South Carolina Attacked Planned Parenthood. Will SCOTUS Let Patients Fight Back?

South Carolina Gov. Henry McMaster speaks to reporters at the Supreme Court following oral arguments. Allison Bailey/AP

Perhaps what was most significant in the debate at the US Supreme Court Wednesday morning, during oral arguments in Medina v. Planned Parenthood South Atlantic—a major case over whether a state can unilaterally cut off Planned Parenthood’s access to Medicaid funding—is what wasn’t said.

Nobody in the courtroom argued that the doctors and nurses at Planned Parenthood weren’t medically qualified to care for patients. Nobody said that they did a bad job at prescribing birth control, treating sexually transmitted infections, or screening for cervical and breast cancer. Nobody argued that there was a medical reason to exclude Planned Parenthood from Medicaid reimbursements for the extensive non-abortion services it provides. (Medicaid already doesn’t cover abortion, except in the rarest of cases.)

In fact, everyone seemed to agree that in 2018, when South Carolina Gov. Henry McMaster, a Republican, suddenly declared that the state would no longer consider Planned Parenthood South Atlantic a “qualified provider” for Medicaid purposes, it had nothing to do with medicine and everything to do with politics. “The payment of taxpayer funds to abortion clinics, for any purpose, results in the subsidy of abortion and the denial of the right to life,” McMaster reasoned in his executive order, as he effectively cut access to birth control and basic health screenings for his state’s poorest residents in an attempt to financially punish Planned Parenthood.

Congress amended the federal Medicaid law in 1967 to ensure that patients would have the “free choice” to see any “qualified” provider who takes Medicaid. The whole point of that provision was to stop states from artificially restricting patients’ options. So, in response to McMaster’s order, Planned Parenthood South Atlantic and one of its Medicaid patients, Julie Edwards, sued the state, arguing that it had violated patients’ right to choose their provider.

“There aren’t that many things that are more important than being able to choose your doctor, the person that you see when you’re at your most vulnerable, facing some of the most significant challenges to your life and your health,” Nicole Saharsky, attorney for Planned Parenthood South Atlantic, argued before the justices on Wednesday. “Congress said a long time ago, this is something we want to protect.”

In opposing the case, the state of South Carolina has argued that Edwards didn’t have a right to sue in federal court. The lower courts sided with Edwards and Planned Parenthood—as have most federal circuit courts that have considered similar cases. So South Carolina appealed, all the way up to the Supreme Court.

Now, the justices will weigh whether patients can sue to enforce the “free choice of provider” provision when a state violates it. If the answer is yes, then patients will continue to have the power to fight back in the courts against governors like McMasters. But if not, states will have broader latitude to decide to which doctors Medicaid recipients can go.

Since Medicaid was passed decades ago, the Supreme Court has taken many cases concerning an individual’s right to sue in order to enforce different parts of the law. Justice Brett Kavanaugh referred to this history as a “45-year odyssey” during Wednesday’s oral argument. But just two years ago, the court reaffirmed the framework it’s told courts to use when deciding if an individual can sue. “Did you need a hit over the head?” Justice Sonia Sotomayor asked the lawyer for South Carolina.

But this time around, the case arriving at the court involves Planned Parenthood—and it’s at a moment when reproductive healthcare providers have never been more vulnerable to government targeting. Their abortion services are no longer shielded by Roe v. Wade. They’re facing just-announced cuts of tens of millions of dollars in federal family planning grants, plus impending massive cuts to Medicaid. Opportunistic prosecutors are filing criminal charges against alleged abortion providers. Add to this Trump’s sweeping pardon of anti-abortion extremists, some of whom have a history of attacking clinics and patients.

The financial stakes for Planned Parenthood and other providers of controversial healthcare loomed over the oral arguments on Wednesday. Medicaid is considered the country’s largest single–payer for family planning services, according to the Kaiser Family Foundation—and Planned Parenthood is the largest provider of those services. Half of Planned Parenthood patients are on Medicaid, Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, said on a podcast Wednesday. If the justices side with South Carolina, it could lead more states to wipe out Planned Parenthood’s Medicaid funding.

