CASE PREVIEW

Supreme Court considers South Carolina’s effort to strip Planned Parenthood of Medicaid funding

The Supreme Court will hear oral arguments on Wednesday in a case that, at first glance, appears to involve only a technical interpretation of the federal Medicaid Act. But the dispute has drawn widespread attention because of the context in which it came to the justices: an attempt by South Carolina to exclude Planned Parenthood from the state’s Medicaid program because it provides abortions.

Created in 1965, the federal Medicaid program provides medical care, in cooperation with the states, to more than 72 million lower-income Americans – including families, the elderly, and people with disabilities. The Medicaid Act was enacted pursuant to Congress’s power under the Constitution’s spending clause, which allows Congress to attach conditions to federal funds.

Under federal law, Medicaid funds cannot generally be used for abortions. Planned Parenthood provides other medical services to its patients, both Medicaid and non-Medicaid, including gynecological and contraceptive care but also screenings for cancer, high blood pressure, and high cholesterol.

At two clinics in Charleston and Columbia, Planned Parenthood has tried to make it easier to lower-income patients in South Carolina to use its services – by, for example, offering same-day appointments and extended clinic hours. One of those Medicaid patients is Julie Edwards, who suffers from diabetes. She went to Planned Parenthood for birth control and says she wants to return to receive other care in the future.

In 2018, South Carolina Governor Henry McMaster ordered the state’s Department of Health and Human Services to bar abortion clinics from participating in the Medicaid program. McMaster explained that because money is fungible, the use of Medicaid funds by abortion clinics “results in the subsidy of abortion and the denial of the right to life.”

Edwards and Planned Parenthood went to federal court in South Carolina. They argued that McMaster’s order violated a provision of the Medicaid Act that allows any patient who is eligible for Medicaid to seek health care from any “qualified” provider.

In a decision by Judge J. Harvie Wilkinson, who was reportedly once on the short list to fill a vacancy on the Supreme Court during the George W. Bush administration, the U.S. Court of Appeals for the 4th Circuit agreed with Edwards and Planned Parenthood that the Medicaid Act creates individual rights that can be enforced under federal civil rights laws, and it prohibited the state from excluding Planned Parenthood from its Medicaid program.

South Carolina – represented by the conservative advocacy group Alliance Defending Freedom – appealed to the Supreme Court last June, asking the justices to decide whether Edwards and Planned Parenthood have a legal right to sue to enforce the Medicaid Act. The justices agreed in December to weigh in.

In its brief at the Supreme Court, South Carolina argues that under the Supreme Court’s cases, because the Medicaid law was enacted pursuant to Congress’s spending clause power, it “must unambiguously confer individual federal rights.” The Supreme Court, it says, has made clear that this is a stringent test. The law must use words that explicitly create the right that a plaintiff seeks to enforce, and it must confer the right “directly on a class of persons that includes the plaintiff in the case.”

It is noteworthy, South Carolina contends, that until now the Supreme Court has only found four provisions that clearly create privately enforceable rights. Two years ago, in Health and Hospital Corporation of Marion County, Ind. v. Talevski, the court ruled (by a vote of 7-2) that nursing-home residents could use federal civil rights laws to enforce two provisions of the Federal Nursing Home Reform Act that clearly granted individual rights. The justices also ruled that two provisions in Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, providing that “[n]o person shall,” also create privately enforceable rights.

No such language, the state asserts, is present in the “any qualified provider” provision, which says only that “an individual eligible for medical assistance” “may obtain” it from a “qualified” provider”: Although that text may confer a benefit, the state acknowledges, it doesn’t say anything about a “right.” Moreover, the state continues, the provision is located in “a list labeled ‘Contents’ setting out 87 disparate items that plans must include.”

By contrast, the state observes, the laws at issue in Talevski repeatedly referred to “rights” and were “listed in a bill of rights.” Indeed, another provision of the law at issue in Talevski specifically protected the “right to choose a personal attending physician” – demonstrating that Congress knows how to create the right to choose a health-care provider when it wants to.

South Carolina also emphasizes that as a practical matter, the Medicaid Act focuses on the relationship between the states and the federal government, rather than on creating individual rights that would allow someone to bring a lawsuit. Congress, the state stresses, wanted to give states “substantial discretion” in implementing their Medicaid programs. By allowing individuals to sue when they disagreed with a state’s Medicaid decisions, the state argues, Planned Parenthood’s reading of the law would give that discretion to federal courts and pose the risk of “unanticipated (and expensive) lawsuits” for states to defend.

