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The Supreme Court weighed arguments Wednesday over whether Medicaid recipients in South Carolina can use their benefits at Planned Parenthood.
The dispute before the justices involves South Carolina’s 2018 move to eliminate Medicaid dollars from going to abortion clinics.
Planned Parenthood South Atlantic, with offices in North Carolina, South Carolina, Virginia and West Virginia, along with a Medicaid client, challenged the state’s decision under the Medicaid Act. They said the law gives Medicaid recipients the ability to choose their provider.
A lower court sided with Planned Parenthood, the nation’s largest abortion provider.
Under the Medicaid Act, the provision at issue said plans must allow “any individual eligible for medical assistance” to obtain “assistance from any [provider] qualified to perform the service … who undertakes to provide,” according to court papers.
South Carolina argues that the state secretary has discretion to decide who is a qualified provider since that’s not defined in the Medicaid Act.
John Bursch, senior counsel at Alliance Defending Freedom, defended South Carolina’s Health and Human Services Director Eunice Medina in the legal battle. He told the justices on Tuesday that the law doesn’t create a right to choose any provider.
“If the statute said ‘right,’ it would put the state on notice,” he said. “It is the difference between a benefit and a right.”
Some of the Democratic-appointed justices took issue with that position.
Justice Elena Kagan struggled with describing the statute during the arguments without using the word “right.”
“The state has an obligation to provide this particular thing, which is the state has an obligation to ensure that a person — I don’t even know how to say this without saying ‘right’ — has a right to choose their doctor. That is what this provision is. It is impossible to even say the thing without using the word ‘right,’” she said.
Justice Ketanji Brown Jackson said Congress enacted the provision for Medicaid recipients to choose a qualified provider because some states were trying to steer Medicaid beneficiaries to and from certain physicians, saying South Carolina’s position is “inconsistent” with the reason for the statute.
Justice Sonia Sotomayor agreed, saying, “It seems a little bit odd to think that a problem that motivated Congress to pass this provision was that states were limiting the choices people have.”
Several states have tried to divert tax dollars away from Planned Parenthood through the Medicaid Act, but lower courts have ruled differently on the issue. Two appeals courts have sided with the states, while five have sided with Planned Parenthood.
A win for South Carolina in this pending legal battle would clear a path for states to finally move to defund Planned Parenthood.
Justice Brett M. Kavanaugh said the high court has failed to give lower courts clarity on what the states, providers and beneficiaries should follow.
“We are here, obviously, because of the confusion in the lower courts,” he said. “It is not the fault of any one judge. … One of my goals coming out of this will be to provide that clarity.”
Nicole Saharsky, the lawyer representing Planned Parenthood South Atlantic, urged the court to hold that the statute creates people’s right to choose their own doctor.
“It is mandatory. The state must do it,” she said. “It is the individual’s right. It is not the provider’s right.”
Meanwhile, Kyle Hawkins, counselor to the U.S. Solicitor General, sided with South Carolina, telling the court the text of the law “does not create a private right.”
“This is a run-of-the-mill Spending Clause statute,” he said.
More than 72 million people are enrolled in Medicaid, according to court records.
The case is Medina v. Planned Parenthood South Atlantic. A decision is expected by the end of June.
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