South Carolina's 'Please Let Us Defund Planned Parenthood' Argument Was Not Too Impressive

Even some of the conservative judges had a hard time buying it.

Photo by Ian Hutchinson on Unsplash

Yesterday, the Supreme Court heard arguments in the case of Medina v. Planned Parenthood South Atlantic — which will determine whether or not Medicaid beneficiaries can sue the state over being denied the right to see the “willing and qualified” doctor of their choice. Given the fact that this court overturned Roe v. Wade, we were not too hopeful.

However, South Carolina’s argument that patients should not be able to do this was actually so bad that, according to a report from the Washington Post, both Justice Neil Gorsuch and Chief Justice John Roberts (at least) seem poised to side with Planned Parenthood. Impressive! And given that liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson are pretty much a given on this one, those two siding with PPSAT would give them a majority.

“One of the benefits provided by the [Medicaid] Act is that you may choose your own doctor,” Roberts asked the lawyers representing South Carolina. “If a person thinks that’s not being provided, what remedies do they have?”

John J. Bursch, the Alliance Defending Freedom attorney representing South Carolina health and human services director Eunice Medina, did not have a great answer for that.

---

---

All he had, really, is that they could file an appeal to be allowed to see the doctor of their choice, although Gorsuch pointed out that the person they’d be sending that appeal to would be South Carolina Governor Henry McMaster, who issued the executive order barring Planned Parenthood from accepting Medicaid funds in the first place. Alternately, they could attach a note to a helium balloon before setting it free, for all the good that would do.

The justices were largely focused on whether or not Congress could just say that people are entitled to something without actually allowing them to do anything about it if they are denied.

“It seems to me Congress could hypothetically say an individual should be entitled to these benefits but not want to create a right of enforcement,” Gorsuch said, though it’s not clear what the point of specifically putting that into the Act would be if that were the case. Otherwise, the language might have been “This is just a suggestion, but it would probably be nice if Medicaid beneficiaries could choose their own providers,” or something like that. Though legal acts rarely include polite suggestions.

Bursch’s argument was that if the Court determined that patients did have the right to sue, the courts would be overwhelmed by endless lawsuits from other Medicaid patients suing for their right to see the providers they want. This would make sense, save for the fact that people would probably be doing that already if there were such a danger. As it stands, however, because Medicaid patients are able to choose any “willing and qualified” doctor they want, there would be no reason for said lawsuits.

Via Washington Post:

To allow enforcement, Bursch said, the statute must have what he called clear “rights-creating language” that puts states on notice of the risk of litigation.

Just as private insurers don’t provide coverage for any doctor patients may want, Bursch said, the state decides which providers are qualified and “you get to choose among them.” In this case, he said, South Carolina “decided that Planned Parenthood was unqualified for many reasons, chiefly because they’re the nation’s largest abortion provider.”

Given that the only reason the state actually cited for determining that Planned Parenthood was “unqualified” was that they provide abortions, it seems unlikely that there are any other reasons. Especially given that they explicitly stated in a brief that “PPSAT can restore Medicaid funding if it stops performing abortions — but it has chosen not to do so.”

It’s fairly clear that in writing “a beneficiary enrolled in a primary care case management system or Medicaid managed care organization (MCO) may not be denied freedom of choice of qualified providers of family planning services,” Congress meant for “qualified” to mean “competent.” Again, what would even be the point of including that in the Act in the first place if it were merely a polite suggestion or that “qualified,” rather than meaning “competent,” merely meant “approved of by the state”? Who would that be for, then? Who else would be denying them that choice? Why would the state deny a Medicaid beneficiary the right to see a doctor to whom they had no objections? What could that scenario possibly look like?

It should be noted that all the Planned Parenthood clinics are doing is following South Carolina’s own law, which allows abortion up to six weeks. Why would that be the law if it were something that made them somehow “unqualified” to do pap smears?

---

---

That statute is not for decorative purposes only. It’s not a blue law like “You can’t keep a donkey in your bathtub” or what have you. It’s meant to protect beneficiaries from being denied their choice of provider based on the personal whims of the governor or any other elected officials.

While we’re certain that Clarence Thomas and Samuel Alito will rule in favor of South Carolina regardless of how bad their arguments are, it (thankfully) seems possible that the other judges will not.

PREVIOUSLY ON WONKETTE!

Supreme Court To Hear Another Abortion Case So That's Probably Bad!

SC Republican Votes For Whole New Abortion Ban He Can Be Sad About Later

9 South Carolina Republicans Graciously Turn Against Death Penalty For Abortion