The case arises from South Carolina's attempt to exclude Planned Parenthood clinics from the state's Medicaid program. In Medina, the plaintiffs—Planned Parenthood and the Medicaid beneficiary who sought care from Planned Parenthood—argue that Medicaid beneficiaries have the right to sue and enforce the "free-choice-of-provider" provision in federal court. The Trump Administration has taken the side of South Carolina, arguing Medicaid beneficiaries should not be permitted to bring a private action to enforce this provision. While this case has significant implications for access to family planning services and reproductive medicine, the case potentially has broader implications regarding a beneficiary's ability to challenge any violation by a state of a requirement of the Medicaid program in federal court. A decision by the Court is expected at the end of June.
Medicaid's 'Free-Choice-of-Provider'
Provision
In the early years of the Medicaid program, "Congress grew
concerned that states might deny recipients the opportunity to
choose the provider of their choice."2 In 1967,
Congress added the Medicaid "free-choice-of-provider"
provision to the Act to (1) protect against a situation in which
the government could unilaterally select a healthcare provider for
a patient, and (2) protect the ability of qualified providers to
participate in Medicaid.3 The
"free-choice-of-provider" provision dictates that a state
Medicaid plan must provide that "any individual eligible for
medical assistance . . . may obtain such assistance from any
institution, agency, community pharmacy, or person, qualified to
perform the service or services required . . . who undertakes to
provide him such services" (see § 1902(a)(23)(A)
of the Act). Under this statute, Medicaid beneficiaries can
independently choose a trusted, participating provider for their
health needs—for example, family planning—and cannot be
forced to see a provider selected by the government.
Procedural History
In 2018, South Carolina Governor Henry McMaster issued an
executive order (E.O.) that directed the state's Department of
Health and Human Services to prohibit any clinic that offers
abortion services from participating in the state's Medicaid
program. The E.O. explained that state funds used to reimburse
providers could indirectly subsidize abortions in South Carolina
(noting that federal law already prohibits use of federal funding
for most abortions). McMaster stated money is fungible; therefore,
the use of Medicaid funds by abortion clinics effectively
"...results in the subsidy of abortion and the denial of the
right to life." Planned Parenthood was impacted by the E.O.,
given that it offers abortion services in South Carolina
(presently, South Carolina prohibits most abortions after six weeks
of pregnancy, with some exceptions).
In response, Planned Parenthood filed a complaint with the U.S. District Court for the District of South Carolina, arguing the E.O. violated the Medicaid law's "free-choice-of-provider" provision, under § 1902(a)(23). Planned Parenthood argued this provision allows any Medicaid beneficiary to seek healthcare services from any "qualified" provider. The District Court granted a declaratory judgment in favor of Planned Parenthood and held South Carolina's decision to terminate Planned Parenthood from Medicaid violates the Medicaid law. On appeal, the U.S. Court of Appeals for the Fourth Circuit affirmed the judgment of the District Court, agreeing with Planned Parenthood that § 1902(a)(23) of the Medicaid statute creates individual rights that can be privately enforced under federal civil rights laws and prohibits South Carolina from excluding Planned Parenthood from its Medicaid program.4 Subsequently, South Carolina—which is represented by the Alliance Defending Freedom (ADF)—appealed to the U.S. Supreme Court, asking the Court to conclude that Planned Parenthood and affected Medicaid beneficiaries do not have a legal right to sue to enforce the Medicaid law's "free-choice-of-provider" provision. The Court granted certiorari in December 2024.
Legal Issues in Medina
The Supreme Court has previously established a three-prong test to
determine if a statutory provision creates a privately enforceable
right: (1) the plaintiff is the intended beneficiary of the
statute; (2) the provision is specific enough to allow for
enforcement; and (3) the statute imposes a binding obligation on
the state. The Court most recently applied this test in the context
of a federal healthcare program in June 2023 when it issued its
opinion in Health and Hospital Corp of Marion County v.
Talevski. There, the Court applied these standards to
determine whether the Federal Nursing Home Reform Act (FNHRA)
secures rights for private enforcement purposes. In
Talevski, the Court asked whether the statute at issue
"unambiguously confer[ed] 'individual rights upon a class
of beneficiaries' to which the plaintiff belongs;" then
the Court asked whether Congress precluded individual enforcement
of the right. The Court ultimately concluded that the FNHRA
provisions at issue unambiguously create enforceable rights and
there is no discernable "incompatibility between private
enforcement . . . and the remedial scheme that Congress
devised" for the statute.
In Medina, the issue before Court is whether a Medicaid beneficiary can seek care from any qualified provider and bring a private right of action in federal court if they have been deprived of that right by a state Medicaid plan. South Carolina contends that the Act's "free-choice-of-provider" provision only states that "an individual eligible for medical assistance" "may obtain" medical assistance from a "qualified" provider; thus, the "free-choice-of-provider" provision confers a benefit and not a "right."
Planned Parenthood contends that the "any qualified provider" provision in the Medicaid law passes the test referenced in Talevski because the Medicaid law's "free-choice-of-provider" provision contains the kind of "individual-focused, rights-creating language necessary to confer an individual right" by explicitly referring to "individuals" and directing states to allow Medicaid beneficiaries to seek care from any qualified provider. For that reason, Planned Parenthood argues Congress did not merely offer Medicaid patients a benefit, but instead recognized "an intensely personal right" that is "fundamental to patients' autonomy and dignity." Further, Planned Parenthood contends it does not matter that the "free-choice-of-provider" provision does not specifically use the word "rights," as the Court "has repeatedly rejected a magic-words requirement."
