Chelsea Langston and Stanley Carlson-Thies, April 28, 2016

On April 19 the Obama administration warned state officials that they may be violating federal law if they exclude Planned Parenthood from being a Medicaid provider. Should Planned Parenthood be excluded because it is our nation’s biggest provider and advocate of abortion or should it be included because women have a right to all legal reproductive services? Or are there other essential dimensions to this decision—especially important in a time of growing public suspicion about faith-based services?

At least 10 states have acted to exclude Planned Parenthood from getting paid to provide Medicaid services. Their action comes in the aftermath of several videos released last summer showing Planned Parenthood employees discussing, in often cold and disturbing detail, fetal tissue extraction. Whether or not Planned Parenthood violated current laws, people across the ideological and political spectrum found these videos to be dehumanizing. As Michael Gerson stated in a column in the Washington Post, “[M]ost people, even those who support Roe v Wade –intuitively recognize that the boy or girl in the sonogram is not a cyst….And people generally don’t want developing human beings treated as rubbish or raw materials.”

The federal Centers of Medicare and Medicaid Services (CMS) wrote to every state’s Medicaid office stating that eliminating particular healthcare providers from Medicaid is only permissible, in the words of a Washington Post article, if they “are unable to perform covered medical services or can’t bill for those services.”The letter requires states to treat comparable kinds of healthcare providers for Medicaid equitably. This guidance is undergirded by the principle that healthcare recipients should have the right to choose from a range of providers. As Marissa Padilla, federal HHS spokeswomen, told the Washington Post, “CMS is sending a letter to all states to ensure they have a clear understanding of their obligation to follow longstanding Medicaid law guaranteeing that beneficiaries have the right to receive covered services, including family planning services, from any qualified and willing provider of their choice.” In fact, the CMS letter notes that for providers to be “qualified,” they have to be able to offer the services “in a professionally competent, safe, legal, and ethical manner.”

The CMS letter seems clearly intended to warn states not to push Planned Parenthood out of providing Medicaid services. But shouldn’t Planned Parenthood be pushed out? Having multiple service providers may be good, but isn’t it wrong for the government to fund abortion providers? It is important to note that federal law does forbid spending federal Medicaid funds on abortion, except in extreme cases, such as the saving the life of the mother. So, the issue at hand is not whether government money should be used for abortion, but under what circumstances a provider that many object to, such as Planned Parenthood, should be excluded from Medicaid funding. The answer to this question is complex.

There are significant allegations of malfeasance by Planned Parenthood affiliates, even beyond the high-profile charge of trafficking in fetal body parts. Because of the requirement that providers must be qualified—competent and not engaged in illegal or unethical action—these charges and incidents may be regarded by the states that have acted to be sufficient cause to exclude Planned Parenthood. The federal letter seems to assume that there is not sufficient legal cause. Should Planned Parenthood be excluded anyway? This question demands careful consideration.

Public justice calls governments to protect and uphold all human life, especially the most vulnerable, including the unborn. Public justice also calls upon government to recognize and uphold the diverse organizational structures of civil society, obligating government to do justice to society’s varied nongovernmental organizations as a matter of principle. Does public justice demand that the government support every civil society organization, even those that go against other public justice imperatives, such as the protection of human life? No. As CPJ founder Jim Skillen stated: “There is no room for public-legal pluralism with respect to abortion as there is with respect to parents choosing from among a variety of schools.”

In other words, an individual’s right to seek services from among a variety of diverse civil society organizations is limited by whether those services themselves are acceptable according to the public justice norm. Parents should have the right to choose from a variety of educational options for their children because public justice recognizes education as a social good. Likewise, women should be able to seek Medicaid-funded (non-abortion) health services from a diversity of providers. But can we go one step further and say that the diversity of providers ought not to include any that offer—separately—legal abortion services, even though current Medicaid law permits such providers, such as Planned Parenthood, to participate?

A case can be made that excluding Planned Parenthood furthers the vital pro-life goal in important ways. Yet such an exclusion can have important negative consequences for other important public justice goals, and even, potentially, for pro-life aims as well. The Medicaid policy maximizes the choice of service provider. That’s important because service recipients have diverse values, needs, and preferences. Allowing a range of providers to serve, as long as they are qualified and offer services that are covered by Medicaid, indeed allows Planned Parenthood to get Medicaid money, despite the opposition of pro-life citizens, but it also allows health clinics that refuse to perform elective abortions to receive Medicaid funds, despite the opposition of pro-choice citizens.

The openness of government programs to a diversity of providers is a precious value in our time of narrowing enthusiasm for faith-based services. Faith-based organizations of all kinds are facing increasing opposition to their eligibility for government funding. One of the most compelling arguments proponents of institutional religious freedom can make in response is that it is important for individuals seeking services—whether substance abuse treatment, healthcare, education, jobs training, or many others—to have a diversity of options available to them, including faith-based options for care. In order for this argument to ring true, advocates of religious freedom for faith-based organizations need to be especially careful that they do not unintentionally support public policies that would limit the right of service recipients to seek, from all legally eligible providers, services that are legally permitted and not morally objectionable.

Today’s climate for public policy and public opinion is often hostile to faith-based service providers, seeking to undermine their access to government funding. For example, in efforts to reauthorize the Runaway and Homeless Youth Act, LGBT advocates, despite no substantiated evidence that faith-based service providers had discriminated against LGBT youth, sought to defund, for all intents and purposes, faith-based RHYA grantees by pressing for a very broad “nondiscrimination”clause that would force many FBOs to give up their government partnerships.

In recent months, progressive groups, including Planned Parenthood and other organizations that support Planned Parenthood, have waged their own battles to exclude otherwise eligible providers from government programs simply because the objecting organizations do not approve of some of the other policies of those providers. Planned Parenthood and the others object to faith-based providers that consider religion when making employment decisions—a perfectly legal practice, even when the government is funding the provider—and they want the administration to declare such faith-based organizations ineligible for government funding, even though the organizations are perfectly capable of providing the services the government seeks.

Pro-life and pro-religious freedom advocates have their work cut out for them.

Planned Parenthood is a special case; issues involving life, including unborn life, are special. But state efforts to end Medicaid funding for Planned Parenthood providers give us cause to think carefully. Are there more effective ways to support life through public policies that seek to limit access to abortion specifically, or that seek to strengthen the supports available to women experiencing unplanned pregnancies?

When it comes to such supports, it is worth noting that Planned Parenthood, whatever else it does, reports these kinds of services: prenatal medical care (18,684 instances in 2014-15) pregnancy tests (1,128,783), family practice services (65,464), adoption referrals (1,880), urinary tract infection treatments (47,264). Ending Medicaid funding for these local Planned Parenthood affiliates could mean limiting access to prenatal and other vital women’s healthcare in some places. Isn’t it a better strategy to increase the number of pro-life alternative service providers that are part of the Medicaid mix?

The Medicaid law could be changed so that any provider that offers abortion services as well as the services covered by Medicaid is ineligible. However, the next step down that path might well be that some states not favorable to religion exclude faith-based providers because–outside of the Medicaid-funded services–they offer religious comfort and teaching. This would be a slippery slope, indeed.