Supreme Court wrestles with red state efforts to defund Planned Parenthood

The Supreme Court’s conservative majority appeared sympathetic Wednesday to South Carolina’s bid, backed by the Trump administration, to exclude Planned Parenthood from its Medicaid program and deny affected patients the ability to challenge that exclusion in court.

But while Planned Parenthood’s provision of abortion services outside of Medicaid is what led South Carolina to blacklist the group, abortion was rarely mentioned over nearly two hours of arguments.

Instead, the justices spent most of Wednesday debating whether Congress should have to use “magic words” like “right” or “entitlement” when writing a law to guarantee an individual’s ability to enforce it in court. Planned Parenthood teamed up with an individual Medicaid recipient to sue the state under a provision in federal law that says Medicaid recipients can choose any “qualified and willing” provider.

Most of the court’s conservatives seemed opposed to reading the law to allow such suits. Justice Brett Kavanaugh went the furthest, saying he was “not allergic to” endorsing a “magic words” test that would limit patient suits to instances where Congress used explicit language creating such a right.

If the high court opts for that sort of ruling, it would likely cause a stampede of other conservative states cutting reproductive and sexual health clinics out of their Medicaid programs — shrinking the network of providers available to low-income patients.

The court’s three liberals pushed back on that stance, amplifying Planned Parenthood’s argument that insisting on particular words would clash with past precedent and infringe on Congress’ lawmaking power.

Citing those past cases going back decades, Justice Sonia Sotomayor at one point asked South Carolina’s attorney if he needed to be “hit over the head” with yet another ruling protecting individuals’ right to sue. She also grilled the Trump administration’s attorney, Kyle Hawkins, from the U.S. solicitor general’s office, on why the federal government dropped its previous support — under the Biden administration — for reading statutes to confer individual rights. Hawkins acknowledged “the federal government re-evaluated its position in this case” due to the “change in administration.”

Justice Amy Coney Barrett, a conservative who is sometimes a swing vote on the court, also appeared skeptical of arguments from South Carolina that Medicaid patients have ways to assert their rights other than bringing a federal lawsuit. But it was unclear whether Barrett would declare that the language Congress enacted in the Medicaid statute is clear enough to create a right to go to federal court.

“If I want to go see Dr. Jones, and Dr. Jones is the provider of my choice and the state has disqualified Dr Jones … there's no mechanism — am I right? — for the beneficiary to say: ‘You're depriving me of my ability — we won't call it a ‘right,’ we won't use the loaded word — but my ability to see the provider of my choice’?” Barrett said.

Planned Parenthood’s attorney Nicole Saharsky picked up this thread, arguing that “there is no alternative federal remedy” for Medicaid patients if the high court rules that they can’t bring a lawsuit over violations of their right to see their preferred doctor.

“Congress expected that an individual would be able to sue in the rare instance when a state is keeping a needy patient away from a qualified and willing provider,” she said. “If the individual can't sue, this provision will be meaningless.”

Both sides in the case warned Wednesday of a dangerous slippery slope if they lose.

Saharsky argued that if South Carolina is allowed to exclude their clinics from Medicaid over their provision of abortions outside of the program, it would open the door for states to boot providers for any other reason, even something as arbitrary as “too many people work at the provider have blue eyes, or they support green energy or whatever.”

Justice Elena Kagan, one of the court’s liberals, said denying individuals the right to sue could lead to a splintering of Medicaid access around the country, with every state feeling empowered to lock out providers who offer any services its leaders disapprove of, including gender-affirming care and contraception.

South Carolina and the Trump administration countered that recognizing Medicaid patients’ right to sue over being denied access to the provider of their choice would invite a flood of lawsuits that would overwhelm federal courts.

“Once you move away from those core words — like ‘right,’ ‘entitlement,’ ‘privilege,’ ‘immunity,’ it's easy to cascade and find rights in any provision that mentions individuals and a benefit,” John Bursch, a lawyer with the conservative advocacy group Alliance Defending Freedom, argued on behalf of South Carolina. “If this court doesn't toe the line, if it doesn't have a high bar … you're going to be seeing these cases for the next decade, easy.”

Bursch was nearly a half-hour into his argument before he mentioned Planned Parenthood’s role as an abortion provider as the basis for South Carolina expelling the health-care organization from Medicaid.

Lower courts, including the 4th Circuit Court of Appeals, upheld the right of Planned Parenthood patients in the state to sue over the access they say they were denied by the state’s move. The Trump administration joined the case in February with an amicus brief arguing those rulings should be overturned, then in March requested and won approval for 10 minutes of time during oral arguments to make its case that recognizing patients’ right to sue would invite an avalanche of inappropriate lawsuits.

While the arguments Wednesday centered on states’ obligations under Medicaid, lurking in the background were a series of efforts by President Donald Trump in recent months to try to deny federal funding to health care providers, schools and other institutions because of practices and policies not directly related to their federally funded work, like diversity, equity and inclusion programs or provision of medical care to transgender minors.

And conservatives have many other efforts underway to strip taxpayer support from Planned Parenthood, with organizations and election officials pushing lawsuits, executive actions and legislation targeting the organization's finances.

Indeed, just this week, the Trump administration froze tens of millions of dollars that Planned Parenthood was set to receive for providing contraception, STI testing and other services through the Title X family planning program. Federal officials cited the group’s public statements promoting diversity, equity and inclusion and the services they offer undocumented immigrants as the basis for the funding halt.

Congress is also debating eliminating the rest of the taxpayer funding the organization receives as they put together a reconciliation bill with deep cuts to government spending.