Say the Magic Word, Counselor: Oral Argument in Medina v. Planned Parenthood South Atlantic

On Wednesday, April 2, the Supreme Court heard oral arguments in Medina v. Planned Parenthood South Atlantic. The question before the court was whether the Medicaid Act’s any-qualified-provider provision unambiguously gives a Medicaid beneficiary a private right, enforceable in court, to select a specific provider. Zooming out to the big picture, the outcome of this case will impact whether individual states are able to defund Planned Parenthood and other abortion providers from their Medicaid programs.

In 2018, the then-Governor of South Carolina issued an executive order deeming abortion providers in the state “unqualified” to provide family planning services covered by the state’s Medicaid program. Governor McMaster’s executive order was premised on South Carolina’s law that forbids the use of state family planning funds to pay for abortions, and the Governor’s determination that payment of taxpayer funds to abortion clinics for any reason subsidizes abortions in violation of that state law. Planned Parenthood South Atlantic (PPSAT), which operates two clinics in South Carolina, was immediately disenrolled from the Medicaid program because its clinics perform abortions. (PPSAT could have remained a Medicaid provider if it ceased to provide abortions in South Carolina, but it declined to do so.) PPSAT and Julie Edwards, a Planned Parenthood client and Medicaid beneficiary (together, “Respondents”), subsequently sued the State of South Carolina, alleging that PPSAT’s disqualification violated the Medicaid Act’s so-called “any-qualified-provider” provision (42 U.S.C. § 1396a(a)(23)(A)), which holds that a Medicaid recipient “may obtain” medical services from any provider who is “qualified” to perform them. (In a preview of some strands of the argument, Respondents’ brief referred to this provision as the “free-choice-of-provider” provision.) Respondents argue that 42 U.S.C. § 1983, which allows individuals to sue local or state officials under certain circumstances for violating their federal rights, should apply in this instance and permit Edwards to enforce the any-qualified-provider provision in litigation against the state.

Both lower courts ruled for PPSAT and Edwards. The district court initially granted Respondents a preliminary injunction on Edwards’ claim, finding that the Medicaid Act created a private right using the analysis laid out by the Supreme Court in its 1997 decision, Blessing v. Freestone. The Fourth Circuit affirmed the lower court in 2019, and the Supreme Court denied cert while the lower court litigation proceeded. In 2020, the district court granted the Respondents a permanent injunction, and the Fourth Circuit affirmed again, deepening a circuit split regarding whether the any-qualified-provider provision created an individual right enforceable under Section 1983. South Carolina again filed for cert, and in 2023, the Supreme Court GVRed this case after clarifying the analytical framework for determining unambiguous conferral of a private right of action in a case called Health & Hospital Corp. of Marion County v. Talevski. The Fourth Circuit on remand reaffirmed its previous rulings, with Judge Richardson writing a concurrence asking the Court for further clarification on which precedents regarding private rights are still valid. South Carolina petitioned for cert once again, and this time the Court granted review.

The long and lively oral argument made it clear that this will not be a unanimous decision. The Justices vigorously questioned the attorneys for both sides—John J. Bursch of Alliance Defending Freedom for South Carolina, Nicole A. Saharsky of Mayer Brown for the Respondents—as well as Kyle D. Hawkins on behalf of the United States, which had requested and been granted argument time to present its view that the any-qualified-provider provision does not create an enforceable private right. (The Trump Administration’s position in this case generated some questions for Hawkins from Justice Sotomayor, who said that arguing against recognizing an enforceable private right in the any-qualified-provider provision was inconsistent with past positions taken by the federal government.) Key themes of the argument included whether the provision contains “rights-creating language”; whether and where to establish a bright-line test for determining whether a provision does so; the ramifications of the provision’s particular context in the Medicaid Act; and the availability of alternative enforcement mechanisms.

Rights-Creating Language, or What are the Magic Words?

All three advocates started here. Bursch argued for the state that it is dispositive that the any-qualified-provider provision lacks rights-creating language like “right” or its functional equivalent, and also lacks words with a “deeply rooted rights-creating pedigree” like “no person shall” in the Fifth Amendment. He distinguished the any-qualified-provider provision from the provision in the Federal Nursing Home Reform Act that the Court had found to create a privately-enforceable right in Talevski, which he said bore unambiguous rights-creating language and context that the key provision here lacks. In other words, Congress knows how to write a rights-creating statutory provision—and it simply didn’t do so in this provision of the Medicaid Act. Several Justices pushed back hard on this characterization of the bar that statutory language must meet in order to be rights-creating, including Justices Sotomayor, Kagan, and Jackson, all of whom made versions of the point that the “may obtain” language in the any-qualified-provider provision is sufficient to establish “that the individual has a right to choose their doctor,” as Justice Kagan put it.

A recurring theme in the argument was whether the Court should hold that only certain “magic words” create an enforceable private right. In fact, this concept of “magic words” was referenced nearly two dozen times throughout the argument, as discussion returned again and again to the question whether the words “may obtain” can confer an enforceable right on an individual or if the specific word “rights”—and maybe a few others—are necessary. Bursch demurred, insisting that he was not asking for a “magic words” test—although he agreed that such a test would provide welcome clarity.

