Argument analysis
By Amy Howe
April 2, 2025
At. 18.41
Protesters gather outside the court on Wednesday morning. (Amy Howe)
The Supreme Court on Wednesday was shared on whether planned parenthood has a legal right under federal civil rights legislation to challenge the order of South Carolina’s governor, which prevents abortion clinics, including planned parenthood, from participating in Medicaid.
Over the course of more than 90 minutes of oral arguments, the judges fought to determine if the Medicaid Act on which Planned Parenthood is dependent must use specific words to signal that Congress intended to create a private right to enforce it – and if so, what these words may be.
For 60 years, the Medicaid program has provided medical treatment to more than 72 million Americans with limited financial resources. Congress passed the law in accordance with its power under the Constitution’s Consumption Clause, which allows it to associate conditions with the federal funds it provides to states.
In 2018, South Carolina Governor Henry McMaster ordered the State Department of Health and Human Services to ban abortion clinics from participating in the Medicaid program. Federal law generally has the use of Medicaid funds for abortions. Planned Parenthood provides other medical services, such as gynecological and reproductive care, but also screenings for cancer, high blood pressure and high cholesterol levels. But because money is fungal, McMaster justified, that all Medicaid Funds that go to clinics where abortion deliver would effectively subsidize “abortion and denial of the right to life.”
Julie Edwards, a Medicaid patient in South Carolina, who suffers from diabetes and has used Planned Parenthood for birth control, went to the federal court in South Carolina along with Planned Parenthood. They claimed that McMaster’s order violated a provision in the Medicaid Act that gives any patient entitled to Medicaid to seek healthcare from any “qualified” provider.
The US Appeals Law for the 4th Circuit agreed with Planned Parenthood and Edwards that the Medicaid Act creates individual rights that can be enforced under federal civil rights laws, preventing the state from excluding planned parenthood from its Medicaid program.
John Bursch, a lawyer for the Conservative Advocacy Group Alliance, who defended Freedom, represented the state. He told the judges that for laws passed under the power of the congress’s consumption clause, “clear rights -creating language is critical of creating private rights. Congress did not use” such a language in the “qualified provider” provision, he emphasized. In fact, he noticed, Congress “knows how to clearly give a private right to choose a provider” when it will do what it did in the law of reform of federal nursing homes.
Justice Clarence Thomas asked Bursch if the word “right” is “absolutely necessary to determine if a right” under “any qualified provider” determination has been created.
Bursch replied that “If Congress wants to be clear, ‘right’ is the best word, but we would take its functional equivalent” – for example, “right” or “privilege.”
Thomas’ question started a debate that continued and turns off through the morning’s argument: Does a federal law only create a private enforceable right if it uses specific – or as some justices express it, “magic” – words?
Justice Sonia Sotomayor told Bursch, “You don’t quite call it a magic word but you get very close.”
Bursch opposed that what states need is a “clear statement” about their obligations under the Medicaid Act.
But Sotomayor was not convinced. “It seems a little strange,” she suggested, “to believe that a problem that motivated Congress to adopt this provision was that states limited the choices people had.” In the light of this story, she was, “It seems difficult to understand that states did not understand that they had to give individuals the right to choose a provider.”
Justice Amy Coney Barrett repeated Sotomayor’s concern about the purpose of the “qualified provider” determination. If I want to see the provider of my choice, she said, but the state has disqualified him from joining Medicaid, “You deprive me of my ability … to see the provider of my choice. And no one contests the” doctor “can provide the services in a competent way I want.”
Justice Brett Kavanaugh more supported the idea that Love should use specific words to create privately enforceable rights. The Supreme Court, he observed, “has failed to provide guidance … that lower courts can follow that states, providers and recipients can follow.” What words did he ask Bursch would create such rights, “rather than having something like ‘or its functional equivalent’, could” “lead to” another decade of litigation “?
Bursch suggested that the words “rights”, “right”, “privileges” and “immunities” would fit the bill. “If you don’t limit it to the few words,” he told the judges, “then suddenly the flood gates are open.”
