Kerr v. Planned Parenthood South Atlantic, which the Supreme Court announced Wednesday that it would hear, is not a difficult case.
The question in Kerr is whether a federal law, which requires state Medicaid programs to guarantee that “any individual eligible for medical assistance” may obtain that care “from any institution, agency, community pharmacy, or person, qualified to perform the service or services required,” does in fact allow Medicaid patients to choose any doctor qualified to perform the services they seek.
After reading this statutory language, you’re probably wondering why this legal dispute triggered a lawsuit in the first place — the law, after all, is perfectly clear that “any” Medicaid patient is allowed to choose “any” person qualified to provide them with care. But there are two reasons, one legal and one political, that explain why Kerr is contentious enough to make it to the Supreme Court.
The first reason is that the Supreme Court’s rules governing when someone can sue to enforce a provision of federal Medicaid law are somewhat complicated, although not nearly complicated enough to justify denying Medicaid patients their right to choose a health provider. The second, more salient, reason is that this case involves Planned Parenthood, and so a handful of outlier judges have allowed anti-abortion politics to trump a clearly written federal law.
South Carolina is one of several states that attempted to exclude Planned Parenthood from its Medicaid program, effectively preventing Medicaid patients from seeking care at the venerable reproductive health care institution. In 2018, Republican Gov. Henry McMaster issued an executive order prohibiting “abortion clinics” from being paid to provide care to Medicaid patients. (Although the Supreme Court permitted states to ban abortion in 2022, South Carolina still allows some abortions up to the sixth week of pregnancy.)
Shortly after McMaster issued this order, both Planned Parenthood’s South Carolina affiliate and an individual Planned Parenthood patient sued, pointing to the federal law giving Medicaid patients a right to choose their health provider. The United States Court of Appeals for the Fourth Circuit, the federal appeals court that oversees North Carolina, has repeatedly ruled that these plaintiffs are correct — the federal law does exactly what its plain text says that it does.
Most federal appeals courts ruled similarly when other states announced rules similar to McMaster’s. But two outlier circuits, the Fifth and the Eighth, did not. Notably, both the Fifth and the Eighth Circuit’s decisions were handed down before the Supreme Court decided Health and Hospital Corporation v. Talevski (2023), a significant decision clarifying the rights of Medicaid patients to bring federal lawsuits, which cuts against the Fifth and Eighth Circuit’s reasoning.
In any event, it’s hard to imagine that such a straightforward legal dispute would produce such a circuit split if it didn’t involve the contentious question of abortion. It’s also possible that the Supreme Court took the Kerr case simply to reaffirm its decision in Talevski and reverse the two courts that created this split.
The whole point of having one Supreme Court at the top of the federal judiciary is to maintain uniformity in federal law — an act of Congress should mean the same thing in South Carolina as it does in Texas — so the justices often step in to resolve legal questions that divide federal appeals courts.
Still, this case does involve abortion. Republicans have a 6-3 supermajority on the Supreme Court. And five members of that majority have a history of reading the law in absurd ways to diminish abortion rights. So there’s at least some risk that the Court may lash out at Medicaid patients’ right to choose their own health provider.
What is the specific legal issue at the heart of Kerr?
Arguably the most important federal civil rights law is a provision known as “Section 1983,” which permits state officials to be sued in federal court if they deprive someone of “any rights, privileges, or immunities secured by the Constitution and laws.” Without this law, people whose constitutional or federal statutory rights are violated would often have no recourse, because they would be unable to bring a lawsuit seeking to vindicate those rights.
Notably, however, Section 1983 does not permit anyone to file a lawsuit challenging any violation of any federal statute whatsoever. As the Supreme Court said in Blessing v. Freestone (1997), “a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” And the Court has developed a framework governing which federal laws create individual rights that can be enforced through private lawsuits.
Yet, while this framework sometimes creates uncertainty about which federal laws can trigger such suits, the issue in Kerr is straightforward. As the Court recently reaffirmed in Talevski, the key question is whether a federal law is “phrased in terms of the persons benefited,” and whether it “contains ‘rights-creating,’ individual-centric language with an ‘unmistakable focus on the benefited class.’”
Thus, for example, a hypothetical federal statute that provides that “no state may deny someone who owns golf clubs the ability to play golf” could be enforced by federal lawsuits, because this statute’s language focuses on the people who benefit from it (people who own golf clubs). A statute that says that “states shall not impede enjoyment of the game of golf,” by contrast, would not permit individual lawsuits because this statutory language does not even mention which individuals are supposed to benefit from the law.
With this framework in mind, consider the statutory language at the heart of the Kerr case:
A State plan for medical assistance must … provide that … 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 (including an organization which provides such services, or arranges for their availability, on a prepayment basis), who undertakes to provide him such services.
This language is full of the kind of “individual-centric language” with an “unmistakable focus on the benefited class” that the Court spoke of in Talevski. It provides a right to “any individual” eligible for medical benefits. It states that these individuals “may obtain” medical care from the provider of their choice. And it concludes with a pronoun (“him”), which refers back to the individuals who benefit from the law.
All of which is a long way of saying that, if the Court follows existing law, including the rule it recently announced in Talevski, then it will rule in favor of the plaintiffs in Kerr. But it is unlikely the case would have made it to the Supreme Court in the first place — or that any appeals court would have read this particular provision of Medicaid law to deny similar plaintiffs their right to sue — if this case did not involve a politically contentious issue like abortion.
