. Bob Onder

The life issue has been a part of the FRA debate this year, particularly since the Missouri Senate adopted Sen. Paul Wieland’s amendment to SB 1 to bar funding of abortion-inducing drugs on March 23. His amendment received 21 votes, nearly 2/3 of the body. I offered an amendment to bar funding of abortion providers on April 20, but the sponsor pulled back his bill.

To some, it seems unnecessary or inappropriate that the issue of abortion funding should come up in the context of Medicaid and the FRA. They argue that because Medicaid funding is so important, the legislature should rubber stamp a “clean” renewal of the FRA tax. Why bring the pro-life debate into it?

Like it or not, the issues of abortion funding and Medicaid have been inextricably linked almost since the tragic day that the U.S. Supreme Court issued its abortion-on-demand decision Roe v. Wade on Jan. 22, 1973. Despite the fact that the court in an act of “raw judicial power” struck down abortion laws in all 50 states, there soon arose a consensus that taxpayers should not be forced to subsidize abortion. This consensus was embodied in the Hyde Amendment, first enacted in 1976, and added to every federal budget since. It survived Democrat and Republican administrations and Democrat and Republican Congresses for almost half a century and was supported by many prominent Democrats including Joe Biden until the last election cycle. Unfortunately, last month President Joe Biden made official his new position of supporting forced taxpayer funding of abortion, dropping the Hyde Amendment from his 2022 budget. Similarly, Speaker Nancy Pelosi and Majority Leader Charles Schumer have been clear in their support for forced taxpayer abortion funding. The Hyde Amendment is almost sure to be a thing of the past. Today’s national Democratic Party has moved from President Bill Clinton’s formulation of “safe, legal, and rare,” to “on-demand and publicly subsidized.”

For decades, Missouri pro-life leaders have protected taxpayers from being forced to fund abortion. In 1986 the General Assembly passed RSMO 188.205, which holds, “It shall be unlawful for any public funds to be expended for the purpose of performing or assisting an abortion, not necessary to save the life of the mother, or for the purpose of encouraging or counseling a woman to have an abortion not necessary to save her life.” This prohibition on abortion funding was upheld by the federal Eighth Circuit Court of Appeals in 1988.  

Meanwhile, in recent years the annual Missouri budget has protected its pro-life citizens from being forced to subsidize abortion or abortion providers. HB 2011, the bill that appropriates money to Medicaid, in 2016 included the language that “further provided that no funds from these sections shall be paid to any entity that performs abortions not necessary to save the life of the mother or that counsels a woman to have an abortion not necessary to save the life of the mother.” Similar abortion provider restrictions were placed in the Uninsured Women’s Health Program. These restrictions  have been placed in every budget, including the one passed this year.  In 2020, all but two Democrats voted for the Medicaid budget containing these restrictions.

So, if the legislature has prohibited funding of abortion providers in its annual budget, why bring this issue up in the context of the FRA? Quite simply, because a radical, activist decision by the Missouri Supreme Court forces us to do so.  

In 2018, the General Assembly, in section 11.800 of the HB 2011 appropriation bill, included the following abortion provider prohibition: “No funds shall be expended to any abortion facility as defined in Section 188.015, RSMo, or any affiliate or associate thereof.” Predictably, the abortion industry filed Planned Parenthood v. the Department of Social Services, under the specious theory supported by the court in June 2020 that the legislature cannot “amend a statute” in the budget. HB 2011 did no such thing, and this absurd decision was, as Judge Zel Fischer pointed out, a clear violation of relevant precedent in State ex rel. Tolerton v. Gordon.

The effect of the 2020 Planned Parenthood case is that the court prohibits the legislature from defunding abortion providers in the logical place, the budget. So by process of elimination we must do it in statute. This is where the FRA renewal comes in — the FRA renewal bill opens up the relevant Medicaid funding statutes in which the legislature can protect Missouri taxpayers from being forced to fund abortion.  

