South Carolina Lawyers Weekly
Where South Carolina terminated its enrollment agreements with Planned Parenthood because it provided abortion services, a woman who used Planned Parenthood for her gynecological care had standing to sue to enjoin the termination on the grounds it violated Medicaid’s free-choice-of-provider provision.
Background
In July 2018, the South Carolina governor issued an executive order directing South Carolina’s Department of Health and Human Services or 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.” That same day, DHHS sent Planned Parenthood a letter stating that it was “no longer … qualified to provide services to Medicaid beneficiaries” and that its “enrollment agreements with the South Carolina Medicaid programs [were] terminated” effective immediately.
Planned Parenthood and Julie Edwards, an individual who is insured by Medicaid and who planned to use Planned Parenthood for her “all [her] gynecological and reproductive health care,” filed suit, alleging that South Carolina had violated the Medicaid Act and the 14th Amendment. The district court granted the preliminary injunction.
South Carolina appealed and this panel affirmed. South Carolina then petitioned for a writ of certiorari, which the Supreme Court denied. The district court subsequently granted summary judgment to the plaintiffs on Edwards’s Medicaid Act claim. The parties stipulated to a dismissal of their remaining 14th Amendment claims, following which the district court entered a declaratory judgment in favor of the plaintiffs.
Jurisdiction
South Carolina contends for the first time on this appeal that it believes this case is moot on the grounds that Edwards has not used Planned Parenthood’s services since filing her complaint and therefore faces no concrete injury if South Carolina terminates Planned Parenthood’s Medicaid provider agreement. The court does not agree.
There is a substantial risk that Edwards will be harmed, given that she has previously used Planned Parenthood for gynecological and reproductive care, has seen no other providers for this care since and has made a future appointment to receive this care from Planned Parenthood. And while Edwards may not have visited Planned Parenthood as regularly as she predicted in her complaint, the frequency of medical appointments may not be so perfectly predicted in advance.
Merits
South Carolina argues that the court should reconsider its previous panel decision and hold that Edwards cannot sue under § 1983 to enforce the free-choice-of-provider provision. In essence, South Carolina suggests that this court reverse the district court for applying a legal conclusion that this court previously set forth in a binding opinion.
South Carolina points to no en banc opinion or Supreme Court decision. Instead, the only intervening change highlighted by South Carolina is that the Fifth Circuit recently came to a different conclusion than this court. Even setting aside the fact that this court remains on the majority of a rather lopsided circuit split, it is hard to see how that could justify this court’s reconsideration of the case. Without exception, this court has understood that the resolution of a purely legal issue, absent a change in controlling law, governs subsequent panels, including in later appeals following a prior interlocutory appeal.
Furthermore, the court reaffirms its prior holding. The court finds the statute creates a private right enforceable under § 1983. As such, the free-choice-of-provider provision may be enforced under § 1983 unless the Medicaid Act evinces Congress’s intent to “specifically foreclose[] a remedy under § 1983.” None of the remedies provides individual Medicaid recipients any mechanism to contest the disqualification of their preferred provider.
Finally, the Supreme Court’s decision in O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980), does not undermine this analysis. South Carolina interprets O’Bannon to hold that the free-choice-of-provider provision does not confer any individual rights on Medicaid recipients. But that case actually resolved an entirely different question and, to the extent that it has any application here, it only supports the existence of a private right.
Affirmed.
Concurrence
(Richardson, J.): I agree that the case is not moot given the facts before this court. I also continue to believe that “applying existing Supreme Court precedents requires that we find § 1396a(a)(23) to unambiguously create a right privately enforceable under § 1983 to challenge a State’s determination of whether a Medicaid provider is ‘qualified.’”
At the same time, the caselaw on implied private rights of action remains plagued by confusion and uncertainty. This confusion stems from recent Supreme Court cases which cast doubt on—but fail to explicitly overrule—earlier precedent. So I am left hoping that clarity will soon be provided.
Planned Parenthood South Atlantic v. Kerr (Lawyers Weekly No. 001-050-22, 25 pp.) (J. Harvie Wilkinson III, J.) (Julius N. Richardson Jr., J. concurring in the judgment) Case No. 21-1043. March 8, 2022. From D.S.C. at Columbia (Mary G. Lewis, J.) John J. Bursch for Appellant. Nicole A. Saharsky for Appellees. 4th Cir.
