The Supreme Court’s generosity toward President Trump’s flagrant violations of constitutional norms has cast a shadow long enough to obscure nearly everything else about the court’s term that ended last week. While that’s understandable, there is one decision, issued during the crush of the final days, that shouldn’t be overlooked. Not only will its immediate impact be significant, but it also reveals something about the current majority’s pursuit of a long-term goal: ridding American law of the notion that if a right is violated, there must be a remedy.
The governor of South Carolina — which bans abortion at six weeks of pregnancy — issued an executive order prohibiting clinics that provide abortions from receiving state Medicaid funding. Planned Parenthood sued, and the ensuing 6-3 Supreme Court decision in Medina v. Planned Parenthood South Atlantic dismissed that lawsuit, freeing the state to eject Planned Parenthood from its Medicaid program. The decision is likely to require Planned Parenthood to reduce services or even close clinics in South Carolina — and in any other states that might choose to follow South Carolina’s lead.
But this case was not really about abortion, which South Carolina’s Medicaid plan doesn’t cover. Rather, the state sought to punish Planned Parenthood by withholding its eligibility for Medicaid reimbursement for the full range of other reproductive health services that its clinics provide, depriving the organization of a vital source of revenue.
The federal Medicaid law requires states to ensure that Medicaid patients are entitled to care from “any qualified provider” willing to offer it. Invoking that guarantee, a woman who was receiving birth control and other medical services at a Planned Parenthood clinic joined the organization in suing the state. The path to lawsuits of this kind is through one of the country’s oldest and most important civil rights laws, the Civil Rights Act of 1871, referred to in its modern codification as Section 1983. The law authorizes individuals to sue state officials for violations of constitutional rights and, as broadly interpreted by the Supreme Court in a 1980 case, for violations of statutory rights as well.
Laws like the Medicaid statute are essentially bargains between the federal government and the states, conditioning federal money on a state’s compliance with the law’s requirements. Such laws, enacted by Congress under the Constitution’s spending clause, don’t explicitly authorize private lawsuits. Rather, the court itself has deemed that people seeking to vindicate their rights under laws of this kind have an “implied” right to sue. For example, in a 1990 decision, Wilder v. Virginia Hospital Association, the court ruled that hospitals could use Section 1983 to sue the state for the “reasonable and adequate” reimbursement that the Medicaid law requires. Those whom a law “intended to benefit” were entitled to sue for the benefit, the court held.
The Wilder case, a 5-to-4 decision with the court’s most conservative members in dissent, turned out to be a high-water mark for Section 1983 lawsuits. As the court grew steadily more conservative, it raised ever-higher barriers to inferring a right to sue under statutes that didn’t grant the right explicitly. Then in a 2002 decision, Gonzaga University v. Doe, it shifted course decidedly. A student had successfully sued the university under Section 1983 for violating the federal law that protects the privacy of student records. The Supreme Court held that because the privacy law did not contain unambiguous “rights-creating language,” an individual had no right to sue. The lawyer who won that case for the university was a star Supreme Court advocate named John Roberts, making one of his last Supreme Court arguments before becoming a judge on the federal appeals court in Washington, D.C.
Two years ago, the Supreme Court paused briefly in its retreat when it ruled that the family of a nursing home patient whose care in a county-owned facility had been seriously deficient could invoke the protections of a federal nursing home statute. With its specific protections, the nursing home law met the strict test the court had set in the Gonzaga case, Justice Ketanji Brown Jackson wrote in one of her first majority opinions. With obvious reluctance, Justice Neil Gorsuch concurred. There were “other issues lurking here” that raised “questions for another day,” he wrote.
Last week, that day arrived. The United States Court of Appeals for the Fourth Circuit had ruled that the Medicaid law’s “any qualified provider” language gave Planned Parenthood and its patient the right to use Section 1983 to sue South Carolina. While acknowledging the danger of opening up the “floodgates” for private lawsuits, Judge J. Harvie Wilkinson III wrote, “there is the concomitant danger of drying up the rights that Congress wished to safeguard.” Judge Wilkinson, a well-known conservative who was named to the circuit court by President Ronald Reagan, added, “If the language of this medical provider provision does not suffice to provide a right of action, then it is hard to conceive of any text, short of magic words beyond the usual practice of courts to dictate, that would permit one.”
Justice Gorsuch’s majority opinion last week came close to condescension in its dismissal of Judge Wilkinson’s effort to extract coherence from the Supreme Court’s Section 1983 cases. “Admittedly, this court briefly experimented with a different approach,” Justice Gorsuch wrote, and it “sometimes took an expansive view of its power to imply private causes of action to enforce federal laws.” But that day was over. Hadn’t Judge Wilkinson noticed? “Some lower-court judges, including in this case, still consult Wilder” — the Virginia hospital case from 1990 — and similar precedents from that era, Justice Gorsuch observed reprovingly, adding tartly, “They should not.”
Since Judge Wilkinson found no material difference between the nursing home case from two years ago and this one, Justice Gorsuch had to struggle to make the cases look different. Could it possibly matter that the “any qualified provider” requirement, a prominent feature of Medicaid since 1967, when Congress added it to the original statute to protect patients, “does not crop up until paragraph 23 of 87” in the law’s relevant subsection? Justice Gorsuch seemed to think so. That was about the extent of the majority’s legal analysis. Protecting nursing home patients was one thing. Protecting Medicaid patients was, evidently, quite another. Justice Jackson’s dissenting opinion was both scathing and sorrowful. “The court adopts an approach to Section 1983 that not only undermines the statute’s core function,” she wrote, “but also stretches our doctrine beyond anything that can be justified as a matter of text, precedent or first principles.”
The project to detach rights from remedies has not yet reached its culmination. It will continue in the renewed battle over the Voting Rights Act of 1965 that looms ahead. At the end of the term, instead of deciding an important voting rights case from Louisiana that it heard in March, the court issued a surprising and opaque order setting the case for reargument at some unspecified time, with unspecified new questions to possibly be added to the case. Given that the case was fully briefed and argued, what questions might those be?
One that comes to mind is whether private individuals can bring voting rights cases or whether the right to sue for a Voting Rights Act violation belongs only to the government. Private lawsuits have been an important part of the law’s enforcement over the decades, accounting for hundreds of cases under the unquestioned assumption that this was Congress’s intention. But recent developments have shredded that assumption. Justices Gorsuch and Clarence Thomas went out of their way to raise the question in a voting rights case from Arizona four years ago, and the U.S. Court of Appeals for the Eighth Circuit ruled in 2023 that the statute does not directly provide for private lawsuits. In a follow-on ruling seven weeks ago, that court held that neither could Section 1983 be the vehicle for a Voting Rights Act lawsuit.
Given the Trump administration’s dismemberment of civil rights enforcement and its disinclination to recognize discrimination against anyone other than white people, the convergence is nearly perfect. No one could be blamed for actually killing the Voting Rights Act. A central achievement of the civil rights era would simply be a memory, a law with rights but without remedies, a project accomplished.
Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008.
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