Legal Docket: Patients, tax dollars, and Planned Parenthood

MARY REICHARD, HOST: It’s The World and Everything in It for this 7th day of April, 2025. We’re so glad you’ve joined us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Time now for Legal Docket.

For a case that was not fundamentally about abortion there was an awful lot of talk about it.

MCMASTER: If the people of South Carolina had thought for a moment that our tax money…

South Carolina Governor Henry McMaster, whose executive order touched off the case:

MCMASTER: Would've been spent to support abortions in our state, I don't think that law would've ever passed

CHOIMORROW: (Chanting) We won’t go back !

REICHARD: Outside the Supreme Court, pro-lifers gathered on one side, pro-abortion activists on the other. A singing of the Star Spangled Banner amid chants of “we won’t go back.”

CHOIMORROW: That’s right, everyone, we’re not going back …

Activist Sung-Yeon Choimorrow is a teaching elder in the Presbyterian Church USA. She explained her faith is not at odds with Planned Parenthood, but rather harmonious with it.

CHOIMORROW: I stand here today because of my faith, because of how I was raised, educated at, of all places, Wheaton College, Illinois, because my faith is not about controlling people.

Abortionist Taylor Walker told her story of being raised in a pro-life environment in the South, but said Planned Parenthood, her words, "gave her her life back" when she found herself pregnant.

WALKER: The day after my abortion I decided to fight like [expletive] to protect abortion and so that none of my patients would have to navigate the type of violent, sexist, racist, [expletive] that I did when trying to access essential health care.

For Dr. Walker and the Planned Parenthood supporters outside the court, and for the pro-life side, the issue is taxpayer funding.

WALKER: And now these [expletives] have the audacity to cut Medicaid and Title X funding and stage yet another attack on Planned Parenthood …

The pro-lifers say denying taxpayer dollars is hardly an attack. Gabriella McIntyre is a member of the legal team defending South Carolina’s aid cutoff.

MCINTYRE: The American people should not be forced to fund an activist organization that already receives billions of dollars in direct public funding. So Planned Parenthood does not need Medicaid funding.

As is often the case, the emotions around the dispute overtake the rather technical legal question.

In this case it’s whether the Medicaid Act confers a private right upon a Medicaid beneficiary, meaning the government guaranteeing a patient the right to choose whatever provider she wants.

EICHER: First, a word about the Medicaid program. It’s run jointly by the federal government and the states to cover healthcare for the more than 72 million Americans of low income.

States have the flexibility to run their own Medicaid programs, but they still have to comply with federal law.

That includes a requirement that the states allow patients to receive services from “any qualified provider.”

REICHARD: That three-word phrase —“any qualified provider”—is the issue: Does that phrase mean those receiving Medicaid have the right to sue when a state denies access to the provider of their choice? Even when it’s Planned Parenthood, America’s biggest single abortion provider.

EICHER: Back in 2018, Gov. McMaster of South Carolina issued that executive order, banning abortion providers from the state Medicaid program. Planned Parenthood has two affiliates in the state that were affected.

REICHARD: In response, a Medicaid patient named Julie Edwards joined with Planned Parenthood to sue South Carolina. They argue the state took away her rights as well as broke federal law.

Lower courts agreed, and Gov. McMaster’s order was blocked.

EICHER: So South Carolina appealed.

Petitioner Eunice Medina is the state official responsible for running South Carolina’s Medicaid program. Her lawyer John Bursch argued the words of the law matter. Bursch pointed to a prior case that held that the only way private rights are established is with clear rights-creating language:

BURSCH: Congress did not use clear rights-creating language in the "any qualified provider" provision. That lack should be dispositive.

“Clear rights,” meaning that when Congress writes a law, it must explicitly grant the right to sue. And Bursch pointed to a 2002 Supreme Court ruling that said courts ought not infer a right to sue without that intent clearly, explicitly stated.

On the other side arguing for Planned Parenthood and the Medicaid patient, lawyer Nicole Saharsky said Congress was clear enough:

SAHARSKY: As this case comes to the Court, it is established that South Carolina violated the statute by denying Julie Edwards her choice of a qualified and willing provider. The only question is whether she can do something about it,…..these people aren’t getting rich. You know, they’re just trying to get healthcare here.

REICHARD: After all, Saharsky pointed out, South Carolina admitted Planned Parenthood is medically qualified. It just doesn’t like Planned Parenthood because it does abortions—and that’s merely an ideological preference. But that, she said, is what the phrase “any qualified provider” was meant to prevent.

Justice Neil Gorsuch floated the idea that Congress could respect patient choice without also including the right to sue:

GORSUCH: Congress could hypothetically say an individual should be entitled to these benefits but not want to create a right of enforcement …I mean, that’s imaginable, isn’t it?

SAHARSKY: Congress could write statutes in a lot of different ways….

EICHER: But here, she argued, Congress wrote it in a way to prioritize patient choice.

She hammered on the theme that just like people with private insurance, Medicaid patients also have a say in who treats them.

But Bursch for South Carolina countered:

BURSCH: It's like when I go to Blue Cross and Blue Shield and I don't get to pick any doctor that I want. If I want to go to Johns Hopkins, I can't request a doctor unless they're on the list.

