How 2 words could decide whether SC can remove Planned Parenthood from list of Medicaid providers

Yahoo

02-04-2025

Supporters and opponents of Planned Parenthood hold signs outside a U.S. Supreme Court hearing Wednesday, April 2, 2025, on a case that will decide whether South Carolina can remove Planned Parenthood from Medicaid rolls as a provider for non-abortion health care services. (Photo by Sofia Resnick/States Newsroom)
Whether South Carolina Medicaid patients can go to the doctor of their choice could hinge on two words in federal law, attorneys argued to the U.S. Supreme Court on Wednesday.
A section of the federal Medicaid Act says patients 'may obtain' care from any provider who is willing and qualified.
It will be up to the nation's highest court to decide what that means.
Attorneys for South Carolina and the U.S. government contend that allows states to choose which providers can be reimbursed for Medicaid-covered health care services. An attorney for Planned Parenthood argued those words give patients the right to see the provider of their choice.
The case stems from a 2018 executive order in which Gov. Henry McMaster directed the state's Medicaid agency to remove abortion clinics from the list of providers that patients can choose to visit for non-abortion health care services.
Under federal law, Medicaid can't pay for abortions.
But Planned Parenthood also offers 'family planning' services Medicaid does cover, such as breast and cervical cancer screenings, birth control, and testing and treatment for sexually transmitted infections.
Because the Medicaid Act doesn't explicitly use the word 'right,' or similar words, such as 'privilege,' 'entitlement' or 'immunity,' the state isn't legally obligated to allow patients to see whatever health care provider they want, argued John Bursch, an attorney representing the state, and Kyle Hawkins, an attorney for the Office of the Solicitor General.
'We're looking for unmistakable rights-creating language,' said Hawkins, who presented the federal government's arguments in support of the state.
Justices Sonia Sotomayor and Kentaji Brown Jackson seemed to differ.
Requiring certain phrasing would be like telling Congress there are 'magic words' that can make the court interpret the law a certain way, said the justices who are generally considered liberal.
Justice Elana Kagan was more direct in her questioning. The law's phrasing seems to clearly convey that a patient has the right to choose their provider, she said.
'It's impossible to even say the thing without using the word 'right,'' Kagan said.
The use of the word 'may' is not related to a person's choice in what provider they visit but rather whether they choose to seek out health care at all, Kagan said.
'The 'may' is just, 'You may see a doctor,'' Kagan said. 'We're not forcing people to see doctors.'
If the court interpreted the law as allowing states to deny Medicaid reimbursements to any doctor or practice state politicians deem unqualified, that could lead to any number of arbitrary decisions about who to include or exclude from the provider list, she said.
Some states might decide to approve only the providers that perform abortions, offer contraception or do gender transition treatment, while other states might decide the opposite, she said.
'Every state could split up the world by providers like that, right?' Kagan said.
Allowing states to do that, she added, would give patients 'no ability to come back and say, 'That's wrong, I'm entitled to see my provider of choice, regardless of what they think about contraception or abortion or gender transition treatment.''
Congress passed that part of the Medicaid Act because some states were trying to 'steer their Medicaid beneficiaries to certain providers and away from others,' Jackson said.
That suggests Congress intended people to be able to choose which providers they want to see, said Nicole Saharsky, attorney for Planned Parenthood South Atlantic.
'There aren't that many things that are more important than being able to choose your doctor, the person that you see when you're at your most vulnerable, facing some of the most significant challenges to your life and your health,' Saharsky said. 'Congress said a long time ago, 'This is something we want to protect.''
In response, Bursch argued that interpreting the wording as giving patients the right to choose their provider could open up a flood of lawsuits from people whose preferred doctors aren't on the list.
SC's Planned Parenthood Medicaid funding case before the Supreme Court 7 years after McMaster's order
The law already creates an appeals process for patients who feel their care isn't sufficient, Bursch said. Providers can also appeal to the courts if they feel they were unfairly excluded, he said.
He likened the process to private insurance, in which an insurance company will only cover care provided by doctors considered part of its network.
