SCOTUS Scrutinizes Whether South Carolina Can Defund Planned Parenthood

Planned Parenthood South Atlantic and one of its Medicaid clients challenged Governor Henry McMaster’s 2018 executive order claiming it violated federal law under the Medicaid Act’s “any qualified provider” language. The law’s “any qualified provider” language grants beneficiaries the right to choose their provider from a pool of providers the state has deemed qualified.

Liberty Counsel filed an amicus brief in the case noting the law’s language allows for states to disqualify providers that engage in unethical and illegal practices, in which Planned Parenthood has been credibly implicated in these types of practices.

The Supreme Court is expected to rule no later than the end of June 2025. The decision could either allow states to defund and weaken the abortion industry, or require pro-life states to keep subsidizing abortion access by having to direct Medicaid funds to Planned Parenthood.

The Justices focused their questions largely around whether federal laws need to use certain “magic words” to explicitly acknowledge an individual right, and whether the Medicaid Act’s “any qualified provider” provision gives beneficiaries a mechanism to sue a state when their choice of doctor is denied.

Even though the statute never uses the word “right” in its text, Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson strongly asserted during the oral argument that a person has the “right” to choose their own doctor and interpreted the Medicaid Act as conferring that “right.” Justice Kagan noted that the law has an “unmistakable focus” on obligating states to provide individuals with a mandatory medical benefit through a qualified provider. Justice Jackson also expressed that a “magic words” test would be too narrow in light of this legal obligation states have to individuals.

However, attorney John Bursch, arguing on behalf of South Carolina, countered the three Justices saying that a law conferring a right must use words with a “rights-creating pedigree,” such as “right,” “entitlement,” “privilege,” or “immunity” that explicitly create an individual right.

“Clear rights-creating language is critical to creating private rights,” stated Bursch. “Congress did not use clear rights-creating language in the ‘any qualified provider’ provision.”

Justice Clarence Thomas asked whether the absence of the word “right” is absolutely necessary to determine if a right has been created under this Medicaid provision.

Bursch answered, “If Congress wanted to be clear, ‘right’ is the best word.” Bursch later noted to Justice Kagan, who adamantly held people have the right to see the doctor of their choice, that the provision is “missing the connective tissue” of clear rights-creating language in order to raise the bar from conferring a just medical benefit to creating a full-fledged “right” to choose any provider.

Justice Brett Kavanaugh noted the confusion in the lower courts on this issue, and that his goal in hearing this case is to provide “clarity” moving forward.

“I am not allergic to magic words, because magic words, if they represent the principle, will provide the clarity that will avoid litigation that is a huge waste of resources for states, courts, providers, beneficiaries, and Congress,” stated Justice Kavanaugh.

Bursch later told Justice Kavanaugh that the High Court needs to be clearer than it has been in previous rulings regarding rights-creating language, and that they need to “do it in writing” like when they eliminated the “Lemon Test.”

Regarding whether Medicaid beneficiaries have a right to sue the state for denying them their choice provider, attorney Nicole Saharsky, representing Planned Parenthood, asserted that if a person cannot sue under this statute then the law is “meaningless.” She stated that sometimes Congress explicitly states in provisions that a particular law does not create any new enforceable rights, but did not do so here.

Justice Neil Gorsuch countered stating that would be “a magic words requirement in the other direction.”

Nevertheless, Saharsky argued that South Carolina violated the Medicaid Act for deeming Planned Parenthood unqualified for reasons unrelated to medical qualifications, and therefore, individuals have a right to injunctive relief.

Bursch rebutted this argument by stating that in the spending clause context, in which the Medicaid Act falls, private rights are the exception and not the rule. He stressed that had the statute actually used clear right-creating language, then it would have put all the states “on notice” they could be sued.

“If there is an ambiguity in this context, the state has to win because it is not being put on notice it can be sued,” concluded Bursch.

Liberty Counsel Founder and Chairman Mat Staver said, “States should be permitted to defund abortion. It makes no sense to require states to fund an organization that kills children. Congress did not create a right for individuals to have states pay for their abortions. Taxpayer dollars should never be used to fund abortion or subsidize practices that kill children and harm women.”