Update on Indiana vs. Planned Parenthood

Following is an update to the 2011 story involving the state of Indiana's attempt to withhold Medicaid funding to Planned Parenthood (PP) of Indiana. PP argues that Indiana cannot exclude it from federal Medicaid funds.

Since that time, a district judge blocked the state's attempt to withhold those funds. This past Tuesday, October 23, a ruling by the 7th U.S. Circuit Court of Appeals in Chicago supported that decision and argued that Indiana must give Medicaid dollars to PP.

The circuit court's opinion can be read here (PDF). The circuit court judges were Diane Sykes (who wrote the opinion), Richard Cudahy, and Michael Kanne. 

THE 7TH CIRCUIT COURT'S SPECIFIES THE CRITERIA FOR A PROVIDER TO RECEIVE MEDICAID FUNDS

The opinion explains the matter thusly:

Under § 1396a(a)(23) state Medicaid plans “must” allow beneficiaries to obtain medical care from “any institution, agency, . . . or person, qualified to perform the service.” This is individual-rights language, stated in mandatory terms, and interpreting the right does not strain judicial competence.

That means anyone qualified to perform a medical service covered by Medicaid must receive federal  Medicaid funds, according to the circuit court's opinion.

 

INDIANA'S EXAMPLES SHOWING THE COURT'S CRITERIA IS NOT DECISIVE

However, the court's own analysis of the case may not adhere to that criteria. First, let's look at the rationale for why PP is considered a "qualified" provider, as well as the definition of "qualified" the court claims to be following (emphasis mine):

Although Indiana has broad authority to exclude unqualified providers from its Medicaid program, the State does not have plenary authority to exclude a class of providers for any reason—more particularly, for a reason unrelated to provider qualifications. In this context, “qualified” means fit to provide the necessary medical services—that is, capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner. The defunding law excludes Planned Parenthood from Medicaid for a reason unrelated to its fitness to provide medical services, violatingits patients’ statutory right to obtain medical care from the qualified provider of their choice.

We now read ahead to the court's dismissal, for example, of two of Indiana's arguments from precedent that they can view PP as an unqualified provider. Here is the first, retold in the the circuit court opinion (emphasis mine):

Indiana also points to 42 U.S.C. § 1320a-7(b)(14), which allows states to exclude providers who are in default on their student-loan payments, and from this provision makes another argument by implication: If the states may refuse to subsidize student-loan delinquents with Medicaid dollars, then they must have the authority to “avoid indirect financing” of any “non-Medicaid” conduct. But like § 1396a(p)(1), this statute merely stipulates a particular ground for excluding a Medicaid provider; it does not imply that the states may establish any rule of exclusion and declare it a provider “qualification” for purposes of § 1396a(a)(23). That would make the free-choice-of-provider requirement a nullity.

And the second (emphasis mine):

Nor does Guzman v. Shewry, 552 F.3d 941 (9th Cir. 2009), help Indiana’s case. There, a provider was suspended from California’s Medicaid program based on a pending criminal investigation. He claimed that federal law occupies the entire field of regulation pertaining to Medicaid and therefore preempted the state’s disciplinary measure. The Ninth Circuit rejected this argument, relying in part on 42 U.S.C. § 1320a-7(b)(5), which provides that the states may suspend or exclude providers from participating in Medicaid “for reasons bearing on the individual’s or entity’s professional competence, professional performance, or financial integrity.” The court remarked that this provision presupposes state regulatory authority over provider qualifications. Guzman, 552 F.3d at 949. 

Here we have two examples of precedent provided by Indiana's attorneys. Both were examples of Medicaid funds legally being withheld from an entity apart from that entity's competence to perform medical services. Remember, the 7th Circuit Court on Tuesday insisted:

“qualified” means fit to provide the necessary medical services—that is, capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner. 

Both examples presented by Indiana demonstrate that competency to perform a particular medical service can be trumped by factors unrelated to those medical services. I did not see the 7th Circuit Court address that aspect of Indiana's argument. And yet, in its opinion, the 7th Circuit Court specifically ruled against Indiana because it supposedly disqualified PP for reasons other than it's ability to perform certain medical services:

The [State of Indiana's] defunding law excludes Planned Parenthood from Medicaid for a reason unrelated to its fitness to provide medical services, violating its patients’ statutory right to obtain medical care from the qualified provider of their choice.

