UPDATE, December 10, 10:15 a.m.: The Supreme Court on Monday refused to take up the cases. Supreme Court Justice Clarence Thomas, joined by Justices Neil Gorsuch and Samuel Alito dissented, claiming that the Court hadn’t taken the cases simply because they involved Planned Parenthood.
In the summer of 2015, a then-unknown anti-choice activist named David Daleiden and his advocacy front group the Center for Medical Progress released a series of heavily edited videos that purported to show Planned Parenthood doctors and staff detailing how they sold fetal tissue in violation of federal law. The videos would launch multiple congressional investigations, all of which would fail to turn up any evidence of wrongdoing by the organization. But that didn’t matter to conservative state lawmakers who pounced at the opportunity to kick the reproductive health provider out of their Medicaid programs, effectively gutting access to care for thousands of people.
Federal courts largely thwarted those efforts, ruling Planned Parenthood could continue receiving Medicaid dollars. That hasn’t stopped anti-choice advocates, though; they’ve asked the Supreme Court to step in and overturn two of those decisions. And those cases—which the Court has conferenced on three times but hasn’t yet decided if it will take—are actually about a lot more than Planned Parenthood. If conservatives get their way, they could be the vehicle for cutting off an individual’s right to sue for Medicaid benefits almost entirely.
At issue in the cases is what is known in the law as a private right of action. Broadly speaking, a private right of action is when someone other than the state is able to enforce rights under a statute. They enforce those rights through a civil lawsuit, or “action.” Private rights of action can be either be express or implied. Express private rights of action exist when the statute itself specifically states that either private parties or the state can sue to enforce the law. Title VII of the Civil Rights Act of 1964, the federal law that prohibits employment discrimination on the basis of race, sex, religion, color, national origin, and other factors, is a good example. Individuals who have been subjected to employment discrimination can either bring their own lawsuit to enforce their Title VII rights, or the Equal Employment Opportunity Commission (EEOC) can bring a lawsuit on that individual’s behalf.
Roe is gone. The chaos is just beginning.
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Implied private rights actions are a little different. Implied private rights of action exist when the courts, not lawmakers, have determined that a private individual can sue to enforce a statute even though that statute doesn’t specifically say they can. Courts find private rights of action when a statute, like the Medicaid statute in U.S. law, confers sufficient benefits to justify allowing an individual to sue to enforce it on their own behalf.
Nowhere in the Medicaid statute itself does it explicitly say a beneficiary like Planned Parenthood or even an individual enrolled in a state’s Medicaid program can sue to enforce provisions of the statute, such as reimbursement rates or eligibility determinations. But over time, courts have consistently ruled that a private right of action to enforce the statute exists—and found other federal statutes, such as 42 USC 1983—provide private parties the means to enforce Medicaid rights.
Enter: the fight to defund Planned Parenthood lurking at the Supreme Court.
Both Kansas and Louisiana moved quickly to try and strip Planned Parenthood of Medicaid funding once Daleiden released his videos. Though each state used slightly different methods, their goal was the same: to run the reproductive health-care provider out of their state.
Their efforts failed. In both cases, trial courts and the Tenth and Fifth Circuit Courts of Appeals unequivocally held that Planned Parenthood and individual Medicaid recipients could challenge the efforts to remove Planned Parenthood from the Medicaid programs under a private right of action. They also held that Planned Parenthood had shown it would likely be successful in its claims that the states had unlawfully terminated their Medicaid contracts.
Both Kansas and Louisiana appealed those decisions to the Supreme Court. And in the interim, one federal court of appeals, the ultra-conservative Eighth Circuit, ruled Arkansas could move forward with its plan to cut Planned Parenthood from Medicaid funding. That lawsuit is ongoing.
With every circuit court of appeals but one in agreement that private entities like health-care providers or Medicaid recipients can sue over changes in Medicaid coverage, this case should be a long shot before the Supreme Court. Indeed, the Supreme Court has rejected similar challenges twice before, once in 2013 with a case out of Indiana and again in 2014 in a case out of Arizona.
