The future of reproductive health care provider Planned Parenthood in South Carolina, and possibly around the country, might hinge on just two words.
In arguments before the U.S. Supreme Court Wednesday, lawyers for South Carolina and the U.S. Justice Department squared off against Planned Parenthood South Atlantic over whether the words “may obtain” contained in the federal Medicaid Act, which governs how states dispense Medicaid funds, guarantees Medicaid recipients the right to choose their provider.
At stake is whether a 2018 executive order signed by Gov. Henry McMaster, a Republican, disqualifying Planned Parenthood from receiving Medicaid funds is constitutional. McMaster’s executive order explicitly targeted clinics that also offer abortions. It stated that South Carolina has a “long tradition of protecting the life and liberty of unborn children” and calling those providers “unqualified to provide family planning services.”
The case, known as Medina v. Planned Parenthood South Atlantic, was brought by the national reproductive health care provider against Eunice Medina, director of the S.C. Department of Health and Human Services.
In court filings, Planned Parenthood has argued that Medicaid is a reimbursement system — meaning that Planned Parenthood provides care and is reimbursed afterwards by Medicaid for that specific appointment or procedure. No money from Medicaid or the state is used to pay for abortions, Planned Parenthood has argued.
The abortions provided in South Carolina by Planned Parenthood conform with the state’s laws, which prohibit abortions after six weeks except in limited cases where the life of the mother is in danger or the pregnancy is the result of rape or incest, according to the organization.
Were the nation’s highest court to rule in favor of the state, it would likely force Planned Parenthood to stop offering many of its services to Medicaid recipients or even close in the state entirely, according to the organization.
John Bursch, a lawyer with the Alliance Defending Freedom, a conservative Christian legal advocacy group representing South Carolina, told the court’s nine justices that a federal law regarding Medicaid providers simply did not establish a right that needed to be protected. Instead, receiving Medicaid funds is a benefit, Bursch argued.
In part, that was because when Congress wrote the law, it did not use words like “right or its equivalents,” Bursch said. Words that he and the counsel for U.S. Solicitor General Karl Hawkins suggested would grant rights also included “privileges” or “immunity.”
However, when questioned by the court’s liberal justices, Bursch denied arguing that only certain “magic words” conveyed rights on citizens.
Were the court to agree with Planned Parenthood that South Carolina had effectively deprived citizens of their right to choose their own doctor, the justices would be opening states up to a flood of federal lawsuits arguing that rights could be inferred from all manner of laws and policies.
“Anyone can recruit a beneficiary, take the state to court and line their pockets with attorneys’ fees,” Bursch told the court.
But Nicole Saharsky, representing Planned Parenthood South Atlantic, argued that that the language in the law unambiguously conferred citizens the right to receive health care from any “qualified” and “willing” medical provider.
“I think it’s wrong to suggest that there’s a flood of individuals on Medicaid wanting to sue for lawyers’ fees,” Saharsky said. “These aren’t people getting rich; these are just people wanting health care.”
When Congress passed the law, Saharsky argued, the intent was clear that states were not allowed to arbitrarily block Medicaid funds to providers that had been found qualified to receive them.
“There has never been a question that Planned Parenthood is unqualified,” Saharsky said. Were the court to rule in favor of South Carolina, it could open the door to states barring providers from receiving Medicaid funds for any reason, including if they believed “too many people who work there have blue eyes,” Saharsky said.
Planned Parenthood South Atlantic currently operates just two facilities in South Carolina, in Columbia and Charleston.
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Ted Clifford is the statewide accountability reporter at The State Newspaper. Formerly the crime and courts reporter, he has covered the Murdaugh saga, state and federal court, as well as criminal justice and public safety in the Midlands and across South Carolina. He is the recipient of the 2023 award for best beat reporting by the South Carolina Press Association.