Supreme Court hears dispute over South Carolina’s bid to defund Planned Parenthood

by dap | Apr 5, 2025 | Scotus Blog

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The Supreme Court on Wednesday was divided over whether Planned Parenthood has a legal right under federal civil rights laws to challenge the order by South Carolina’s governor barring abortion clinics, including Planned Parenthood, from participating in Medicaid.

During more than 90 minutes of oral arguments, the justices struggled to determine whether the Medicaid law on which Planned Parenthood relies must use specific words to signal that Congress intended to create a private right to enforce it – and, if so, what those words might be.

For 60 years, the Medicaid program has provided medical care to more than 72 million Americans of limited financial means. Congress enacted the law pursuant to its power under the Constitution’s spending clause, which allows it to attach conditions to the federal funds that it gives to states.

In 2018, South Carolina Governor Henry McMaster ordered the state’s Department of Health and Human Services to prohibit abortion clinics from participating in the Medicaid program. Federal law generally bars the use of Medicaid funds for abortions. Planned Parenthood provides other medical services, such as gynecological and reproductive care but also screenings for cancer, high blood pressure, and high cholesterol. But because money is fungible, McMaster reasoned, any Medicaid funds that go to clinics where abortion is provided would effectively subsidize “abortion and the denial of the right to life.”

Julie Edwards, a Medicaid patient in South Carolina who suffers from diabetes and has used Planned Parenthood for birth control, went to federal court in South Carolina along with Planned Parenthood. They contended that McMaster’s order violated a provision of the Medicaid Act that allows any patient who is eligible for Medicaid to seek health care from any “qualified” provider.

The U.S. Court of Appeals for the 4th Circuit agreed with Planned Parenthood and Edwards that the Medicaid Act creates individual rights that can be enforced under federal civil rights laws, and it barred the state from excluding Planned Parenthood from its Medicaid program.

John Bursch, a lawyer for the conservative advocacy group Alliance Defending Freedom, represented the state. He told the justices that for laws enacted pursuant to Congress’s spending clause power, “clear rights-creating language is critical to creating private rights. Congress did not use” such language in the “any qualified provider” provision, he stressed. Indeed, he noted, Congress “knows how to clearly confer a private right to choose a provider” when it wants to do so, as it did in the Federal Nursing Home Reform Act.

Justice Clarence Thomas asked Bursch whether the word “right” is “absolutely necessary in order to determine whether or not a right has been created” under the “any qualified provider” provision.

Bursch answered that “if Congress wants to be clear, ‘right’ is the best word, but we would take its functional equivalent” – for example, “entitlement” or “privilege.”

Thomas’s question kicked off a debate that continued on and off throughout the morning’s argument: Does a federal law only create a privately enforceable right if it uses specific – or as some justices put it, “magic” – words?

Justice Sonia Sotomayor told Bursch, “You’re not quite calling it a magic word, but you’re coming very close.”

Bursch countered that what states need is a “clear statement” about their obligations under the Medicaid Act.

But Sotomayor was unconvinced. “It seems a little bit odd,” she suggested, “to think that a problem that motivated Congress to pass this provision was that states were limiting the choices people had.” In light of that history, she posited, it “seems hard to understand that states didn’t understand that they had to give individuals the right to choose a provider.”

Justice Amy Coney Barrett echoed Sotomayor’s concern about the purpose of the “any qualified provider” provision. If I want to go see the provider of my choice, she said, but the state has disqualified him from participating in Medicaid, “You’re depriving me of my ability … to see the provider of my choice. And nobody’s disputing that” the physician “can provide the services in a competent way that I want to have.”

Justice Brett Kavanaugh was more supportive of the idea that laws should have to use specific words to create privately enforceable rights. The Supreme Court, he observed, “has failed to give guidance … that lower courts can follow, that states, providers, and beneficiaries can follow.” What words, he asked Bursch, would create such rights, “rather than having something like ‘or its functional equivalent,’ would could” lead to “another decade of litigation”?

Bursch suggested that the words “rights,” “entitlement,” “privileges,” and “immunities” would fit the bill. “If you don’t limit it to those few words,” he told the justices, “then all of a sudden, the floodgates are open.”

