After more than 90 minutes of arguments, it sounded like Justices Amy Coney Barrett, John Roberts, and maybe Brett Kavanaugh could side with the three liberal appointees in favor of Planned Parenthood South Atlantic on this very technical issue of whether Medicaid patients can sue states. If they do rule that way, it does not mean they’re protecting abortion or birth control—but those three justices would probably love such headlines. (A ruling isn’t expected until late June.)
The possibility of this court siding against an anti-abortion plaintiff may sound surprising, but it would be consistent with a 2023 decision called Health and Hospital Corporation v. Talevski that said Medicaid patients can file lawsuits to enforce their rights. What was even more strange was the fact that Justices Samuel Alito and Clarence Thomas, the court’s two biggest abortion haters, were mighty quiet today, and we have some theories about why.
But first, the arguments. John Bursch of the far-right Alliance Defending Freedom argued on behalf of South Carolina that Medicaid patients can’t sue the state because they don’t have a right to choose any qualified provider. He claims this is because the specific word “right” doesn’t appear in that portion of the Medicaid Act. In South Carolina’s opinion, the state chooses providers who are qualified, patients pick from that list, and they can’t sue over someone being taken off that list.
Bursch also argued that Medicaid patients could sue if a qualified provider denied them services. Justice Sonia Sotomayor pointed out that if a provider can’t offer the desired services to begin with, there is no denial, and the patient can’t sue. It’s a legal catch-22.
Justice Barrett did not like the implications of what Bursch was saying, which is not a great sign for South Carolina. She set up a hypothetical in which a patient wants to continue seeing a Dr. Jones, who the state has disqualified. “There’s no mechanism, am I right, for the beneficiary to say, ‘well, you’re depriving me of my ability—I won’t call it a right, we won’t use the loaded word—but my ability to see the provider of my choice, and nobody’s disputing that Dr. Jones can provide the services in a competent way that I want to have.'”
In response, Bursch implied that patients are being unreasonable. “The beneficiary doesn’t have the ability to whip out a magic wand and then just hit on the head the doctor that they want,” Bursch said, adding, “[South Carolina] decided that Planned Parenthood was unqualified for many reasons, chiefly because they’re the nation’s largest abortion provider.”
When it was PPSAT’s turn at the lectern, lawyer Nicole Saharsky noted that preventing patients from suing essentially allows states to redefine “qualified” however they want. “It’s absolutely wrong under the scheme here to say that the state can just deem any requirement it wants that a provider is unqualified: too many people work at the provider have blue eyes, or they support green energy or whatever else,” she said.
Justice Elena Kagan brought up the real-world impact that a ruling for South Carolina could let states exclude providers from Medicaid because they provide abortion, birth control, or gender-affirming care. “That does not seem like what this statute is all about, is allowing states to do that and then giving individuals no ability to come back and say, ‘that’s wrong.'”
Barrett said some lower court judges were confused about what to do in situations like these because some older precedents remained on the books, even though, in her mind, the older cases were “eclipsed” by Talevski and a 2002 case. Saharsky said, “If the court wants to make it more clear, that seems right.” Roberts chimed in. “We could say it again,” he interjected, “or we could say ‘we meant it when we said it.'” A Justice doubling down on cases that said Medicaid patients can sue states does not sound like a person inclined to side with South Carolina.
So we’re potentially at five votes for PPSAT, and Kavanaugh could maybe be a sixth. “We’re here obviously, because of the confusion in the lower courts,” he said. “This Court has failed to give guidance, obviously, that lower courts can follow, that states, providers and beneficiaries can follow. So one of my goals coming out of this will be to provide that clarity.” But Kavanaugh also seemed open to Bursch’s argument that Medicaid patients can’t sue because the word “right” is not in the law’s section about choice of provider.
That brings us to Alito and Thomas. I was truly expecting them to make aggrieved statements about the abortion connections in this case, and they really only asked questions about the Medicaid statute and who can sue. It was a frankly suspicious display of restraint, and perhaps they know that their colleagues only took this case to reaffirm the 2023 precedent and side with PPSAT.
Another possibility is that they know they’re very likely going to get asked to weigh in on telemedicine abortion shield laws in the near future and would rather save their fire and brimstone for those arguments. Recall that Texas Attorney General Ken Paxton filed a lawsuit against a New York doctor for allegedly prescribing and mailing abortion pills to a Texas woman. New York’s shield law protects the ability of the defendant, Dr. Maggie Carpenter, to prescribe abortion pills across state lines, so a county clerk invoked the law to prevent Texas from enforcing its judgment against her. Separately, a Louisiana jury indicted Carpenter, alleging that she sent abortion pills to a mother, who gave the medication to her teenage daughter. In February, New York Gov. Kathy Hochul (D) refused to extradite Carpenter to Louisiana to stand trial.
Or maybe Alito and Thomas understand that, even if the court sides with PPSAT, the Trump administration can still encourage states to kick Planned Parenthood out of Medicaid and move to disqualify abortion providers from the program nationwide. Those actions would kick off more lawsuits, presumably about a different question of what makes a provider “qualified” to participate in Medicaid.
For now, we get to wait two-plus months to find out what happens with this South Carolina case.
