Petition for Writ of Certiorari — Robert M. Kerr, Director, South Carolina Department of Health and Human Services, Petitioner v. Planned Parenthood South Atlantic, et al.

Supreme Court briefMay 6, 2022

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NO. __________

IN THE

Supreme Court of the United States

ROBERT M. KERR, in his official capacity as Director,

South Carolina Department of Health and Human

Services,

Petitioner,

JULIE EDWARDS, on her behalf and on behalf of all

others similarly situated, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN J. BURSCH

Counsel of Record

KRISTEN K. WAGGONER

ERIN M. HAWLEY

CHRISTOPHER P. SCHANDEVEL

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

KELLY M. JOLLEY

ARIAIL B. KIRK

JOLLEY LAW

GROUP, LLC

810 Bellwood Road

Columbia, SC 29205

(803) 809-6500

Counsel for Petitioner

QUESTIONS PRESENTED

Four days ago, this Court prudently granted

certiorari to “reexamine its holding that Spending

Clause legislation gives rise to privately enforceable

rights under Section 1983.” Health and Hospital

Corp. of Marion County v. Talevski, No. 21-806

(certiorari granted May 2, 2022). As the decision

below highlights, the Court’s “caselaw on implied

private rights of action remains plagued by confusion

and uncertainty.”

App.28a

(Richardson,

J.,

concurring). And “clarity” is badly needed. Ibid.

Granting the instant petition would ensure the

Court provides such clarity next Term. First, this

petition challenges a final judgment order that was

affirmed on appeal (unlike Talevski). Second, this

petition gives the Court an opportunity to resolve an

“important and recurring” question at the heart of a

deep circuit split: whether individual Medicaid recipients have a privately enforceable right to demand a

provider of their choice. Gee v. Planned Parenthood of

Gulf Coast, Inc, 139 S. Ct. 408, 409 (2018) (Thomas,

J., dissenting from denial of certiorari).

The questions presented are:

1. Whether Spending Clause statutes ever give

rise to privately enforceable rights under § 1983, and

if so, what is the proper framework for deciding when

they do?

2. Whether, assuming Spending Clause statutes

ever give rise to privately enforceable rights under

§ 1983, the Medicaid Act’s any-qualified-provider

provision creates a privately enforceable right to

challenge a state’s determination that a provider is

not qualified to provide certain medical services.

PARTIES TO THE PROCEEDING

Petitioner is Robert M. Kerr, the Director of the

South Carolina Department of Health and Human

Services. Respondents are Julie Edwards, who sued

on her own behalf and on behalf of all others who are

similarly situated, and her preferred Medicaid

provider, Planned Parenthood South Atlantic.

LIST OF ALL PROCEEDINGS

1. United States Court of Appeals for the Fourth

Circuit, No. 21-1043, Planned Parenthood S. Atlantic

v. Kerr, judgment entered March 8, 2022.

2. United States District Court for the District of

South Carolina, No. 3:18-cv-02078-MGL, Declaratory

Judgment and Permanent Injunction entered

December 14, 2020.

3. United States District Court for the District of

South Carolina, No. 3:18-cv-02078-MGL, summary

judgment opinion and order entered September 17,

2020.

4. United States Court of Appeals for the Fourth

Circuit, No. 18-2133, Planned Parenthood S. Atlantic

v. Baker, judgment entered October 29, 2019.

5. United States District Court for the District of

South Carolina, No. 3:18-cv-02078-MGL, temporary

restraining order and preliminary injunction ordered

August 28, 2018.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING ........................... ii

