PHOENIX - A federal judge indicated Friday that he's not buying the state's argument it can cut off family planning funds for Planned Parenthood.
During a nearly three-hour hearing, Judge Neil Wake repeatedly peppered attorney Steven Aden about his contention lawmakers can disqualify any organization from getting Medicaid dollars to provide health services just because it also performs legal abortions.
Wake pointed out that federal law bars states from limiting where Medicaid recipients can get care.
Aden said those rules do allow states to decide who is "qualified" to provide Medicaid services.
But Wake said he is having a hard time seeing how Planned Parenthood's other non-Medicaid-funded activities, all of which are legal, makes the organization unqualified to be reimbursed for Medicaid services.
Wake's questioning of Aden was at times pointed, with the judge appearing visibly perturbed at the responses.
"I'm not feeling like I heard a specific answer," Wake told Aden at one point.
Wake did not formally indicate he will grant the request by Planned Parenthood for a preliminary injunction, blocking enforcement of the law approved earlier this year.
But the judge noted that one thing he has to consider is who is likely to be harmed by his ruling. And Wake said allowing the state to cut family planning funds for Planned Parenthood would have a real and detrimental effect on the women who now get their care there, as they would have to go somewhere else.
As part of its participation in Medicaid, Arizona provides family planning services for needy women. The federal government picks up 90 percent of the cost, with the state covering the balance.
Under both state and federal laws, none of those funds can be used for elective abortions. But lawmakers voted to deny all family planning funds - both state and federal - to any organization that also performs abortions.
Aden is an attorney with Alliance Defending Freedom, a Christian law firm that advocates against abortion, gay marriage and similar issues. Solicitor General David Cole agreed to appoint Aden as a special assistant attorney general.
Aden argued lawmakers have the right to restrict where funds can go, saying there is evidence some of the funds Planned Parenthood gets for its Medicaid services at least indirectly subsidize abortions. If nothing else, he said, those funds pay for a share of the rent, utilities and staff.
Bryan Howard, president of Planned Parenthood Arizona, disputed there was any subsidy.
But Wake seemed to care less about how the money is divided up than he did about whether the legislation violates federal laws and regulations which say, in essence, that Medicaid recipients are entitled to get their care from any qualified provider.
Aden said the Legislature has the right to decide those who also provide abortions are not qualified providers. Wake reacted with a certain amount of incredulity.
"How is a state policy to not have anybody get any money from the state if they're also engaged in legal and constitutional abortion services … what does that have to do with Medicaid?" he asked.
Aden said states can decide that qualifications go beyond the ability, training and licensure to provide the services. For example, he said, the state of New York disqualified a Medicaid provider for allegedly violating state water pollution laws.
Wake pointed out that involved someone engaged in illegal pollution. And, at the moment, abortion remains legal in Arizona and the United States.
The judge also said he suspects there really is a hidden motive behind the legislation: By threatening to cut off Medicaid dollars, it would force Planned Parenthood to choose between either dropping the Medicaid women as clients or getting out of the abortion business.
"Isn't that the obvious effect and the intended effect," Wake asked.
Aden assured him that was not the case.
However, Rep. Justin Olson, R-Mesa, sponsor of the legislation, said when it was adopted it was strictly aimed at Planned Parenthood.
The law actually has never taken effect. After Planned Parenthood sued, the state agreed not to cut funding until Wake had a chance to hear from both sides.
Wake pointed out that one thing he has to consider is whether letting Arizona cut funding would result in "irreparable harm" to anyone. The immediate result, he said, is that women now getting care at Planned Parenthood would be forced to find new health care providers.
"That would be irreparable," Wake said, especially if an appellate court ultimately finds the law illegal.