Over-the-top rhetoric from Justice Jackson cannot overcome the Court’s precedents against individual lawsuits to enforce spending programs.
Over-the-top rhetoric from Justice Jackson cannot overcome the Court’s precedents against individual lawsuits to enforce spending programs.
T he conservative wins keep on coming at the Supreme Court, even as the Court has done its best this term to narrow the scope of its decisions. This morning, in Medina v. Planned Parenthood South Atlantic, that trend continued. The Court, in a 6-3 opinion by Justice Neil Gorsuch (with the three liberals in dissent), threw out lawsuits challenging South Carolina’s decision to defund Planned Parenthood from its Medicaid program. The Court did not, however, rule on the legality of the state’s decision. Instead, the Court confined itself to ruling that private parties cannot sue to challenge most state Medicaid funding decisions. If a state fails to comply with federal Medicaid rules, it is up to the federal government to enforce those rules. The Court’s decision reaffirms its rules strictly limiting private challenges to state spending of federal funds.
Meanwhile, defunding the nation’s largest abortion provider from Medicaid nationwide remains a live question in the Senate, which is debating whether to retain the House’s defunding provisions in the One Big Beautiful Bill. While the Senate parliamentarian ruled that a reconciliation bill could not be used to defund abortions under Obamacare plans, there has thus far been no such ruling on Medicaid, which is more directly funded by the federal government.
Defending Defunding
South Carolina is one of a number of states that has been fighting for years to defund Planned Parenthood. One might think that a government deciding not to spend its taxpayers’ money on what it considers murder of its residents would be a simple matter, but because Medicaid is a joint federal-state program partially funded by both, states do not have unlimited flexibility in choosing what to fund. The state announced in mid-2018 — seven years ago, and four years before Dobbs — that it was barring Planned Parenthood from its Medicaid program. It was promptly sued under 42 U.S.C. § 1983 by Planned Parenthood and one of its clients. A district court injunction followed in 2020, and then two decisions by the Fourth Circuit against the state before the Court finally agreed to resolve the issue.
Lawsuits charging states with violating federal law present three distinct questions before the courts can reach the merits of the legal question: (1) whether the plaintiff has Article III standing to sue (e.g., due to suffering a concrete injury); (2) whether the state has sovereign immunity; and (3) whether there is a law that creates a right to sue.
Medina involves the third question. The relevant portion of Section 1983, which originated with a Reconstruction-era civil rights law in 1871, provides: “Every person who, under color of any [law] of any State . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in [a civil lawsuit].” [Emphasis added.] The law is thus a major engine for litigation against states that violate the legal rights of Americans. But not every arguable violation of federal law is a violation of rights. That is particularly the case when dealing with the details of vast, labyrinthian federal spending programs.
As Gorsuch noted in today’s opinion, the Court has held in a series of cases, notably Gonzaga Univ. v. Doe (2002) and Health and Hospital Corporation of Marion Cty. v. Talevski (2023), that “the spending power allows Congress to offer funds to States that agree to certain conditions. . . . But when a State violates those conditions, the typical remedy is not a private enforcement suit but rather action by the Federal Government to terminate funds to the State.” This is consistent with the broad trend in the Court’s cases since 1979 to limit lawsuits under federal laws when Congress has not provided explicitly for those laws to be enforced by private suits.
Medicaid provides for extensive federal oversight of a state’s plan, which must meet with the approval of the secretary of Health and Human Services. One of the many, many, many statutorily imposed conditions of Medicaid, embodied in 42 U.S.C. § 1396a(a)(23)(A) (yes, it’s the 23rd subpart of the first subpart of that one statute) is 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.” The statute does not define who is “qualified” (although it defines qualifications for individual benefits in numerous places), although it does otherwise protect individual choices specifically in some types of programs, and gives states explicit power to debar health-care providers for certain crimes:
An enrollment of an individual eligible for medical assistance in a primary care case-management system . . . a Medicaid managed care organization, or a similar entity shall not restrict the choice of the qualified person from whom the individual may receive services under [some Medicaid provisions] . . . except that nothing in this paragraph shall be construed as requiring a State to provide medical assistance for such services furnished by a person or entity convicted of a felony under Federal or State law for an offense which the State agency determines is inconsistent with the best interests of beneficiaries under the State plan or by a provider or supplier to which a moratorium under [federal law] is applied.
Given that the Court’s usual rule is to hold that Section 1983 suits are unavailable to enforce funding conditions in federal-state spending programs, the question was whether to carve out a specific exception to that rule in this case. Abortion providers have grown accustomed over the years to getting exceptions from the usual rules of American law, but those days are over now, at least in federal court.
As Gorsuch explained the Court’s test for finding such exceptions, the question is how Congress writes the text of the federal program statute:
To prove that a statute secures an enforceable right, privilege, or immunity, and does not just provide a benefit or protect an interest, a plaintiff must show that the law in question clearly and unambiguously uses rights-creating terms. . . . In addition, the statute must display an unmistakable focus on individuals like the plaintiff. . . . We have described this as a stringent and demanding test. . . . And even for the rare statute that satisfies it, this Court has said, a §1983 action still may not be available if Congress has displaced §1983’s general cause of action with a more specific remedy. [Quotations and citations omitted.]
This is a separation of powers issue: Given that HHS has been granted explicit powers of oversight over Medicaid, the presumption is that HHS and not individual Medicaid recipients or providers will decide whether states are in compliance with the Medicaid program. It is also a federalism issue:
The Constitution has no “Spending Clause,” strictly speaking. Instead, we usually trace Congress’s spending power to Article I, section eight, clause one, which gives Congress the “Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” Unlike other enumerated powers, this provision does not expressly endow Congress with the power to regulate conduct. Nor does it include the power to issue direct orders to the governments of the States. [Quotations and citations omitted.]
