Recent decisions by a federal court in Arizona and the Seventh Circuit Court of Appeals blocked state efforts to strip Medicaid funds from clinics that perform abortions or don’t perform abortion but are are ostensibly “affiliated” with abortion providers. Both are victories for women, but also hit fault-lines in the culture wars that will undoubtedly pique the interest of the Roberts Court.
At the heart of the legal challenges to both Arizona’s funding ban and to Indiana’s is the question of how much power states should have in deciding what medical providers are “qualified” under the Medicaid statute. But before we can even get to that question we have to address how the challenge is framed because the framing of the challenge shows there’s more at play than just Planned Parenthood funding.
The Medicaid statute expressly provides beneficiaries with a “right to chose their provider” but, according to Arizona and Indiana, does not expressly create a means under the statute for beneficiaries to enforce that right. That means Medicaid recipients must use a different legal vehicle to enforce their rights to access benefits.
That vehicle is 42 U.S.C. §1983, a civil rights statute which provides individuals a right of action for an infringement of a specific constitutional right. In these cases Planned Parenthood and others challenging the laws claimed the funding bans violate a Medicaid beneficiary’s right to chose her medical provider, and that right is specific enough to permit a §1983 claim.
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The states disagree. In defending the bans both Indiana and Arizona argue that §1983 claims can’t be used to enforce Medicaid rights because those are not “constitutional” rights in the Bill of Rights sense, but rather rights derivative of Congress’ power to create the Medicaid program generally under the spending clause. Congress and the Supreme Court have gone back and forth on this issue of whether or not claims made under §1983 can be used to enforce substantive rights under the Medicaid statute. At one point the Supreme Court said it could not. As a result the Medicaid statutes now state that benefits qualify as rights to be enforced outside the statute. The matter was largely considered settled. Until these recent challenges.
The states frame the §1983 issue not as a question of individual rights but rather as an abuse of Congressional power under the spending clause. Congress cannot lawfully create these rights in the statute, they argue, because to do so subjects states to excessive legal liability simply for participating in the program.
As a principle, the idea that women could use a civil rights remedy to enforce privacy rights in relation to their Medicaid benefits upsets the right for a number of reasons. To begin with they outright reject the idea that Medicaid beneficiaries are entitled to rights with receipt of the benefits, let alone privileged privacy rights. Second, by recognizing the unequal treatment of women in regulatory regimes that would effectively chose their health care providers for them, the courts reject the framing by anti-choice advocates in particular that women are not capable of making informed choices concerning their health care generally on their own.
But if the courts consider these rights matters of settled law, then why waste the time arguing against that precedent? Why not just go right into the seemingly meatier issue of whether states have the ability in administering Medicaid programs to define who is and is not a qualified medical provider?
Because of the Roberts Court and because they see an opening. Like his predecessor former Chief Justice William Rehnquist, Chief Justice John Roberts has continued the mission of the conservative wing of the Court to curtail access to plaintiffs. If there is a statute foes of civil rights work would love to undo it is §1983, especially because it can be used by the poor to enforce their constitutional rights by requiring equality in the administration and receipt government benefits.
But perhaps more importantly from the perspective of the Roberts’ Court, the §1983 challenge is crafted as a limitation on Congress’ ability to coerce state action via the spending clause. This is much like the framing of the challenge to the Medicaid expansion in the Affordable Care Act and the portion of the law the Court struck down. Prior to the Affordable Care Act case, the Court split 5 to 4 in a case that explicitly raised the issue of whether or not §1983 created a right of action to enforce the Medicaid statute. In that case the Court declined to rule on the §1983 claim and decided the case on different grounds.
Should the Court find that framing compelling again, then these funding cases give it the perfect chance to reach the issue of §1983 claims and Medicaid rights. And it could answer that question without necessarily determining the larger issue of whether or not states should be free to exclude a provider from Medicaid funding generally if they provide abortions. Instead, they’d just cut-off any ability to challenge those determinations by those actually affected by them all under the guise of curtailing federal power. And that may be the true victory anti-choice activists are after.