Medina v. Planned Parenthood South Atlantic should be one of the easiest cases the Supreme Court will decide this year. A federal law requires every state’s Medicaid program to ensure that “any individual eligible for medical assistance” may obtain that care from a competent provider of their choice. The question in Medina is whether that statute means anything, or whether it is a paper tiger that cannot be meaningfully enforced.
In fairness, the Supreme Court’s rules laying out when a federal Medicaid statute can be enforced through private lawsuits are somewhat complicated, but the 2023 decision in Health and Hospital Corporation of Marion County v. Talevski clarified those rules. There is now no serious argument that that law enabling Medicaid patients to choose their providers cannot be enforced.
But, while the law in Medina is clear, the politics are terrible. The specific issue in Medina is whether South Carolina can cut health providers that also provide abortions out of its Medicaid program (Medicaid funds generally cannot be spent on abortions, but they can be spent on non-abortion care provided by Planned Parenthood). And the Supreme Court has a 6-3 Republican majority.
So many of the Court’s Republicans seemed to spend Wednesday’s argument looking for a way to get around cases like Talevski. It’s far from clear whether three key justices — Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett — were persuaded by the anti-Medicaid arguments in this case. But, at times, it sure seemed like they wanted to be persuaded.
That leaves the outcome in Medina uncertain. If I absolutely had to bet on the outcome, I’d predict that Roberts and Barrett, at the very least, will ultimately reaffirm what the Court said less than two years ago in Talevski — which means that Planned Parenthood will win. But none of the Court’s Republicans appeared to see this case as easy.
What’s the legal issue in Medina?
As a general rule, if someone wants to file a federal lawsuit enforcing a provision of Medicaid law, they cannot sue under the law itself. Instead, they have to file their suit under a law known as “Section 1983,” which permits suits against state officials who deprive someone of “any rights, privileges, or immunities secured by the Constitution and laws.”
In Blessing v. Freestone (1997), however, the Court said that this statute does not permit anyone to file any lawsuit to enforce any provision of federal law. Instead, because Section 1983 refers to “rights,” “a plaintiff must assert the violation of a federal right, not merely a violation of federal law.”
The test the Court uses to determine whether a particular federal law creates an enforceable right was recently reiterated in Talevski, which held that the key question is whether “the provision in question is ‘phrased in terms of the persons benefited’ and contains ‘rights-creating,’ individual-centric language with an ‘unmistakable focus on the benefited class.’”
Thus, for example, a statute which says that “no state shall deny a person who is wearing pants the ability to take a walk” would be enforceable through private lawsuits, because this statute focuses on the people who benefit from it (people wearing pants). A similar law that says “states shall not interfere with walking” may not be enforceable, because it does not have the same individual-centric language demanded by Talevski.
With that in mind, here is the statute at issue in Medina:
A State plan for medical assistance must … provide that … any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required (including an organization which provides such services, or arranges for their availability, on a prepayment basis), who undertakes to provide him such services.
This law does everything Talevski demands. It provides a right to a specific individuals (“any individual eligible for medical assistance” under Medicaid), and it lays out the content of that right — the right to obtain assistance from a provider of their choice. As Justice Elena Kagan pointed out early in Wednesday’s oral argument, it is nearly “impossible” to even describe what this statute does “without using the word ‘right.’”
A Court that intends to follow the rule laid out two years ago in Talevski, in other words, would hand down a very brief, unanimous opinion in holding that South Carolina Medicaid patients have a right to choose Planned Parenthood as their health provider.
Many of the justices appeared determined to make this case more complicated than it is
Though some members of the Court’s right flank appeared to be probing for a way to rule against abortion providers, none of the justices proposed a coherent legal rule that would allow them to dodge Talevski. Justice Samuel Alito, for example, was unusually quiet on Wednesday, though he did speak up at one point to complain that Medicaid laws, which permit private lawsuits, are supposed to be “something that’s quite extraordinary.”
Similarly, Justice Clarence Thomas asked a few questions emphasizing his belief that it should be harder to enforce federal laws that are tied to federal spending programs such as Medicaid, as opposed to laws enacted under Congress’s power to regulate private actors.
A few of the justices, meanwhile, fixated on a concurring opinion by Judge Julius Richardson, a Trump appointee to a federal appeals court who complained that there is uncertainty about whether lower court judges should follow Talevski or a slightly different legal framework laid out in Blessing and Wilder v. Virginia Hospital Association (1990). According to Richardson, lower courts “continue to lack the guidance inferior judges need.”
In fairness, Roberts and Barrett sometimes seemed incredulous that there’s any real confusion about whether Talevski lays out the proper rule. Barrent asked Planned Parenthood’s lawyer Nicole Saharsky if the Court could just say in its opinion that lower courts should follow Talevski, and Saharsky did not object. Roberts said that the Court could simply say that “we meant it” when it handed down Talevski and a related case.
Kavanaugh, however, was all over the map. South Carolina’s primary argument is that the Medicaid statute must use specific magic words, such as the word “right,” in order to authorize private lawsuits. As Kagan pointed out, the Court has never imposed such a requirement in its past cases, and she warned against “changing the rules midstream” because Congress could not have known that it had to use certain magic words when it wrote the Medicaid statute — or any other existing law.
But Kavanaugh seemed to disagree, stating at one point that he isn’t “averse to magic words.” Kavanaugh’s questions indicated that he is so concerned with coming up with a clear, easy-to-apply test that he is willing to sacrifice the rights of Medicaid patients to achieve this broader goal.
Still, it’s far from clear whether Kavanaugh can find five votes for a magic words requirement, or even whether Kavanaugh will himself vote to overrule cases like Talevski.
In the end, it does appear more likely than not that Planned Parenthood will prevail. South Carolina, like any other litigant opposed to abortion, made its case before a very friendly bench of mostly Republican justices. But the state will probably still lose because its arguments are just so weak under existing law.
