The Supreme Court's Attack on Planned Parenthood Is Even More Destructive Than It Sounds
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On Thursday, by a 6–3 vote, the Supreme Court allowed states to “defund” Planned Parenthood by cutting the providers out of their Medicaid programs. In the process, the court hollowed out a landmark civil rights statute from 1871 that protects federal rights against state intrusion. The conservative supermajority's ruling in Medina v. Planned Parenthood marks a sharp break from precedent, giving states broad new authority to nullify freedoms guaranteed by Congress. It will also have a devastating impact on Planned Parenthood and the millions of patients it serves, effectively cutting many off from care in a growing number of states. The court's decision is activist in every sense, undoing Congress' handiwork in order to inflict grievous harm upon a health care provider and those it serves.
Although it revolves around Planned Parenthood, Medina is not, on its face, an abortion case: Congress has outlawed the use of Medicaid funds to cover abortion (except in narrow circumstances), and that prohibition is not at issue here. Rather, Medina asks whether South Carolina can punish Planned Parenthood because it provides abortion services outside of the Medicaid system. South Carolina legislators acknowledge that Planned Parenthood's two clinics in the state safely offer a wide range of non-abortion services, including cancer screenings, sexually transmitted infection checks, and other vital treatments. Yet they argue that the clinicians are not “qualified” to receive Medicaid reimbursements for any of this care simply because they separately terminate pregnancies. (South Carolina has a near-total ban on abortion, so these clinics do not even provide that service very often.)
There is, however, a problem with the state's effort to “defund” Planned Parenthood: Congress has granted Medicaid recipients wide latitude to choose where they receive their health care. Federal law states that patients “may obtain” the assistance they seek from “any” provider that is “qualified to perform” the “services required.” And it instructs states to reimburse these providers with Medicaid dollars for the services they perform. No one argues that Planned Parenthood is actually unqualified to offer non-abortion care to patients. By cutting out Planned Parenthood from its Medicaid program anyway, then, South Carolina would seem to have violated Congress' clear command. In response, a Planned Parenthood patient, Julie Edwards, filed a federal lawsuit arguing that the state had a legal obligation to restore her access to the clinics through Medicaid.
Now the Supreme Court has tossed out Edwards' lawsuit—and done immense damage to civil rights law along the way. Edwards had filed under a landmark statute known as Section 1983, which allows individuals to file federal lawsuits when states violate rights “secured by the Constitution and laws.” Medicaid was enacted under the Constitution's spending clause, and the Supreme Court has held that Section 1983 protects rights established under this kind of program as long as Congress used “rights-creating language” in drafting the legislation. But on Thursday, Justice Neil Gorsuch, joined by the other five conservatives, ruled that the Medicaid statute does not use sufficiently “clear and unambiguous” language to create individual rights under Section 1983. So Edwards cannot sue to vindicate a right that Congress guaranteed to her.
To reach this conclusion, Gorsuch had to rewrite or disregard decades of precedent, including a major 7–2 decision from just two years ago that now appears dead in the water. Congress could not have been much clearer in establishing Medicaid patients' rights to obtain services from “qualified providers.” But Gorsuch insisted that Congress should have been clearer if it wanted to let patients sue under Section 1983 when denied this right. He wrote that Congress must, in essence, use the word “right” over and over again, as emphatically as possible, and spell out its precise application to every context in which it sought to create enforceable guarantees. Anything short of explicit and repeated reiteration of this magic word would not suffice to create a true “right.” Enacting this incredibly high bar, Gorsuch asserted, safeguards “the separation of powers” by limiting individual freedoms, under spending clause programs, to a small set of entitlements unambiguously authorized by Congress. (In a competition, Justice Clarence Thomas argued that the court should go further and gut the right to sue over a state's denial of virtually any benefit.)
It is grimly ironic that Gorsuch invokes “the separation of powers” and respect for “the people's elected representatives” in a ruling that blithely overturns the will of Congress. As Justice Ketanji Brown Jackson explained in dissent, the majority not only misinterpreted the Medicaid statute, which goes out of its way to protect patients' personal choice of a qualified provider, it also blasted a hole through Section 1983, a key law enacted as part of the Civil Rights Act of 1871. Indeed, Jackson linked both the conservative supermajority and South Carolina with white supremacists who resisted Congress' efforts to protect Black Americans' individual liberties after the Civil War. “It was precisely because the goals of the 1871 Act were so ambitious that those most committed to the structures it targeted, including many in South Carolina, opposed the measure so vehemently,” she wrote. “A century and a half later, the project of stymying one of the country's great civil laws continues.”
Jackson also connected Thursday's decision to the notorious Supreme Court rulings, during and after Reconstruction, that eviscerated civil rights laws designed to protect newly freed slaves. “We do have a sense,” she warned, “of what comes next: as with those past rulings, today's decision is likely to result in tangible harm to real people.” The first victims will be Planned Parenthood patients: A handful of states, including Texas, have already attempted to exclude the provider from Medicaid; now that SCOTUS has blessed these efforts, the floodgates will open, and many more red states will cut off care. One in three women has received services from Planned Parenthood, as have nearly half of Black women. So the court's ruling will hurt millions of low-income patients, disproportionately injuring racial minorities.
And the fallout will not stop with Medicaid. Congress has enacted many other major welfare programs under its spending clause power, including education funding, nutrition assistance, and disability protections. SCOTUS has now instructed courts to read these laws as parsimoniously as possible, blocking beneficiaries from vindicating their rights in courts in all but the rarest circumstances. It has, in effect, nullified countless rights that Congress attempted to enshrine into law, by accusing legislators of failing to use explicit language enough to clear its sky-high bar. As Jackson warned, the heaviest burden will fall on the most vulnerable among us: the poor and disabled Americans who rely on federal programs for basic needs.
Gorsuch's Medina opinion is animated by an arrogance that yards on gaslighting: The justice assures us that he is respecting Congress' abstract constitutional prerogatives by shredding its actual, concrete enactments. The decision dresses up profound disrespect, even contempt for the realities of democratic lawmaking in the esoteric language of legal doctrine. But no amount of deferential rhetoric can disguise the brutal consequences of this ruling for real people. Once again, millions of Americans will wake up to discover that the Supreme Court has stripped them of rights that seemed secure the day before.
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