Family planning can include contraception, physical exams, pregnancy testing and counseling, and STI screening and treatment. When those services are provided at specialized reproductive health care clinics, research has found that patients get access to a wider range of contraceptive methods. At Planned Parenthood, those options typically include an extended supply of birth control pills and, often, same-day IUD insertion, the Guttmacher Institute reports. As I’ve previously written, when states attack Planned Parenthood’s Medicaid funding, it has a devastating effect on access to birth control for their residents:

Arizona, Arkansas, Indiana, Kansas, and Texas all tried to impose similar restrictions, according to Jane Perkins, litigation director for the National Health Law Program. Texas was one of the few to succeed, [and] the attacks on Planned Parenthood there forced many reproductive health clinics to close, cut hours, charge patients new fees, or ration IUDs and birth control implants. Ultimately, they could only serve half as many patients. The teen birth rate rose an estimated 3.4 percent. 

On top of all that, patients receiving reproductive healthcare want to be able to choose a doctor who makes them feel comfortable. Yet in a Supreme Court brief, South Carolina suggested that Medicaid patients who lost access to care at Planned Parenthood could just go to the “crisis pregnancy centers” promoted by the anti-abortion group Heartbeat International—the vast majority of which offer no birth control options.

John Bursch, the bowtie-wearing lawyer from the powerful religious-right legal nonprofit Alliance Defending Freedom—who is representing the state of South Carolina in the case, in a highly unusual arrangement—argued repeatedly that the free-choice-of-provider provision doesn’t technically give patients an individual right. “An obligation is not enough,” Bursch contended. “Telling a state that it has an obligation to do something, or that it must provide something, isn’t the same as saying you have the ability to sue them in federal court.” A federal law should only be considered to create a “right” if it uses words like “right,” “entitlement,” or “privilege”—”or their functional equivalent,” Bursch argued.

“The state has an obligation to ensure that a person—I don’t even know how to say this without saying ‘right’—has a right to choose their doctor,” Justice Elena Kagan objected. “That’s what this provision is. It’s impossible to even say the thing without using the word ‘right.’”

But if the conservative-majority court agrees with Bursch and rules that Medicaid patients don’t have the right to challenge McMaster’s decision, who does have the power to fight back? There appear to be no real options. Bursch suggested that doctors deemed “unqualified” could file an administrative appeal—but Planned Parenthood South Atlantic already tried that, only to be told by the state that it was “futile” given McMaster’s order, according to their brief.

Former Texas Solicitor General Kyle Hawkins, who is representing the Trump administration, which sides with South Carolina, suggested during oral arguments that the federal government could theoretically withhold funding to force a state to follow the free-choice-of-provider provision. But that’s never happened before, and it’s extremely unlikely to happen ever, Sotomayor pointed out. “It does seem awfully odd to think that that is a remedy at all because what you would be doing would be depriving thousands of other Medicaid recipients of coverage,” Sotomayor said. “Is there much sense in that?”

The implications of the case potentially can extend beyond Planned Parenthood. Both South Carolina and the Trump administration want states to be able to cut as much funding as possible for doctors who provide the kind of care they object to: abortion, for example, but also birth control and gender-affirming care for transgender people. If states really thought nobody could stop them from cutting providers out of Medicaid, Kagan said, “We would have every state deciding their various policy justifications. It could be people who do provide abortions, people who don’t provide abortions. People who do provide contraception, people who don’t provide contraception. People who do do gender transition treatment, people who don’t.”

“That does not seem like what this statute is all about, is allowing states to do that and then giving individuals no ability to come back and say, ‘That’s wrong,’” Kagan concluded.

We’ll know by the end of June if the rest of the court agrees and if Medicaid patients have the right to fight back in federal court when governors like McMaster exclude a provider for political objections. “It’s clear that attacks on sexual and reproductive health care are only escalating because some people want to impose their own beliefs on everyone else,” McGill Johnson said in a statement before oral argument. “You should have the freedom to decide what’s best for you.”