The 7th Circuit Court's opinion here is worded such that there are no reasons to withhold Medicaid funding from any entity capable of performing certain medical services. Yet, Indiana's lawyers produced several examples (such as the 2 described above) that demonstrate that is not ultimately the decisive factor. A doctor behind on student loans can still legitimately perform medical services. In the example in which there was a criminal investigation on the provider, the 7th Circuit Court considered it okay to suspend their Medicaid dollars even though there was no guilt at the time the funds were withheld. As well, one of the reasons the 7th Circuit Court supported that opinion is because of the question of the "financial integrity" of a provider. We'll take another look at that aspect of PP's financial statements in a moment.

More from the 7th Circuit opinion:

It is true that Medicaid regulations permit the states to establish “reasonable standards relating to the qualifications of providers.”  42 C.F.R. § 431.51(c)(2). But Indiana claims plenary authority to exclude Medicaid providers for any reason, as long as it furthers a legitimate state interest—here, the State’s interest in avoiding indirect subsidization of abortion. This sweeping claim conflicts with the unambiguous language of § 1396a(a)(23) and finds no support in related Medicaid statutes and regulations. 

The opinion went on from that paragraph to reiterate that "qualified" means competent to perform the medical services in question. The opinion reiterates that standard over and over. In other words, the state can establish "reasonable standards" relating to what is a "qualified" provider––the 7th Circuit Court insists Indiana's criteria is unreasonable on the grounds that PP is able to perform certain procedures covered by Medicaid. Yet the court was willing to suspend that standard altogether as we saw in the examples of the cases on student loans or a pending investigation, as well as other cases presented by Indiana to the courts.

SO DOES PLANNED PARENTHOOD USE MEDICAID DOLLARS FOR ABORTIONS?

Recall from The Catholic Voyager's previous coverage on this case, the state of Indiana submitted to the district court the following argument that PP has not demonstrated that it separates Medicaid funds from abortion services:

PPIN’s audited financial statements for 2009 and 2010 give rise to a reasonable inference that it commingles Medicaid reimbursements with other revenues it receives. ... financial statements provide no record that PPIN [Planned Parenthood of Indiana] makes any effort either to segregate Medicaid reimbursements from other unrestricted revenue sources or to allocate the costs of its various lines of business, whether abortion, family planning, cancer screenings, or other services. ... Medicaid, as a revenue line, is shown with other unrestricted sources of income ... This indicates that, while PPIN may not receive Medicaid reimbursements related directly to abortions (as federal and state laws generally prohibit), the Medicaid reimbursements it does receive for other services are pooled or commingled with other monies it receives and thus help pay for total operational costs.

In other words, PP uses Medicaid funds to pay for total operational costs, which of course includes abortion services not covered by Medicaid dollars. The only comment on this matter I saw from the 7th Circuit Court opinion reads as follows:

Planned Parenthood also performs abortions. The organization uses private funding to support its abortion services and takes steps to ensure that public and private funds are not commingled.

That's it. There is no substantiation that PP prevents Medicaid dollars from going to abortion services other than a cursory statement that it does so. The claim begs the question. The circuit court's opinion is filled with supporting documentation and analysis except on this point. What of the PP's audited financial statements as described by the state of Indiana during the district hearing?

It may be telling, however, that the circuit court's opinion elsewhere implies that Medicaid dollars do indirectly pay for PP's abortion services. Recall this earlier quote: 

But Indiana claims plenary authority to exclude Medicaid providers for any reason, as long as it furthers a legitimate state interest—here, the State’s interest in avoiding indirect subsidization of abortion.

The circuit court's opinion describes the matter, in their own words, as Indiana avoiding "indirect subsidization of abortion." The court's opinion is not qualifying the statement as Indiana's "perception" only, but rather describing the situation as it exists.

So on the one hand, the court dismissively claimed PP separates use public funds from abortion services, and on the other, indicates that PP uses public funds indirectly to subsidize abortion.

