Sotomayor Presses Attorney On Planned Parenthood Access: Is ‘Right’ A ‘Magic Word’?

4/2/2025

During Wednesday's Supreme Court oral arguments for Medina v. Planned Parenthood, Justice Sonia Sotomayor questioned an attorney on the necessity of the operative word "right" in Medicaid access to abortions.

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00:00You seem to put quite a bit of weight on the use of the word right over I think

00:1020 times in Tlaibski and the absence of the word right in this case. Do you think

00:20right is absolutely necessary in order to determine whether or not there a

00:26right has been created under this provision? I think if Congress wants to

00:32be clear right is the best word but we would take its functional equivalent so

00:36for example entitlement or privilege other words that are functionally

00:39equivalent to right or of course the traditional no person shall like the

00:43Fifth Amendment but this court made clear in Tlaibski that this is a high

00:46bar it's atypical and so if a state is going to be on clear notice which it

00:50has to be to know what contract it's agreeing to it needs to be really clear.

00:55So how would you amend this statute to be clear about a right? There's a number

01:01of things that Congress could have done. For starters it could have set it apart

01:04in a separate bill of rights like it did in Tlaibski with its provider choice

01:09provision. It could have used rights creating language for example a

01:13beneficiary has a right to designate her provider. It could have taken the

01:17qualifications of the provider away from the state the regulator and instead made

01:22it a federal issue or it could have even done something like like Congress

01:26did in 1396 small a a 84 B which if you move all the way down the list to near

01:33the end it took the regulated entity the state it used a rights creating shall

01:38and it put them together in the provision but but none of those

01:42indicators of a clear statement is present in this provision. You're not

01:49quite calling it a magic word but you're coming very close and an example was

01:54raised in one of the briefs that says the IRS must provide that any individual

01:58may obtain a refund of overpaid taxes. Seems hard to believe that that sentence

02:06on its face does not create a right for an individual to have a refund of

02:12overpaid taxes. Justice Sotomayor let me address the magic words premise and then

02:17the IRS hypothetical. With respect to the premise I'm not going to fight the

02:21court if you say that these are magic words because that's really what you

02:24would like us to but assume that I don't want yeah that's a clear statement rule

02:28that's what states need but in the IRS hypothetical there's a number of problems

02:32with that. First as we point out on page 9 of our reply it could be clearer but

02:35more important the IRS provision is not a spending clause provision. It's not

02:39this conversation between a state and the Secretary of Health and Human

02:43Services about what must be done. It seems a little bit odd to think that a

02:50problem that motivated Congress to pass this provision was that states were

02:59limiting the choices people had. Some states were saying only state facilities

03:05would provide the benefit. Other states were identifying a more limited subset

03:12of providers. It seems hard to understand that states didn't understand

03:18that they had to give provide individuals the right to choose a

03:25provider. Justice Sotomayor certainly a state would understand it has to provide

03:29a benefit but absent clear rights creating language it wouldn't know that

03:33it had to honor a right and I can make that same statement about what's

03:36important to people or what's significant about dozens of other

03:39provisions in 1396a. If you're talking about equal protection or the right to

03:43services how about being reinstated on the Medicaid program after you've been

03:46in prison. There are countless things in that statute which people would

03:50consider important and vital fundamental. None of those words actually appear in

03:54the any qualified provider provision. In your brief you had eight

04:01provisions of the act that were part of this same list of rights and you said if

04:08we recognize a private cause of action here these eight are open to dispute. I

04:14looked at the eight very carefully and there hasn't been much of a dispute

04:18among the circuits. There hasn't even been a challenge. You mentioned one of

04:23them because it's hard to see how a state can't understand it. There hasn't

04:28even been a challenge to it about providing Medicaid to juveniles in prison

04:35and there's been no dispute over that because no one doubts that the state

04:39knows what it has to do and it doesn't. The others um again none of them have

04:45disputes. Some uniformly courts have said don't create private rights and

04:50others they have said they do. Um where they say they do to me it's a simple

04:56issue. You have to provide a fair hearing before the state agency of any

05:01individual who claims coverage. Most states have a hearing of some sort. But

05:07so I don't understand why that makes uh is important here. It's the difference

05:14between a benefit and a right and whether this court is going to hold the

05:18line. It stated in Tlaib ski that this is going to be atypical when Congress

05:22creates a right without using the so called magic words.

Sotomayor Presses Attorney On Planned Parenthood Access: Is ‘Right’ A ‘Magic Word’?

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