Representing the federal government, Kyle Hawkins told the justices that their cases “emphasized that rights-creating statutes are atypical. But” the “any qualified provider” provision, he stressed, “is a run-of-the-mill spending clause statute, and holding otherwise would invite line-drawing problems.”

Sotomayor pressed Hawkins, observing that the federal government for two decades had contended that the “any qualified provider” provision could be privately enforced through federal civil rights laws. Although the government now contends that it had changed its position after the court’s decision in Health and Hospital Corporation of Marion County, Ind. v. Talevski , holding that nursing-home residents could use federal civil rights laws to enforce two provisions of the Federal Nursing Home Reform Act, Sotomayor suggested that in Talevski the court had simply “reiterated” its analysis in an earlier decision. “Did you need a hit over the head,” she asked, “meaning did you need for us to say it a second time before you understood it?”

Kagan contended that imposing a “magic words” requirement would be “kind of changing the rules midstream.” Congress, she emphasized, enacted the Medicaid Act a long time ago. “And if we come in now and say you have to use one of these three words,” she noted, it might be useful for future laws, “but it’s not a fair way to interpret statutes that Congress passed many years ago.”

Unlike Bursch, Hawkins declined to suggest specific words that would create a privately enforceable right. He agreed that words like “right,” “entitlement,” “privilege,” and “immunity” “would count,” but he suggested that “a helpful way to think about it” is that “we’re looking for words that have a real rights-creating pedigree in our nation’s history and legal traditions.”

But that answer did not necessarily please Kavanaugh, who told him that Kagan had “raised good points about how, once you open it up like that, there are going to be line-drawing problems. You’re not going to solve the issue that you came here to solve.”

Nicole Saharsky, who represented Planned Parenthood, told the justices that there is no dispute that South Carolina violated the Medicaid Act when it denied Julie Edwards “her choice of a qualified and willing provider.” “The only question,” she said, “is whether she can do something about it, to sue under” federal civil rights laws.

The “any qualified provider” provision, Saharsky maintained, “uses mandatory, individual-centric, rights-creating language. The only thing it doesn’t do,” she said, “is use the word ‘right.’ And this Court has repeatedly said that magic words aren’t required.”

The justices raised other concerns as well. Barrett questioned whether allowing the 4th Circuit’s ruling to stand would “open the floodgates of people bringing” similar suits, “or is this kind of a pretty unusual circumstance?”

Hawkins answers that it was “hard to say it’s unusual,” adding that the “any qualified provider” provision was “the most litigated provision” in the statute.

Saharsky pushed back against any idea that a ruling in her clients’ favor would lead to more lawsuits, noting that the 6th Circuit had issued a decision similar to the 4th Circuit’s “more than 20 years ago. If the flood of lawsuits was supposed to happen, we would expect to see it.”

Moreover, she added, there is no real benefit to Medicaid patients from bringing lawsuits to challenge the denial of their provider of choice. Money damages are not available, she noted. “These aren’t people getting rich,” she said. “They’re just trying to get healthcare here.”

Kavanaugh voiced what he characterized as a “broader separation-of-powers concern” – the idea that “Congress creates rights of action and remedies, not the Court.” For more than two decades, Kavanaugh told Saharsky, the Supreme Court had “really tightened up” on creating causes of action, “and said essentially that far and no further.”

Saharsky countered that this dispute involves “an express cause of action” under the federal civil rights laws, so there is no need for the court to create one. And she conceded that there “is a high bar to find that Congress put in place an individually-enforceable right. What we’re saying is that this provision meets the bar.”

Justice Samuel Alito was similarly skeptical, describing it as “quite extraordinary” for the court to find that a law enacted pursuant to Congress’s spending clause power creates a privately enforceable right of action. And if a federal civil rights lawsuit can follow “whenever Congress uses the word ‘individual,’” he told Saharsky, “then all sorts of provisions could give rise to” liability. “Congress,” he said a few minutes later, “may well have had in mind” that the state needs to provide Medicaid beneficiaries with the ability to choose their own qualified health-care providers, “but not that this is something that allows an individual to sue in court.”

