Earlier this month, a curious thing happened in Texas. Despite repeated federal warnings, Texas enacted state rules that gutted its Women’s Health Program (WHP), a successful state program for low-income health care. Because this state action defunds almost half of the program’s health clinics solely due to their affiliation with Planned Parenthood, the Obama administration advised Texas that the move violated patient choice under federal law. Texas went ahead anyway, despite the ensuing loss of federal dollars as a consequence for noncompliance, and now over 130,000 low-income Texans will be without vital preventive services.
What didn’t happen? Texas didn’t drop its vendetta against essential women’s health providers, choosing instead to come between some of the state’s most vulnerable people and preventive care. What else didn’t happen? Texas, currently arguing before the Supreme Court that it is a victim of Medicaid coercion under the Affordable Care Act (ACA), was not coerced to maintain its WHP. A program that is—you guessed it—funded by Medicaid.
Last week’s final reply brief filed by the states in the ACA cases has a quick explanation for the contradiction. According to the states, the Medicaid expansion under the ACA is unique, the coercion is unique, the challenge is unique, and the ultimate Supreme Court decision will accordingly be unique as well. Nothing to see over there in uncoerced Texas, and don’t worry about setting bad precedent either. A convenient assurance about a case that clearly could have sweeping consequences for many more federal laws enacted under spending powers, but one of cold comfort in light of the boldness of the actual challenge and the ineffectiveness of similar attempts at damage control. Furthermore, it’s curious that these state litigants, who were previously so concerned about the lack of a limiting principle on the federal government’s powers to regulate commerce and spend in the general welfare, now introduce an argument challenging the Medicaid expansion that itself has no limiting principle.