KBJ Presses Attorney About The ‘Obligations’ For Medicaid To Cover Planned Parenthood Care

2 days ago

During Wednesday's Supreme Court oral arguments for the Medina v. Planned Parenthood case, Justice Ketanji Brown Jackson questioned an attorney about obligations to abortion.

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Transcript

00:00Mr. Brunch, can I just ask you, to what extent is the administrative appeal scheme relevant

00:06to the first step of this inquiry?

00:09What I'm a little worried about is that your argument seems to be conflating what had traditionally

00:15been understood and what we reaffirmed in Tlefsky as two different steps of the analysis

00:21in 1983.

00:23And the first relates to, to what extent is this provision unambiguously rights-creating?

00:31And then the second step asks whether Congress has created some sort of alternative remedy

00:36or what is the enforcement scheme such that we might believe that 1983 is not available.

00:43So can you just help me to understand whether you're now suggesting that we evaluate whether

00:50this is rights-creating, as we talked about, in the first step relative to an understanding

00:56of what Congress has done with respect to enforcement?

01:00To be clear, Justice Jackson, we are not making a step two, see clamors argument.

01:04Never have.

01:05I'm not making it here.

01:06But as this Court made clear in Gonzaga, that the remedies available can buttress the interpretation

01:11of whether there is clear rights-creating language in step one.

01:14And that's what you said in the Souter decision in footnote 11 as well.

01:17And so we're using the provider's remedy and the lack of any beneficiary remedy to

01:22be able to challenge that provider's disqualification.

01:23That does seem awfully confusing.

01:25I mean, you know, there isn't a whole lot of indication that lower courts are confused

01:31about this.

01:32I looked very carefully at Judge Wilkinson's opinion.

01:36He lays out very clearly how this works and what we've said repeatedly.

01:40And I guess my concern is that the kinds of things, and I appreciate you had a long list

01:44of reasons why you think this isn't rights-creating, but one of them had to do with the nature

01:50of this, you know, the enforcement mechanism.

01:52And I just see that as a step two concern.

01:54And I'm worried about us getting people confused if we start putting those considerations

02:00into the first analysis.

02:01Well, I think the analysis is distinct.

02:04If you're making a step two analysis, the argument is that the remedies are so comprehensive

02:08that it bars the ability to go to federal court.

02:11In step one, just like in Gonzaga, just like in Souter, the court is entitled to consider

02:15remedies like the fact that the disqualified provider has an administrative appeal to determine

02:21whether there is a right to go to court.

02:23And I would note that one of the reasons it's significant Congress gave that administrative

02:27appeal to the disqualified provider and not to the beneficiary is because the provider

02:32is the one who has all the information.

02:34Under Respondent's Theory, if a provider commits malpractice and they're disqualified for that

02:39action, there's still a beneficiary right to go to federal court and bring a 1983 action.

02:43And that makes no sense.

02:44Because what does a beneficiary know about a provider's medical malpractice involving

02:49other patients?

02:50Can I just turn your attention back to what I understand to be the classic kind of step

02:53one inquiry here and get us back to Justice Kagan's point about the state being aware

03:01of an obligation to do this.

03:03And I note that although you suggest that it would be easier if the word right was

03:10in the statute, sorry, in this particular statute, 1983 itself talks about rights,

03:17privileges, and immunities.

03:18So even if we were to have a magic words test, it seems to me to be too narrow

03:23to just say that Congress has to say rights, because we have in the 1983 concept

03:30in the actual text of the statute, rights, privileges, and immunities secured by the

03:36Constitution and laws.

03:38So with an understanding of what 1983 was about, can you speak to why an obligation

03:45of this nature that runs to an individual in the way that Justice Kagan described doesn't

03:53get us sort of in the realm of rights, privileges, and obligations secured by the law?

03:59Yeah, two thoughts on that, Justice Jackson.

04:00First, we're not limiting this to right.

04:02As I mentioned earlier, entitlement, privilege, I would even spot you immunity because that's

04:07in section 1983.

04:08I think any of those have the same rights-creating pedigree.

04:13But it is a high bar.

04:14An obligation is not enough.

04:16Telling a state that it has an obligation to do something or that it must provide something

04:21isn't the same as saying you have the ability to sue them in federal court and have 1983

04:27fee-shifting opportunities.

KBJ Presses Attorney About The ‘Obligations’ For Medicaid To Cover Planned Parenthood Care

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