We put processes in place for a reason.
In sports, when a coach disagrees with a referee’s call, he can challenge that call. The referee then reviews and decides whether to uphold or overturn the call. A cheering fan cannot challenge the referee’s call from the stands. If that were allowed, chaos would ensue. And sporting events would be a whole lot longer!
Likewise, when the government puts in place a federal statute, it lays out the process for its enforcement. For example, in the Medicaid Act, Congress gave states the authority to decide which providers are qualified to receive Medicaid funding. If there is a dispute, there is an administrative appeal process so that providers deemed “unqualified” can challenge that decision. But ultimately, the Medicaid Act makes the federal government the “coach”—if the federal government disagrees with a state’s decision, it can limit or cut off the state’s funding. Providers are just “cheering fans.” They can lobby the coach, but they cannot take their complaints directly to the referee.
Unsurprisingly, Planned Parenthood doesn’t care much about process.
After South Carolina decided that abortion facilities in the state were not qualified to receive Medicaid funding, Planned Parenthood and one of its clients sued the state in federal court—ignoring the state’s administrative appeal process and the federal government’s enforcement role. No doubt Planned Parenthood is betting on a sympathetic judiciary to bail it out. And so far, that bet has paid off.
That’s why South Carolina has asked the U.S. Supreme Court to hear this case.
The Supreme Court needs to make clear that when Congress wants to create private rights for third parties that they can sue to enforce in federal court, Congress says so unambiguously in the statute itself. When it comes to Medicaid, Congress never did that.
And for good reason.
Allowing providers and Medicaid beneficiaries to file lawsuits against the states whenever they please has terrible financial consequences. When this happens, a state is dragged into federal court proceedings it could not have anticipated when agreeing to provide Medicaid benefits. And the state could be forced to pay for legal fees every time it disqualifies a provider from receiving Medicaid funding—even when the provider is disqualified on the most solid of ground.
And South Carolina was on solid ground when it disqualified Planned Parenthood from receiving Medicaid funding.
The South Carolina Department of Health & Human Services deemed Planned Parenthood an “unqualified” provider in 2018 following a pro-life executive order from the governor. As the executive order explains, this promotes state interests in defending life while ensuring other women’s-health and family-planning entities receive funding to provide services.
At that point, Planned Parenthood had four options:
- It could let the situation go (seeing as it already receives a mountain of federal funding);
- It could stop providing abortions and seek reinstatement as a South Carolina Medicaid provider;
- It could use the state’s administrative appeals process to challenge the state’s decision to disqualify it;
- Or it could ask the U.S. Secretary of Health and Human Services to enforce the Medicaid Act’s requirements. If the HHS Secretary reviewed South Carolina’s decision and determined it did not comply with the Act, then the Secretary could decide to withhold Medicaid funds from the state. That’s a strong incentive for a state to do what the Secretary says.
But Planned Parenthood didn’t like any of those options.
So it sued South Carolina in federal court instead. And to date, federal courts have allowed Planned Parenthood and its client to act outside the law by asserting a private right that does not appear anywhere in Medicaid’s plain text.
The Supreme Court needs to clarify that no one is above the law, and federal courts should not be in the business of making up “rights” out of whole cloth when Congress made the decision not to.
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