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SC stopped from ending Planned Parenthood agreement

Where the Medicaid Act’s free-choice-of provider provision creates a private right enforceable under 42 U.S.C. § 1983 and the Medicaid recipient established she would suffer irreparable harm in the absence of a preliminary injunction, South Carolina was stopped from terminating Planned Parenthood’s provider agreement.


The district court here issued a preliminary injunction in favor of the individual plaintiff, a Medicaid recipient, in her suit challenging South Carolina’s decision to terminate Planned Parenthood South Atlantic’s provider agreement because it offers abortion services.

The plaintiff was likely to succeed on the merits of this claim, the district court held, for two interrelated reasons: first, the Medicaid Act’s free-choice-of-provider provision, 42 U.S.C. § 1396a(a)(23)(A), confers on “any individual” a private right to sue that may be enforced under 42 U.S.C. § 1983 and second, South Carolina denied plaintiff the right to select the willing, qualified family-planning provider of her choice.


We consider the threshold question whether the Medicaid Act’s free-choice-of- provider provision creates a private right enforceable under § 1983. We agree with the district court—and five of our six sister circuits to have addressed this issue—that the free-choice-of-provider provision confers a private right, enforceable under § 1983, on Medicaid recipients. The Medicaid Act provides no comprehensive enforcement scheme sufficient to overcome the presumption that the free-choice-of-provider provision is enforceable under § 1983.

Having decided that Congress unambiguously intended to create a private right of action in the free-choice-of-provider provision, we turn now to consider the scope of the right it confers on Medicaid recipients. Section 1396a(p)(1) and the free-choice-of-provider provision operate in pleasant conjunction. The free-choice-of-provider provision confers an individual right on Medicaid recipients to select the willing and competent provider of their choice. Section 1396a(p)(1) clarifies that states retain discretionary authority to disqualify providers as professionally incompetent for nonmedical reasons such as fraud and for any number of unprofessional behaviors.

It is clear that the plaintiff would suffer irreparable harm in the absence of a preliminary injunction. Denial of her statutory right to select a qualified provider visits a tangible harm: diminished access to high-quality health care suited to the individual plaintiff’s needs. Although South Carolina has a legitimate interest in ensuring that state dollars do not subsidize abortion, we are not prepared to disrupt the district court’s finding that the state’s reimbursement of Planned Parenthood South Atlantic, or PPSAT, on a fee-for-service basis guards against the indirect subsidization of abortion. Finally, an injunction would serve the public interest by preserving the individual plaintiff’s statutory right under the free-choice-of-provider provision and ensuring “affordable access to competent health care by some of South Carolina’s neediest citizens,” whose health challenges are every bit as real as those of citizens of greater means.


Concurring opinion

The majority correctly recognizes 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.”

The challenge here derives from a broader question lurking in the background. What is the proper framework for determining whether a given statute creates a right that is privately enforceable under § 1983? And specifically, has Wilder v. Virginia Hospital Ass’n, 496 U.S. 498 (1990), a case relied on in other circuits’ decisions and in our own, been repudiated (or even effectively overruled)?

Planned Parenthood South Atlantic v. Baker, Appeal No. 18-2133, Oct. 29, 2019. 4th Cir. (Wilkinson), from DSC at Columbia (Lewis). Kelly McPherson Jolley for Appellant, Alice Joanna Clapman for Appellees. VLW 019-2-263. 41 pp.

VLW 019-2-263

Virginia Lawyers Weekly