LIST OF ALL PROCEEDINGS ................................. ii

APPENDIX TABLE OF CONTENTS ..................... vii

TABLE OF AUTHORITIES ..................................... ix

DECISIONS BELOW................................................. 1

STATEMENT OF JURISDICTION .......................... 1

PERTINENT STATUTES.......................................... 1

INTRODUCTION ...................................................... 2

STATEMENT OF THE CASE ................................... 4

A. Statutory background ..................................... 4

1. Congress passes Medicaid Act to fund

state efforts to provide free/low-cost

medical services to people in need............. 4

2. Congress adds any-qualified-provider

requirement. ............................................... 5

3. South Carolina creates procedures and

remedies for excluded providers. ............... 6

B. Factual background ......................................... 6

1. South Carolina deems Planned

Parenthood unqualified. ............................ 6

2. Planned Parenthood and a client sue in

federal court; Planned Parenthood

eventually files administrative appeal...... 7

C. Decisions below................................................ 8

1. District court grants preliminary

injunction.................................................... 8

2. Fourth Circuit notes 5-1 circuit split

and affirms. ................................................ 8

3. District court grants Plaintiffs’

summary-judgment motion, mooting

pending certiorari petition. ...................... 10

4. District court enters permanent

injunction.................................................. 11

5. Fourth Circuit notes change in circuit

split but reaffirms its prior decision. ....... 11

REASONS FOR GRANTING THE WRIT............... 12

I. This Court’s conflicting caselaw has created a

5-2 circuit split over the enforceability of the

any-qualified-provider provision and the

broader framework issue underlying it. ............ 14

A. In Wright and Wilder, the Court too easily

infers privately enforceable rights from

Spending Clause statutes. ............................ 14

B. In Suter and Blessing, the Court pulls

back—adding a multi-factored test and a

rebuttable presumption................................. 16

C. In Gonzaga, the Court tries to resolve the

uncertainty in its cases, clarifying that

only an unambiguously conferred right can

create a private cause of action..................... 18

D. Three Circuits find privately enforceable

rights under the any-qualified-provider

provision. ....................................................... 21

E. In Armstrong, this Court repudiates

Wilder, and a plurality applies contract

principles to reject an argument for a

private right under part of the Medicaid

Act. ................................................................. 22

F. Three more Circuits reach conflicting

results over private rights of action under

the any-qualified-provider provision. ........... 24

G. The en banc Fifth Circuit moves a 6-1

circuit split to 5-2. ......................................... 26

H. The Fourth Circuit continues to apply

Wilder and Blessing while mostly ignoring

Armstrong, and a concurring judge pleads

for clarity. ...................................................... 27

II. This case implicates the same broad questions

as Talevski and provides a more secure vehicle

for making sure those questions are resolved. .. 29

III.This case also implicates a second circuit split

over the proper reading of this Court’s

decision in O’Bannon. ......................................... 31

IV. This case raises important and recurring

issues with far-reaching consequences, and

the Fourth Circuit got it wrong. ......................... 33

CONCLUSION ......................................................... 36

vii

APPENDIX TABLE OF CONTENTS

United States Court of Appeals

for the Fourth Circuit,

Opinion in 21-1043

Issued March 8, 2022 ............................................... 1a

United States District Court

for the District of South Carolina,

Declaratory Judgment and

Permanent Injunction

Issued December 14, 2020 ..................................... 29a

United States District Court

for the District of South Carolina,

Memorandum Opinion and Order

Issued September 17, 2020 .................................... 31a

United States Court of Appeals

for the Fourth Circuit,

Opinion in 18-2133

Issued October 29, 2019 ......................................... 43a

United States District Court

for the District of South Carolina,

Memorandum Opinion and Order

Issued August 28, 2018 .......................................... 89a

42 U.S.C. 1396a (a)(23) ........................................ 110a

42 U.S.C. 1396a (b) .............................................. 110a

42 U.S.C. 1396c .................................................... 111a

Office of the Governor

Executive Order 2017-15

Dated August 24, 2017 ......................................... 112a

viii

Excerpts from Governor Henry McMaster’s

Veto Letter regarding FY2018-19 General

Appropriations Act

