Federal law says that “any individual eligible for medical assistance” from a state Medicaid program may obtain that care “from any institution, agency, community pharmacy, or person, qualified to perform the service or services required.” In other words, all Medicaid patients have a right to choose their doctor, as long as they choose a health provider competent enough to provide the care they seek.
On Thursday, however, the Republican justices ruled, in Medina v. Planned Parenthood, that Medicaid patients may not choose their health provider. And then they went much further. Thursday’s decision radically reorders all of federal Medicaid law, rendering much of it unenforceable. Medina could prove to be one of the most consequential health care decisions of the last several years, and one of the deadliest, as it raises a cloud of doubt over countless laws requiring that certain people receive health coverage, as well as laws ensuring that they will receive a certain quality of care.
All three of the Court’s Democrats dissented.
Justice Neil Gorsuch’s opinion in Medina is a trainwreck of legal reasoning. It’s hard to think of a principled reason why, two years after the Court took a much more expansive approach to Medicaid law in Health and Hospital Corporation v. Talevski (2023), the Republican justices abruptly decided to reverse course. It is easy, however, to see a political reason for the Medina decision.
The plaintiff in Medina, after all, is Planned Parenthood, an abortion provider Republicans love to hate. Medina involved South Carolina’s attempt to forbid Medicaid patients from choosing Planned Parenthood as their health provider, a policy that violates federal law.
In an apparent attempt to spite Planned Parenthood, the Republican justices have now effectively repealed that law. This is not aberrant behavior from this Court’s Republican majority.
Four years ago, before the Court overruled Roe v. Wade and eliminated the constitutional right to an abortion, the justices considered a Texas law which permitted private bounty hunters to sue abortion providers and collect bounties of at least $10,000 from them. The Texas law was an obvious attempt to cut off abortion rights in violation of Roe, but five of the Republican justices joined an opinion by Gorsuch, which held that this sort of law could not be challenged in federal court because, Gorsuch claimed, abortion providers must wait until after they are hauled into court by a bounty hunter to assert their rights.
Medina fits within the same legal tradition. When a case involves abortion providers, the Court’s Republican majority is frequently willing to twist the law into any shape necessary to ensure that the abortion providers lose.
What was the specific legal issue in Medina?
A federal law known as “Section 1983” lets state officials be sued if they deprive someone of “any rights, privileges, or immunities secured by the Constitution and laws.” This is arguably the most important civil rights law ever enacted by Congress. Without it, many federal laws and constitutional provisions would be unenforceable.
Medina turns on Section 1983’s reference to “rights” protected by federal law. Past Supreme Court decisions establish that not all federal laws create a right that can be enforced under Section 1983 and so the Court has developed a set of rules to determine which laws do.
Before Thursday’s decision in Medina, the key case laying out this framework was Talevski. Talevski held that a federal law creates enforceable rights when it is “‘phrased in terms of the persons benefited’ and contains ‘rights-creating,’ individual-centric language with an ‘unmistakable focus on the benefited class.’”
Thus, before Thursday, the key question was whether a law’s text focuses on the individuals who benefit. A hypothetical federal law which provides that “no state may prevent a hungry person from eating at Taco Bell” would be enforceable, under Talevski, because this hypothetical law centers the people who benefit from it (people who are hungry). A similar statute stating that “states shall not impede access to cheap burritos” would likely not be enforceable under Talevski, because it does not mention who is supposed to benefit from these burritos.
Under Talevski, Medina is an easy case, and it should have ended in a 9-0 victory for Planned Parenthood. Here is the relevant statutory language from the Medina case:
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 is full of the kind of “individual-centric language” demanded by Talevski. It provides a right to “any individual.” It provides that these individuals “may obtain” care from their chosen provider. And it concludes with a pronoun (“him”) which refers back to the individuals who benefit from this law.
There is simply no way to reconcile Gorsuch’s Medina opinion with Talevski.
So how does Gorsuch try to get around Talevski?
The Republican justices largely try to get around Talevski by ignoring it, or by misrepresenting what it said. Notably, the key words laying out Talevski’s legal rule — that federal laws are enforceable through private lawsuits if they are “phrased in terms of the persons benefited” — appear nowhere in Gorsuch’s opinion.
Instead, Gorsuch introduces some new principles into federal Medicaid law that are likely to confuse judges who must apply his decision to other provisions of the Medicaid statute.
In its brief, for example, South Carolina suggested that a federal law must use the magic word “right,” or it is unenforceable under Section 1983. Gorsuch’s opinion doesn’t go quite this far, but it does repeatedly point out that the provision of Medicaid law at issue in Talevski, which the Court held to be enforceable, uses this magic word in its text.
Unlike Talevski, however, Medina does not articulate a clear legal rule which lower court judges can apply to other provisions of Medicaid law. It does not even explicitly overrule Talevski. Instead, Gorsuch mostly just points to some random features of the law at issue in Medina, and then leaves readers to guess how to determine which Medicaid laws are still enforceable.
Gorsuch, for example, finds it quite significant that a different provision of federal Medicaid law allows states to exclude some providers who are convicted of a felony from their Medicaid program — a fact that is completely irrelevant under Talevski. He also notes that the provision at issue in Medina “appears in a subsection titled ‘Contents.’”
It’s hard to understand how this title is relevant. Moreover, this segment of Gorsuch’s opinion appears to conflict with the explicit text of a federal law, which states that a provision of Medicaid law “is not to be deemed unenforceable because of its inclusion in a section…specifying the required contents of a State plan.”
Gorsuch also includes an ominous line suggesting that, in the future, his Court will read Medicaid laws very narrowly: “Though it is rare enough for any statute to confer an enforceable right,” Gorsuch claims, “spending-power statutes like Medicaid are especially unlikely to do so.”
Thursday’s decision, in other words, is likely to have sweeping implications for low-income Americans’ health care, even if it was handed down solely to wound Planned Parenthood. Federal Medicaid law is riddled with provisions governing how states must operate their Medicaid programs, including requirements governing who must be covered, and rules governing patient safety. The Talevski case, for example, concerned a law which prohibits nursing homes from using psychotropic drugs “for purposes of discipline or convenience” when they are “not required to treat the resident’s medical symptoms.” Under Medina, many of these laws may now be rendered unenforceable.
It should be noted that, even under Gorsuch’s decision, there is still one possible way to enforce the law permitting Medicaid patients to choose their health providers — the federal government could cut off some or all Medicaid funding to South Carolina. Realistically, however, this remedy would only make matters worse. It does not help Medicaid patients to take away their funding, and so the federal government has historically been exceedingly reluctant to use this blunderbuss of an enforcement mechanism.
After Medina, that means that much of federal Medicaid law may effectively cease to function.
