Medina v. Planned Parenthood of South Atlantic: Explainer on the Impact on Medicaid and Sexual and Reproductive Health

The freedom of choice provision in Medicaid

The freedom of choice provision is a federal law [42 U.S.C. 1396a(a)(23] that establishes Medicaid beneficiaries’ rights to obtain services from any health care provider who is qualified to offer those services and is enrolled in the Medicaid program.

Over the last several years, and triggered by misleading videos from anti-abortion zealots, some states have made efforts to remove Planned Parenthood from participating in their Medicaid programs. While federal law already provides that Medicaid cannot pay for abortions under most circumstances, Medicaid must still pay for other reproductive health care services. In fact, Medicaid is the largest public funder of family planning services and supplies and pays for 41% of U.S. births. Sexual and reproductive health care providers, including Planned Parenthood, offer these services and many are enrolled in the Medicaid program.

This Spring, the U.S. Supreme Court will hear Medina v. Planned Parenthood of South Atlantic. It will decide whether the freedom of choice provision can be enforced by Medicaid beneficiaries. This decision comes after the Fourth Circuit Court of Appeals has repeatedly rejected the State of South Carolina’s efforts to terminate Planned Parenthood from its Medicaid program. The Fourth Circuit, along with most other federal courts, has held Medicaid beneficiaries can enforce the freedom of choice provision. The Alliance Defending Freedom is representing the State.

The right to sue under Medicaid

A person or entity harmed by a violation of the law does not necessarily have the right to sue. There must be a law that authorizes them to go to court, known as a “private right of action” (as opposed to an action by the federal government to enforce). The right to sue can be set forth in the law itself. The Medicaid Act does not do this. For this reason, Medicaid beneficiaries have relied on a civil rights era statute [42 U.S.C. §1983; hereinafter § 1983] that gives individuals the right to sue if a state actor is violating their rights “secured by the Constitution and laws.” The Medicaid Act is such a law.

The Supreme Court takes a very restrictive view on when an individual can enforce a federal law. In the 1997 case Blessing v. Freestone, the Supreme Court developed the following criteria to determine the statutory rights secured by § 1983: (1) Was the law intended to benefit the plaintiff? (2) Does the law establish clear requirements for the court to enforce? (3) Is the law mandatory on the state?

In 2002, the Supreme Court in Gonzaga University v. Doe clarified that Congress must have unambiguously indicated its intent that individuals are authorized the enforce the law. This involves looking at the wording of the provision in question and determining, for example, whether it is focused on establishing individual rights or whether it is speaking about general policies of a state agency. In 2023, the Supreme Court (Health and Hospital Corporation of Marion County v. Talevski) affirmed that, to be able to enforce a statute, the individual must clear a high bar; however, it overwhelmingly ruled for a plaintiff seeking to enforce provisions of 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 courts’ track record shows a common understanding of the enforcement test, as disagreements among them are quite rare. The only significant disagreement involves the free choice of provider 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 8^th Circuit, Planned Parenthood of Greater Texas Family Planning v. Kauffman in the 5^th Circuit).

Issues potentially at play:

1. Is there a private right of action under §1983?  [Which was recently confirmed by the Supreme Court in the Talevski case, mentioned above]
2. If so, can the freedom of choice provision be enforced by Medicaid beneficiaries?
3. 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.