Dated July 5, 2018 ............................................... 116a

Office of the Governor

Executive Order 2018-21

Dated July 13, 2018 ............................................. 119a

Letter from South Carolina Department of

Health & Human Services to Planned

Parenthood South Atlantic

Dated July 13, 2018 ............................................. 123a

TABLE OF AUTHORITIES

Cases

Arizona v. Evans,

514 U.S. 1 (1995) ............................................ 13, 29

Armstrong v. Exceptional Child Center, Inc.,

575 U.S. 320 (2015) ....................................... passim

Baker v. Planned Parenthood South Atlantic,

141 S. Ct. 550 (2020) ............................................ 11

Blessing v. Freestone,

520 U.S. 329 (1997) .................................... 8, 17, 18

Cummings v. Premier Rehab Keller, P.L.L.C.,

No. 20-219, 2022 WL 1243658 (U.S. Apr. 28,

2022) ..................................................................... 30

Does v. Gillespie,

867 F.3d 1034 (8th Cir. 2017) ....................... passim

Douglas v. Independent Living Center of

Southern California, Inc.,

565 U.S. 606 (2012) ................................................ 4

Freestone v. Cowan,

68 F.3d 1141 (9th Cir. 1995) ................................ 17

Gonzaga University. v. Doe,

536 U.S. 273 (2002) ....................................... passim

Harris v. Olszewski,

442 F.3d 456 (6th Cir. 2006) ................................ 21

Health Science Funding, LLC v. New Jersey

Department of Health & Human Services,

658 F. App’x 139 (3d Cir. 2016) ........................... 25

New York State Citizens’ Coalition for Children

v. Poole,

922 F.3d 69 (2d Cir. 2019) ................................... 35

O’Bannon v. Town Court Nursing Center,

447 U.S. 773 (1980) .......................................... 5, 32

Pennhurst State School and Hospital v.

Halderman,

451 U.S. 1 (1981) .................................................. 19

Planned Parenthood of Greater Texas Family

Planning & Preventative Health Services, Inc

v. Smith,

913 F.3d 551 (5th Cir. 2019) .......................... 26, 33

Planned Parenthood of Greater Texas Family

Planning & Preventative Health Services, Inc.

v. Kauffman,

981 F.3d 347 (5th Cir. 2020) .............3, 5, 26, 28, 32

Planned Parenthood of Gulf Coast, Inc. v. Gee,

862 F.3d 445 (5th Cir. 2017) ................................ 24

Planned Parenthood of Gulf Coast, Inc. v. Gee,

876 F.3d 699 (5th Cir. 2017) ................................ 24

Planned Parenthood of Indiana, Inc. v.

Commissioner of Indiana State Department of

Health,

699 F.3d 962 (7th Cir. 2012) .......................... 21, 22

Suter v. Artist M.,

503 U.S. 347 (1992) ........................................ 16, 17

Statutes

28 U.S.C. 1254(1) ....................................................... 1

42 U.S.C. 1396-1......................................................... 4

42 U.S.C. 1396a(a)(23) ............................................... 5

42 U.S.C. 1396a(a)(4)(A) ............................................ 6

42 U.S.C. 1396a(kk)(8)(B)(ii) ..................................... 6

42 U.S.C. 1396a(p)(1) ................................................. 6

S.C. CODE ANN. § 43-5-1185 ....................................... 6

Regulations

42 C.F.R. 1002.210 ..................................................... 6

42 C.F.R. 1002.213 ..................................................... 6

S.C. CODE ANN. REGS. 126-150 .................................. 6

S.C. CODE ANN. REGS. 126-404 .................................. 6

DECISIONS BELOW

The district court’s opinion granting Respondents’

motion for summary judgment is reported at 487 F.

Supp. 3d 443 (D.S.C. 2020) and reprinted at App.31a–

42a. The Fourth Circuit’s opinion affirming that

decision is reported at 27 F.4th 945 (4th Cir. 2022)

and reprinted at App.1a–28a.

The district court’s earlier opinion granting Respondents’ motion for a temporary restraining order and

preliminary injunction is reported at 326 F. Supp. 3d

39 (D.S.C. 2018) and reprinted at App.89a–109a. The

Fourth Circuit’s opinion affirming that decision is

reported at 941 F.3d 687 (4th Cir. 2019) and reprinted

at App.43a–88a.

STATEMENT OF JURISDICTION

The Fourth Circuit entered judgment on March 8,

2022. Petitioner invokes this Court’s jurisdiction

under 28 U.S.C. 1254(1).

PERTINENT STATUTES

The relevant portions of the pertinent statutes are

reprinted at App.110a–111a.

INTRODUCTION

Deciphering the proper framework for deciding

whether Congress’s use of the spending power has

created privately enforceable rights under § 1983 has

bedeviled the lower courts. Hence this Court’s grant

of certiorari in Talevski. That grant is a welcome

development. But given Talevski’s lingering mootness

concerns and its lack of a circuit split on the statutory

provisions there, clarity is far from guaranteed. This

petition is an opportunity to answer the important

questions raised in Talevski in a statutory context

that best highlights the difficult questions the Court

needs to resolve—as shown by the diametrically

opposed results reached by seven courts of appeals.

