In its first abortion-related case since Donald Trump retook control of the White House, the US supreme court on Wednesday heard oral arguments in a case challenging South Carolina’s attempt to effectively “defund” Planned Parenthood because the reproductive health giant performs abortions.
The case, Medina v Planned Parenthood South Atlantic, deals with a 2018 executive order from the South Carolina governor, Henry McMaster that blocked clinics that provide abortions from receiving reimbursements via Medicaid, the US government’s healthcare program for low-income people, despite the fact that those reimbursements don’t actually cover abortions. “Payment of taxpayer funds to abortion clinics, for any purpose, results in the subsidy of abortion and the denial of the right to life,” McMaster said at the time.
However, federal law bans Medicaid from covering the vast majority of abortions, which only comprised about 4% of Planned Parenthood’s activities in fiscal year 2022. Instead, people use Medicaid to cover Planned Parenthood’s other services. In the same year, the organization performed nearly half a million Pap tests and breast exams as well as 4.6m STI tests and treatments. It also provided birth control services to more than 2.2 million people.
Planned Parenthood South Atlantic, a Planned Parenthood affiliate that operates two clinics in South Carolina, teamed up with a patient who sought birth control, Julie Edwards, to sue over McMaster’s order. Lower courts have since kept the order from going into effect.
The supreme court is currently controlled 6-3 by conservatives. If the court sides with South Carolina, it could pave the way for other states to exclude Planned Parenthood from their Medicaid programs as well as devastate South Carolinians’ ability to access reproductive healthcare and family planning services.
Of the 2.4 million people treated at Planned Parenthood nationwide each year, nearly half are on Medicaid. About four in 10 women who have sought care at family-planning clinics say those clinics are their only recent source of healthcare.
At the heart of the case is a federal provision that guarantees that people insured by Medicaid can freely choose their own providers as long as they accept the program and are qualified to provide care. The case hinges on a technical argument: South Carolina – which is being represented by the powerhouse Christian legal group Alliance Defending Freedom (ADF) – says Medicaid beneficiaries have no right to sue if they believe that guarantee has been violated.
Oral arguments zeroed in on this technicality, as ADF senior counsel John Bursch argued that the guarantee lacks “clear rights-creating language”.
“It does not use the word ‘right’ or its functional equivalent,” Bursch said. “Nor does it use word with a deeply rooted, rights-creating pedigree, like the fifth amendment’s ‘no person shall’.”
The three liberal justices on the supreme court – Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson – appeared ready to reject that argument. It’s impossible to describe Medicaid’s guarantee, Kagan said, without calling it a “right”.
“The obligation is to ensure that individuals can choose their doctor,” Kagan said. “There’s a correlative right. There’s an obligation, there’s a right. And the right is the right to choose their doctor.”
The conservative wing of the court seemed more split. Justice Amy Coney Barrett appeared particularly worried about leaving patients unable to seek help if their preferred qualified provider was kicked out of Medicaid. “If I want to go see Dr Jones and that’s the provider of my choice and the state has disqualified Dr Jones … there’s no mechanism, am I right, for the beneficiary to say: ‘Well, you’re depriving me of my ability’ – we won’t call it right, we won’t use the loaded word – ‘but the ability to see the provider of my choice’?” she asked.
During arguments, Bursch suggested that, rather than suing, patients could ask the government to intervene administratively.
Ultimately, these seemingly narrow arguments, legal experts warn, conceal the broader consequences of the case. If people can’t sue when they believe a state is violating Medicaid, then it will become far more difficult to keep states from discriminating against certain kinds of care, said Nicole Huberfeld, a health law professor at Boston University’s School of Public Health.
“Even though the state is trying to claim that it has sole authority to decide who’s a qualified provider, this isn’t really about whether Planned Parenthood is a qualified provider. It’s about a political calculation on abortion,” Huberfeld said. “Really, what’s happening here is states making politically driven decisions about access to medical care.”
A decision in the case is expected in June.
“A medical home”
More than 1 million people in South Carolina use Medicaid and the Children’s Health Insurance Program (Chip) – which is closely linked to Medicaid – for their insurance. Almost 40% of South Carolina counties are believed to be “contraceptive deserts”, where there are not enough providers to meet the needs of the people who live there. South Carolina bans abortion past six weeks of pregnancy.
Because Texas terminated Planned Parenthood from its state Medicaid program in 2021, it offers a window into what happens when people lose access to medical provider. The termination affected the healthcare of some 8,000 Texans.
“Planned Parenthood, we heard again and again, was a medical home for people with very few options for providers,” said Anna Chatillon, a research scientist at Resound Research for Reproductive Health, who led a study that interviewed Texans about how the termination affected their lives. “In several different interviews, we heard people talking about showing up for an appointment, finding out that they couldn’t use Medicaid any longer, not having any idea where else to go, and experiencing real disruptions to their care based on that very quickly, but also serious emotional ramifications.”
The case is part of a broader, longstanding anti-abortion campaign against Planned Parenthood, which includes an ongoing lawsuit that could bankrupt the organization over allegations that it defrauded Medicaid.
On Tuesday, Planned Parenthood announced that the Trump administration – which helped South Carolina make its case in oral arguments – had notified nine of its affiliates that they would lose funding from Title X, the nation’s oldest and largest family-planning program. Politico reported the funds were being withheld as punishment for the organization’s diversity, equity and inclusion efforts.