Elsewhere, the 7th Circuit Court's opinion suggests the same thing:

The point [of defunding PP] is to eliminate the indirect subsidization of abortion....Act 1210 aims to prevent the indirect subsidization of abortion...

In rebutting this argument, the court does not challenge Indiana's assertion that PP is using public funds to subsidize abortion. It rather seems to admit the claim as fact. Instead, the court insists repeatedly that PP must be funded simply because it is capable of performing other covered medical services.

After reading through the opinion, I was thus left vexed. It seemed that Indiana's strongest argument against funding PP was dismissed with no rebuttal, with no detailed explanation. Instead, the peripheral criteria of PP's "capability" to perform other funds appeared to be inconsistently described as the basis by which a provider must receive Medicaid funds.

Book Review: Padre Pio Under Investigation

Padre Pio Under Investigation: The Secret Vatican Files by Fr. Francesco Castelli is a chronicle centered on a 1921 Church-sanctioned investigation of the mystical phenomena surrounding Padre Pio (Now St. Padre Pio). I give it 8 out of 10 stars.

The book is largely a catalog of the report presented by Bishop Raffaello Carlo Rossi who was assigned to the investigation. This report remained unpublished until the time of this book's publication in 2011. From this book, we get a window into Rossi's journey day-by-day over the period of one week as he interrogates various priests at Padre Pio's convent at San Giovanni Rotondo in the province of Foggia, Italy. We are also treated with first hand Q&A interrogations of Padre Pio including regarding his stigmata, the gift of perfumes, and instances of bilocation.

One of the greatest values of this book is the source material. These testimonies were taken during the third year (out of 50) of Padre Pio's visible stigmata. We learn how the vast majority of Padre Pio's acquaintances held him in high regard and how his detractors were a very small minority whose accusations were deemed faulty or unfounded.

Many accusations that still are echoed to this day are addressed in these 1921 interrogations. For instance, one would not be hard-pressed to find on the internet skeptics of Padre Pio's stigmata who claim he used acid at the convent to create the wounds. This was an issue directly asked to witnesses at the convent as well as to Padre Pio himself. For this particular question, we learn that "each convent kept its own healing herbs and medicines" (ebook Loc. 714) and according to witnesses and Padre Pio himself, carbolic acid was used for a time to disinfect smallpox during 1920 (Loc. 2123). Padre Pio himself was sanctioned to administer those injections (Loc. 3051).

Rebuttals to skeptics' accusations are not limited to convent residents alone. Two doctors and a professor of medical pathology had examined Padre Pio a combined four times prior to Bishop Rossi's investigation. The examinations of these medical professionals were referenced and considered multiple times during Rossi's investigation. He gives us detailed accounts of their recorded observations of Padre Pio's stigmata. Although I would like to have read more source material from those in the medical community who examined Padre Pio's body, Rossi does directly quote from their reports from time to time. For instance, Rossi quotes Professor Bignami's bewilderment at Padre Pio's wounds: "What is impossible to explain with the knowledge we have of neural necrosis is the perfectly symmetrical location of the lesions described." (Loc. 1669)

Throughout this investigation, we are also given a picture from the eyes of that time of those surrounding Padre Pio. This includes the convent-frequenting "Pious Women" who were significant witnesses to Padre Pio's gifts and value of his counsel.

We are also given an idea into Rossi's honesty as he includes many instances of supposed miracles some of his over-zealous fans of, or perhaps enemies of, Padre Pio that were unfounded, some even denied by Padre Pio himself.

This book may seem redundant to some readers. The first part of the book offers author Castelli's insights into the investigation, which quotes from Rossi's report numerous times. Then, in the core of the book, Rossi's report is provided, and to the reader, many of the quotations are now familiar.

Also of value is a following portion of the book. Castelli includes multiple letters of spiritual direction from Padre Pio's then-spiritual director, Father Benedetto Nardella, giving us a window into both Padre Pio's life as well as Fr. Benedetto's.