Bursch stuck to the main argument that Medicaid isn’t a civil rights law. It’s a contract between the federal government and the states. And that contract gives no right to patients to sue.

REICHARD: It does give the federal government the right to withhold its funds from the state. That is the proper remedy here, Bursch says.

BURSCH: And the fact that the 12 of us can have such a robust conversation about whether this statute is mandatory or not, whether it's rights-creating or not, demonstrates that the rights-creating language is ambiguous, not clear and explicit. And if there is any ambiguity in this context, the state has to win because it's not being put on notice of when it might be sued. At the end of the day, putting states on clear notice requires explicit rights-creating language, as this Court has said.

Justice Clarence Thomas asked Bursch to clarify what he means by the word “right.”

THOMAS:Do you think “right” is absolutely necessary in order to determine whether or not a right has been created?

BURSCH: I think, if Congress wants to be clear, "right" is the best word, but we would take its functional equivalent. So, for example, "entitlement" or "privilege," other words that are functionally equivalent to ‘right” or of course the traditional “no person shall” like the Fifth Amendment. But this court made clear in Talevski that this is a high bar. It’s atypical.

Talevski … that’s a case that came up a lot. It’s a 2023 decision in which the court said a resident of a nursing home could sue under a different federal law.

Planned Parenthood used that ruling to bolster its argument, but Bursch distinguished that case: The language in the relevant law there was clear about the ability to sue.

EICHER: The division on the bench was obvious. Justice Sonia Sotomayor challenged Bursch for South Carolina on his insistence on certain words:

SOTOMAYOR: You’re not quite calling it a magic word, but you’re coming very close…. 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 had. …. It seems hard to understand that states didn't understand that they had to give individuals the right to choose a provider.

BURSCH: Justice Sotomayor, certainly, a state would understand it has to provide a benefit, but absent clear rights-creating language, it wouldn't know that it had to honor a right.

Justice Elena Kagan aligned with Justice Sotomayor:

KAGAN: I don’t even know how to say this line without saying “right.” “Has a right to choose their doctor.” That's what this provision is. It's impossible to even say the thing without using the word "right." Has a benefit to choose their doctor? The state has to ensure that individuals have a benefit to choose their doctor? The state has to ensure that individuals have a right to choose their doctor. That’s what this provision is.

Bursch disputed that. He said Justice Kagan places too much weight on the phrase “may obtain.” He said that phrase simply does not create a clear right to sue.

REICHARD: Justice Amy Coney Barrett got practical:

BARRETT: If I want to go see Dr. Jones and that’s the provider of my choice and the state has disqualified Dr. Jones … there’s no mechanism, am I right, for the beneficiary to say: ‘Well, you’re depriving me of my ability’ – we won’t call it 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.

BURSCH: Well, in a sense, what -- what all that means is that 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 and then they must be qualified under Medicaid. This is getting a little bit more into the question of what's qualified. But that's not the right.

Justice Brett Kavanaugh seemed frustrated:

KAVANAUGH: We're here, obviously, because of the confusion in the lower courts, which has been -- we're on kind of a 45-year odyssey.

BURSCH: Yes.

KAVANAUGH: And it's not the fault of any one judge, but, collectively, 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.

….maybe putting together some list of terms that do create rights would work?

KAVANAUGH: So don't you think it would be better to actually tell us the words that are rights-creating rather than having something like "or its functional equivalent," which could be another decade of litigation?

BURSCH: Yeah, that's certainly possible because you'd have to keep that to a pretty small class. I wouldn't be able to really do any better than Justice Alito's partial concurrence in Talevski, where he describes it as explicit rights-creating language. And the list I would give you is "rights," "entitlement," "privilege," and "immunities."

KAVANAUGH: And that’s it?

BURSCH: You could define it as that universe.

A win for Planned Parenthood will keep its two facilities in South Carolina open for Medicaid business. If South Carolina wins, it’ll encourage other states to also bar Planned Parenthood from its Medicaid programs.

The states of Missouri, Mississippi, Texas, and Arkansas already do. Each of those states has also been sued with varying outcomes. This case out of South Carolina is the one that reached the Supreme Court.

EICHER: Finally, two opinions to report from last week.

First, Medical Marijuana v Horn. Douglas Horn was fired from his job after testing positive for the active ingredient in marijuana, THC. He says he didn’t intend to take it … and that he’d consumed a CBD product he thought contained no THC. So he sued the manufacturer for misleading him. He sued under a federal law that’s aimed at fighting organized crime—the RICO Act … It stands for racketeer-influenced and corrupt organizations act.

The question is whether a person can sue under RICO for losses that arise from a personal injury. By 5-to-4 the court said, yes, Horn can sue—because he claimed a loss of “business or property,” the language RICO uses.

REICHARD: And finally a unanimous opinion in FDA v Wages and White Lion Investments. This dealt with flavored e-cigarettes. Vape manufacturers challenged the FDA’s decision to deny them approval to sell vapes that appeal to kids, with fruit or candy flavors.

The justices say the FDA acted within its authority, sending part of the case back for further review.

And that’s this week’s Legal Docket!

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