The Supreme Court listened to arguments on Wednesday in a case derived from the attempted South Carolina to deny funds to Planned Parenthood. But the question with which the judges dealt was relatively narrow, focused on whether people can sue the State to obtain medical services from Planned Parenthood not related to abortion.
In 2018, Governor Henry McMaster of South Carolina, a Republican, ordered state officials to deny the funds from Medicaid to Planned Parenthood, saying that “the payment of taxpayers’ funds to abortion clinics, for any purpose, results in the abortion subsidy and the denial of the right to life.”
Medicaid gives federal money to states to provide medical care to poor people, but establishes some conditions. One is that eligible participants can receive assistance from any qualified provider to perform the required services.
The abortions are prohibited in South Carolina after six weeks of pregnancy, and even then, the Federal Law prohibits the use of Medicaid funds, except in potentially mortal circumstances or in cases of rape or incest. But Planned Parenthood clinics in Charleston and Columbia provide services not related to abortion, including advice, physical exams, contraception and cancer exams and sexually transmitted infections.
Planned Parenthood and a patient who sought a sued contraception under a Federal Civil Rights Law, and a federal judge of first instance blocked the South Carolina Directive, saying that he met the Medicaid requirement that patients can choose any qualified provider.
The litigation that followed was complicated and tortuous, focusing largely on whether that provision created a right that individuals could enforce demands. The Supreme Court has said that federal laws such as Medicaid, that give money to the States, but only if they accept certain conditions, must “unequivocally confer individual federal rights” to give affected persons the right to sue.
That is a difficult evidence to comply, and the court has ruled that it has only satisfied, more recently in 2023 in the Health Corporation and County Hospital of Marion v. Talevski, a case related to elderly homes. The statute in that case repeatedly referred to the “rights” as such, while the provision of Medicaid in the new case used a different language.
He said that people looking for medical services “can obtain such an institution” that is “qualified to perform the required service or services.”
Nicole A. Saharsky, lawyer of Planned Parenthood, acknowledged that the standard was strict.
“It is a high bar to discover that Congress establishes an individually enforceable right,” he said. “What we are saying is that this provision meets the bar.”
Kyle D. Hawkins, a Trump administration lawyer, did not agree, saying that Medicaid’s disposition lacked the “unmistakable language of creation of rights.”
According to the Biden administration, the government had taken the opposite position, which Mr. Hawkins acknowledged.
“With the change in administration,” he said, “the federal government reassess its position in this case, and we believe that the opinion we are moving today is the best reading of the statute.”
The judges extensively discussed if Congress had to use “magical words” to allow people to demand. John J. Bursch, a lawyer of the Defending Freedom, a conservative Christian group that represents South Carolina, proposed a series of words that Congress could use to grant an unequivocal right to sue.
“The list that would give it is rights, rights, privileges and immunities,” he said, adding that they did not equal magical words.
In response, Judge Brett M. Kavanaugh said: “I am not allergic to the magical words because the magical words, if they represent the principle, will provide the clarity that will avoid the litigation that is a great waste of resources for the states, courts, suppliers, beneficiaries and congresses.”
Judge Elena Kagan said that the language in Medicaid’s law could hardly be simpler. “The state must ensure that people have the right to choose their doctor,” he said. “That’s this disposition.”
Last year, a unanimous panel of three judges of the United States Court of Appeals for the Fourth Circuit, in Richmond, Virginia, ruled that the lawsuit could proceed.
“This case is, and it has always been, about whether Congress conferred an individually enforceable right for Medicaid beneficiaries to freely choose their medical care provider,” Judge Judge J. Harvie Wilkinson III wrote for the panel. “Preserving access to Planned Parenthood and other suppliers means preserving an affordable choice and quality care for an incalculable number of mothers and babies in South Carolina.”
He added that “this decision is not about financing or providing abortions.”
Abortion was mentioned only in the approval of Wednesday’s argument in Medina v. Planned Parenthood South Atlantic, No. 23-1275, and the case did not change the reason of the State to try to disqualify Planned Parenthood. But Mrs. Saharsky said the dispute presented problems beyond a technician about who can demand.
The Congress, he said, had tried to send a message: “We want people in Medicaid to be assured through Medicaid have the same right as people who have private insurance enjoy because it is very fundamental for individual dignity and individual autonomy.”
