The Supreme Court Rules that States May Exclude Abortion Providers Under Medicaid

Last year, we alerted that the Supreme Court agreed to hear the State of South Carolina’s challenge to the Fourth Circuit’s decision blocking the State’s Medicaid program from terminating its provider agreement with the region’s Planned Parenthood organization. Yesterday, the Supreme Court issued its opinion in Medina v. Planned Parenthood South Atlantic, reversing the Fourth Circuit’s decision enjoining the State’s termination of Planned Parenthood and paving the way for South Carolina—and other states—to defund Planned Parenthood and other providers who provide abortion services.

In a 6-3 ruling along ideological lines, the Supreme Court held that 42 U.S.C. § 1396a(a)(23)(A),[1] the “free-choice-of-provider provision” of the federal Medicaid statute, does not confer an individual right to sue pursuant to 42 U.S.C. § 1983. In doing so, the Court held that the plaintiff, a Planned Parenthood patient, did not have standing to challenge the South Carolina executive order that directed the South Carolina Department of Health and Human Services to deem all abortion clinics, including Planned Parenthood clinics, as unqualified providers to prevent them from participating in Medicaid. In so reasoning, Justice Neil Gorsuch, who authored the majority’s opinion, compared Section 1396a(a)(23) to the Federal Nursing Home Reform Act, which includes a provision that explicitly confers “the right to choose a personal attending physician,” whereas Section 1396a(a)(23) does not include such explicit language. “Someday,” Gorsuch wrote, “Congress might choose to revise § 1396a(a)(23) to resemble FNHRA. But that is not the law we have.” Thus, the Supreme Court determined that any qualified provider provision of the federal Medicaid statute did not deprive South Carolina from its discretion to exclude providers from the Medicaid program.

The dissent, authored by Justice Ketanji Brown Jackson, opined that the majority “adopts an approach to § 1983 that not only undermines the statute’s core function but also stretches our doctrine beyond anything that can be justified as a matter of text, precedent, or first principles.” Justice Jackson discussed that, on the only other occasion on which the Supreme Court had the opportunity to consider the free-choice-of-provider provision, it held that the provision conferred an absolute right to choose among a range of qualified providers, stating that, although the prior case “was not a case about § 1983 enforceability, our description of the free-choice-of-provider provision confirms that the most natural and obvious way to read the provision’s individual-centric, mandatory language is as ‘rights-creating.’” The majority’s “decision to foreclose Medicaid recipients from using § 1983 to enforce that provision,” Jackson wrote, 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.”

Although the Court’s opinion targets the South Carolina executive order specifically, its impact will be felt on a much wider scale. By holding that an individual cannot challenge a state’s decision to deem a provider unqualified, thereby preventing it from participating in Medicaid, the Court has made it easier for other states to target providers that provide abortion services. In its now-overturned decision, the Fourth Circuit emphasized the importance of protecting access to Planned Parenthood and other, similar clinics, because of how those providers preserve access to affordable family planning care, which Medicaid programs are required to cover. Planned Parenthood S. Atl. v. Kerr, 95 F.4th 152, 169–70 (4th Cir. 2024).

In the words of Justice Jackson, yesterday’s decision “is likely to result in tangible harm to real people. At a minimum, it will deprive Medicaid recipients in South Carolina of their only meaningful way of enforcing a right that Congress has expressly granted to them. And, more concretely, it will strip those South Carolinians—and countless other Medicaid recipients around the country—of a deeply personal freedom: the ‘ability to decide who treats us at our most vulnerable.’”

As new developments arise, we will continue to update our Dobbs Decision Resource Center. In the meantime, please contact one of the lawyers in Shipman’s Health Law practice group if you have questions about this ever-changing legal landscape.

 

[1] Section 1396a(a)(23)(A) states allows “any individual eligible for medical assistance (including drugs) [to] obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required…, who undertakes to provide him such services[.]”