ATLANTA (AP) — The Idaho Supreme Court’s pending abortion ruling could hinge on how federal purchasing power could protect doctors from a state’s criminal code. For guidance, the justices can look to the very beginnings of Medicare in the 1960s, when the promise of federal funding finally convinced hospitals in the Jim Crow South to desegregate.
In oral arguments for Idaho v. United States last month, Justices Samuel Alito, Clarence Thomas and Neil Gorsuch raised questions about the Biden administration’s power to divert Medicare money from hospitals where doctors won’t perform emergency abortions for fear of prosecution.
Idaho law currently threatens doctors with prison time if prosecutors challenge their medical belief that an abortion was necessary to save a woman’s life. Idaho also criminalizes abortions to preserve a woman’s bodily functions, in violation of federal emergency care requirements.
“How can you place restrictions on what Idaho can criminalize simply because Idaho hospitals have chosen to participate in Medicare?” asked Alito, who wrote the decision overturning Roe v. Wade. “I don’t understand how – how the theory works.”
Attorney General Elizabeth Prelogar countered that Idaho wants its hospitals to be able to accept Medicare money without federal conditions — such as emergency abortion care in certain cases — “tied to those funds as an essential part of the agreement. And there is no precedent to support this outcome.”
In fact, the use of Medicare to impose federal will on states with conflicting criminal laws is as old as the program itself. When Medicare prepared to start paying for the care of elderly patients in July 1966, President Lyndon B. Johnson used the offer of massive federal spending as a tool to finally end the most blatant racial discrimination in hospitals across the country. It remains “one of the most prominent and powerful examples of linking federal funding to other policy objectives,” said University of Wisconsin professor Tom Oliver, an expert on health care policy changes.
Likewise, the current “federal use of power is indirect and does not directly override state criminal statutes – it only makes compliance with a complete ban on abortions, even in emergency situations that threaten the life of the mother, very expensive for hospitals ,” Oliver said.
Before Medicare money started flowing, despite the passage of the 1964 Civil Rights Act and federal court rulings requiring desegregation, hospitals in the South still complied with the criminal codes long used to enforce racial discrimination .
Black doctors were denied privileges in most hospitals. Black patients had to use segregated ambulances, wards, bathrooms, and even blood supplies. Black people were turned away from emergency rooms reserved for white patients, leading to higher death rates in supposedly “separate but equal” facilities, according to Philip Lee, a Johnson administration official who helped implement Medicare.
In Atlanta, only the public Grady Hospital treated both breeds, but in separate wings known as the two Gradys. Even there, Black deliveries could only be scheduled on Wednesdays, according to Xernona Clayton, assistant to the Rev. Martin Luther King Jr.
King’s cousin, Dr. Roy Bell, eventually won a federal lawsuit in 1962 seeking to end segregation in Atlanta’s hospitals, but the practice lagged behind federal law.
President Johnson was impatient for change and needed more grassroots support as Congress considered the Medicare and Medicaid Act. His aides urged black doctors in Atlanta to make some noise, and they did: Clayton took them to lobby Congress and they scored a visit to the White House.
That pressure reverberated at home: On June 1, 1965, a month before Johnson signed the law, Grady’s superintendent announced that the entire hospital would “operate today on a nonracial basis.”
Grady led the way. In March 1966, four months before the money started flowing, fewer than half of the nation’s hospitals — and less than a quarter of those in the South — met federal standards banning racial discrimination, Lee wrote in the Journal in 2015 of the American Society on Aging. .
Hospital inspections by Lee and other federal officials, more lawsuits and a meeting of health care executives at the White House brought 95% of the 7,000 hospitals across the country into compliance within six months, allowing Johnson to declare that “there no second-class patients in our healthcare facilities,” Lee wrote.
This fundamental principle of American federalism has extended to many other areas: States have updated anti-discrimination practices to qualify for education funding and raised the legal drinking age to 21 to obtain highway funding, for example.
“The FBI says, there’s a lot of money here. If you want it, you must adhere to our terms. If you don’t, don’t take it. It’s that simple,” said Eric Segall, a professor of constitutional law at Georgia State University. “No one who cares about the text and history of the Constitution” would seriously argue that federal purchasing power cannot be used as leverage in this way, he argued.
But this federal power was challenged in a 2012 ruling against the Affordable Care Act, which initially would have pulled states out of Medicaid if they refused federal funding to expand the program. Chief Justice John Roberts held that this aspect of “Obamacare” amounted to unconstitutional coercion. Most states have since volunteered to expand.
