Planned Parenthood S. Atl. v. Kerr

95 F.4th 152

PLANNED PARENTHOOD SOUTH ATLANTIC;Julie Edwards, on her behalf and on behalf of all others similarly situated, Plaintiffs - Appellees, v. Robert M. KERR, in his official capacity as Director,South Carolina Department of Health and Human Services, Defendant - Appellant.Reproductive Rights and Justice Organizations and Allied Organizations;National Health Law Program; South Carolina Appleseed Legal Justice Center;Virginia Poverty Law Center; North Carolina Justice Center;Charlotte Center for Legal Advocacy; IPAS;Sexuality Information and Education Council of the United States;American Academy of Family Physicians; American Academy of Pediatrics;American College of Nurse-Midwives; American College of Obstetricians and Gynecologists;American College of Physicians; American Medical Association;American Psychiatric Association; Nurse Practitioners in Womens Health;Society for Maternal-Fetal Medicine; Society of Gynecologic Oncology;Society of OB/GYN Hospitalists, Amici Supporting Appellee.

No. 21-1043

United States Court of Appeals, Fourth Circuit

Argued: December 8, 2023

Decided: March 5, 2024

Appeal from the United States District Court for the District of South Carolina, at Columbia. Mary G. Lewis, District Judge. (3:18-cv-02078-MGL)

ARGUED: John J. Bursch, ALLIANCE DEFENDING FREEDOM, Washington, D.C., for Appellant. Avi Kupfer, MAYER BROWN LLP, Chicago, Illinois, for Appellees. ON BRIEF: Kelly M. Jolley, Ariail B. Kirk, JOLLEY LAW GROUP, LLC, Columbia, South Carolina; Christopher P. Schandevel, ALLIANCE DEFENDING FREEDOM, Lansdowne, Virginia, for Appellant. Nicole A. Saharsky, MAYER BROWN LLP, Washington, D.C.; Alice Clapman, Jennifer Sandman, PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, D.C.; M. Malissa Burnette, Kathleen McDaniel, BURNETTE, SHUTT & MCDANIEL, PA, Columbia, South Carolina, for Appellees. Julie Rikelman, Pilar Herrero, Joel Dodge, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York; Da Hae Kim, NATIONAL ASIAN PACIFIC AMERICAN WOMEN'S FORUM, Washington, D.C., for Amici Reproductive Rights and Justice Organizations and Allied Organizations. Martha Jane Perkins, Catherine McKee, Sarah Jane Somers, Sarah Grusin, NATIONAL HEALTH LAW PROGRAM, Chapel Hill, North Carolina, for Amici National Health Law Program, South Carolina Appleseed Legal Justice Center, Virginia Poverty Law Center, North Carolina Justice Center, Charlotte Center for Legal Advocacy, IPAS, and Sexuality Information and Education Council of the United States. Janice M. Mac Avoy, Alexis R. Casamassima, Danielle M. Stefanucci, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP, New York, New York, for Amici American Academy of Family Physicians; American Academy of Pediatrics; American College of Nurse-Midwives; American College of Obstetricians and Gynecologists; American College of Physicians; American Medical Association; American Psychiatric Association; Nurse Practitioners in Women's Health; Society for Maternal-Fetal Medicine; Society of Gynecologic Oncology; and Society of OB/GYN Hospitalists.

Before WILKINSON, WYNN, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion in which Judge Wynn joined. Judge Richardson wrote an opinion concurring in the judgment.

WILKINSON, Circuit Judge:

This case marks the third time that we have been called upon to resolve the same legal issue: whether the free-choice-of-provider provision of the Medicaid Act, 42 U.S.C. § 1396a(a)(23), creates individual rights enforceable via 42 U.S.C. § 1983. See Planned Parenthood S. Atl. v. Baker, 941 F.3d 687, 696 (4th Cir. 2019); Planned Parenthood S. Atl. v. Kerr, 27 F.4th 945, 953 (4th Cir. 2022), cert. granted, judgment vacated, — U.S. —, 143 S. Ct. 2633, 216 L.Ed.2d 1222 (2023). After another round of briefing and oral argument, we respectfully conclude that the answer is again yes.

South Carolina insists that we ought to abandon our prior position in light of the Supreme Court's recent opinion in Health and Hospital Corp. of Marion County v. Talevski, 599 U.S. 166, 143 S.Ct. 1444, 216 L.Ed.2d 183 (2023). It argues that Talevski compels the conclusion that the free-choice-of-provider provision cannot be enforced by individual Medicaid beneficiaries.

