Medicaid statute focus of SCOTUS review of Planned Parenthood funding

Update: Wednesday, 4:35 p.m. ET:

Planned Parenthood argued that a 2018 order by South Carolina Gov. Henry McMaster barring abortion facilities from receiving Medicaid funds violated an implied right in the federal Medicare and Medicaid Act. In essence, the Medicare and Medicaid Act says any individual eligible for medical assistance may receive services from any institution or person qualified to perform those services.

Previously, a lower court blocked the governor’s order. South Carolina responded by appealing to the U.S. Supreme Court, asking it to decide whether Planned Parenthood and its patient had a right to sue the state over whether the patient could access the healthcare provider of her choice.

Below are some brief highlights of the oral arguments:

Alliance Defending Freedom attorney John Bursch appeared on behalf of South Carolina. He argued that the Medicare and Medicaid Act does not grant that kind of power to a Medicaid patient. That brought pushback from Justice Elena Kagan, who accused Bursch of unfairly requiring the statute to use certain magic words in order to confer rights. Kagan insisted that the statute did indeed confer a right to the patient to choose her own doctor, despite failing to use the word "right."

Justice Brett Kavanaugh conversely said he wasn’t averse to the concept of magic words. He said they could provide the necessary clarity to avoid costly litigation, as long as they represented the principle of the statute.

Nicole Saharsky, the attorney for Planned Parenthood, admitted that the statute never uses the word “right,” but she insisted that the provision contained rights-creating language, nonetheless.

In his closing rebuttal, Bursch pointed out that none of the words the liberal justices and his opponent used to describe the law—“right,” “privilege,” or “free choice”—appear in the statute. He said verbally inserting those words does not change the original meaning of the statute, which he said does not confer a right for the patient to choose her own doctor using Medicaid funds.

Original story:

The U.S. Supreme Court on Wednesday heard oral arguments over whether a state can refuse to pass on Medicaid funding to Planned Parenthood. South Carolina lawmakers argue that the funds are meant to provide medical assistance to low-income individuals, not to benefit abortion providers.

The nonprofit legal organization Alliance Defending Freedom, which is representing the South Carolina Department of Health and Human Services, has argued in filings that states should have the freedom to decide how state funding is allocated. A coalition of 18 states, dozens of members of Congress, medical professionals, and pro-life advocates in February filed friend-of-the-court briefs supporting South Carolina’s position.

What has Planned Parenthood said? The abortion provider has argued in court documents that federal law prohibits states from dictating a patient’s ability to choose providers of so-called family planning. South Carolina law protects unborn babies from abortion after about six weeks of pregnancy except in cases of rape, incest, or medical emergencies.

Planned Parenthood provides services other than abortions, but its cancer screenings, prenatal services, and contraceptive services have all declined since 2010, according to the Charlotte Lozier Institute. Meanwhile, federal law prohibits Medicaid from being used to perform abortions except in cases of rape, incest, or medical emergencies.

What is the history of the case? South Carolina Gov. Henry McMaster in 2018 signed an executive order for HHS to remove abortion providers from the list of Medicaid recipients in the state. Planned Parenthood South Atlantic and a Medicaid recipient named Julie Edwards sued the state and a federal court judge for the U.S. Court of Appeals for the 4th Circuit ruled against the state’s decision. The U.S. Supreme Court in December agreed to hear the case.

Dig deeper: Read Erin Hawley’s opinion piece about the case.