The Supreme Court ruled on Thursday that Planned Parenthood could not sue the state of South Carolina for denying it access to Medicaid funds, opening the door for Republican-led states to defund the reproductive health care provider.
Justice Neil Gorsuch, who wrote for a 6-3 majority that fell along the usual ideological lines, concluded that Section 1983, the nation’s flagship civil rights tort, could not be used by Medicaid beneficiaries to sue the state for cutting off federal funds.
“Section 1983 permits private plaintiffs to sue for violations of federal spending-power statutes only in ‘atypical’ situations, where the provision in question ‘clearly’ and “unambiguously’ confers an individual ‘right,’” he wrote for the court. The Medicaid law in question, he explained, “is not such a statute.”
Thursday’s ruling will make it easier for GOP-led states to deny Planned Parenthood and similar organizations access to federal funds to which they are otherwise legally entitled. The majority’s hyper-narrow approach could have broader policy implications, as well. But the most alarming part of the majority’s decision came from Justice Clarence Thomas, who urged his colleagues to dramatically limit civil rights claims against state and local officials in federal court.
In a solo concurring opinion, Thomas argued that the court should “reconsider” more than a half-century of precedents on Section 1983’s scope. He argued that previous generations of justices had interpreted the Reconstruction-era law too broadly and invited future lawsuits that would allow the court to reverse course.
“This case does not present an occasion to remedy our error because the petitioner did not ask us to revisit our precedents,” he wrote. “But, in a case where the issue is properly presented, I would make clear that spending conditions—which are by definition conditional—cannot ‘secure’ rights.”
That drew a passing but scathing critique from Justice Ketanji Brown Jackson. In a dissent joined by Justices Sonia Sotomayor and Elena Kagan, she argued that Thomas’s reinterpretation of Section 1983 was deeply flawed and based on selectively cited evidence.
“Because his opinion is not tethered to the specific facts or arguments presented in this case, an extensive response is not necessary here,” she wrote. “But it is worth pausing briefly to think about whether the historical account he offers reflects the level of depth, nuance, or context needed to support the wholesale reappraisal he is envisioning.”
The case, Medina v. Planned Parenthood South Atlantic, centers on the state’s decision in 2018 to cut off the state Planned Parenthood chapter from Medicaid funding. South Carolina leaders cited a state law that prohibited officials from providing public funds to organizations that perform abortions, which were legal at the time. In response, Planned Parenthood and one of its patients sued the state under Section 1983, alleging that the denial of funds violated a provision in the Medicaid statute.
Section 1983 is probably the most famous law that most Americans have not heard of. Congress enacted it as part of the Enforcement Act of 1871, which was drafted to help protect Black civil rights in the postbellum South from Ku Klux Klan violence and hostile local governments. It allows civil rights plaintiffs to bring lawsuits against state and local officials in federal court for any “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” that occurs “under color of” law.
At the time, Section 1983 was rarely used—more on that later—and the provision became largely moribund until the 1960s, when the Supreme Court held in the 1961 case Monroe v. Pape that a Black family could use it to sue a group of Chicago police officers who had broken into their home without a warrant and ransacked it. In the decades that followed, it became the primary vehicle for federal civil rights lawsuits against state and local officials. Most of the constitutional law cases that Americans read about in the newspaper are actually Section 1983 lawsuits.
Planned Parenthood argued that language in the Medicaid statute that requires states to reimburse care provided for Medicaid-eligible patients at “any qualified provider” met Section 1983’s threshold for “rights” secured by “laws.” They pointed to a 2022 case titled Health and Hospital Corporation of Marion County v. Tavelski, where the court upheld a Section 1983 claim based on a federal nursing home reform law, as evidence that the provision could be used for claims involving state officials who spend (or don’t spend, in this case) money from federal programs like Medicaid.
That reasoning persuaded the federal district court and the Fourth Circuit Court of Appeals, which sided with Planned Parenthood. The Supreme Court disagreed. In its ruling in Tavelski, Gorsuch noted, the court had signed off on the Section 1983 claim because Congress had explicitly created a “right” in the nursing home law for plaintiffs to vindicate. He and his colleagues declined to find an implicit one in the laws governing Medicaid.