In a “friend of the court” brief supporting South Carolina, the Trump administration agrees with South Carolina that Congress did not intend to create a privately enforceable right in the “any qualified provider” provision. If it had, the Trump administration posits, it would not have “bur[ied]” it “deep within” the Medicaid law and omitted the “term ‘right’ or other equally unmistakable rights-conferring language.”

The Trump administration acknowledges that its position is an about-face from the one taken by the federal government in earlier litigation involving other laws, including Talevski. But the Supreme Court’s decision in Talevski, Acting Solicitor General Sarah Harris explains, “has elucidated just how unmistakable and unusual rights-conferring statutes must be within the broader statutory context. After the change in Administration and in light of Talevski, the United States has concluded that” the “any qualified provider” provision does not create rights enforceable under federal civil rights laws. Adopting Planned Parenthood’s reading, she notes, could “potentially greenlight private” federal civil rights suits “to enforce a dozen or more similar provisions.”

Another brief supporting South Carolina comes from the World Faith Foundation, a California-based nonprofit that describes its mission as preserving and defending the “customs, beliefs, values, and practices of religious faith and speech.” Pointing to the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, overturning the constitutional right to an abortion, the group emphasizes that the court “has explicitly returned abortion regulation to the states.” Allowing private lawsuits to enforce the “any qualified provider” provision in cases like this one, and therefore provide Medicaid funding to Planned Parenthood, the group says, “would sneak forbidden funding through the back door into South Carolina and other pro-life states.”

In its brief at the Supreme Court, Planned Parenthood also relies on Talevski, asserting that the “any qualified provider” provision passes the test that the justices outlined in that case. The provision, the group says, contains the kind of “individual-focused, rights-creating language necessary to confer an individual right”: It explicitly refers to “individuals” and directs the state to allow each Medicaid beneficiary to receive care from any qualified provider. In doing so, Planned Parenthood insists, Congress did not simply provide Medicaid patients with a benefit, but instead recognized “an intensely personal right” that is “fundamental to patients’ autonomy and dignity.”

Moreover, Planned Parenthood adds, the “any qualified provider” provision is “materially similar” to the laws in Talevski that the justices concluded did create privately enforceable rights for nursing-home residents.

It doesn’t matter, Planned Parenthood explains, that the “any qualified provider” provision does not specifically use the word “rights” or provide that “no person shall” do something, as in earlier cases in which the court has agreed that the text of the laws conferred privately enforceable rights. The Supreme Court, the group emphasizes, “has repeatedly rejected a magic-words requirement.”

The context and history of the “any qualified provider” provision also indicate that Congress intended to create privately enforceable rights, Planned Parenthood continues. Not only does the provision appear in both Medicare and Medicaid, the group observes, but Congress specifically enacted the Medicaid version of the provision “after States attempted to restrict Medicaid patients’ choice of providers.”

And Planned Parenthood pushes back against South Carolina’s contention that allowing individuals to bring private lawsuits to enforce the “any qualified provider” provision will lead to a wave of lawsuits. They note that the U.S. Court of Appeals for the 6th Circuit first held almost two decades ago that the “any qualified provider” provision can be privately enforced. “In the years since then, most circuits have agreed with the Sixth Circuit, and yet there has been no explosion of litigation.”

A “friend of the court” brief by Medicaid beneficiaries emphasizes Planned Parenthood’s role in providing all kinds of health care that has “nothing to do with abortion,” particularly in parts of the country where lower-income patients may have few options for good primary care. Indeed, the beneficiaries write, Planned Parenthood may be “not only their provider of choice, but potentially the only source of life-saving care that meets their needs.”

A brief by a group of public health organizations and scholars focuses on the “considerable impact on maternal and child health” that it says would flow from a ruling for the state. More than 50% of South Carolina’s counties “are medically underserved, and nearly two in five counties are classified as contraceptive deserts,” the group writes. Even where there are other health care providers, the group continues, “there is no evidence that they are in a position to accept a mass influx of patients who find themselves suddenly without access to the doctors and nurses they know and rely on.”

A decision is expected by summer.

This article was originally published at Howe on the Court.