When the justices meet for their September 24 conference, one of the cases that they will consider involves Planned Parenthood – but not, at least directly, abortion. Instead, the justices have been asked to weigh in on whether individuals can bring a lawsuit to enforce a provision of the Medicaid Act that allows Medicaid recipients to receive medical care from any provider who is willing and qualified to provide such services.
The events giving rise to this dispute began back in 2015, when anti-abortion groups released videos – which Planned Parenthood describes as “misleading and deceptive” – in which Planned Parenthood employees discussed the sale of fetal tissue. The videos (among other things) prompted Kansas to terminate its agreements with Planned Parenthood affiliates in Kansas and Missouri (near the state’s border with Kansas) to provide services to low-income Kansans.
The Planned Parenthood affiliates and some of their patients, sued the state under federal civil rights laws, arguing that the state’s termination of the Medicaid provider agreements violated the Medicaid Act’s “free choice of provider” provision. A federal district court temporarily blocked the state from ending the provider agreements, concluding that the “free choice of provider” provision can be enforced in court by private individuals, and the U.S. Court of Appeals for the 10th Circuit upheld that ruling.
Kansas went to the Supreme Court, filing a petition for review in March of this year. The state had tried to accelerate the case so that it would be considered at one of the justices’ private conferences before the court’s summer recess, but the justices opted not to rule on the case at that time. In its petition, the state emphasizes that, when states violate the Medicaid Act, there is a remedy for that violation: the U.S. Secretary of Health and Human Services can withhold federal Medicaid funds. “When statutes include express remedies like this,” Kansas contends, the Supreme Court “has been highly skeptical of individuals’ attempts to claim an implied private right to bring enforcement actions in federal court”; private individuals can enforce the “free choice of provider” provision, the state continues, only when Congress “speaks with a clear voice.” The state adds that the federal courts of appeals are divided on the question presented in its petition, which the state describes as “exceedingly” important because over 70 million people are enrolled in Medicaid nationwide.