In 1965, Congress created Medicaid, a nationwide program that provides health insurance to qualifying low-income families. In doing so, Congress showed some recognition that poor people have just as much a right to health—and to make decisions about their health—as wealthier people: Part of the law requires states to ensure that anyone eligible for medical assistance under the program “may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required.” Basically, Congress decided poor people can choose their own doctors, too.
South Carolina and the Supreme Court just decided otherwise. Although South Carolina already prevents state funds from being used for abortion, in 2018, Republican Governor Henry McMaster announced a plan to deny healthcare providers Medicaid reimbursements for any service they provide, even if abortion is just one of many services available.
Today, in Medina v. Planned Parenthood South Atlantic, the Republican justices held that patients have no right to sue when states like South Carolina arbitrarily exclude disfavored healthcare providers from Medicaid coverage. Instead, if states violate Medicaid’s any-qualified-provider provision, patients are at the mercy of the Trump administration’s willingness to enforce the law on patients’ behalf, or Congress’s ability to enact a new law to undo what the Court just decided. I’m no doctor, but I wouldn’t advise holding your breath.
Nearly 72 million low-income people—1 in 5 Americans—use Medicaid to meet their healthcare needs. Congress included the any-qualified-provider provision so those people could access quality healthcare with agency and dignity. By holding that the statute does not actually give patients an enforceable right, the Court is yet again overriding the will of the people, and the people will suffer as a result.
Medina v. PPSAT arises out of McMaster’s July 2018 executive order, which deemed any facility that provides abortions “unqualified” and booted them from the state’s Medicaid program. A PPSAT patient sued to block the law, and won at both the district court and on appeal. “We refuse to nullify Congress’s undeniable desire to extend a choice of medical providers to the less fortunate among us, individuals who experience the same medical problems as the more fortunate in society but who lack under their own means the same freedom to choose their healthcare provider,” wrote Judge J. Harvie Wilkinson III, a Reagan appointee to the Fourth Circuit.
Justice Neil Gorsuch felt no such compunction. Writing for the conservative supermajority in Medina, Gorsuch’s analysis turned on a narrow reading of Section 1983, one of the first civil rights laws enacted after the Civil War. Section 1983 authorizes private parties to sue state actors for “the deprivation of any rights, privileges, or immunities” under federal law. And Gorsuch wrote that in order for something to count as a “right,” plaintiffs must show that the law “clearly and unambiguously uses rights-creating terms.” The any-qualified-provider provision doesn’t use the word “right,” so according to the Court, it “is not such a statute.”
Gorsuch also pointed out that the Medicaid statute has an exception, permitting states to exclude providers convicted of a federal or state felony, and treated this as evidence that other, unspecified exceptions must also exist. It wouldn’t make sense “to convey a right against the States in one breath but let States control its scope in the next,” he said. Because states can deny funds to providers who are actually convicted of crimes, Gorsuch says states can deny providers they just think are kinda icky, too.
(Photo by Chip Somodevilla/Getty Images)
Gorsuch finally reasoned that statutes which Congress enacts under its spending power, like the Medicaid law, are “especially unlikely” to confer individuals an enforceable right. In his view, Medicaid is basically like a contract between the federal government and states, and states must “voluntarily and knowingly consent” for private enforcement lawsuits to be part of the deal. And unless the statute is explicit—which, in Gorsuch’s view, is all about the word “right”—“that consent cannot be fairly inferred,” he said. Fairness to the most vulnerable residents of a state that the United Health Foundation already ranks 43rd in the nation for overall health outcomes is apparently a nonfactor.
As per usual, Justice Clarence Thomas dreamed of bigger, badder things. In a standalone concurrence, Thomas urged the Court to more broadly “reexamine” its Section 1983 precedents and “reassess” the bounds of the statute. More specifically, Thomas wants those bounds narrowed until they comport with the purported understanding of “ordinary readers” in 1871. “Although the text of §1983 has remained largely constant, the judicial understanding of its scope is an entirely different matter,” said Thomas.
Gorsuch and the majority are already suggesting, in their Medicaid-as-contract argument, that countless laws enacted by Congress under its spending power don’t create real rights. Thomas is going further by strictly basing today’s understanding of rights on the popular understanding in an era in which the Court treated free Black people like a newfangled concept.
The choice-of-provider statute, Jackson argued, “easily satisfies” the test for creating such a right, even if legislators didn’t anticipate Gorusch subjecting the law to a magic word test 60 years later. Congress “specifically inserted the word ‘must’ into the statute—to make clear that the obligation imposed on the States was binding,” said Jackson. “That clarity is perhaps why, in the only other case where we have had occasion to construe the free-choice-of-provider provision, we repeatedly used the word “right” to describe the protection it confers,” she said.
Jackson went on to argue that the Court’s departure from “the most natural and obvious way to read” the Medicaid provision and Section 1983 is all the more disturbing because of the Court’s long and ignoble history of undermining civil rights laws. Since this is hardly the first time the Court has handed out a decision that will “weaken the landmark civil rights protections that Congress enacted during the Reconstruction Era,” she said, “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.”
This year alone, roughly 50,000 South Carolinians on Medicaid have sought sexual and reproductive health care services at Planned Parenthood. South Carolina’s plan threatens all of them, as well as the millions of Medicaid recipients who live in the 18 other states that signed onto an amicus brief backing South Carolina. And according to the Court’s six-justice conservative supermajority, those millions of vulnerable people can’t do anything about it.