While the latter comment may seem an offhand observation, you may recall that it was much contested but not decided last term whether the spending power allows Congress, through the federal Emergency Medical Treatment and Active Labor Act (EMTALA), to dictate that states may not enforce their own abortion laws in the emergency rooms of hospitals that admit Medicare patients.
Historically — such as in 1871, when Section 1983 was passed — federal grants to states were modest and rarely came with detailed strings attached, so there was not much call to consider those grants as sources of individually enforceable rights to sue the states. Instead, as Gorsuch detailed, they were typically considered more like contracts between sovereigns. Given the intrusion that Section 1983 works on state sovereign immunity, the Court has been stringent in requiring that states be placed on clear notice in the statutory language that individual rights to sue the state are being created by the program. Some programs do contain such “unmistakable” language identifying who can sue and over what, but this is not one of them. Gorsuch rejected the argument by Justice Ketanji Brown Jackson, in dissent, that such statutory rights to sue can be created by the executive branch declaring them: “As this case attests, the government’s views can shift from administration to administration.”
Waving Jim Crow’s Bloody Shirt for Abortion
Given the existing test, this case was not a hard one. But it featured a continued escalation (and not even the only one today) in the mounting war of words between Jackson and Gorsuch. As the majority opinion noted, Jackson’s approach would bulldoze the existing precedents — including Talevski, an opinion that she wrote two years ago:
Instead of grappling meaningfully with the test our precedents provide, the dissent proposes to rewrite it. In the dissent’s view, a statute confers a privately enforceable right whenever it uses “compulsory” and “individual-centric terminology,” as long as it also evokes “language classically associated with establishing rights.” . . . When it comes to that last requirement, the dissent reasons this way: Congress enacted §1396a(a)(23)(A) under the title “free choice by individuals eligible for medical assistance,” . . . the phrase “free choice” calls to the dissent’s mind a phrase from the First Amendment (“free exercise” of religion); that Amendment declares rights; so §1396a(a)(23)(A) likely must as well . . .
Our precedents do not authorize anything like the dissent’s approach — and for good reasons. . . . It has long been established that the title of an Act cannot enlarge or confer powers by itself. . . . Congress chose not to enact into the U. S. Code the very title on which the dissent relies. . . . The dissent’s test would risk obliterating the longstanding line between mere benefits and enforceable rights. . . . If, as the dissent says, §1396a(a)(23)(A) creates an enforceable right because it contains “compulsory” and “individual-centric terminology” plus an iffy analogy to the Bill of Rights, then many other provisions (in Medicaid and elsewhere) previously thought to confer only benefits would suddenly create rights instead. [Quotations and citations omitted.]
Justice Clarence Thomas, by contrast, was quite open in his concurring opinion that he thinks the precedents are wrong and that the Court ought to eliminate entirely the use of Section 1983 to enforce rules from spending programs.
The majority found Jackson’s approach to be unprincipled, vague, and (although Gorsuch did not quite say so) in effect a special exemption for abortion providers:
To be sure, the dissent assures us that other Medicaid provisions are distinguishable from this one. . . . How? Not based on their text (which the dissent never addresses) but, it seems, based on an unspoken judicial intuition that the provision before us is just more important than others. So, on top of all its other flaws, the dissent’s approach would leave States guessing about the terms of their deals with the federal government and invite courts to revive their long-abandoned approach of usurping Congress’s role in creating rights and remedies. [Quotations and citations omitted.]
By the courtly standards of the Court, this is strong stuff, but not nearly as feverish as the over-the-top opening of Jackson’s dissent:
The Civil Rights Act of 1871 was an exercise in grand ambition. It had to be. In the wake of the Civil War, the American South was consumed by a wave of terrorist violence designed to disenfranchise and intimidate the country’s newly freed citizens and their allies. The threat was existential — not just for the newly liberated, but for democracy itself — and required bold intervention. It was precisely because the goals of the 1871 Act were so ambitious that those most committed to the structures it targeted, including many in South Carolina, opposed the measure so vehemently.
A century and a half later, the project of stymying one of the country’s great civil rights laws continues. In this latest chapter, South Carolina urges our Court to adopt a narrow and ahistorical reading of the 1871 Act’s first section, which is codified today at 42 U. S. C. §1983. That venerable provision permits any citizen to obtain redress in federal court for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States. South Carolina asks us to hollow out that provision so that the State can evade liability for violating the rights of its Medicaid recipients to choose their own doctors.
You could not parody this overdrawing of the rhetorical account of the legacy of Jim Crow, complete with the “South Carolina is at it again!” touch. Jackson goes on to suggest that the reason people didn’t sue under Section 1983 in the 1870s to enforce the conditions of federal spending programs is because of Jim Crow violence in the South, rather than because there were few such programs placing extensive statutory conditions on the states. (She does not explain why she thinks only black Southerners had rights protected by Section 1983 at the time). Gorsuch replied by noting the mismatch between the pitch of Jackson’s rhetoric and the weakness of her legal argument under existing precedents that the liberals found unobjectionable until they met them in an abortion case:
In the end, the dissent resorts to the extravagant charge that our decision represents the “latest chapter” in a “project of stymying . . . civil rights.” . . . As we have explained at length, our decision simply applies the same test this Court applied in Gonzaga and again in Talevski (with the support of today’s dissenters). And in doing so, we reach the unsurprising conclusion that it generally belongs to the federal government to supervise compliance with its own spending programs. As the dissenters themselves put it in Talevski, spending-power legislation creates privately enforceable rights only in “atypical cases.” . . . Our decision merely recognizes that this case is not an atypical one. [Quotations and citations omitted.]
It would seem that Jackson deploying overwrought language as a substitute for a plausible legal argument is another thing that is typical about this case.