Here we go again. Earlier this week, on June 26, 2025, the Supreme Court issued yet another dubious decision involving two of its favorite topics for judicial malpractice: women’s rights and access to the courts. In the case, known as Medina, the court ruled to allow South Carolina to exclude Planned Parenthood providers from the state’s Medicaid program, even though the Medicaid statute mandates that individuals should have free choice of provider.
As has been widely reported, considering the importance of Planned Parenthood to women’s health services, the decision will be detrimental for access to women’s health services in South Carolina, and sets a bad precedent for other states that may similarly try to exclude Planned Parenthood or other providers that they simply don’t like. One of the reasons for a free choice of provider provision is precisely to prevent state officials from rewarding their favorite providers with Medicaid business—or punishing providers they don’t like. (Aside: abortion is only 4% of Planned Parenthood services, and in any case Medicaid does not reimburse abortions outside of rape, incest, and life endangerment.)
But to understand why the decision is also flawed in addition to being harmful, let’s start with the basic legal background. Medicaid law sets out many requirements for states. However, Supreme Court precedent holds that people (and providers) cannot always bring a lawsuit when a state violates the requirements. The Supreme Court instead looks at the specific language in the Medicaid statute, to infer whether Congress meant to create rights for individuals. If yes, then a lawsuit can proceed. If not, then private lawsuits are not allowed and only Health and Human Services (HHS) can enforce the requirement.
This is not a totally absurd distinction in principle. For example, if the state is required to comply with some purely administrative reporting requirement to HHS, it might make sense to think that Congress didn’t intend for random people to bring lawsuits to enforce it. Kind of the same way that if you just happen to witness a car crash, you can’t bring a lawsuit—it’s between the two car owners. That is the principle the Supreme Court is trying to advance. Historically, the Court used a broad and flexible standard to evaluate Congress’s intent, but in recent years conservative justices have been narrowing the standards, making it ever harder for individuals to show Congress meant their rights to be enforceable. With Medina, the Supreme Court’s application of the legal principle has become patently absurd.
Under Medina, the Supreme Court’s applied approach is to look at the specific Medicaid requirement and ask if it has a magic word in it – like the word “rights.” If the statute says people have the “right” to something, then the Court might be willing to agree Congress meant to allow people to enforce the requirement. Without the magic words, the Court says the lawsuits are barred. Since the free choice of provider protection does not use a magic word like “right,” the Court concludes that neither individuals not providers can bring lawsuits to enforce free choice. To get to this highly manufactured result, the Supreme Court (while demoting other prior precedent) cites repeatedly to its own precedent established recently in the 2023 Talevski case—where the Supreme Court set itself up for the Medina decision.
The Medina approach is absurd for a number of reasons; let’s highlight two. First, of course, just because the word “right” doesn’t appear, doesn’t mean the law isn’t plainly creating a right that people rely upon and have a strong interest in asserting. In the Medina case, it is obvious that freedom to choose the medical provider of your choice is not an abstract or administrative requirement, it is a concrete and foundational right of great importance to people in a program that is to provide medical assistance. This is one of the most important rights enrollees have in the programs, and it is not a less foundational interest simply because Congress happened to not use the exact word “right.” Juliet said it best: A rose by any other name would smell as sweet. The Court’s magic word test is wildly arbitrary in the world of both fiction and nonfiction.
Second, just think about what a contorted game the Supreme Court has played to get to its desired result (reducing access to the courts). Step 1, urge that we must glean Congress’s intent from the words they used when writing Medicaid provisions, sometimes decades ago, and in the case of the freedom of choice provision, words written in 1967. Step 2, establish a magic word in 2025 that will be the litmus test for Congress’s intent back in 1967. The trick in this game obvious. The Supreme Court says Congress didn’t intend to allow lawsuits because in 1967 Congress didn’t use the magic word that the Supreme Court is looking for in 2025. It’s like not passing the salt because my child didn’t use the new magic word, which I just decided is exactly “pretty please with two scoops of ice cream and a cherry on top.”
If only the 1967 Congress could have been clairvoyant and foreseen that 58-years later using the word “right” would be the make-it-or-break-it factor for the serious Medicaid protections they were trying to write into law.
Though the reasoning is absurd, the impacts may be devastating. This new precedent from the Supreme Court may not only foreclose lawsuits to enforce free choice of provider, but the magic words test may also cause courts to rule that other Medicaid rights are not enforceable. Enrollees (and providers) might not be able to enforce the law, meaning they will be at the mercy of states and HHS to protect them; states that have routinely been willing to flout the law, and an HHS which vacillates between disinterested and under-resourced to enforce the law on states.
It is a sad day for the rule of law when the highest court in the land shuts the courthouse doors to everyday people who are just trying to assert their unmistakable legal rights.