The Supreme Court on Wednesday appeared sharply divided over whether individual Medicaid beneficiaries have a right to sue a state over access to Planned Parenthood after the clinics were excluded from coverage under the government’s healthcare program.
The case marked the first time the justices are broadly considering efforts by several conservative states to defund Planned Parenthood over its support for abortion.
In 2018, South Carolina Gov. Henry McMaster, a Republican, issued executive orders disqualifying Planned Parenthood from receiving state Medicaid reimbursements for non-abortion services, such as cancer screenings and contraception treatments.
The group has reported drawing 34% of its overall revenue nationwide, or $699 million, from government grants, contracts and Medicaid funds.
Julie Edwards, who has Type 1 diabetes and sought medical care at a Planned Parenthood clinic in Columbia, South Carolina, sued the state alleging a violation of the Medicare and Medicaid Act, which guarantees Medicaid beneficiaries a “free choice of provider” that is willing and qualified.
“If the individual can’t sue, then this provision will be meaningless,” Nicole Saharsky, the plaintiff’s attorney, told the court during oral arguments.
Each state has discretion to determine which providers are “qualified.” The medical qualifications of Planned Parenthood physicians were not questioned by South Carolina. Instead, the state excluded the clinics solely out of opposition to abortion.
The Supreme Court’s Democratic-appointed justices seemed to agree unanimously that Edwards has a right to sue under the “free choice of provider” provision.
“A problem that motivated Congress to pass this provision was that states were limiting the choices people had. Some states were saying only state facilities would provide the benefit. Other states were identifying a more limited subset of providers,” Justice Sonia Sotomayor said.
“The state has an obligation to ensure that a person … has a right to choose their doctor,” Justice Elena Kagan said. “That’s what this provision is. It’s impossible to even say the thing without using the word ‘right.’”
The state of South Carolina argued that federal law does not explicitly establish a “right” of individuals to sue over the availability of certain providers in Medicaid and that doing so could open the floodgates to litigation.
“Telling a state you have an obligation to provide something is not the same as telling a state an individual can sue over it,” said John Bursch, the attorney for the state.
Several of the Supreme Court’s Republican-appointed members appeared inclined to side with South Carolina.
Justice Brett Kavanaugh indicated there needs to be clear “magic words” in a law indicating a right to sue, suggesting the language might not be clear in this case.
“One can imagine a statute written as an individual benefit that’s mandatory on the states but isn’t a right-creating,” Justice Neil Gorsuch noted.
Justice Samuel Alito suggested that only the federal government could take action against a state if it were alleged to have violated the Medicare and Medicaid Act’s “free choice” provision.
“That’s the norm for spending clause legislation,” he said, referring to the state-federal partnership in administering Medicaid.
Chief Justice John Roberts and Justice Amy Coney Barrett appeared by their questions more circumspect about their positions on the case.
The outcome of the case could have a significant impact for Medicaid beneficiaries nationwide, Planned Parenthood clinics that rely on federal funding and anti-abortion advocates hoping states will be more aggressive about ways to cut off the funds.
“Medicaid beneficiaries often face significant barriers to obtaining care, particularly in South Carolina. Twenty-five percent of state residents live in medically underserved areas,” the Planned Parenthood plaintiffs wrote in their brief to the high court.
“[Congress] enacted the free-choice-of-provider provision to ensure that Medicaid patients, like everyone else, can choose their own doctor,” they added. “Congress specifically enacted this provision in response to some States’ efforts to restrict Medicaid patients’ choice of provider.”
While federal law already prohibits any government funding of abortions, South Carolina contends it has the right to target non-abortion funding to abortion providers.
“Because money is fungible, giving Medicaid dollars to abortion facilities frees up their other funds to provide more abortions,” the state told the court.
If the justices allow the suit to go forward, affirming a right to sue over the eligibility of a qualified Medicaid provider, Edwards and Planned Parenthood can continue to challenge the clinics’ exclusion from the state’s Medicaid program in a lower court.
If the justices side with the state, they would bolster efforts to cut off Planned Parenthood from sources of government funding and effectively limit the number of providers available to Medicaid recipients.
A decision in the case is expected by the end of the court’s term in June.
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