The Supreme Court just weakened a key civil rights law

The headline from the Supreme Court on Thursday is that the GOP-appointed justices green-lit efforts by Republican-controlled states to defund Planned Parenthood by withholding Medicaid funding. The decision imperils the health of millions, denying Medicaid patients access to their preferred provider and shoe-horning patients to a smaller number of available doctors.

This is a health care catastrophe. But Justice Ketanji Brown Jackson’s dissent in the case, Medina v. Planned Parenthood South Atlantic, also went after the court for a secondary blow it more broadly dealt to a foundational civil rights law.

Joined by Justices Elena Kagan and Sonia Sotomayor, Jackson skewered her Republican colleagues for twisting their own precedents to reach a tortured outcome—one that denies patients the freedom to pick their doctor despite the law’s clear conveyance of that right. As my colleague Madison Pauly lays out, the “case began in 2018, when South Carolina Republican Gov. Henry McMaster disqualified the regional Planned Parenthood affiliate from receiving Medicaid reimbursements for the extensive non-abortion services it offers, such as birth control, sexually transmitted infection treatment, and screening for cervical and breast cancer.”

The precise legal question in Medina is technical, but its ramifications could prove very broad: Whether Medicaid recipients can sue to enforce their ability to choose their provider, as is guaranteed by law. In a 6-3 decision, the GOP-appointed majority found that Medicaid recipients cannot go to court to enforce the law’s free-choice-of-provider provision—possibly dooming patients’ access not only to Planned Parenthood in South Carolina, but to any provider that a state decides to deny Medicaid reimbursement.

The ability to sue that the court curtailed today is enshrined in a Reconstruction era law, the Civil Rights Act of 1871. One provision, referred to by its location in the US Code as Section 1983, gave citizens the right to sue in federal court to obtain “any rights, privileges, or immunities secured by the Constitution and laws,” Jackson explained. Jackson and her Democratic-appointed colleagues argue that Medicaid’s guarantee that individuals can pick their providers is just the kind of right that can be vindicated with a Section 1983 suit, because Congress created that right in the Medicaid statute.

Thus the case presented the Republican-appointed majority with the opportunity to cut back on two things they dislike: access to reproductive care and access to the courts to vindicate individual rights. And that’s just what they did, not only tossing out the ability of individuals to sue to enforce this part of the Medicaid statute, but also making it harder for anyone to sue to vindicate their rights under this Reconstruction era law. Justice Neil Gorsuch’s majority opinion raises the bar for any such suit by requiring what the justices deem clear “rights-creating language” in the original statute. In essence, the majority roll back what Congress wanted on the grounds that Congress didn’t word the law according to the court’s new test.

As Jackson put it: “The Court’s decision to foreclose Medicaid recipients from using §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.”

Jackson placed Thursday’s decision in a long line of Supreme Court decisions the undermined the civil rights guarantees of Reconstruction. “The Court’s decision today is not the first to so weaken the landmark civil rights protections that Congress enacted during the Reconstruction Era,” she wrote. “That means we do have a sense of what comes next: as with those past rulings, today’s decision is likely to result in tangible harm to real people.”

Section 1983 is a common target of the right, and in a concurrence, Justice Clarence Thomas invited the court to even more dramatically limit Section 1983. In Thomas’ view, the law was intended for narrow use, but was expanded starting in the 1960s—coincidently when both the Supreme Court and Congress began to vindicate the promises of Reconstruction era amendments in the face of the civil rights movement. Jackson, previewing a future case that would allow the court to undermine 1983 further, charges in her dissent that Thomas’ narrow reading of the statute is ahistorical and insufficiently researched.

One of the projects of the Roberts Court is to undo the progress of the 1960s and make the 19th century great again. Today, this key right to sue has been weakened. But the court’s backward march certainly won’t end there.