Medina v. Planned Parenthood of South Atlantic Explainer on Medicaid and Sexual and reproductive health
The freedom of choice in Medicaid
The Freedom of Choice provision is a federal law that
establishes Medicaid beneficiary’s rights to obtain services at any health care provider that is qualified to provide those services and who is enrolled in Medicaid.[42 U.S.C. 1396a(a)(23]Over recent years, and triggered in part by misleading videos made by anti-abortion extremists, some state have taken steps to remove Planned Parenthood as a participant in their Medicaid programs. Medicaid is not allowed to pay for abortions in most cases, but it must pay for other reproductive healthcare services. Medicaid pays for 41% U.S. births and is the largest funder of family planning supplies and services. Planned Parenthood and other sexual and reproductive health care providers offer these services, and many of them are enrolled in Medicaid. The Supreme Court will decide if Medicaid beneficiaries can enforce the freedom of choice provision. This decision comes after the Fourth Circuit Court of Appeals repeatedly rejected the State of South Carolina’s efforts to terminate Planned Parenthood’s Medicaid program. The Fourth Circuit, like most federal courts, has ruled that Medicaid beneficiaries can enforce freedom of choice provisions. The Alliance Defending Freedom represents the State.
The Right to Sue under Medicaid
A harmed person or entity does not always have the right of action. A “private right of actions” must exist, as opposed to a federal enforcement action. The law can express the right to sue. The Medicaid Act doesn’t do this. The Medicaid Act is one such law. Medicaid beneficiaries have relied upon a civil rights-era statute
which gives individuals the right of action if a government actor violates their rights “secured under the Constitution and laws”. In the 1997 case Blessing v. Freestone the Supreme Court developed these criteria to determine SS 1983’s statutory rights: (1) Was the law meant to benefit the plaintiff or defendant? (2) Does the law set forth clear requirements that the court must enforce? (3) Is it mandatory for the state to enforce the law?
In Gonzaga University v. Doe, the Supreme Court clarified in 2002 that Congress had to have clearly stated its intention that individuals could enforce the law. The wording of the provision is important to determine whether it is a statement of individual rights or a general policy of a state agency. In 2023 the Supreme Court (Health and Hospital Corporation of Marion County, v. Talevski), affirmed that an individual must meet a high standard to be able enforce a law. However, it ruled overwhelmingly in favor of a plaintiff who sought to enforce the Medicaid Nursing Home reform Act. Since Gonzaga, federal courts of appeals have evaluated private enforcement in 63 cases involving 31 different Medicaid provisions. The only significant disagreement is the free choice provision. Two very conservative federal circuit courts have refused to allow individuals to enforce the freedom of choice provision to prevent their state from terminating Planned Parenthood clinics from their Medicaid programs (Does v. Gillespie in the 8th Circuit, Planned Parenthood of Greater Texas Family Planning v. Kauffman in the 5th Circuit).[42 U.S.C. §1983; hereinafter § 1983]Issues potentially at play:
Is there a private right of action under SS1983?
If so, can the freedom of choice provision be enforced by Medicaid beneficiaries?
If not, will the Court issue a decision only tied to the freedom of choice provision or will it speak more expansively, thus undermining the approach it has set forth in Talevski and Gonzaga?
The Court is expected to issue its decision by the Summer of 2025.