As well, the book is refreshing at a time today when the Church is painted in secular avenues as merely an evil institution of cover-up. The book provides a window into the seriousness with which the Church's Holy Office took the phenomena surrounding Padre Pio, and the reluctance that existed in affirming or promoting it. A timeline ends the book, chronicling many years in which Padre Pio was forbidden from publicly celebrating the Liturgy or hearing confessions. And these sanctions were applied despite Bishop Rossi's favorable report to Padre Pio's character and the merit of the mystical phenomena surrounding him.

I highly recommend this book to anyone interested in St. Padre Pio or the operations of the Church.

The canon of scripture, Damasus, and the "Gelasian Decree"

In some non-Catholic circles, there exists an argument against Pope Damasus having decreed the canon of Scripture at a council in Rome, ca 382 A.D. Here is an example from the One Fold blog arguing against Catholic apologist John Martignoni:

What John is referring to when he says the “canon was set at the Council of Rome in 382 A.D,” is actually a list from the Gelasian Decree produced in the sixth century and sometimes falsely attributed to the council of Rome.

A similar claim is made by Protestant historian F.F. Bruce:

What is commonly called the Gelasian decree on books which are to be received and not received takes its name from Pope Gelasius (492-496). It gives a list of biblical books as they appeared in the Vulgate, with the Apocrypha [sic] interspersed among the others. In some manuscripts, indeed, it is attributed to Pope Damasus, as though it had been promulgated by him at the Council of Rome in 382. But actually it appears to have been a private compilation drawn up somewhere in Italy in the early sixth century. (Bruce, The Canon of Scripture, p. 97)

One of the apologetic reasons for claiming the 382 decree on the canon is false is because the text in question includes the longer Catholic canon with 7+ books¹––what Bruce calls the "Apocrypha." Catholics today refer to these texts as the Deuterocanon. Those opposed to the authenticity of the 382 decree are apparently averse to admitting to the antiquity of the Catholic canon. Admittedly, this is peculiar, because One Fold, perhaps following the admission on page 97 of Bruce, admits that the longer Catholic canon was declared at Hippo (393) and Carthage (397), just a few years later anyway.

The first ecclesiastical councils to classify the canonical books were both held in North Africa — at Hippo Regius in 393 and at Carthage in 397 — but what these councils did was not to impose something new upon the Christian communities but to codify what was already the general practice of those communities. (ibid. 97)

It's worth noting that Bruce admits the longer Catholic canon was "already the general practice" of the early Christian communities.

Nevertheless, what of the authenticity of Pope Damasus proclaiming the longer canon in 382? Catholic historian William Jurgens writes as follows:

The first part of this decree has long been known as the Decree of Damasus, and concerns the Holy Spirit and the seven-fold gifts. The second part of the decree is more familiarly known as the opening part of the Gelasian Decree, in regard to the canon of Scripture: De libris recipiendis vel non recipiendis. It is now commonly held that the part of the Gelasian Decree dealing with the accepted canon of Scripture is an authentic work of the Council of Rome of 382 A.D. and that Gelasius edited it again at the end of the fifth century, adding to it the catalog of the rejected books, the apocrypha. It is now almost universally accepted that these parts one and two of the Decree of Damasus are authentic parts of the Acts of the Council of Rome of 382 A.D. (Jurgens, Faith of the Early Fathers, vol. 1, p. 404)

So, according to Jurgens, both Damasus and Gelasius included the canonical list, but Gelasius added additional forbidden texts. Whether this took place at the "end of the fifth" century or the "sixth" century, as Bruce asserts, they are apparently speaking of the same Gelasian text. The question is whether or not what Gelasius wrote in the 5th/6th century was an innovation from the 382 Decree of Damasus as One Fold and Bruce assert.

It seems to me, the Decree of Damasus in 382 at the council of Rome is the more historically sound. Here's why. In 1912, the author Ernst von Dobschütz, gave his historical rationale for doubting that Damasus made a decree on the canon at Rome in 382. He points out that in the Gelasian decree is a quotation from St. Augustine dating from 416. Therefore, he denies that any other part of the decree could have originally been from Damasus in 382. From this, he concludes that the entirety of Damasus' decree has "no historical value." We see, of course, that this is specious reasoning. After all, if Damasus declared a canonical list in 382, and Gelasius in the 5th/6th century added to that a quote from Augustine, that would not erase Damasus' original declaration.

