Ian Millhiser - A Supreme Court case about abortion could destroy Medicaid

[In It to Win It]

Vox (Archived)

Kerr v. Planned Parenthood South Atlantic is one of the most straightforward cases the Supreme Court will hear this year. It involves a federal law that requires every state’s Medicaid program to ensure that “any individual eligible for medical assistance” may obtain that care “from any institution, agency, community pharmacy, or person, qualified to perform the service or services required.”

Thus, Medicaid patients, and not the state, clearly have a right to choose their own health providers, with only one exception. The provider must be “qualified,” which, as the federal appeals court that heard this case explained, means that the provider is “professionally competent” to provide the care that the patient seeks.

Nevertheless, South Carolina, along with several other states, attempted to exclude Planned Parenthood from its Medicaid program in violation of this statute. The reason, of course, involves abortion.

In 2018, Republican Gov. Henry McMaster issued an executive order forbidding “abortion clinics” from being paid to provide care to Medicaid patients. Though the state is permitted to ban abortion outright under the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), South Carolina permits abortions up to the sixth week of pregnancy.

But the state is not allowed, under the Medicaid statute at the heart of Kerr, to prevent Medicaid patients from choosing Planned Parenthood for non-abortion-related care — at least as long as Planned Parenthood’s providers are competent to provide this care. And the state admits in its brief that it did not cut off Planned Parenthood because it believes that its doctors are professionally incompetent. According to that brief, Planned Parenthood could “restore Medicaid funding if it stops performing abortions — but it has chosen not to do so.”