But they have yet to reject these cases, and that should give us pause for several reasons. First, it is a different Court now than it was in either 2013 and 2014. In addition to Justice Brett Kavanaugh replacing Justice Anthony Kennedy, the Court has also acquired Justice Neil Gorsuch. While on the U.S. Court of Appeals for the Tenth Circuit, Gorsuch had a Planned Parenthood funding fight land before him and his fellow judges. Utah had also seized on the Daleiden videos and sought to use them to cut Planned Parenthood out of some of its Medicaid programming. Like the other circuits, a panel of judges on the Tenth Circuit Court of Appeals ruled Utah couldn’t strip Planned Parenthood’s Medicaid funding. Utah asked the full panel of judges on the Tenth Circuit to consider their case and they declined. Except Judge Gorsuch. He wanted Utah to have another bite at the apple.
Second, in 2015, the Court decided a totally unrelated Medicaid case, Armstrong v. Exceptional Child Care Center. The plaintiffs in that case argued that the State of Idaho’s Medicaid reimbursement scheme, which capped certain reimbursement rates at their 2006 levels, was inadequate to assure equal access to care for Medicaid beneficiaries. Because that plan was inadequate, the plaintiffs argued, it violated the Medicaid Act and was thus pre-empted by the Supremacy Clause of the Constitution, which gives preference to federal laws when a state law is in conflict.
Writing for the 5-4 majority, Justice Antonin Scalia rejected the plaintiffs’ arguments and held that whether or not a state’s implementation of its Medicaid plan is inconsistent with federal law like the plaintiffs claimed, it was not subject to review through a private right of action under the Supremacy Clause.
The decision did not go so far as to hold that Medicaid Act provided no private right of action, but it came close—which is why the Planned Parenthood cases currently under consideration by the Court are so dangerous. These cases use the outrage ginned up around the Planned Parenthood and the “baby parts” videos specifically, and conservative bloodlust to defund the entity generally, as a way to tee up what could be a death knell to enforcing Medicaid plans. Should the states succeed here, much more than Planned Parenthood funding is at risk. If Medicaid private rights of actions are eliminated, then it is up to states to police Medicaid compliance: a potential disaster for the program when anti-Medicaid conservatives hold captive both statehouses and the federal government.
We are watching this play out real time with efforts by conservative lawmakers to enforce work requirements as a condition for receiving Medicaid benefits, for example. Though the states must report changes to be approved by the federal government, we know what is likely to happen under the Trump administration. If a Medicaid private right of action gets eliminated, then states like Kentucky could move forward with radical changes to their Medicaid programs and beneficiaries could do absolutely nothing about it if the federal government was on board—as it inevitably will be.
This leads to the larger point: Efforts to defund Planned Parenthood are always inextricably linked to conservative attacks on health care writ large. Republicans still have not successfully repealed the Affordable Care Act, and their only means of dealing with the wildly successful Medicaid expansion under it is to attack it piecemeal in the courts and through state schemes. And while the federal courts have so far largely pushed back at conservative efforts to roll back Medicaid benefits, under Trump the courts have taken a sharp right turn—which places those federal judicial firewalls for Medicaid beneficiaries at risk. In fact, we have an example of what happens when a federal government hostile to comprehensive reproductive health care is supported by an equally hostile federal judiciary: policies like the Hyde Amendment get declared constitutional.
There is no deadline for the Supreme Court to decide whether or not it will step into this latest fight over Medicaid funding for Planned Parenthood. With similar litigation pending in appellate courts across the country, it would be reasonable for the Court to wait for those cases to work themselves out before coming to a decision.
But there’s no also requirement they wait on those cases either, which leaves this decision whether or not to grant certiorari here as much up to the whims of the justices than whether there’s any real legal dispute for the Court to solve. And with Gorsuch and Kavanaugh now on the Court, there’s every reason to think the conservative wing would pounce at the opportunity to use Planned Parenthood as a cudgel to upend private Medicaid enforcement rights entirely.