Accordingly, this petition asks the Court to resolve

the questions raised in Talevski alongside a mature

circuit “conflict on a federal question with significant

implications: whether Medicaid recipients have a

private right of action to challenge a State’s

determination of ‘qualified’ Medicaid providers.” Gee,

139 S. Ct. at 408 (Thomas, J., dissenting from denial

of certiorari). Reviewing this case together with

Talevski is crucial to ensuring the Court finally

resolves the “important and recurring” questions

raised by this appeal. Id. at 409.

In its first decision in this case, the Fourth Circuit

joined “five of [its] six sister circuits” in holding that

the Medicaid Act’s any-qualified-provider requirement confers “a private right, enforceable under

§ 1983” on Medicaid recipients. App.59a. The Fifth

Circuit subsequently reversed course, making the

split 5-2. Planned Parenthood of Greater Tex. Fam.

Plan. & Preventative Health Servs., Inc. v. Kauffman,

981 F.3d 347, 350 (5th Cir. 2020) (en banc). But when

this case came back up to the Fourth Circuit, it

doubled down on its earlier ruling. App.1a–28a.

The lower court was wrong to read a privately

enforceable right into the any-qualified-provider

provision without a clear statutory directive. That

mistake stemmed from confusion over a conflicting

set of decisions from this Court.

As the Court has acknowledged, the framework for

deciding whether Spending Clause legislation gives

rise to a private right of action is far from clear. This

Court’s “opinions in this area may not be models of

clarity.” Gonzaga Univ. v. Doe, 536 U.S. 273, 278

(2002). As a result, the Court has repeatedly tried to

resolve the “ambiguity” in its approach to private

rights of action in this context. Ibid. Those efforts

have not succeeded. See id.; Armstrong v. Exceptional

Child Center, Inc., 575 U.S. 320 (2015). To ensure the

Court is in the best position to evaluate and

determine the appropriate framework for deciding

whether and under what circumstances Spending

Clause statutes “give rise to private rights

enforceable via Section 1983,” Pet. for Writ of Cert. at

ii, Talevski, No. 20-1664 (Nov. 23, 2021), this Court

should grant review of the instant petition and

consolidate it with Talevski.

STATEMENT OF THE CASE

A. Statutory background

1. Congress passes Medicaid Act to fund

state efforts to provide free/low-cost

medical services to people in need.

In 1965, Congress created Medicaid, “a federal

program that subsidizes the States’ provision of

medical services” to families and individuals “whose

income and resources are insufficient to meet the

costs of necessary medical services.” Armstrong, 575

U.S. at 323 (quoting 42 U.S.C. 1396–1). The program

“is a cooperative federal-state program that provides

medical care to needy individuals.” Douglas v. Indep.

Living Ctr. of S. Cal., Inc., 565 U.S. 606, 610 (2012).

“Like other Spending Clause legislation, Medicaid

offers the States a bargain: Congress provides federal

funds in exchange for the States’ agreement to spend

them in accordance with congressionally imposed

conditions.” Armstrong, 575 U.S. at 323. States create

plans and submit them to the Secretary of Health and

Human Services for approval and disbursement of

funds. 42 U.S.C. 1396-1. If the Secretary later finds

that a state has failed to “comply substantially” with

the Act’s requirements in the administration of the

plan, the Secretary may withhold all or part of the

state’s funds until “satisfied that there will no longer

be any such failure to comply.” 42 U.S.C. 1396c.

2. Congress adds any-qualified-provider

requirement.

Two years later, Congress amended the Medicaid

Act to add § 1396a(a)(23)(A) in response to concerns

states were forcing recipients to use one of a limited

number of providers. E.g., President’s Proposals for

Revision in the Social Security System, Hearing on

H.R. 5710 before the H. Comm. On Ways and Means,

Part 4 (April 6 and April 11, 1967), at 2273 (in Puerto

Rico, indigent patients “‘forced’ to receive hospital and

medical services only in Commonwealth facilities”);

2301 (in Massachusetts, private physicians at

“teaching hospitals” not being reimbursed).

The added provision requires that plans “must”

allow “any individual eligible for medical assistance”

to obtain “assistance from any [provider] qualified to

perform the service … who undertakes to provide” it.

