Kerr v. Planned Parenthood South Atlantic is one of the most straightforward cases the Supreme Court will hear this year. It involves a federal law that requires every state’s Medicaid program to ensure that “any individual eligible for medical assistance” may obtain that care “from any institution, agency, community pharmacy, or person, qualified to perform the service or services required.”
Thus, Medicaid patients, and not the state, clearly have a right to choose their own health providers, with only one exception. The provider must be “qualified,” which, as the federal appeals court that heard this case explained, means that the provider is “professionally competent” to provide the care that the patient seeks.
Nevertheless, South Carolina, along with several other states, attempted to exclude Planned Parenthood from its Medicaid program in violation of this statute. The reason, of course, involves abortion.
In 2018, Republican Gov. Henry McMaster issued an executive order forbidding “abortion clinics” from being paid to provide care to Medicaid patients. Though the state is permitted to ban abortion outright under the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), South Carolina permits abortions up to the sixth week of pregnancy.
But the state is not allowed, under the Medicaid statute at the heart of Kerr, to prevent Medicaid patients from choosing Planned Parenthood for non-abortion-related care — at least as long as Planned Parenthood’s providers are competent to provide this care. And the state admits in its brief that it did not cut off Planned Parenthood because it believes that its doctors are professionally incompetent. According to that brief, Planned Parenthood could “restore Medicaid funding if it stops performing abortions — but it has chosen not to do so.”
So how on Earth did this straightforward case wind up before the highest Court in the country? The answer to that has two parts, one legal, the other political.
The legal issue is that South Carolina claims that the federal law allowing Medicaid patients to choose their health providers is virtually unenforceable. And the state is correct that the Supreme Court’s rules governing when individual patients may sue to enforce federal Medicaid law are complicated, although not nearly as complicated as its lawyers claim.
The political issue is that this case involves abortion, an issue that often causes judges to place politics above law. And so, while most federal appeals courts have concluded that the choice-of-provider law is enforceable, two GOP-dominated courts did not. The Supreme Court typically steps in to resolve legal questions that have divided federal appeals courts.
Notably, however, both of the lower courts that ruled against Medicaid patients did so before the Supreme Court decided Health and Hospital Corporation v. Talevski (2023), a significant decision clarifying which provisions of federal Medicaid law can be enforced through private lawsuits. The Talevski case cuts strongly in favor of Medicaid patients, and against South Carolina’s position in this case.
So it’s likely that even this Supreme Court will reject South Carolina’s attack on Planned Parenthood. The law in this case is simply too clear, and it was recently reaffirmed in Talevski, a decision that is less than two years old.
Still, nothing is ever certain when an abortion-related case reaches this Court, as most of its Republican members have a history of handing down preposterous interpretations of the law in order to restrict abortion rights. If the six Republicans on the Supreme Court were to abandon longstanding law, that could have disastrous consequences for Medicaid patients, and for thousands of other Americans.
The specific legal issue in Kerr, briefly explained
A federal law known as “Section 1983” is probably the most important civil rights statute ever enacted by Congress. It permits state officials to be sued in federal court if they deprive someone of “any rights, privileges, or immunities secured by the Constitution and laws.” Without this law, many federal laws and even many provisions of the Constitution would be unenforceable, because there would be no way to bring a lawsuit vindicating the rights protected by those legal provisions.
Notably, Section 1983 does not permit anyone to bring a lawsuit challenging any violation of any federal law whatsoever. Instead, as the Court said in Blessing v. Freestone (1997), “a plaintiff must assert the violation of a federal right, not merely a violation of federal law.”
Talevski, meanwhile, laid out the Court’s framework for determining whether a particular federal law creates a right that may be enforced through private lawsuits. The key question is whether “the provision in question is ‘phrased in terms of the persons benefited’ and contains ‘rights-creating,’ individual-centric language with an ‘unmistakable focus on the benefited class.’”
Thus, if Congress passed a law stating that “no state may prevent a hungry person from eating at Taco Bell,” that statute would be enforceable through private lawsuits because its language focuses on the people who benefit from it (people who are hungry). A similar statute stating that “states shall not impede access to cheap burritos” would likely not be enforceable through such lawsuits, because this hypothetical law is silent regarding who is supposed to benefit from it. The second version of this law would, at the very least, need to have some language focused on the people the law was supposed to protect in order to authorize private suits.
And so, with Talevski’s framework in mind, consider the statutory language at issue in the Kerr case:
A State plan for medical assistance must … provide that … any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required (including an organization which provides such services, or arranges for their availability, on a prepayment basis), who undertakes to provide him such services.
This law is riddled with the kind of “individual-centric language” with an “unmistakable focus on the benefited class” demanded by Talevski. It provides a right to “any individual” eligible for Medicaid benefits. It provides that these individuals “may obtain” care from their choice of provider. And it concludes with a pronoun (“him”) which refers back to the individuals who benefit from the law.
South Carolina’s lawyers — most of whom work for the Alliance Defending Freedom (ADF), the Christian right law firm that unsuccessfully tried to get the Supreme Court to ban the abortion drug mifepristone — essentially ask the justices to replace Talevski with a new rule that would drastically limit private lawsuits enforcing Medicaid statutes, and many other laws that are enforced through Section 1983 lawsuits.
Specifically, they claim that the Court has heard only four cases where it ultimately concluded that a federal law contains the kind of language that Talevski requires, two of which explicitly used the word “right,” and two of which used language that “closely mirrors the text of the Fifth Amendment.” Based on this claim, they then allege that the Supreme Court “has limited ‘clear rights-creating language’ to statutes where Congress explicitly uses the label ‘right’ or lifts language from the rights-creating provisions of the Constitution.”
But that is not what the Court said in Talevski. Again, Talevski did not hold that Congress must use certain magical words or a statute is unenforceable. It held that federal laws may be enforced by private lawsuits if they focus on the individuals who benefit from the law, regardless of which specific words Congress used when it wrote that law.
If the Court were to impose such a magic words requirement in Kerr, moreover, that would have disastrous consequences for Medicaid beneficiaries and for many other Americans.
Congress could not possibly have known, when it wrote the original Medicaid law in 1965 or when it wrote any of the various amendments to it, that the Supreme Court would later require it to use very specific language if it wanted the law to be enforceable. Nor could it have known that the Court would impose a magic words requirement when it wrote countless other federal laws.
Because the laws governing Medicaid were not written with the ADF’s proposed new rule in mind, huge swaths of that law could cease to function if the Court agrees with ADF in this case.
In fairness, federal law does provide one alternative remedy if the Supreme Court does shut down private lawsuits enforcing Medicaid law — the federal government can cut off Medicaid funding to states that violate this law. But the government rarely uses this power, because it effectively punishes Medicaid patients and providers for a legal violation by the state. And, in any event, there’s little chance that the Trump administration will use this power to protect abortion providers.
So, Medicaid patients of all kinds should hope that the Supreme Court does not, in its zeal to restrict abortion rights, embrace the Alliance Defending Freedom’s arguments in the Kerr case. Because if the Court does, much of federal law will become unenforceable overnight.
