Wednesday, May 29, 2013
The Supreme Court will not be hearing Indiana's argument that it can deny governmental funding to healthcare providers who perform abortions. The Seventh Circruit had held that Indiana's prohibition on government funding was an impermissible limitation on Medicaid's free choice of provider provision, a violation of the statutory rights promised to Medicaid enrollees. Media coverage by such news outlets as NPR and BNA has indicated that the abortion funding prohibition was the sole issue at stake in this petition, noting that this petition was a test case for the ten or so states that have passed legislation aimed at defunding Planned Parenthood. While this point is important and true, the petition submitted by Indiana told a much bigger story.
Indiana used the Seventh Circuit's decision as a vehicle for asking the Court to completely eliminate Section 1983 rights of action for Medicaid enrollees. Indiana had petitioned the Court with a similar question in Indiana Family and Social Services v. Bontrager, the petition for which was denied a few weeks ago. Indiana asked the Court to take the cases as companion cases, which is evident from the petition filed in Secretary of Indiana Family and Social Services Administration v. Planned Parenthood of Indiana, but not in the media coverage. Even though the petition in Bontrager was denied, Court watchers still considered Indiana's petition and Planned Parenthood's cross petition possible grants.
I suspect that the denial was due to agreement with the substance of the Seventh Circuit's decision that this kind of restriction on Medicaid funding is inappropriate (or a desire to stay out of the abortion fray for now, given that Arizona, Hobby Lobby, and others may be filing petitions soon). However, I also suspect that at least four of the justices are willing to revisit the garbled jurisprudence surrounding section 1983 actions thanks to Gonzaga. Michigan filed amicus briefs supporting Indiana's petitions, which were signed by about eleven states, that focused on the federalism and separation of powers implications of section 1983 actions against states that fail to comply with the Medicaid Act. Unsurprisingly, the states' briefs rejected not only section 1983 rights of action, but also Supremacy Clause actions, which were at issue in last term's Douglas v. Independent Living Center. The states cited the dissent authored by Chief Justice Roberts rejecting Supremacy Clause actions by Medicaid enrollees and providers as evidence that all of the private actions against states should end.
So, keep your eyes and ears open - as I mentioned a few weeks ago, the Court is hearing an ADEA case in the October 2013 term that may become a referendum on 1983. Or, the Court may be waiting for just the right Medicaid remedy case. Either way, it seems reasonable to expect that the Court will take up the Medicaid enforceability through 1983 question again in the not-too-distant future.