42 U.S.C. 1396a(a)(23)(A).

“This provision is sometimes referred to as the

‘any-qualified-provider’ or ‘free-choice-of-provider’

provision.” Kauffman, 981 F.3d at 354. The latter

label overlooks the express qualifier that beneficiaries

may only choose from a “range of qualified providers.”

O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773,

785 (1980). So § 1396a(a)(23)(A) is actually an “anyqualified-provider” requirement.

The Medicaid Act does not define “qualified.” But

it specifies that states retain broad authority to

exclude providers “for any reason for which the

Secretary could exclude the individual or entity from

participation in” the Medicare program, “[i]n addition

to any other authority” states retain to exclude providers. 42 U.S.C. 1396a(p)(1).

3. South Carolina creates procedures and

remedies for excluded providers.

The Medicaid Act presumes states will provide

administrative procedures and remedies for excluded

providers. E.g., 42 U.S.C. 1396a(a)(4)(A), (39), (41),

(77); 1396a(p); 1396a(kk)(8)(B)(ii). And federal

regulations require states to provide “administrative

procedures” and “additional appeals rights that would

otherwise be available under procedures established

by the State.” 42 C.F.R. 1002.210; 1002.213. So, South

Carolina provides Medicaid providers the right to a

hearing before an exclusion, suspension, or

termination. S.C. CODE ANN. REGS. 126-404. South

Carolina also provides an administrative appeal

process to anyone, including providers through their

enrollment agreements, “possessing a right to

appeal.” S.C. CODE ANN. REGS. 126-150.

B. Factual background

1. South Carolina deems Planned Parenthood unqualified.

On July 13, 2018, South Carolina’s Governor

issued an executive order directing the Department to

(1) deem abortion clinics unqualified to provide family

planning services, (2) terminate any enrollment

agreements with them, and (3) deny future enrollment applications from them. App.121a.

The Governor’s order follows from S.C. CODE ANN.

§ 43-5-1185, which prohibits the use of funds to pay

for abortions, because “the payment of taxpayer funds

to abortion clinics, for any purpose, results in the

subsidy of abortion and the denial of the right to life.”

App.119a–120a (emphasis added). Disqualifying

abortion clinics also ensures that other agencies that

do not perform abortions receive adequate funding to

provide “access to necessary medical care and

important women’s health and family planning

services.” App.120a.

The same day, the Department sent a letter to

Planned Parenthood South Atlantic notifying it of the

order and explaining that Planned Parenthood was

“no longer … qualified to provide services to Medicaid

beneficiaries.” App.123a–24a. Thus, Planned Parenthood’s enrollment agreements were terminated.

App.124a. Planned Parenthood could still qualify for

state Medicaid funding by discontinuing abortions,

but it has chosen not to do so.

2. Planned Parenthood and a client sue

in federal court; Planned Parenthood

eventually files administrative appeal.

Two weeks later, Planned Parenthood South

Atlantic and Julie Edwards, one of its Medicaid

clients, sued in federal court. Joint Appendix, Planned Parenthood S. Atlantic v. Kerr, No. 21-1043 (4th

Cir. March 29, 2021) (“JA”) at JA10. Three days after

that, they moved for a preliminary injunction. JA24.

They argued that by terminating Planned Parenthood’s enrollment agreements, the Director violated

Medicaid recipients’ right to the “qualified provider of

their choosing under 42 U.S.C. § 1396a(a)(23).” Ibid.

The Director opposed the motion because the anyqualified-provider provision “does not unambiguously

create a federal right enforceable by providers and

individual patients under 42 U.S.C. § 1983.” Def.’s

Mem. of Law in Opp’n to Pls.’ Mot. for TRO and

Prelim. Inj. at 5, Planned Parenthood S. Atlantic v.

Baker, 326 F. Supp. 3d 39 (D.S.C. 2018) (No. 3:18-cv02078). Citing O’Bannon, the Director added that

Planned Parenthood and Edwards were reading the

alleged right too broadly. Id. at 8–10.

The Director’s brief referenced Planned Parenthood’s right to an administrative appeal and Planned

Parenthood’s apparent decision to forgo such an

appeal several times. Id. at 3, 9, 11. On August 14,

2018—a day after the contractual, 30-day deadline—

Planned Parenthood filed an administrative appeal.