Summary of Arguments: Does Congress Have to Say the
'Magic Word?'
During the approximately 90 minutes of oral arguments, the Court
grappled with the question of whether the
"free-choice-of-provider" provision must include specific
"magic words" to signal that Congress intended to create
a private right to enforce it.
Justices Clarence Thomas and Brett Kavanaugh seemed receptive to South Carolina's position. Justice Thomas asked John Bursch, an ADF attorney representing South Carolina, whether the word "right" is "absolutely necessary in order to determine whether or not a right has been created" under the "any qualified provider" provision. In response, Bursch answered that "right" is the best word for Congress to use if it wants to be clear, but there are functionally equivalent words that can also create a right. Justice Kavanaugh seemed receptive to the position that laws should use specific words to create privately enforceable rights; he stated how, throughout a "45-year odyssey," the Court "failed to give guidance...that lower courts can follow, that states, providers, and beneficiaries can follow," and his goal is to provide clarity to this issue. Justice Kavanaugh, therefore, is not "allergic" to magic words because such words can provide much-needed clarity—and avoid the need for litigation.
Similarly, Justices Neil Gorsuch and Samuel Alito appeared to side with South Carolina. Along the lines of South Carolina's reasoning, Justice Gorsuch stated that Congress can "...say an individual should be entitled to these benefits but not want to create a right of enforcement." Also appearing to be receptive to South Carolina's line of reasoning, Justice Alito was skeptical of Planned Parenthood's position that the Court should find that a law enacted pursuant to Congress' Spending Clause power creates a privately enforceable right. Specifically, he stated, "...all sorts of provisions could give rise to" liability if a federal civil rights complaint can arise "whenever Congress uses the word 'individual.'" Justice Alito further stated Congress may very well have had in mind that South Carolina must provide Medicaid beneficiaries with the ability to choose the qualified provider of their choice, but that it does not follow that there is an avenue that allows Medicaid beneficiaries to file a complaint in federal court when South Carolina fails to do so.
On the other side, the Court's block of Justices appointed by Democratic presidents seemed primed to support Planned Parenthood's position. Justices Sonia Sotomayor and Elena Kagan suggested the "free-choice-of-provider" provision confers a private right upon a Medicaid beneficiary to choose a specific provider, thereby enabling a Medicaid beneficiary who has been deprived of that right by a state Medicaid plan to challenge that denial in federal court. In response to Bursch's position, Justice Sotomayor said, "you're not quite calling it a magic word, but you're coming very close." Justice Sotomayor further stated that it seems difficult to comprehend that states did not understand Congress' intent for states to give individuals, such as Medicaid beneficiaries, the right to choose a provider.
In line with Justice Sotomayor's apparent position, Justice Kagan said that every state Medicaid program is aware of its obligation to ensure that individual beneficiaries have a right to choose their providers. She further stated she does not know how to say South Carolina has an obligation to ensure a Medicaid beneficiary has a right to choose a specific provider without using the word "right." Specifically, Justice Kagan stated, "it's impossible to even say the thing without using the word 'right.'" Justice Kagan also remarked how imposing a "magic words" requirement would change Congress' statutory intent. She stated that Congress enacted the Medicaid law decades ago, and—while it may be useful for future lawmaking if the Court instructs Congress to use specific words to confer rights—this would not be "a fair way to interpret statutes that Congress passed many years ago."
Chief Justice John Roberts and Justice Amy Coney Barrett are likely to be the deciding votes in this case and at times appeared supportive of Planned Parenthood's position. Their lines of questioning suggested they felt concerned that, should South Carolina prevail, Medicaid beneficiaries would not have an avenue to challenge in federal court a state's denial of their right to choose a specific provider. Specifically, Chief Justice Roberts noted that one of the benefits of the Act is that Medicaid beneficiaries can seek care from any qualified provider. Afterward, he asked Bursch, "[i]f the person thinks that's not being provided, what remedies do they have?" In line with Chief Justice Roberts' questioning, Justice Barrett asked, "[t]here's no mechanism, am I right, for the beneficiary to say 'well, you're depriving me of my ability,' I won't call it 'right' and use the loaded word, 'of my ability to see the provider of my choice?'"
Conclusion
Medina has the potential to significantly alter the
operation of the Medicaid program because it poses the question of
whether a Medicaid beneficiary or a provider treating Medicaid
patients has the ability to challenge a state's failure to
comply with any of the program's requirements. If the Court
rules in favor of South Carolina, it could foreclose the ability of
a beneficiary or provider to seek redress in the federal courts
when a state ignores any of the law's requirements.
We will continue to monitor this case and provide an update when the Court issues its opinion, likely in June 2025.
Footnotes
1. 42 U.S.C. §1396a(a)(23).
2. Planned Parenthood S. Atl. v. Kerr, 27 F. 4th 945, 949 (4th Cir. 2022) (citing President's Proposals for Revision in the Social Security System: Hearing on H.R. 5710 before the H. Comm. on Ways & Means, Part 4, 90th Cong. 2273 (1967)).
3. Pub. L. 90-248, § 227, 81 Stat. 821, 903-04 (1968). See President's Proposals for Revision in the Social Security System: Hearing on H.R. 5710 before the H. Comm. on Ways and Means, 90th Cong. 2273, 2301 (1967) (House Hearings).
4. Other courts of appeal have ruled similarly to the Fourth Circuit, although the Eighth Circuit ruled that § 1902(a)(23)(A) is not privately enforceable in the federal court, see Doe v. Gillespie, 867 F.3d 1034 (8th Cir. 2017).
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