By Funding Texas’ Harmful Antiabortion Crusade, the Trump Administration Is Setting a Dangerous Precedent

Adam Sonfield, Guttmacher Institute
The time is now. Will you stand up for reproductive health and rights?

First published online:

Conservative policymakers in the Trump administration and Texas state government have colluded to undermine quality family planning care by denying patients access to Planned Parenthood affiliates and other health centers with a connection to abortion. In Texas, the primary impact of this action (a "waiver" of federal Medicaid law) will be to grant federal money and blessing to a program that has already proven to be broken, with little prospect for any expansion in family planning services. Beyond Texas, this sets a new precedent that other conservative state policymakers will seek to emulate, and potentially provides a new loophole to bypass court decisions that have blocked similar "defunding" attempts.

Bolstering a Failed Texas Program

In 2011, Texas state policymakers sought to exclude health centers, like those run by Planned Parenthood, from a state Medicaid program that covered family planning services for people otherwise ineligible for coverage. The policy applied to health centers that offer or "promote" abortion or are affiliated with a provider that does. This decision conflicted with a long-standing provision of federal Medicaid law, which says enrollees may choose to receive family planning services from any willing and qualified provider. In response, the Obama administration withdrew federal funding, and since 2013, Texas had operated the program as an entirely state-funded, state-run effort, no longer part of Medicaid.

The result of excluding many of the most-qualified family planning providers was exactly what critics predicted: Enrollment in the program declined, most of the new providers recruited by the state served few enrollees, and use of services declined dramatically—by one analysis, a 41% drop over four years in the number of women who received contraceptives. A study in the New England Journal of Medicine indicated that by denying some people the ability to afford the contraceptive method of their choice, the policy led to an increase in births. And the state sent millions of dollars to an antiabortion provider group that had few clinics licensed to provide contraception, served only a tiny fraction of the patients it promised, and was ultimately ordered to repay much of that money to the state.

In June 2017, Texas applied again for a Medicaid waiver that would allow it to receive federal funding for its state-funded program, complete with exclusion of qualified providers. Two and half years later, in January 2020, the Trump administration complied, proving that it shared the state’s antiabortion priorities and did not balk at spending federal dollars for a program that has been a demonstrated failure using state funds.

Because the Texas program is already in place and will remain largely unchanged, there is no reason to believe that the Trump administration’s approval will expand or improve access to family planning care. Rather, the main impact in Texas will be an influx of federal money and a federal stamp of approval to continue discriminating against reproductive health care providers.

Precedents Beyond Texas

The Trump administration’s decision to approve the Texas waiver sets several dangerous precedents for Medicaid nationwide. First, until this instance, the federal government had never allowed states to waive Medicaid’s provision guaranteeing enrollees a free choice of qualified family planning providers, and the Obama administration had made it clear that this provision meant it was illegal to bar access to providers solely because they also provide abortion care.

Any number of other states may line up to take advantage of this new precedent, because Texas is far from alone in its attacks on Planned Parenthood and other providers who treat abortion correctly as health care. For example, Iowa and Missouri followed the Texas example a few years ago and converted to state-funded family planning programs that exclude abortion providers. Similarly, South Carolina and Tennessee had already submitted Medicaid waiver requests before the Texas waiver approval that would eliminate protection for the free choice of family planning providers under the entire Medicaid program (not just for enrollees with family planning-only coverage). And several other states are in ongoing litigation to deny funding to Planned Parenthood; they may now have a way to bypass court decisions that have consistently gone against them.

A second precedent is that the Trump administration’s waiver approval relies on a legally dubious theory that would expand the federal government’s authority to approve Medicaid waivers. The administration relied on the same theory in its February 2020 guidance that offered states increased flexibility in administering the program in exchange for a cap on federal funding (often referred to as Medicaid block grants).

Finally, in granting Texas this waiver, the Trump administration essentially argued that it must bow to the state’s demands around the free choice of providers, because state law required either a restricted program or no program at all. That logic flips the idea of federal preemption—that federal law wins when it is in conflict with state law—on its head. A federal judge in 2019 rejected a similar attempt at legislative blackmail when Kentucky Governor Matt Bevin threatened to kick hundreds of thousands of residents off Medicaid if he was not allowed to impose work requirements on the program.

If this third precedent is allowed to stand, states could use it justify numerous other attacks on Medicaid, including limits on coverage of sexual and reproductive health services, program rules that discriminate against LGBTQ+ patients, and other policies that would threaten the health and well-being of everyone who depends on the program.