Ensuring That States Can Direct Funding Away from Abortion Facilities

Another case about government funding and Planned Parenthood has found its way to the U.S. Supreme Court. This time around, the question at issue involves state Medicaid funds.

In 1965, Congress created Medicaid to help low-income families pay for medical expenses. It is a joint program between the federal government, which provides some of the funding, and the states, which are responsible for providing the rest and administering the program.

Two years later, Congress amended the Medicaid Act to add a provision requiring that plans must allow eligible individuals to obtain medical assistance from any qualified provider. At the same time, the amendment did not define who was “qualified,” and it allowed states broad authority to make that determination.

In the decades since, this amendment has created confusion in the courts over whether “Spending Clause” statutes like the Medicaid Act create a “privately enforceable right” for individuals on Medicaid. In other words, which takes precedence: a state’s ability to determine which medical providers are qualified to receive Medicaid funds or the individual’s ability to seek medical procedures from any provider they choose?

These questions lead to another: whether pro-life states can direct their limited Medicaid funds—funds intended to help low-income individuals obtain necessary medical assistance—away from abortion providers like Planned Parenthood.

This is at the heart of Alliance Defending Freedom’s case Kerr v. Planned Parenthood South Atlantic.

Who is Robert Kerr?

Robert Kerr is the director of the South Carolina Department of Health and Human Services (SCDHHS). His name is on the lawsuit in his official capacity since the case involves the use of Medicaid funds, which the South Carolina Department of Health and Human Services oversees.

Kerr v. Planned Parenthood South Atlantic

In July 2018, in accordance with a state law prohibiting the use of taxpayer funds to pay for abortions, South Carolina’s governor issued an executive order directing the SCDHHS to label abortion facilities unqualified to provide family-planning services through Medicaid. This order rendered abortion providers like Planned Parenthood unable to receive Medicaid funding in South Carolina.

In response, Planned Parenthood and one of its clients sued in federal court. An earlier version of the case, Planned Parenthood South Atlantic v. Baker, went up to the Supreme Court but was denied review. This allowed a preliminary ruling in Planned Parenthood’s favor from the U.S. Court of Appeals for the 4th Circuit to stand. While the case proceeded in the district court, that court issued a summary judgment in Planned Parenthood’s favor, followed by a permanent injunction preventing South Carolina from denying Planned Parenthood Medicaid funding based on the governor’s determination that abortion facilities are not qualified providers.

After that, South Carolina appealed again to the 4th Circuit. ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch argued the case on behalf of South Carolina. Unfortunately, the 4th Circuit again ruled in favor of Planned Parenthood, so ADF appealed to the Supreme Court.

In June 2023, the Supreme Court issued its decision in Health and Hospital Corporation of Marion County v. Talevski, a different case that raised similar issues. In light of that ruling, the Supreme Court vacated the 4th Circuit’s decision in Kerr and remanded the case back to that court to reconsider.

What’s at stake?

Can pro-life states like South Carolina, consistent with the will of their citizens and state law, direct taxpayer Medicaid funds to medical providers offering real health-care services instead of abortion providers like Planned Parenthood?

Case timeline

• July 2018: The governor of South Carolina issued an executive order directing the South Carolina Department of Health and Human Services to label abortion facilities enrolled in the Medicaid program to be unqualified to provide family planning services. Two weeks later, Planned Parenthood and one of its individual clients sued. The ensuing case (Planned Parenthood South Atlantic v. Baker) was preliminarily decided in Planned Parenthood’s favor at the district court and the 4th Circuit before being denied review at the Supreme Court.
• September 2020: Based on the 4th Circuit’s ruling, the district court issued a summary judgment in Planned Parenthood’s favor.
• December 2020: The district court issued a permanent injunction preventing Planned Parenthood from being terminated as a qualified Medicaid provider. South Carolina appealed this decision to the 4th Circuit, where ADF Senior Counsel John Bursch argued on behalf of South Carolina.
• March 2022: The 4th Circuit affirmed the lower court’s decision. ADF then appealed to the Supreme Court.
• June 2023: The Supreme Court vacated the 4th Circuit’s decision and remanded the case back to that court to reconsider.
• December 2023: ADF attorneys presented oral argument before the 4th Circuit.

The bottom line

States should be able to use taxpayer dollars in accordance with their own laws. No citizen should have to fund facilities that perform life-ending and medically fraught procedures like abortion.