We agree that enforceable rights under § 1983 are dependent on congressional authorization, which under no circumstances may be casually implied. While Talevski offered an illuminating analysis of the issue before us and a useful new example of provisions enforceable via § 1983, we do not read it as toppling the existing doctrinal regime. And even if Talevski could be read as embracing a wholly new test, we hold that the free-choice-of-provider provision passes it. Accordingly, we remain in the good company of four of our sister circuits¹ and reaffirm that a Medicaid beneficiary may use § 1983 to vindicate her right under the Medicaid Act to freely choose among qualified healthcare providers, of which Planned Parenthood is one.

I.

A.

Medicaid was established in 1965 to provide "medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services." 42 U.S.C. § 1396-1. It does so via a partnership with the states, offering "federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons." Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). In short, it "is a cooperative federal-state program that provides medical care to needy individuals." Douglas v. Indep. Living Ctr. of S. Cal., Inc., 565 U.S. 606, 610, 132 S.Ct. 1204, 182 L.Ed.2d 101 (2012).

Medicaid was enacted through Congress's Spending Clause authority, and, characteristically, "offers the States a bargain: Congress provides federal funds in exchange for the States' agreement to spend them in accordance with congressionally imposed conditions." Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 323, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015). States draft "plans for medical assistance" and submit them for approval to the Secretary of Health and Human Services, who reviews the plans for compliance with federal statutory and regulatory requirements. 42 U.S.C. § 1396-1.

The statute also tasks the Secretary with ensuring that states keep their end of the bargain. If the Secretary later discovers "that in the administration of the plan there [has been] a failure to comply substantially" with federal requirements, the Secretary may withhold funds until "satisfied that there will no longer be any such failure to comply." 42 U.S.C. § 1396c.

Two years following the enactment of the Medicaid Act, Congress grew concerned that states were restricting beneficiaries to certain providers. Accordingly, Congress amended the Act to add the free-choice-of-provider provision to the list of requirements with which states must comply to be eligible for federal funds. That provision, which is at issue here, states:

A state plan for medical assistance must . . . provide that . . . any individual eligible for medical assistance . . . may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required . . . who undertakes to provide him such services.

42 U.S.C. § 1396a(a)(23).

B.

Plaintiff Planned Parenthood South Atlantic serves both Medicaid and non-Medicaid patients at two South Carolina health centers in Charleston and Columbia. It offers a wide range of specialized services, including contraception and contraceptive counseling, cancer screenings, sexually transmitted infection screenings and treatment, pregnancy testing, and physical exams. Planned Parenthood also performs abortions, but pursuant to federal law, South Carolina Medicaid funds cannot be used to cover abortions except in life-threatening circumstances or in the case of rape or incest. See Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, div. H, tit. V, §§ 506-07, 134 Stat. 1182, 1622 ("the Hyde Amendment").

Planned Parenthood has crafted its care to provide greater access to low-income patients, many of whom are covered by Medicaid. For instance, Planned Parenthood clinics offer short wait times, same-day appointments, and extended clinic hours. These policies provide flexibility to individuals with rigid or unpredictable working hours. Planned Parenthood clinics also offer translation services for patients who request them. Thousands of South Carolinians have visited Planned Parenthood in connection with their healthcare. See Br. of the American Academy of Family Physicians as Amicus Curiae Supporting Plaintiff-Appellees 14.

Julie Edwards, the individual plaintiff in this case, is one of those South Carolinians. Edwards is insured through Medicaid and previously struggled to find a provider who could provide her with the contraceptive care she sought. Doctors at Planned Parenthood addressed her problem by inserting an intrauterine contraceptive device and advising her that follow-up care was needed for her high blood pressure. Edwards was pleased with her treatment at Planned Parenthood and planned to move "all [her] gynecological and reproductive health care there." J.A. 61. She noted, however, that she would "not be able to continue going there if the services [were] not covered" by Medicaid because she could not afford "to pay out of pocket." J.A. 61.

Edwards's concerns were real ones. In July 2018, the Governor of South Carolina issued an executive order directing South Carolina's Department of Health and Human Services (DHHS) "to deem abortion clinics . . . that are enrolled in the Medicaid program as unqualified to provide family planning services and, therefore, to immediately terminate them upon due notice and deny any future such provider enrollment applications for the same." J.A. 54. Accordingly, DHHS informed Planned Parenthood that it was "no longer . . ....