“Though it is rare enough for any statute to confer an enforceable right, spending-power statutes like Medicaid are especially unlikely to do so,” Gorsuch wrote. He explained that those laws were different because programs like Medicaid amount to contracts of sorts between Congress and state governments: Congress offers federal funds for a program, and state governments accept it under those conditions. “Because spending-power legislation is ‘in the nature of a contract,’ a grantee must ‘voluntarily and knowingly’ consent to answer private Section 1983 enforcement suits before they may proceed,” he concluded.
Jackson disagreed. “South Carolina asks us to hollow out [Section 1983] so that the state can evade liability for violating the rights of its Medicaid recipients to choose their own doctors,” she wrote in her dissenting opinion. “The court abides South Carolina’s request. I would not.” She argued that the Reconstruction-era Congress had written Section 1983 to be broad and forceful. Jackson noted that the high court had previously ruled out that the provision was limited to federal civil rights laws, with previous justices taking its unqualified language of “the Constitution and laws” to mean just that.
She also noted that the court in Tavelski had already rejected a state’s argument that spending-power laws were implicitly excluded from Section 1983. “In rejecting that attempt to dilute Section 1983’s power, we affirmed once again that ‘“laws” means “laws,” no less today than in the 1870s,’” Jackson wrote, quoting from the earlier ruling. In her view, the “right” that gave rise to a Section 1983 claim could be found in the Medicaid Act’s “any qualified provider” provision, which amounted to an “unambiguous conferral” under Tavelski’s test.
“Congress enacted the Medicaid Act’s free-choice-of-provider provision to ensure that Medicaid recipients have the right to choose their own doctors,” she concluded. (Gorsuch and Jackson use different terms to refer to the same provision.) “The Court’s decision to foreclose Medicaid recipients from using Section 1983 to enforce that provision thwarts Congress’s will twice over: once, in dulling the tool Congress created for enforcing all federal rights, and again in vitiating one of those rights altogether.”
Thursday’s decision, in immediate terms, will make it easier for states to defund Planned Parenthood, achieving a long-sought conservative policy goal and weakening access to reproductive health care and contraceptives in Republican-led states. (Note that the clinics in question no longer provide abortions in these states if they are prohibited by post-Roe laws.) It also calls into question whether other “spending-power” laws could be violated without recourse. Congress, after all, could not have known about the court’s demand for specificity when it wrote the laws years or decades earlier.
But Thomas’s portion of the ruling stands out as truly disturbing. Since no other justices joined his concurring opinion, it carries no precedential weight for lower courts to follow. At the same time, it lays out a blueprint for defanging federal civil rights laws and invites sympathetic litigants to give the Supreme Court an opportunity to transmute his interpretation into constitutional law.
“I write separately because it behooves us to reexamine more broadly this Court’s Section 1983 jurisprudence, which bears little resemblance to the statute as originally understood,” he wrote. “In appropriate cases, we should reassess Section 1983’s bounds, including its application in the spending context and our understanding of the ‘rights’ enforceable under Section 1983.”
Thomas argued that the “narrow, Reconstruction era statute” had “exceeded” its original designs, which he said were limited to enforcing the recently ratified Fourteenth Amendment. He argued that the “and laws” portion, which was added in a 1874 revision, had no legal weight because it was not intended to alter the original provision’s purpose. Until Monroe, Thomas argued, Section 1983 cases were scarce and apparently only meant to enforce the rights protected by Reconstruction-era federal laws.
“Post-Monroe, courts have faced a ‘deluge’ of Section 1983 filings numbering in the tens of thousands each year,” he complained, although it is not clear why that would be relevant. “The ‘scant resemblance’ between Section 1983 today and Section 1983 as it was traditionally understood creates good reason to doubt our modern understanding,” he argued.
