To Fund or Not to Fund: That Is the Question about Planned Parenthood

What happened to budget language that defunded Planned Parenthood? We may never know unless someone tells us what really happened. The whole problem could have been avoided had the state law been addressed head-on in a specific bill.

I’ve been watching some of the Facebook and blogging going on with respect to how the defunding of Planned Parenthood in the Tennessee budget got nixed without most folks knowing about it. And folks, including some legislators, can’t find where in the budget the “offending” language is that nixed the defunding. Well, here are the facts we can know for sure. And the rest I’ll leave to the politicos to handle.

Now what follows is rather technical, but for you who want to know how this works, read on. For those of you who want to assume I know what I’m saying from having served 12 years and been on the Finance Committee a couple of years, then skip to the end. Anyway, here goes.

The original budget bill, House Bill 2139/Senate Bill 2090, contained 70 sections, each containing at least one specific budget item and, in most cases, a multiplicity of budget items. It was 103 pages long. It’s technical and not easy reading, assuming you want to read.

When the Bill got to the House floor (the House heard the Bill first) there were a bunch of amendments filed, one of which was House Amendment (HA) 30. HA 30 made various changes to the text in the original Bill, but it also added several completely new sections to the original Bill. One of those was Section 78, which had the language about defunding Planned Parenthood. It is found on page 27 of HA 30. It states:

SECTION 78. Title X family planning funds appropriated to the department of health shall be used fully in Title X programs operated by state, county or municipal health agencies and staffed by employees of such agencies and no Title X family planning funds shall be paid to third-party providers or private organizations or entities.

Since Planned Parenthood is a “third party provider or private organization,” it could not get any family planning funds.

But, on Page 39 of the same amendment, there is language referring back to the newly added Section 78 and it states:

AND FURTHER AMEND by adding the following item to Section 10: Item __. Section 78 of this act shall not be construed to supersede applicable provisions of Federal and state law.

So, whoever put this language in House Amendment 30 did so intentionally because it refers to Section 78 specifically. There was no separate “killer” amendment “slipped in” that nobody actually voted for. HA 30 was properly voted on and approved.

Now why was this “contradiction” in HA 30 not “caught?” Well, as a former legislator I can tell you that unless you are going to read the entire amendment and unless you know what Section 78 is, the provision on page 39 saying that Section 78 doesn’t supersede state or federal law would not catch your eye. In fact, you’d think, “Of course, what we do in the budget can’t supersede state law” and you’d go on reading. In other words, you could read the “contradictory” provision and not think twice about it.

So, the House, being told in a summary sheet that they are provided, what the main provisions were in the bill, voted to adopt the amendment. And, accordingly, the amendment became part of the Bill. And the Bill, as amended was properly voted on and approved by the House.

So the Bill, as amended, now goes over to the Senate for its action. The Senate takes the House Bill and essentially makes it the Senate’s Bill by voice vote. Then the Senate is actually working off the House version of the Bill which, at that point, has Section 78 in it and the language on the bottom of page 39.

Now what is interesting is that the original language in the Senate’s version of HA30 (Senate Amendment 6) was identical to the language in HA 30. For that reason, the Senate withdrew its amendment No. 6; it wasn’t needed.

But the Senate also had Senate Amendment (SA) 5; it was by Sen. Campfield, and it contained the language supposedly everyone wanted. But when you read the amendment, you realize that it deleted certain language about defunding Planned Parenthood and substituted different language, the language everyone wanted.

But here’s the rub and a telltale sign that the two contradictory provision in HA 30/SA 6 appear to have been intended to deceive. SA 5 purported to delete language from a precursor version of HA 30/HA 6 that said that funding was subject to state and federal law. Here’s what it said, in full:

Amend by deleting the following language:
SECTION __. Except as otherwise specifically provided under federal or state law, Title X family planning funds appropriated to the department of health shall be used fully in Title X programs operated by state, county or municipal health agencies and staffed by employees of such agencies and no Title X family planning funds shall be paid to third-party providers or private organizations or entities.

And by substituting instead the following:
SECTION __. Title X family planning funds appropriated to the department of health shall be used fully in Title X programs operated by state, county or municipal health agencies and staffed by employees of such agencies and no Title X family planning funds shall be paid to third-party providers or private organizations or entities.

The point is that the language to be deleted was never was in HA 30/SA 6 to begin with; thus when legal drew up that amendment, it had to be working off a different version of those amendments.

But notice this, essentially the language to be deleted was still in HA 30/SA 6, but it was broken into two piece, the part about defunding Planned Parenthood and the part about requiring compliance with federal and state law.

Because Sen. Campfield (and perhaps others) saw in HA 30/SA 6, the language of Section 78 the way they wanted, they stopped reading and thought SA 5 was now unnecessary. So it never occurred to them to look for contradictory language somewhere else in HA 30/SA 6.

In other words, it looked like the issue being address in SA 5 had been taken care of in a subsequent version of the main amendment, so SAS 5 was dropped. But whoever was responsible for HA 30/SA 6 had to know that the old language about being subject to state and federal law had been broken down into two pieces, not deleted.

So, either the Senate was duped by some members in the House, not realizing that the “offending language” was in the Senate’s own version of House Amendment 30, or vice versa, some members of the Senate duped the House. Or maybe someone (or everybody) knew what HA 30 did but just didn’t clue in Sen. Campfield.

To be honest, there is a legitimate question about whether “directory language” in a budget (language that directs how money is to be spent rather than simply appropriating the money to a Department) can contradict statutory law. And it is a legitimate concern that those who might have had a right to apply for the money by statute (i.e. Planned Parenthood) might raise that legal issue if that right got cut out through directory language in the budget.

And to be honest, it’s probably legitimate to believe Planned Parenthood would sue over it. After all, it seems to like suing over state laws it doesn’t like, and there’s not much risk its suit would lose them “friends” on the Hill—the majority of legislators at this point aren’t their friends anyway. So, for Planned Parenthood, other than wasting the ALCU’s time and resources on bringing a suit, there is no real downside to suing.

All the foregoing legal “stuff” is honest, legitimate debate, and reasonable, pro-life minds might disagree over which approach to the issue was right. I’ve seen and heard and been sent emails by people expressing the public’s angst about “who did what” and the appearance of deception. But to you I will say this: Having been a member who knows how important it is to be able to trust your fellow colleagues in the heat of battle, my guess is that there’s even more angst among some of the House and Senate members themselves who have now had the seed of distrust sown among them.

The bottom line is we will never know unless someone tells us. But we do know this:

  • At least one person, if not more, knew exactly what was being done,
  • The budget was not illegally adopted but was lawfully adopted. Someone deceiving someone about what is in a bill is bad and sure not nice, but it happens and it’s not unlawful,
  • There is a state law that requires that Health Departments give an opportunity to third parties to “bid” for the money federal money in exchange for providing the family health services,
  • That the whole problem could have been avoided had the state law been addressed head on in a specific bill, and
  • That someone next year will bring a bill to do just that, and
  • Vetoing the “offending provision,” if the Governor’s line item veto extends to directory language, not just monetary amounts, could result in Planned Parenthood suing (which will sure win them friends on the Hill. Not!).