At SCOTUS, a state defends the defunding of Planned Parenthood

The U.S. Supreme Court heard oral arguments Wednesday morning in a case that could allow South Carolina to discontinue Medicaid funding to abortion providers such as Planned Parenthood.

Outside the courthouse, demonstrators with the Women’s March stood in the overcast weather holding signs that said, “I will fight for Planned Parenthood” and “STOP PROSECUTING ABORTION.” Pro-lifers held signs saying, “DEFUND PLANNED PARENTHOOD.” Another read, “PLANNED PARENTHOOD PUTS POLITICS OVER PEOPLE.”

The hearing followed weeks of increasing pressure on the abortion business. In February, an article in The New York Times exposed the low-quality services at Planned Parenthood facilities across the country. Pro-life groups’ increasing calls to defund the organization culminated in a rally last week in Washington, D.C., and in pro-life protests at Planned Parenthood locations across the country scheduled to coincide ith today’s Supreme Court arguments.

But the organization’s name, its track record, and the word “abortion”’ barely came up during Wednesday’s hearing. The arguments and the justices’ questions focused on whether a clause in the Medicaid Act gives Medicaid patients the right to sue if a state removes their chosen healthcare provider from the Medicaid program. To pro-lifers on the ground in South Carolina and across the country, the real question is whether Planned Parenthood is qualified to provide that healthcare in the first place.

If the court rules in South Carolina’s favor, it would greenlight other states to remove Planned Parenthood from their own Medicaid programs.

The case started in 2018, when South Carolina Gov. Henry McMaster issued an order directing the state Department of Health and Human Services to exclude abortion facilities from the Medicaid program. He reasoned that the “payment of taxpayer funds to abortion clinics, for any purpose, results in the subsidy of abortion and the denial of the right to life.” The order matched the pro-life priorities of the state in recent history: South Carolina statute currently protects unborn babies from abortion once they have detectable heartbeats.

The regional Planned Parenthood organization sued in federal court along with a South Carolina Medicaid patient who had previously received birth control at one of the two Planned Parenthoods in the state. The parties argued that the governor’s order violated the patient’s inferred right to choose her healthcare provider.

The text of the law in question says, “any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required.” A lower court blocked the governor’s order, resuming Medicaid funding at the abortion facilities. The state appealed to the U.S. Supreme Court, asking whether Planned Parenthood and its patient had a right to sue the state to ensure the patient had access to the provider of her choice.

On Wednesday, John Bursch, a lawyer with Alliance Defending Freedom, argued on behalf of South Carolina that the law lacks the rights-creating language necessary to give that power to a Medicaid patient. Meanwhile, lawyer Nicole Saharsky for Planned Parenthood contended that the language did create a right. “The only thing it doesn’t do is use the word ‘right,’ and this court has repeatedly said that magic words aren’t required,” she said.

Many of the liberal justices seemed to agree, including Justice Elena Kagan, who noted that she didn’t know how to describe the function of the Medicaid Act clause without mentioning rights. “That’s what this provision is. It’s impossible to even say the thing without using the word ‘right,’” she said.

Justice Brett Kavanaugh asked Bursch to explain what would qualify as rights-creating language, saying he wanted to provide clarity to lower courts about how to interpret provisions like this. “I’m not allergic to magic words, because magic words, if they represent the principle, will provide the clarity that will avoid the litigation that is a huge waste of resources for states, courts, providers, beneficiaries and Congress,” he said.

In an exchange with Justice Amy Coney Barrett, Bursch argued that Planned Parenthood sees Medicaid patients as the ones with the magic power. “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,” he said, noting that the state has the power to decide what providers are or are not qualified. South Carolina, he said, “decided that Planned Parenthood was unqualified for many reasons, chiefly because they’re the nation’s largest abortion provider.”

The court did not agree to consider Planned Parenthood’s qualifications to participate in Medicaid—or lack thereof—so arguments barely touched on the question. But it’s a top-of-mind issue for many pro-lifers, including Valerie Berry, the program manager and client services coordinator at the pro-life sidewalk ministry A Moment of Hope. The organization offers resources and abortion alternatives to women outside of the Planned Parenthood facility in Columbia, S.C.

“As a taxpayer, I would hope that I could have the right to not fund something that’s morally compromising,” Berry said. Although Planned Parenthood does not use Medicaid funds for abortions, she noted the fact that the organization performs abortions at all is problematic.

“This is not a morally neutral healthcare provider, and I think that’s missing in this conversation,” she said. “This isn’t just getting your tooth pulled. They are a place that murders for profit.”

Berry said she was outside of a Planned Parenthood facility when Gov. McMaster’s order came down in 2018. “There was an immediate effect,” she said. “People coming, talking to me, and saying, ‘I was turned away. I couldn’t get what I needed. Where can I go?’ And of course, we’re delighted to tell them, ‘You have so many options for better care, cheaper care.’ … We’re saying, ‘Go to other places that give you better care, that are cheaper and that are not killing people in the other room.’”

Berry and her team provide women with a sheet listing other local providers that also offer prenatal care, STI testing, and pap smears—most of which the fliers say also accept Medicaid.

Mark Baumgartner, founder and executive director of A Moment of Hope, said the Columbia Planned Parenthood is just as busy as it ever was since he first started the work in 2012—even with a state law protecting unborn babies from abortion once they have detectable heartbeats. But he thinks that ending Medicaid funding would have an “instantaneous effect” on the business.

“I think there’s a good chance it would close them down, because most of the people are on Medicaid,” Baumgartner said. But he’s trying not to get his hopes up. “We’ve been disappointed so many times,” he said, referencing the state’s past struggles to pass and keep pro-life laws from being held up in court. “But if it happens—great. Praise the Lord.”