In his rebuttal, Bursch argued that “the fact that the 12 of us can have such a robust conversation about whether this statute is mandatory or not, whether it’s rights-creating or not, demonstrates that the rights-creating language is ambiguous, not clear and explicit. And if there is any ambiguity in this context,” he concluded, “the state has to win because it’s not being put on notice of when it might be sued.”

A decision is expected by summer.

This article was originally published at Howe on the Court .

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Announcement of opinions for Wednesday, April 2

by dap | Apr 5, 2025 | Scotus Blog

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On Wednesday, April 2, we will be live blogging as the court releases opinions in one or more argued cases from the current term.

Click here for a list of FAQs about opinion announcements.

The post Announcement of opinions for Wednesday, April 2 appeared first on SCOTUSblog .

Nonprofits urge justices to leave judge’s reinstatement of federal employees in place

by dap | Apr 5, 2025 | Scotus Blog

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A group of nonprofits challenging the layoffs of thousands of probationary employees urged the Supreme Court to leave in place an order by a federal judge in San Francisco that would require the federal government to reinstate more than 16,000 employees who were fired by six agencies in February. “It strains credulity that returning employees to work would cause irreparable harm to the Government,” the group said in a 40-page filing , “when these employees had the same workplaces, credentials, benefits, and training just a few weeks ago.”

In the federal government, probationary employees are those who have been newly hired for a position, normally within the past year. Not all probationary employees are new to the federal government or the workforce, however; the term also applies to experienced federal employees who transfer to a new role. In February, the Trump administration fired tens of thousands of probationary employees as part of its broader effort to shrink the size of the federal workforce.

The nonprofits that contend that layoffs could lead to fewer government services, affecting their members, went to federal court on Feb. 19, arguing that the Office of Personnel Management’s actions violated several different provisions of the federal law governing administrative agencies.

The government insisted that OPM had not been responsible for any of the firings. But Senior U.S. District Judge William Alsup concluded, based on a “mountain of evidence,” that “OPM directed other agencies to fire their probationary employees” under false pretenses – with the agencies citing poor performance but with OPM telling the agencies themselves that performance ratings did not matter in determining who should be fired.

At a hearing on March 13, Alsup issued a preliminary injunction that ordered OPM and six agencies – the Departments of Veterans Affairs, Agriculture, Defense, Energy, Interior, and the Treasury – to immediately reinstate the probationary employees who had been fired.

The U.S. Court of Appeals for the 9th Circuit fast-tracked the government’s appeal, setting a briefing schedule that requires the government to file its opening brief on April 10, but declined to pause Alsup’s order while that appeal plays out.

Acting Solicitor General Sarah Harris went to the Supreme Court on March 25 , asking the justices to intervene. Alsup’s ruling, she contended, allows “third parties” like the groups in this case to “highjack the employment relationship between the federal government and its workforce.”

In their filing on Thursday, the groups counter that the government is wrong when it contends that the groups lack a legal right to sue, known as standing, to challenge the firings of probationary employees. For example, they note, the termination of probationary employees who worked for the Department of Veterans Affairs “has already had and will imminently continue to have serious negative consequences” for members of the veterans’ non-profit in the case.

Nor is the government correct, the groups continue, when that it contends that “no one can challenge the illegal mass firing of federal employees by OPM, because the only way to challenge termination of federal employees is” for each individual employee to go to the Merit Systems Protection Board.

And Alsup did not go beyond his power, the groups say, when he ordered the government to reinstate fired employees. Instead, he merely “restored the status quo that existed prior to OPM’s illegal conduct, and reinstatement is a routine remedy in the fact of illegal termination.”

A federal district court in Maryland also issued an order that temporarily stopped the firings, and required the reinstatement, of probationary employees at 20 different federal agencies who live and work in the 19 states (along with the District of Columbia) that brought the case.

The U.S. Court of Appeals for the 4th Circuit rejected the government’s request to put that order on hold. The government’s efforts to comply with the district court’s order in this case, the groups suggest, establish that any burden on the government from complying with Alsup’s order to reinstate the fired probationary employees is not insurmountable.