All these dates and names can be confusing. But here's the apparent timeline:

• 382 - Pope Damasus makes his decree on the larger Catholic canon
• 416 - Augustine makes his comments.
• 5th/6th century - Gelasius takes Damasus' decree, and edits it, adding to it the Augustinian quote and lists other apocryphal texts

If Gelasius added an Augustinian quote, it has no effect on what Damasus declared. Yet von Dobschütz concludes the entire Decree of Damasus is worthless. Bruce apparently echoes this historical view by calling into question the dating of the canonical list in Damasus' decree.

Another Protestant resource confirms Jurgens and the timeline I have posited above:

A council probably held at Rome in 382 under St. Damasus gave a complete list of the canonical books of both the Old Testament and the New Testament (also known as the 'Gelasian Decree' because it was reproduced by Gelasius in 495), which is identical with the list given at Trent. (The Oxford Dictionary of the Christian Church, 2nd ed., p. 232)

Thus, we have sound evidence that the longer Catholic canon found acceptance from councils ancient and more recent including Rome (382), Hippo (393), Carthage (397), Nicea II (797), Florence (1442), Trent (1546) and Vatican I (1870). It is this canonical list that has found consistency throughout the centuries.


¹For the text of the decree on the canon at the council at Rome (382), see Gary Michuta's Why Catholic Bibles Are Bigger, page 126-127, or refer to the Latin text here.

TV star Donna D'Errico on her Catholic faith

In recent news, Donna D'Errico, former prime time TV star, has been talking about her renewed Catholic faith. I first read about this at Catholic Vote. The story was in reference to an interview she did with Fox411, in which she expressed her affinity for the Divine Liturgy and the Rosary. See also her recent interview at Ignitum Today.  Pro-Catholic stories like Donna's among the world of celebrities are uncommon. As a follow to that interview, I asked her if she would answer a few short interview questions for my blog, and she was kind enough to reply. Here is her interview with The Catholic Voyager:

TCV: Recently, you articulated that you've made mistakes in life, and eluded to something you've worn for the past 6 years. Can you expound on that item and what it means to you? 

DD: I was referring to my Brown Scapular. I was enrolled into the Brown Scapular many years ago, and have not removed it since. 

TCV: Who is your favorite saint and what about them appeals to you? 

DD: Saint Monica. Her struggles in her marriage resonate with me. 

TCV: Today there are many "Catholics" who dissent with a variety of Church teaching. For example, there are politicians, some nuns and even priests, actors, or actresses who disagree with the Catechism on abortion or doctrines like how priests must be male to sacramentally represent Christ. Would you consider yourself a "traditional" Catholic who embraces the doctrines of the Church? Or do you see yourself as having views opposed to those taught in the Catechism?  

DD: If your beliefs are not in full accordance with the Baltimore Catechism, then you're not Catholic.

TCV: What advice would you give to young people today, especially young ladies, who are adverse to religion, on what the Church has to offer? 

DD: I'm not sure what advice I could give to anyone who is adverse to religion. I'm certainly no missionary. I returned because outside of it, I was lost and headed down the wrong road. I don't buy into the new-age mindset that everyone is automatically saved and automatically goes straight to Heaven. It sounds really nice and all, but it's just not the case. If you die with mortal sin on your soul, you go to Hell - plain and simple. The one, true, Canonically correct, pre-Vatican II Catholic Church offers everything you need to be able to make it into Heaven. 

TCV: You recently mentioned support for Ron Paul as opposed to either major party candidate. Do you feel that the nation could stand to benefit from a third party leader outside the major-two-party system? 

DD: Yes. Although it wasn't always this way, candidates who represent either of the two major political parties are largely all the same person. You may as well cover your eyes and throw a dart, and decide who to vote for that way. They are puppets, controlled by puppeteers. The only chance we have of getting someone in office who is not controlled by the "powers that be" is by voting for the person rather than the party.

I want to thank Donna for her response to my interview request and for all her interviews in which she courageously has spoken with the conviction of truth on things Catholic such as the Liturgy, the Rosary, prayer, and Confession.