INTRODUCTION
If the Warren Court reflected nearly twenty years of jurisprudence dismantling ugly systems of oppression and institutional injustice that embedded invidious practices and policies into American law and society,1 the Roberts Court may be remembered for its reversal, dismantlement, and derailment of those same basic civil liberties and civil rights across myriad areas affecting voting,2 education,3 the environment,4 human rights,5 women’s equality,6 and reproductive health.7 If the Warren Court is remembered for serving as a beacon for civil rights, the Roberts Court may be remembered for flattening those gains. Sadly, the Court’s decision in Medina v. Planned Parenthood South Atlantic8 will anchor its unseemly and undeniably injudicious legacy. If Jim Crow echoes the past, the Court’s present dog whistling on reproductive freedom enshrines a new Jane Crow.
Equally, one could make the case that today’s Congress lacks a similar vision for civil rights and civil liberties as did the 88th Congress. In other words, the 88th United States Congress delivered the Civil Rights Act of 1964,9 which extended protections to women10 — followed by the 89th, which protected voting rights11 — a matter critically important to the full and inclusive citizenship of Black women.12 Such actions reflected Congress’s carrying out the Constitution’s promise of equality and voting rights. The current Congress has attempted to gut Title X and has dismantled other reproductive health funding, such as funding for international family planning and reproductive health programs.13
In Medina, the Supreme Court delivered a stinging blow to basic healthcare and civil rights. In a 6–3 decision, drawn along ideological lines, the Court upheld South Carolina’s policy of prohibiting any clinic that provides abortion services from participating in the state’s Medicaid program.14 Specifically, through an executive order, Governor Henry McMaster directed South Carolina’s Department of Health and Human Services (SCDHHS) “to deem abortion clinics . . . and any affiliated physicians or professional medical practices . . . that are enrolled in the Medicaid program as unqualified to provide family planning services.”15 The executive order requires that officials “immediately terminate” abortion providers from the Medicaid program and mandates that they be denied any future enrollment.16
Planned Parenthood and one of its patients brought a lawsuit against Eunice Medina in her capacity as the director of the SCDHHS under 42 U.S.C. § 1983,17 which allows individuals to sue state officials for violating their rights under the Constitution or federal laws.18 The patient, Julie Edwards, sued to enforce her right to select Planned Parenthood as the provider of her gynecological care.19 She was not seeking an abortion, but instead wanted to utilize the broad spectrum of reproductive health services provided by the organization, which includes cancer screenings, physical exams, contraceptives, pregnancy exams, health counseling, and other care.20 The lawsuit alleged that the Governor’s executive order violated a key provision of the Medicaid statute that allows individuals to choose their provider so long as they are qualified under the Act.21 This provision is known as the “any-qualified-provider provision.”22
Plaintiffs prevailed at both the district court and appellate court levels. When the case was first heard in the U.S. District Court for the District of South Carolina, the judge granted summary judgment to Planned Parenthood and the patient.23 The court also granted a permanent injunction, barring the state from excluding Planned Parenthood from the Medicaid program.24 On appeal, the U.S. Court of Appeals for the Fourth Circuit upheld the lower court order.25
The case, like other reproductive health decisions in recent terms,26 was decided on thin procedural grounds, which masks the true stakes in the variety of litigation involving abortion or abortion providers. On its face, the Court queried whether § 1983 can be used to enforce the “any-qualified-provider” provision, also referred to as the “free choice of provider” provision,27 of the Medicaid statute.28 Or stated differently, whether Medicaid created a right of action under § 1983 to enforce the “free choice of provider” provision.
However, the case represents substantive landmines in civil rights and reproductive justice. First, by upholding Governor McMaster’s executive order, the Court also let stand the denial of patient choice to low-income Medicaid patients in South Carolina, which is a civil rights and human dignity issue as discussed in this Comment.29 Second, the true and explicit aim of the executive order, based on its text and statements by the Governor, is to further restrict abortion access and rights by driving clinics and providers out of business in South Carolina.30 Third, South Carolina problematically presented an unconstitutional ultimatum to abortion providers: cease pregnancy terminations or be denied government funding for any other reproductive health or family planning services.31 This falls outside of the Rust v. Sullivan32 framework, which affirmed the right of clinics that perform abortions to receive federal funds for other reproductive health services even while the funds could not be used for pregnancy terminations and referrals.33 That is, government funds may not be conditioned on viewpoint or ceasing otherwise lawful activities. Fourth, perhaps the most critical landmine is that involving maternal health and safety, which includes pregnancy termination services. As acknowledged by the Court in Whole Woman’s Health v. Hellerstedt,34 a woman is fourteen times more likely to die during delivery than by having an abortion.35 Because of this, driving clinics that have even minor abortion services fully out of business is predictably a death sentence for some women, particularly as the United States leads high-income countries in maternal mortality.36
As such, Medina signals a devastating turn in law and health policy. This Supreme Court decision, written by Justice Gorsuch,37 held that the “any-qualified-provider” provision did not “use[] clear and unambiguous rights-creating language” and therefore did not “support[] a private suit under § 1983.”38 Meaning, the text and context of the statute do not make it clear enough that individuals have the right to sue state officials for the enforcement of the Medicaid provision.