This article was originally published at Howe on the Court .

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Divided court approves civil RICO liability for injuries from CBD product

by dap | Apr 5, 2025 | Scotus Blog

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The Racketeer Influenced and Corrupt Organizations Act provides for federal criminal and civil penalties for harms from “racketeering.” Wednesday’s ruling in Medical Marijuana, Inc v. Horn , like so many of the court’s RICO decisions, involves the civil penalties.

Douglas Horn was fired from his commercial truck driving job after he ingested a product marketed as including only CBD (cannabidiol, which is completely legal) rather than THC (tetrahydrocannabinol, which continues to be illegal in many contexts) and failed a drug test. Justice Amy Coney Barrett’s opinion for a sharply divided court on Wednesday upheld liability for damages to a business or property that flow from personal injury, a win for Horn at this stage. The case now will return to the lower court.

The question before the court involves the RICO clause that requires the claimant to show that it has been “injured in [it]s business or property.” For Barrett, it is wholly irrelevant that an injury to business or property might have been preceded by, or flowed from, a personal injury. She acknowledges that the statute “does not allow recovery for all harms,” because the “explicit permi[ssion of] recovery for harms to business and property … implicitly excludes recovery for harm to one’s person.” For her, though, that requirement “operates with respect to the kinds of harm for which the plaintiff can recover, not the cause of the harm for which [it] seeks relief.” She offers the example of “the owner of a gas station [who] is beaten in a robbery.” He “cannot recover for his pain and suffering. But if his injuries force him to shut his doors, he can recover for the loss of his business.” In other words, she writes, “a plaintiff can seek damages for business or property loss regardless of whether the loss resulted from a personal injury.”

Barrett presents the main argument of the defendants (led byMedical Marijuana, Inc., one of the the businesses that made the THC-laced CBD products at the center of the case) as viewing the reference to a plaintiff “injured” in a particular way as having a “specialized” meaning under which the originating injury must be “an invasion of a business or property right” that amounts to “a business or property tort.” Under that theory, because the initial invasion here was purely personal (ingestion of Medical Marijuana products), Medical Marijuana would face liability. But Barrett finds that in the contest between “an ordinary and specialized meaning,” the “context cuts decisively in favor of ordinary meaning,” largely because the specialized meaning is most common for references to a type of “injury” rather than to the people that are “injured.”

The defendants also urge the court to look to antitrust cases requiring allegations of “business or property injuries” to “track common-law torts.” Barrett rejects that argument, agreeing that the court’s “modern antitrust precedent forecloses recovery for certain economic harms” because of the court’s decision “to require … an injury of the type the antitrust laws were intended to prevent.” Previous cases, though, have conclude that “transplanting this … interpretation … into the RICO context would be inappropriate,” so she declines to do it here.

Barrett closes with caution, emphasizing that Horn’s case faces many obstacles. “First and foremost,” she notes, RICO requires a “direct” relation between the injury and the racketeering conduct: “The key word is ‘direct’; foreseeability does not cut it. … Given the number of steps in Horn’s theory …, this requirement may present an insurmountable obstacle in his case.” Second, she points to the requirement of a “pattern” of racketeering activity. Here, “harm resulting from a single tort is not a ticket to federal court for treble damages,” so Horn will need to persuade the lower courts that there was not only a single wrongful act, but multiple acts.

Justice Clarence Thomas dissented, writing with some frustration that by the time the case came to oral argument the contentions of the parties were so far removed from those presented in the original papers that the court should have dismissed the case as improvidently granted. His comments echo the complaint of Justice Samuel Alito in Monday’s argument in Rivers v. Guerrero about a “mini epidemic of cert petitions” that lead to arguments on the merits that are “quite a bit different from what we were sold at the petition stage.”

Justice Brett Kavanaugh, joined by Chief Justice John Roberts and Alito, filed a separate and vigorous dissent, expressing deep concern about the federalization of garden-variety tort litigation.

Despite the tone of the dissents, Barrett’s opinion seems to resolve the case on grounds that will not resonate widely in civil RICO litigation. Though only time will tell, my guess is that the case will not cause a substantial uptick in that area.

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