Reproductive rights advocates have grown accustomed to opinions with horrible consequences from the Fifth Circuit Court of Appeals, such as the Texas legal provisions that wound up before the U.S. Supreme Court in Whole Woman’s Health v. Hellerstedt. In reality, though, it may be the Eighth Circuit that ends up convincing the Court to overturn Roe v. Wade altogether.
On Wednesday, the court issued yet another decision supporting such a prediction, holding that Arkansas can move forward with efforts to curtail Medicaid contracts with Planned Parenthood—effectively forcing Medicaid patients to look elsewhere for comprehensive reproductive health care and setting up a larger fight over funding for the provider in the state.
In the summer of 2015, anti-choice activist David Daleiden released a series of discredited, heavily edited videos that purported to show Planned Parenthood affiliates engaging in the sale of fetal tissue donations, a practice prohibited by federal law. Dozens of state and federal investigations turned up no wrongdoing on the part of Planned Parenthood. But the fallout from the videos continues, including in Arkansas, where Gov. Asa Hutchinson (R) was among those who used the videos as another opportunity to attack Planned Parenthood funding in his state.
Hutchinson directed the Arkansas Department of Human Services in August 2015 to terminate Medicaid provider agreements with Planned Parenthood. The governor said in a public statement that it was “apparent … after the recent revelations on the actions of Planned Parenthood, that this organization does not represent the values of the people of our state and Arkansas is better served by terminating any and all existing contracts with them.”
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In September of that year, Planned Parenthood and three patients identified as “Jane Does” sued the department’s director in federal district court, seeking a temporary restraining order and a preliminary injunction to prevent the department from terminating Planned Parenthood’s contract. The plaintiffs claimed that the department was excluding Planned Parenthood from the Medicaid program for a reason unrelated to the organization’s fitness to provide medical services. This, the plaintiffs said, was in violation of the Medicaid Act’s “free-choice-of-provider” provision that allows Medicaid recipients to chose their own medical providers, so long as those providers meet the Act’s requirement of being a “qualified health care provider.” Because the plaintiffs said they were likely to prevail on their claim, they asked for an injunction in their favor while the case proceeded.
Importantly, the patients brought their claim under 42 U.S.C. § 1983, a federal civil rights law that allows private citizens to sue the government directly for civil rights violations. The arguments advanced by the patients was that the state was improperly denying them benefits by restricting Medicaid payments to Planned Parenthood, thereby depriving them of their civil rights—namely, the right to determine which provider they want for their reproductive health care needs.
The district court granted a temporary restraining order against the department’s actions and attorneys for the State of Arkansas appealed, arguing, among other things, that the plaintiffs could not bring § 1983 claims here because Medicaid’s choice-of-provider provision didn’t give the patients a legally enforceable right against the state.
On Wednesday a 2-1 majority of judges on the Eighth Circuit agreed, holding “that nothing ‘short of an unambiguously conferred right’ will support a cause of action under § 1983” and that while Medicaid may have a choice-of-provider provision written into its statute, that provision confers no substantive rights to Medicaid recipients to enforce it when states violate it.
In other words, the Eighth Circuit just made it even harder for poor people to fight back against government actions—including politically motivated attempts to defund Planned Parenthood—in federal court.
Conservatives have had their sights set on § 1983 claims for decades now. Limiting the ability of plaintiffs to bring such claims and federal claims generally may be the most important legacy of former Chief Justice William Rehnquist. And current Chief Justice John Roberts has taken up the cause with his own vigor, making it more difficult to challenge abortion restrictions directly in some circumstances.
Wednesday’s decision creates a similar hurdle for Medicaid recipients in Arkansas, and depending on how willing other federal courts are to rely on the Eight Circuit’s decision here, everywhere else. We can be guaranteed conservatives will point to it in their various attempts to have Planned Parenthood excluded from the “choice-of-provider” requirements in their state.
The decision rules expressly that government benefit recipients have no way to sue when those benefits are changed, even for purely political reasons. In some ways, it is the logical extension of Harris v. McRae, the Supreme Court decision upholding the Hyde Amendment, which said while Medicaid recipients had a right to Medicaid benefits, they didn’t have a right to abortion—except in very narrow circumstances—as one of those benefits.
But the decision has one enormous hole that conservatives will have to navigate in the courts, and that proves this was an ideological decision rather than a legal one. As noted by the court itself, at least four federal courts have ruled that states specifically can’t keep organizations like Planned Parenthood out of their Medicaid program based on a political opposition to abortion. That precedent didn’t matter to the majority on Wednesday though. The opinion breezes right over those cases with barely a recognition they exist.
That is judicial activism and outcome-driven jurisprudence, plain and simple.
The decision also plays right into conservative political talking points that Planned Parenthood is not really a health-care provider by suggesting the matter of determining which providers are considered “qualified” under the Medicaid Act would be left to the federal courts rather than the regulations in place. Conservatives have spent years trying to find ways to claim Planned Parenthood is not a “qualified” provider under the statute as a way of further restricting access to contraception and the limited abortion services the health insurance program provides. The David Daleiden campaign is so clearly part of that strategy, which is why conservative governors cited his tapes left and right when going after the reproductive health-care provider.
The Eighth Circuit decision buys into another conservative fallacy as well—that other health-care providers will step in and fill the gaps created by Planned Parenthood closures. Those providers include schools and prisons, as Rewire reporting showed. They do not provide reproductive care, nor were they aware some in Congress believed they do. Yet, as Judge Michael Malloy quipped in his concurring opinion, “decertification [of Planned Parenthood] does not reduce or terminate a patient’s financial assistance, but merely requires him to use it for care at a different facility.”
The plaintiffs have two choices here. They can ask the entire panel of judges from the Eight Circuit to re-hear the case. Or they can appeal the decision to the Gorsuch Court. Both sound like terrible choices.
Republicans in Congress have so far unsuccessfully tried to repeal the Affordable Care Act and to defund Planned Parenthood. The Eighth Circuit can’t do it for them, but it can help by giving language and reasoning to the fight over state power when executing Medicaid contracts. And let’s not forget: The Eighth Circuit Court of Appeals practically begged the Supreme Court to reverse Roe when it upheld injunctions blocking pre-viability abortion bans in both North Dakota and Arkansas, noting the only reason they did so was because Supreme Court precedent gave them no other choice. But in that opinion, the Eighth Circuit made it clear that if given the opportunity, it would have overruled Roe and re-criminalized abortion.
So given the anti-abortion, outcome-driven agenda of this court, this is an opinion to pay attention to. It blesses the anti-Planned Parenthood agenda of conservatives in the states and in Congress, demonstrating that at least one federal court is willing to help them do so.