Though this is the most forceful argument against Section 1983 that Thomas has made, he noted that he had hinted at it in recent years. In a footnote in Thursday’s opinion, for example, he pointed out that he suggested in 2020 that the “under color of” language in the provision should be read to only cover state laws and ordinances, not state officials acting in their official capacity as it is currently understood. That would obliterate a wide range of Section 1983 claims in general and, in particular, nearly all of the ones related to police misconduct.
Thomas also suggested that Section 1983 should be narrowed to laws “enacted under Congress’ Reconstruction Amendments enforcement powers” and, even more boldly, questioned whether the provision “even supplies a freestanding cause of action,” pointing to a dissent he wrote earlier this year in an unemployment-benefits case where he opined that he “doubt[ed] that petitioners have a true due process interest in ‘mere government benefits and entitlements.’”
A majority opinion almost never addresses the claims made in concurring opinions, and Gorsuch followed that practice on Thursday by not delving into Thomas’s arguments at all. Jackson, however, decided that while an “extensive response” was not necessary, some sort of rebuttal would be. She argued briefly that Thomas had badly misunderstood both Section 1983 itself and the era in which it was drafted.
“Like other Section 1983 skeptics, Justice Thomas seems to view the paucity of early Section 1983 lawsuits as evidence that the statute was originally understood to do very little,” she observed. “But other explanations come to mind, too—such as the fact that filing civil rights lawsuits during the Jim Crow era could be quite perilous, especially for the people whom the statute was originally meant to benefit.
“Many would-be plaintiffs had reason to fear that filing a lawsuit would lead to physical or economic reprisals,” she continued. “Add to that the difficulty of finding a lawyer, prevailing before often-hostile juries, and (if successful) enforcing a judgment, and it is not hard to imagine that the dearth of Section 1983 lawsuits in the wake of Reconstruction might have myriad alternative explanations.”
She also rejected his interpretation of what counted as a “right” for Section 1983 purposes. “Justice Thomas also suggests that the word ‘rights,’ as used in Section 1983, was originally understood more narrowly than it is today,” Jackson explained. “But his support for that claim is limited to a handful of late-19th-century cases, mostly about government pensions and employment.” She suggested, with some politeness, that “more caution (and more research) may be warranted before our longstanding precedents in this area can be seriously scrutinized or attacked.”
Thomas took her up on her challenge, falling back on the just-asking-questions tenor required by his judicial oath. “Insofar as the dissent highlights the existence of other ‘historical sources’ beyond the scope of this concurring opinion, the ‘broader’ historical record at which the dissent gestures only reinforces the need to consider the relationship (or lack thereof ) between our current Section 1983 jurisprudence and Section 1983’s original meaning,” he pointed out in a footnote in his concurring opinion.
There is good reason to be skeptical that the rest of the court is interested in Thomas’s arguments. Not only did none of the other five conservative justices join his concurring opinion on Thursday, but three of them—Gorsuch and Justices Samuel Alito and Amy Coney Barrett—explicitly declined to join part of his dissenting opinion in the unemployment-benefits case earlier this year. Instead, they only joined the second half of that dissent, intentionally spurning his radical arguments.
At the same time, the Roberts court has been generally skeptical of expanded civil rights claims over the last 20 years. While there is no Section 1983 for federal officials, the court’s conservative majority has narrowed Bivens claims—a Fourth Amendment tort for federal officials named after a 1971 Supreme Court case that established them—to such an extreme degree that they effectively no longer exist. I have heard some law professors darkly joke that only Bivens himself could bring one nowadays.
It is unlikely that Section 1983 is in immediate existential peril. As Thursday’s ruling shows, the court’s conservative majority can already do a lot to curb its impact without embracing Thomas’s fringe theories if they wish to do so. At the same time, it is never an encouraging sign to see a Supreme Court justice forcefully argue for decimating the flagship federal civil rights tort—especially in an era where the rule of law and the American constitutional order are already so profoundly weakened.
The post The Most Fearful Part of the Supreme Court’s Planned Parenthood Ruling appeared first on New Republic.