The Court’s ruling represents a significant departure from the historic origins of Medicaid. As such, both procedurally and substantively, the decision undermines fundamental principles embedded in the exercise of civil liberties and the expression of civil rights. Notably, Governor McMaster’s executive order, which targets Planned Parenthood and organizations that provide reproductive healthcare to low-income women,39 speaks to a troubling, and largely untold, dark history in the United States generally, and South Carolina specifically. The badges and incidents of slavery included the trauma of Jim Crow healthcare.40
This Comment proceeds by making the normative argument that the Supreme Court should have upheld the Fourth Circuit’s decision that Medicaid beneficiaries may sue to enforce the “any-qualified-provider” provision of Medicaid. Doing otherwise runs counter to the consistently interpreted clear meaning of the law. If it had done so, the Supreme Court would have preserved Medicaid’s full integrity, which, as discussed in this Comment, dates to the Medical Civil Rights Movement (MCRM). Medicaid’s passage was in response to segregationist laws that inflicted harm on Black patients while at the same time denying them access to quality medical care, particularly in states like South Carolina.41 Instead, Justice Gorsuch’s majority opinion struck down the Fourth Circuit’s decision, ruling that the “any-qualified-provider” provision does not confer a private right upon a Medicaid beneficiary.42 At its core, the decision ignored both text and original understanding, exposing once again the outcome-determinative decisionmaking of the Court on matters that relate to women’s reproductive health and civil liberties.
Stripping beneficiaries of their choice of provider must also be read as a substantive civil rights harm. The Medicaid provision historically aligned with the MCRM — activism and civil disobedience led by Black medical providers — that sprang from and coincided with the civil rights movement,43 which resulted in the Civil Rights Act of 1964 and Voting Rights Act of 1965.44 To expound on this legacy and bring clarity to the Supreme Court’s perilous ruling, this Comment addresses the largely hidden or obscured American legacy of harms in healthcare for which Medicaid was a specific, federal grant of relief.45
This Comment forecasts that by granting its imprimatur to an odious executive order that limits choice of providers — a key feature of Medicaid dating back nearly sixty years — the Court further revives a system of oppression. That is, the ruling in Medina opens the door to additional dismantling of reproductive healthcare access that will exacerbate existing harms and disparities. Further, the executive and legislative hostility it invites will deepen inequality, disenfranchise the patients Medicaid was intended to serve, and ultimately harm the most vulnerable women in need of medical care. Finally, this Comment further highlights the sophistry embedded in the majority’s claims of fidelity to original meaning and history as guides for its jurisprudence.
My thesis is that women who would otherwise receive services at Planned Parenthood as their preferred provider under Medicaid, but who are now restricted from doing so in South Carolina and soon other states, will suffer serious harms to both their dignity and health. As reproductive healthcare and rights diverge by state, a two-tiered society emerges. By targeting Planned Parenthood, Governor McMaster’s executive order engages in stereotyping and stigmatization affecting not only the medical provider but also the clientele that would seek services from that provider.
Part I of this Comment performs the important task of unearthing the largely overlooked conditions that inspired the MCRM. The purpose is twofold. First, it renders visible the hidden and obscured patterns of overt and covert discrimination in healthcare, resulting in an odious healthcare Jim Crow that targeted Black Americans for unequal treatment. Second, by mining this important history, this Part brings the MCRM into view.
In Part II, grounded in sociolegal history, the Comment turns to the Medicare and Medicaid Act, also known as the Social Security Amendments of 1965.46 As this Part argues, these key provisions should not be viewed in the abstract, disconnected from the contexts in which they were forged. Rather, the Medicare and Medicaid Act was part of a trilogy of legislation signed into law by President Lyndon Johnson to combat invidious racial discrimination and strike down Jim Crow–era practices.
Part III makes the case that the Medina decision weaponizes poor women’s poverty against them and in turn leaves clinics that wish to provide a full scope of healthcare unable to do so without a heavy financial or moral burden. Put simply, the risks are being barred from receiving federal and state dollars in providing care to low-income patients if abortion services are provided by the clinic — even if infrequently performed — or turn away patients that may need an abortion due to rape, incest, miscarriage, or other condition. In the wake of Dobbs v. Jackson Women’s Health Organization,47 and now Medina, given steep fines, criminal penalties, and risks to their licensure, doctors fear violating abortion bans and antiabortion laws. In South Carolina, lawmakers have called for the death penalty in such instances under the proposed Prenatal Equal Protection Act.48 The moral dilemma is that most doctors recognize an ethical obligation to treat their patients and ease their suffering, but antiabortion laws purposefully discourage and prohibit doctors from acting on their ethical obligations.49
As such, at its core, Medina is a case about punishing providers — based not on the quality of services provided nor allegations of fraud, waste, abuse, or harm to patients. The case is not about failure to meet the conditions and terms of the Medicaid program. Rather, this case fits within a pattern of antiabortion lawmakers and governors seeking to weaponize their authority and overreach into constitutionally and federally protected spaces to truncate not only abortion rights but any type of reproductive healthcare that they themselves personally disagree with. In this case, the Governor’s executive order to terminate Planned Parenthood and providers that perform abortions from the Medicaid program violated the free choice that patients were lawfully entitled to make under specific, decades-old Medicaid provisions.
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* Linda D. & Timothy J. O’Neill Professor of Constitutional Law and Global Health Policy and Faculty Director, O’Neill Institute for National and Global Health Law at Georgetown University Law Center. Steven M. Polan Fellow of the Brennan Center for Justice©. I would like to thank my research assistant, Lorna Loch. My gratitude to the student editors and staff of the Harvard Law Review for their exemplary work.