If South Carolina clinics want to perform abortions, Governor Henry McMaster said today, they can do it without any taxpayer funding. McMaster issued an executive order today halting all funds from the state’s discretionary accounts, and started the process of cutting off South Carolina’s Medicaid funds as well. Planned Parenthood operates at least one of the clinics impacted by today’s EO:
South Carolina Gov. Henry McMaster (R) demanded that state agencies cut off state and local funds to abortion clinics in an executive order Friday.
The order directs state agencies to cease providing funds, whether via grant, contract, state-administered federal funds or “any other form,” to any abortion clinic.
McMaster also directed the state’s Department of Health and Human Services to seek waivers from the federal government allowing it to exclude abortion clinics from the state’s Medicaid provider network.
“There are a variety of agencies, clinics, and medical entities in South Carolina that receive taxpayer funding to offer important women’s health and family planning services without performing abortions,” McMaster said in a statement.
Can McMaster cut off these funds? In the case of discretionary funds from the state budget, almost certainly. The Medicaid funding issue is more tricky. The federal Department of Health and Human Services has signaled more openness to approving waivers for states who wish to direct those funds to non-providers of abortions, but an earlier case in Texas resulted in a temporary injunction against Greg Abbott’s attempts to cut off Medicaid funds to Planned Parenthood clinics. It follows a string of court setbacks for opponents of federal funding for Planned Parenthood.
On the other hand, the Eighth Circuit ruled last week that Arkansas can cut out Planned Parenthood from eligibility for those Medicaid funds:
The ruling Wednesday by the 8th U.S. Circuit Court of Appeals vacates preliminary injunctions from a federal judge that required the state to continue Medicaid payments following legal challenges brought by three patients challenging Gov. Asa Hutchinson’s 2015 decision to end the state’s Medicaid contract with the women’s health group.
The court ruled 2-1 that the patients do not have the right to challenge the state’s Medicaid contract decision.
Essentially, the majority found that individuals do not have a private right to demand eligibility for a provider within the network, and that the provider has to follow procedures for challenging their disqualification. This may well force the Supreme Court to take up this issue soon. As Judge Melloy noted in the dissent to this decision, four other circuit courts have found a “private right of enforcement,” which means that a split between circuits has arisen. A Supreme Court cert may be forthcoming even before anyone gets a chance to challenge McMaster on this part of his EO.
What prompted this now? Lauren Sausser notes that a potential primary challenger to McMaster — his own lieutenant governor — began demanding action two months ago:
McMaster’s order echoes a similar call from Lt. Gov. Kevin Bryant in June to defund the group.
Bryant, a social conservative, is running against McMaster in the 2018 governor’s race.
“I’ve been a pro-life activist my entire life and will continue to be,” Bryant said at the time.
A little competition isn’t a bad thing in business or in politics. The link to the earlier Post & Courier report shows that both men have been looking for ways to do this for a while now. Whether they can find a way to make it stick may be the real mission.
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