Saharsky opened her argument by asserting that this provision does all the right things except use the word “rights”—and, picking up the thread from a few of the Justices, she argued that the Court typically doesn’t require so-called “magic words” in its statutory analysis. She even went further, positing that if the Court were to hold that the language of the any-qualified-provider provision was insufficient to confer a private right of action, it would create a separation of powers problem, with the Court meddling too deeply in the way in which Congress writes laws. (Bursch retorted in his rebuttal that ruling for the state would not create a separation of powers issue, but that a ruling for Respondents would create a federalism issue.)

Looking for a Bright Line

Justice Kavanaugh pressed both sides about how the Court should articulate a bright line test for when a statute creates an enforceable private right of action, describing a “45-year odyssey” of trying and failing to provide sufficient clarity to lower courts, states, providers, and beneficiaries. Justice Thomas also probed what exact words are necessary to create an enforceable right, to which Bursch responded that rights, entitlement, privilege, and immunities would all be acceptable terms. (Three of those four words appear in Section 1983 itself.)

In response to Justice Kavanaugh’s probing about the import of specific words, Saharsky distinguished between benefits (a policy or practice that affects individuals) and rights (individual entitlements and protections)—with the any-qualified-provider provision creating the latter, not the former—but she also pushed back on the idea that further clarity is even necessary. She argued that the circuit split identified by South Carolina largely predated Talevski, and that there has not been sufficient time since the Talevski decision to know whether the lower courts need further guidance on when a provision has unambiguously created an enforceable private right. Justice Jackson (the author of the Talevski decision) expressed a similar view, and the Chief Justice also mused aloud about whether and to what degree further clarification on this point is necessary—perhaps providing a window into a topic of conversation among the Justices in their post-argument discussions.

Context Matters

Another recurring thread woven throughout the argument was the siting of the any-qualified-provider provision in Spending Clause legislation. The Court’s cases have established that Spending Clause legislation is essentially a contract between a state and the federal government, laying out the terms that the state must meet to receive and maintain a particular pot of federal funding (in this case, Medicaid funding). The Court has found that, because of this context, Spending Clause statutes must clear a very high bar to establish a private right of action. Justice Alito, in one of his few interventions all morning, posited that recognizing a private right of action in Spending Clause legislation would be “quite extraordinary.” In an exchange with Saharsky, he suggested that it’s necessary to distinguish between Congress imposing an obligation on a state—that is, establishing “something . . . a state must do”—and Congress saying, “this is something that allows the individual to go into court and get enforcement.” His comments suggested that he views the any-qualified-provider provision as an example of the former, not the latter. (Saharsky, of course, disagreed.) Bursch leaned into this distinction, arguing that a state must have clear notice if a term of its Spending Clause “contract” with the federal government will open it up to lawsuits from private individuals—and that South Carolina lacked such notice here. Relatedly, Justice Barrett prompted Bursch to discuss the “substantial compliance” regime that is set up by the Medicaid statute, whereby the U.S. Secretary of Health and Human Services holds a state accountable for substantial—but not perfect—compliance with the requirements the Medicaid Act lays out for state Medicaid programs. Here, again, is an argument that the particular statutory context of the any-qualified-provider provision makes clear that it is not meant to be enforceable in Court by an individual beneficiary.

 Alternative Enforcement Mechanism

A final recurring theme in the argument was the analytical impact of the availability of an alternative enforcement mechanism, a question probed by a number of Justices, including Justices Jackson, Barrett, Sotomayor, and Kavanaugh. The Court’s prior cases established that the availability of an alternative remedy should be taken into account when considering whether a statutory provision has created a private right of action. Bursch therefore leaned heavily on the availability of an administrative appeal process to providers who have been disqualified from the state’s Medicaid program, and on the HHS Secretary’s authority to pull state Medicaid funding when a state is out of substantial compliance with the Act’s requirements. Saharsky responded that if the any-qualified-provider provision isn’t enforceable via Section 1983, it will become meaningless—because the HHS Secretary has never (and, she implied, will never) withhold funding from a state based on a failure to comply with that provision.

*****    

In sum, this argument was technical and lengthy, but very engaging. Notably, the issue of abortion—the reason this case has made headlines—barely came up; that is as it should be since the legal question in the case is not about abortion rights or abortion access at all. But even apart from the hot-button cultural issue, the Justices were nonetheless clearly deeply divided over how to read the text of the any-qualified-provider provision and whether it unambiguously creates a privately-enforceable right of action. And even though it was left unstated, there is no doubt that the outcome of this case will have a far-reaching impact on the ability of states even beyond South Carolina to exclude Planned Parenthood and other abortion providers from participating in their Medicaid programs. Competing rallies outside the Supreme Court building during the argument indicated the importance of this very technical statutory-interpretation case to both sides of the abortion divide.