


The Supreme Court’s generosity toward President Trump’s flagrant violations of constitutional norms has cast a shadow long enough to obscure nearly everything else about the court’s term that ended last week. While that’s understandable, there is one decision, issued during the crush of the final days, that shouldn’t be overlooked. Not only will its immediate impact be significant, but it also reveals something about the current majority’s pursuit of a long-term goal: ridding American law of the notion that if a right is violated, there must be a remedy.
The governor of South Carolina — which bans abortion at six weeks of pregnancy — issued an executive order prohibiting clinics that provide abortions from receiving state Medicaid funding. Planned Parenthood sued, and the ensuing 6-3 Supreme Court decision in Medina v. Planned Parenthood South Atlantic dismissed that lawsuit, freeing the state to eject Planned Parenthood from its Medicaid program. The decision is likely to require Planned Parenthood to reduce services or even close clinics in South Carolina — and in any other states that might choose to follow South Carolina’s lead.
But this case was not really about abortion, which South Carolina’s Medicaid plan doesn’t cover. Rather, the state sought to punish Planned Parenthood by withholding its eligibility for Medicaid reimbursement for the full range of other reproductive health services that its clinics provide, depriving the organization of a vital source of revenue.
The federal Medicaid law requires states to ensure that Medicaid patients are entitled to care from “any qualified provider” willing to offer it. Invoking that guarantee, a woman who was receiving birth control and other medical services at a Planned Parenthood clinic joined the organization in suing the state. The path to lawsuits of this kind is through one of the country’s oldest and most important civil rights laws, the Civil Rights Act of 1871, referred to in its modern codification as Section 1983. The law authorizes individuals to sue state officials for violations of constitutional rights and, as broadly interpreted by the Supreme Court in a 1980 case, for violations of statutory rights as well.
Laws like the Medicaid statute are essentially bargains between the federal government and the states, conditioning federal money on a state’s compliance with the law’s requirements. Such laws, enacted by Congress under the Constitution’s spending clause, don’t explicitly authorize private lawsuits. Rather, the court itself has deemed that people seeking to vindicate their rights under laws of this kind have an “implied” right to sue. For example, in a 1990 decision, Wilder v. Virginia Hospital Association, the court ruled that hospitals could use Section 1983 to sue the state for the “reasonable and adequate” reimbursement that the Medicaid law requires. Those whom a law “intended to benefit” were entitled to sue for the benefit, the court held.
The Wilder case, a 5-to-4 decision with the court’s most conservative members in dissent, turned out to be a high-water mark for Section 1983 lawsuits. As the court grew steadily more conservative, it raised ever-higher barriers to inferring a right to sue under statutes that didn’t grant the right explicitly. Then in a 2002 decision, Gonzaga University v. Doe, it shifted course decidedly. A student had successfully sued the university under Section 1983 for violating the federal law that protects the privacy of student records. The Supreme Court held that because the privacy law did not contain unambiguous “rights-creating language,” an individual had no right to sue. The lawyer who won that case for the university was a star Supreme Court advocate named John Roberts, making one of his last Supreme Court arguments before becoming a judge on the federal appeals court in Washington, D.C.