'The beneficiary doesn't have the right to whip out a magic wand and then just hit on the head the doctor that they want, and then they must be qualified under Medicaid,' Bursch said.
But that process doesn't allow a person to appeal until they've seen the provider, meaning that person couldn't challenge the decision to remove a health care provider from the list entirely, said Justice Amy Coney Barrett.
'That's the beneficiary taking the risk, going to the provider she wants to see and then potentially having to pay out of pocket,' Barrett said.
Activists on both sides gathered outside the U.S. Supreme Court during the hearing, with competing bright pink signs that read 'defund' or 'fund' Planned Parenthood.
But representatives for Planned Parenthood said justices' ruling is not about the organization's ability to operate, but whether patients will lose access to health care.
'If we lose, it won't shut us down,' said Molly Rivera, communications director for Planned Parenthood South Atlantic. 'The real impact is going to be on the patients. It's going to be on people who rely on Medicaid and Title X for preventative health care.'
Other activists who traveled to the nation's capital showed their support with homemade signs.
They included Alex Brunken; her husband, John McNeil; and their son, Glen, who came from Slippery Rock, Pennsylvania, to support Planned Parenthood.
'Poor people should also get to choose who their providers are, not just wealthy people,' said Brunken, who described her work as being in 'reproductive health care,' adding she wanted her son to see the work she and her co-workers do.
This week, the Trump administration also temporarily froze nearly $30 million in Title X family-planning grants to Planned Parenthood affiliates, which the Guttmacher Institute estimates could impact more than 1 million people seeking contraception, testing for sexually transmitted infections or other reproductive health services.
The Alliance Defending Freedom, which is representing South Carolina officials in the lawsuit, argues that any money going to Planned Parenthood ultimately goes toward funding abortion.
'We know that money is fungible, so any dollar that's going to an abortion facility like Planned Parenthood — even earmarked for other services — is going to enable more dollars that they have to then go towards things like their abortion activism or performing more abortions,' said Gabriella McIntyre, legal counsel at Alliance Defending Freedom.
'States need to be free to fund real, comprehensive, high-quality health care in their states and exclude organizations like Planned Parenthood' from their limited funding, she said.
McIntyre said South Carolina has 'nearly 200 high quality, comprehensive healthcare facilities that are publicly funded' where Medicaid patients could go instead of Planned Parenthood for family planning services.
Rivera and other reproductive rights advocates in the state have argued there is a dearth of reproductive health providers who accept Medicaid and who are accepting new patients.
Rivera said Planned Parenthood, which is a nonprofit, actually loses money as a Medicaid provider because the government's reimbursement rates are lower than the cost of the approved services they provide, such as cervical cancer screenings and birth control.
That's why many for-profit health providers do not accept or limit the amount of Medicaid patients they see, which Planned Parenthood does not, she said.
She said she worries residents of South Carolina, where most abortions are currently banned after six weeks' gestation, might have to start traveling out of state — not just for abortions, but for birth control and Pap smears.
'Both of our health centers, Columbia and Charleston, are also part of Title X, so we see people for Title X and Medicaid, and if you can't do either because of the government, I don't know where people are going to go,' Rivera said. 'Especially with cancer screenings, early detection saves lives. So, if you have to travel across state lines for your Pap smear, are you going to be able to do that? People will just forgo care.'
While reproductive rights advocates outside the court rallied in favor of patients' rights, U.S. Rep. Ralph Norman of South Carolina's Fifth District argued states should have the right to determine their Medicaid providers.
He called it a case about choice as laid out in the 10th amendment of the U.S. Constitution as giving powers to the states.
It's about the state's choice 'to determine where limited resources go, the choice of South Carolinians to align our Medicaid policies with our values, and the choice of our nation to uphold the principles of federalism that our founders so wisely enshrined,' Norman, a Rock Hill Republican who might run for governor, said while addressing national anti-abortion leaders. 'I urge the court behind us to affirm our right to make these decisions free from outside interference, and I will continue to fight just alongside each one of you until this right is protected.'