ATLANTA – The Supreme Court’s pending decision on abortion in Idaho may depend on how federal spending power can protect doctors against a state’s criminal code. For guidance, justices can look to the 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 in favor of Idaho v. In the United States last month, Justices Samuel Alito, Clarence Thomas and Neil Gorsuch raised questions about the Biden administration’s power to take Medicare money from hospitals whose doctors do not perform emergency abortions for fear of being sued.
Idaho law currently threatens doctors with prison if prosecutors challenge their medical determination that an abortion was necessary to save a woman’s life. Idaho also criminalizes abortion to preserve a woman’s bodily functions, contrary to federal requirements for emergency care.
“How can you impose 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. 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 — “that are attached to these funds as an essential part of the agreement. And there is no precedent to support this result.”
In fact, using Medicare to impose the federal will on states with contrary criminal codes is as old as the program itself. As Medicare prepared to begin 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 cases of linking federal funding to other policy goals,” said Tom Oliver, a University of Wisconsin professor who specializes in health policy changes.
Likewise, today’s “federal use of power is indirect and does not directly override state criminal statutes – it simply makes enforcing a blanket ban on abortion, even in emergencies that threaten the mother’s life, too expensive for hospitals.” ,” Oliver said.
Before the Medicare money began flowing, despite the passage of the Civil Rights Act of 1964 and federal court rulings requiring desegregation, hospitals across the South were still in compliance 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. Blacks were turned away from emergency rooms reserved for white patients, which led to higher death rates in supposedly “separate but equal” facilities, according to Philip Lee, a Johnson administration official who helped implement the implementation of Medicare. .
In Atlanta, only the public Grady Hospital treated both breeds, but in separate wards known as the two Gradys. Even there, black births could only be scheduled for Wednesdays, according to Xernona Clayton, an advisor to the Reverend Martin Luther King Jr.
King’s cousin, Dr. Roy Bell, eventually won a federal lawsuit in 1962 that sought to end segregation in Atlanta hospitals, but the actual practice lagged behind federal law.
President Johnson was impatient for change and needed more popular support as Congress considered the Medicare and Medicaid Act. His aides urged Atlanta’s black doctors to make noise, and they did: Clayton took them to lobby Congress, and they arranged a visit to the White House.
This pressure reverberated back home: on June 1, 1965, a month before Johnson signed the law, Grady’s superintendent announced that the entire hospital would operate “on a non-racial basis, effective today.”
Grady was ahead of the curve. In March 1966, four months before the money began flowing, fewer than half of the nation’s hospitals — and fewer than a quarter of them in the South — met federal standards prohibiting racial discrimination, Lee wrote in 2015 in the Journal of the American Society on Aging.
Hospital inspections by Lee and other federal officials, plus litigation and a White House meeting of health care executives that reached Johnson, led to 95% of the 7,000 hospitals nationwide complying within six months, allowing Johnson to declare that “there will be no second-class patients in our healthcare institutions” nationwide, Lee wrote.
This fundamental principle of American federalism has extended to many other areas: States have updated anti-discrimination practices to qualify for education money and raised the legal drinking age to 21 to get highway funding, for example.
“The feds are saying, here’s a bunch of money – if you want it, respect our conditions. If not, don’t accept it. It’s that simple,” said Eric Segall, a constitutional law professor at Georgia State University. “No one who cares about the text and history of the Constitution” would seriously argue that the federal spending 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 removed states from Medicaid if they refused federal funding to expand the program. Chief Justice John Roberts’ opinion held that this aspect of “Obamacare” amounted to unconstitutional coercion. Most states have since offered to expand.
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