By Jeanne Gawdun, KFL Director of Government Relations
On Friday, February 7, Kansans for Life announced its opposition to Medicaid Expansion until the Value Them Both Amendment is approved by both the Kansas House and Senate. The goal of this post is to brief the public on why that action was taken.
The Kansas Supreme Court’s ruling in Hodes & Nauser v. Schmidt has opened the door to taxpayer funded abortions. The way to keep Medicaid Expansion from becoming a funding stream for abortions is to pass the Value Them Both Amendment. For months, KFL has been having conversations with legislative leaders regarding the issue and the decision was made to pursue passage of the amendment first, and not get involved in the Medicaid Expansion debate.
However, since the House failed to pass Value Them Both by four votes, our organization had no choice but to publicly oppose Expansion until Value Them Both is approved by the legislature. Once this happens, KFL will return to a neutral position on Expansion.
There is a somewhat long and complicated history regarding Expansion that might help shed some light on the position our organization has taken.
- In 2015 KFL submitted neutral testimony regarding Expansion. We noted that we would be tracking the issue closely, in light of our opposition to expanding public funding streams for abortion. While having some reservations about Expansion, KFL chose to not engage on the issue at that time, since a ban on the use of state taxpayer funds for abortions had been enacted in 2013.
- In 2017 both legislative chambers approved Expansion, but did not override Governor Brownback’s veto. In his Veto Message, the Governor noted that Planned Parenthood, the world’s largest abortion provider, would receive additional funding. While this may have been the case, the funds were for non-abortion services and the previously mentioned ban on state taxpayer funding of abortions was still intact. Therefore, KFL chose to maintain its neutral position during a heated legislative battle.
- However, in April of 2019, everything changed the moment the Kansas Supreme Court issued its Hodes v. Schmidt decision and found a fundamental “right” to abortion. The court’s ruling endangers our state’s taxpayer funded abortion ban. In fact, the court cited five cases that specifically supported taxpayer and Medicaid funded abortions when they created this new fundamental right. Those cases are as follows: Comm. to Defend Repro. Rights v Myers, 625 P.2d 779 (Cal. 1981), Women’s Health Center v. Panepinto, 191 W. Va. 436 (W. Va. 1993), Moe. Sec’y of Admin. & Fin., 417 N.E.2d 387 (Mass. 1981), Women of the State v. Gomez, 542 N.W.2d 17 (Minn. 1995), and Vally HOsp. Ass’n v. Mat-Su Coal. for Choice, 948 P.2d 963 (Alaska 1997).
Other states that have discovered a fundamental right to abortion have seen state taxpayer/Medicaid funding of abortions increase. For example, in 2018, 75% of abortions in Connecticut were funded by their state’s Medicaid System, a program known as “Huskie.” Connecticut’s Medicaid program started funding abortions after a court ruling.
The Value Them Both Amendment addresses our concerns with Medicaid Expansion because it states that “the constitution of the state of Kansas does not require government funding of abortion.” During our conversations with legislative leaders, KFL informed them that if the Value Them Both Amendment is not passed by the legislature, we would be forced to oppose Expansion.
We acknowledge that Expansion is a complicated issue, but with the Supreme Court’s ruling and the recent failure of the House to pass the Amendment, we could not sit by and allow taxpayer funded abortions to drastically increase here in Kansas.
Some legislators and lobbyists have argued that the Hyde Amendment, a yearly federal budget provision, protects state taxpayers from funding abortion. This is incorrect. Hyde deals with certain federal dollars, not state funds, and that is how other state Medicaid programs pay for abortion.
- We want to make it perfectly clear that the Hyde Amendment is not a federal statute. As a budget provision, it has to be reauthorized every year. It is worth noting that every Democratic candidate running for President has called for the repeal of the Hyde Amendment.
- “If Democrats have their way, taxpayers will fund abortion once again.”
- Page 33 of the 2016 Democratic National Committee’s Platform specifically calls for the repeal of Hyde.
In a recent letter from Speaker of the House Ron Ryckman (R-Olathe, District 78), he explains how “passage of Medicaid Expansion, without passage of the constitutional amendment, would create a loophole in Kansas that would allow for taxpayer-funded abortions.”
“Here is how that could happen. Expanding Medicaid in Kansas is estimated to move 55,000 Kansans from private insurance to taxpayer funded Medicaid. Under the Kansas Supreme Court decision in Hodes & Nauser v. Schmidt, any state restriction on abortion must pass the highest hurdle of constitutional scrutiny, known as strict scrutiny. Almost no regulations will survive this standard and funding restrictions have already been struck down in other states applying this standard. In fact, our court already cited those decisions favorably in its Hodes decision.
So with 55,000 people moving to taxpayer funded Medicaid, and our existing restrictions on using those state Medicaid dollars for abortion in jeopardy, there is a very real risk that expanding Medicaid without first addressing the Hodes & Nauser decision results in taxpayer funded abortions in Kansas.
This isn’t just hypothetical. Consider Alaska, their state expanded Medicaid in 2015. Since that time, the number of taxpayer-funded abortions steadily climbed from 33 % in 2015 to 44% in 2016. By 2017 51% of the abortions in Alaska were taxpayer-funded. This has been attributed to the fact that, once Medicaid was expanded, Alaskans opted to leave the private insurance they had and switch to taxpayer-funded Medicaid coverage.
Constitutional scholar and attorney Paul Linton testified to the House Health and Human Services Committee on the issue this week. He said, ‘Given the overwhelming weight of state constitutional authority, it is a virtual certainty the Kansas restrictions on public funding of abortion would be struck down, if challenged on the basis of the opinion in Hodes.’
Some have called the linkage of expansion and the Constitutional amendment a scare or bullying tactic. But, the fact is, we don’t have to look far to see what has happened in other states. It’s important for the Legislature to do its due diligence on this issue, and every funding issue, to make sure our decisions represent the intent of how Kansans want their taxpayer dollars spent.”
In conclusion, when the legislature approves the Value Them Both Amendment, Kansans for Life will return to having a neutral position on Medicaid Expansion.