Home / General / Supreme Court joins the Republican War on Planned Parenthood by continuing its war on the Civil Rights Act of 1871

Supreme Court joins the Republican War on Planned Parenthood by continuing its war on the Civil Rights Act of 1871

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It’s as bad as it sounds:

On Thursday, by a 6–3 vote, the Supreme Court allowed states to “defund” Planned Parenthood by cutting the provider out of their Medicaid programs. In the process, the court hollowed out a landmark civil rights statute from 1871 that protects federal rights against state intrusion. The conservative supermajority’s ruling in Medina v. Planned Parenthood marks a sharp break from precedent, giving states broad new authority to nullify freedoms guaranteed by Congress. It will also have a devastating impact on Planned Parenthood and the millions of patients it serves, effectively cutting many off from care in a growing number of states. The court’s decision is activist in every sense, undoing Congress’ handiwork in order to inflict grievous harm upon a health care provider and those it serves.

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There is, however, a problem with the state’s effort to “defund” Planned Parenthood: Congress has granted Medicaid recipients wide latitude to choose where they receive their health care. Federal law states that patients “may obtain” the assistance they seek from “any” provider that is “qualified to perform” the “services required.” And it instructs states to reimburse these providers with Medicaid dollars for the services they perform. No one argues that Planned Parenthood is actually unqualified to offer non-abortion care to patients. By cutting out Planned Parenthood from its Medicaid program anyway, then, South Carolina would seem to have violated Congress’ clear command. In response, a Planned Parenthood patient, Julie Edwards, filed a federal lawsuit arguing that the state had a legal obligation to restore her access to the clinics through Medicaid.

Now the Supreme Court has tossed out Edwards’ lawsuit—and done immense damage to civil rights law along the way. Edwards had filed under a landmark statute known as Section 1983, which allows individuals to file federal lawsuits when states violate rights “secured by the Constitution and laws.” Medicaid was enacted under the Constitution’s spending clause, and the Supreme Court has held that Section 1983 protects rights established under this kind of program as long as Congress used “rights-creating language” in drafting the legislation. But on Thursday, Justice Neil Gorsuch, joined by the other five conservatives, ruled that the Medicaid statute does not use sufficiently “clear and unambiguous” language to create individual rights under Section 1983. So Edwards cannot sue to vindicate a right that Congress guaranteed to her.

To reach this conclusion, Gorsuch had to rewrite or disregard decades of precedent, including a major 7–2 decision from just two years ago that now appears dead in the water. Congress could not have been much clearer in establishing Medicaid patients’ rights to obtain services from “qualified providers.” But Gorsuch insisted that Congress should have been clearer if it wanted to let patients sue under Section 1983 when denied this right. He wrote that Congress must, in essence, use the word “right” over and over again, as emphatically as possible, and spell out its precise application to every context in which it sought to create enforceable guarantees. Anything short of explicit and repeated reiteration of this magic word would not suffice to create a true “right.” Enacting this incredibly high bar, Gorsuch asserted, safeguards “the separation of powers” by limiting individual freedoms, under spending clause programs, to a small set of entitlements unambiguously authorized by Congress. (In a concurrence, Justice Clarence Thomas argued that the court should go further and gut the right to sue over a state’s denial of virtually any benefit.)

It is grimly ironic that Gorsuch invokes “the separation of powers” and respect for “the people’s elected representatives” in a ruling that blithely overturns the will of Congress. As Justice Ketanji Brown Jackson explained in dissent, the majority not only misinterpreted the Medicaid statute, which goes out of its way to protect patients’ personal choice of a qualified provider, it also blasted a hole through Section 1983, a key law enacted as part of the Civil Rights Act of 1871. Indeed, Jackson linked both the conservative supermajority and South Carolina with white supremacists who resisted Congress’ efforts to protect Black Americans’ individual liberties after the Civil War. “It was precisely because the goals of the 1871 Act were so ambitious that those most committed to the structures it targeted, including many in South Carolina, opposed the measure so vehemently,” she wrote. “A century and a half later, the project of stymying one of the country’s great civil rights laws continues.”

Jackson also connected Thursday’s decision to the notorious Supreme Court rulings, during and after Reconstruction, that eviscerated civil rights laws designed to protect newly freed slaves. 

This case is also a trademark Roberts Court decision, in that it dresses up its usurpation of the unambiguously expressed will of Congress, by inventing an ambiguity that allows it to substitute its own policy preferences for those established by the people’s elected representatives:

Gorsuch’s Medina opinion is animated by an arrogance that verges on gaslighting: The justice assures us that he is respecting Congress’ abstract constitutional prerogatives by shredding its actual, concrete enactments. The decision dresses up profound disrespect, even contempt for the realities of democratic lawmaking in the esoteric language of legal doctrine. But no amount of deferential rhetoric can disguise the brutal consequences of this ruling for real people. Once again, millions of Americans will wake up to discover that the Supreme Court has stripped them of rights that seemed secure the day before.

As Jackson concludes in her dissent, Medina violates Congress’s will twice over, as part of its long tradition of undermining civil rights statutes:

There is an additional grim irony here, in that one of the reasons Gorsuch cites for denying standing to the people being deprived of their clearly established rights is because “the typical action” in response to state non-compliance “by the Federal Government [is] to terminate funds to the State.” The same Court that cynically re-wrote the Affordable Care Act ostensibly because its use of the federal spending power was excessively coercive allows states to defund Planned Parenthood because the federal government did not use the most coercive (and recipient-damaging) remedy. It’s all a floating game of Calvinball.

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