Why do pro-life Missourians wish to be protected from funding abortion providers as well as abortion itself? Because, simply, money is fungible. Taxpayer money that goes to abortion provider Planned Parenthood will be used to further its primary mission, even though the invoices submitted by the abortion giant might be for other services.  

Many supporters of Planned Parenthood ask, “What about all the good things Planned Parenthood does?” I welcome them bringing up the history and other activities of this vial organization. Planned Parenthood was founded by the racist and eugenicist Margaret Sanger who advocated “sterilization of the feeble-minded, the insane and syphilitic” and spoke to Klan rallies. Her motto was, “More from the fit, fewer from the unfit.” International Planned Parenthood Federation closely associated itself with the China Family Planning Association in the early 1980’s, when China’s One-Child Policy included forced abortion and sterilization. Planned Parenthood is the leading provider of abortions in the U.S., and it locates the vast majority of its clinics in Black and Hispanic neighborhoods. It has also moved aggressively into the very profitable business of targeting our children and  providing them with transgender hormone therapy, counseling, and referrals for mutilating surgery. On the other hand, Planned Parenthood does not provide mammograms, contrary to what its supporters sometimes claim.

Racism, eugenics, forced sterilization and abortion, transgender hormones for our kids — what’s a Missouri taxpayer not to love? And there are hundreds of providers of women’s health services across Missouri — Community Health Centers, FQHC’s, county health departments, hospital clinics, and private practices — where women can receive better medical care than available at an abortion clinic.  

So what does the legislature need to do to renew the Medicaid FRA and protect taxpayers from funding abortion providers? Quite simply, we need to include an amendment that I offered to SB 1 on April 20. This amendment is identical to language that has been part of our budget bills the last several years: “provided, no funds shall be expended to any abortion facility, as defined in section 188.015, or any affiliate or associate thereof.”  

Pro-life senators and House members have been talking to leadership of both chambers, budget committee members, and the Governor’s Office since March about pro-life language in the FRA. Why is this so hard?

Probably the main objection is that somehow this will “bring us out of compliance” with federal mandates, and then we will lose all of our federal Medicaid money. I bristle at the term “federal money.” It is our money! (Just look at your paycheck stub.). The federal government takes it from us and deigns to give a little back to us with strings attached. What is difficult to understand is why the above language somehow has dire effects this year, when it has been included in our budgets for years. It won’t.

I have little doubt that defunding abortion providers will result in a lawsuit by the usual litigious abortion advocates. But the worst-case scenario is that we lose that litigation, the pro-life language above gets enjoined, and Planned Parenthood continues to get taxpayer money.

I do not understand the obsequiousness of some in state government on this issue. In 2019, Missouri passed HB 126, the “Heartbeat Bill,” to protect innocent human life to an extent clearly in conflict with current federal “law.” Missouri’s attorney general has filed multiple lawsuits pushing back against federal government overreach. Missouri’s voters legalized and the Parson administration runs a program to regulate marijuana, a drug that remains a Schedule 1 Controlled Substance. Gov. Mike Parson just signed into law the Second Amendment Protection Act, issuing a defiant statement: “This legislation today draws a line in the sand and demonstrates our commitment to reject any attempt by the federal government to circumvent the fundamental right Missourians have to keep and bear arms to protect themselves and their property.”

States around the country have defied the federal government on life, guns, drug policy, environmental policy, and immigration policy. None have been defunded. 

If we legislators do not hesitate to stand up against the federal government in these areas, including protecting innocent human life, why should we bend a knee to the federal government on abortion provider funding?

Missouri’s largest, oldest, and most prominent pro-life organization, Missouri Right to Life, has made clear its support of language that defunds abortion providers and abortion-inducing drugs.

The General Assembly can, it must, renew the FRA Medicaid bill. It can do so in a way that protects taxpayers from being forced to fund abortion providers. The question is whether legislators who have told voters tat they are “pro-life” will have the moral courage and the will to do the right thing.