Represents the federal government, Kyle Hawkins told the judges that their cases “emphasized that rights-creating statutes are atypical. But” any qualified provider “determination he emphasized,” is a run-of-the-Mill-consumption clause statute and to keep otherwise inviting line traits. “
Sotomayor pressed Hawkins and observed that the federal government had claimed for two decades that the “qualified provider” provision could be enforced privately through federal civil rights laws. Although the government now claims it had changed its attitude after the court’s decision in Health and Hospital Corporation in Marion County, Ind. V. TalevskiBy stating that residents of nursing homes could use federal civil rights legislation to enforce two provisions of the Law on Reform of Federal Nursing Home, Sotomayor suggested it in Talkevski The court simply had “repeated” its analysis in a previous decision. “Do you need a hit over your head,” she asked, “Meaning did you need to put it another time before you understood it?”
Kagan claimed that it would be “kind of to change the rules of the mid -stream.” The Congress she emphasized, passed the Medicaid Law a long time ago. “And if we come in now and say you need to use one of these three words,” she noted, it can be useful for future laws, “but it is not a fair way of interpreting statutes that Congress adopted many years ago.”
Unlike Bursch, Hawkins refused to suggest specific words that would create a private enforceable right. He agreed that words like “real”, “right”, “privilege” and “immunity” “would count,” but he suggested that “a useful way of thinking about it” is that “We are looking for words that have a real rights -creating pedigree in our country’s history and legal traditions.”
But that answer did not necessarily please Kavanaugh, who told him that Kagan had “raised good points about how you first opened it that will be line -taging problems. You will not solve the problem you came here to solve.”
Nicole Saharky, who represented Planned Parenthood, told the judges that there is no dispute that South Carolina violated the Medicaid Act when it refused Julie Edwards “her choice of a qualified and willing provider.” “The only question,” she said, “is whether she can do something about suing it under” Federal Civil Rights Laws.
The “every qualified provider” determination, Sahandsky maintained, “uses mandatory, individually centered, rights -creating language. The only thing it does not,” she said, “is to use the word ‘right.’ And this court has repeatedly said that magic words are not required.
The judges also raised other concerns. Barrett questioned whether to allow the 4th Circuit’s decision to stand would “open the flooding gates of people who bring” similar suits, “or is this kind of a fairly unusual circumstance?”
Hawkins replies that it was “hard to say that it is unusual” and added that “any qualified provider” determination was “the most trialed provision” in the statute.
Saharky pushed back to any idea that a decision in her clients’ advantage would lead to more litigation, noting that the 6th circuit had issued a decision similar to the 4th circuit “more than 20 years ago. If the flood of litigation was to happen, we would expect to see it.”
Furthermore, she added that there is no real benefit to Medicaid patients in bringing litigation to challenge the refusal of their chosen provider. Money damage is not available, she noted. “This will not be people who get rich,” she said. “They’re just trying to get healthcare here.”
Kavanaugh expressed what he characterized as a “wider P-Powers concern” idea that “Congress creates action rights and remedies, not the right.” For more than two decades, Kavanaugh told Saharky, the Supreme Court had “really tightened up” by creating causes of action, “and said essentially so far and no longer.”
Saharsky opposed this dispute involving “an explicit case for action” in accordance with the federal civil rights laws, so there is no need for the right to create one. And she admitted that “there is a tall bar to find out that Congress was introducing an individually enforceable right. What we say is that this provision meets the bar.”
Justice Samuel Alito was similarly skeptical and described it as “quite extraordinary” to the court to find that a law passed under Congress’s Consumption Clause creates a privately enforceable right of action. And if a federal trial of civil rights can follow “every time the congress uses the word ‘individually’,” he told Saharky, “then all possible provisions could give rise to” responsibility. “Congress,” he said a few minutes later, “may well have had in mind” that the state needs to give the Medicaid recipients the opportunity to choose their own qualified healthcare providers, “but not that this is something that allows an individual to sue in court.”
In its counter -movement, Bursch claimed that “the fact that the 12 of us may have such a robust conversation about whether this statute is mandatory or not, whether it is rights -making or not, shows that rights -creating language is ambiguous, not clear and explicit. And whether there is any ambiguity in this context,” he concluded, ” Maybe, when it may be, when it can be, when it can be, when it can be, when it can be, when it can be, when it may be, when it may be when it can be when it can be when it can be, when it may be when it may be made.
A decision is expected in the summer.
This article was originally published on Howe on the field.