C. Decisions below

1. District court

injunction.

grants

preliminary

The district court granted Edwards’s motion for a

preliminary injunction and, because that ruling

resolved the issue, declined to analyze Planned

Parenthood’s right to the same relief. App.90a, 109a.

On the “issue of whether § 1396a(a)(23)(A) creates a

private right of action enforceable through § 1983,”

the court applied the three factors this Court

enunciated in Blessing v. Freestone, 520 U.S. 329

(1997), and held that it does. App.95a–99a.

2. Fourth Circuit notes 5-1 circuit split

and affirms.

On appeal, the Fourth Circuit affirmed, holding

that (1) “Congress’s intent to create an individual

right enforceable under § 1983 in the free-choice-ofprovider provision is unambiguous,” and (2) “the

provision’s mandate … bars states from excluding

providers for reasons unrelated to professional

competency.” App.46a.

On the first question, the court of appeals started

with the Blessing factors, assessed whether “Congress

expressly or implicitly foreclosed a § 1983 remedy,”

and “join[ed] the Fifth, Sixth, Seventh, Ninth, and

Tenth Circuits in finding … a private right enforceable under § 1983.” App.58a–65a (emphasis added).

The court mentioned—but did not discuss—the

Eighth Circuit’s contrary holding in Does v. Gillespie,

867 F.3d 1034 (8th Cir. 2017). App.59a, 65a.

While claiming to be “cautious in finding that a

provision in Spending Clause legislation, such as the

Medicaid Act, creates a private right enforceable

under § 1983,” App.67a, the court protested that

courts should not relieve “sovereign signatories to a

‘contract’ such as the Medicaid Act” of the “consequences” of their agreement, including conferring

private rights on third parties. App.68a. The court so

held despite acknowledging that this Court’s decisions “suggest a move away from inferring private

rights of action in Spending Clause legislation.” Ibid.

Judge Richardson’s concurrence simply expressed

frustration: “As lower court judges,” they were “bound

to do [their] level best to apply the law as it is, not how

it may become.” App.83a. “But when binding

precedents present [the court] with a bit of ‘a mess of

the issue,’” its “job becomes particularly challenging.”

App.83a (quoting Gee, 139 S. Ct. at 409 (Thomas, J.,

dissenting from denial of certiorari)).

“The challenge here derives from a broader

question lurking in the background,” he said.

App.84a. “What is the proper framework for

determining whether a given statute creates a right

that is privately enforceable?” Ibid. That question

begs a more specific one: has Wilder v. Virginia

Hospital Association, 496 U.S. 498 (1990), “been

repudiated (or even effectively overruled)?” Ibid.

“There are indications that it has.” Ibid. (citing

Armstrong, 575 U.S. at 330 n.*). But lower courts “do

not lightly conclude that the Supreme Court has

overruled its prior cases—that job is for the Supreme

Court alone.” Ibid.

On the second question involving the scope of any

alleged right created by the any-qualified-provider

provision, the Fourth Circuit rejected the Director’s

argument that this Court in O’Bannon interpreted

the provision “to apply only to providers that continue

to be qualified in the [state’s] Medicaid program as a

matter of state law.” App.74a–75a (cleaned up).

Joining “three of the four circuits” that had addressed

the issue, the court distinguished O’Bannon on the

theory that it did not address the scope of the

plaintiffs’ substantive rights—only the alleged

violation of their “procedural due process” right to a

“pre-termination hearing before the state could close”

the nursing home where they were residing. App.75a.

3. District

court

grants

Plaintiffs’

summary-judgment motion, mooting

pending certiorari petition.

Following that decision, the Director asked this

Court to resolve the circuit split over “[w]hether

Medicaid recipients have a private right of action …

to challenge a state’s determination that a specific

provider is not qualified to provide certain medical

services.” Pet. for Writ of Cert. at i, Baker v. Planned

Parenthood S. Atl., 141 S. Ct. 550 (2020) (No. 191186).

While that petition was pending, the district court

granted Plaintiffs’ motion for summary judgment on

their claim the Director violated the any-qualifiedprovider provision. App.32a, 41a. Next, the court

directed Plaintiffs to submit a draft order granting a

permanent injunction. App.41a–42a. Five days later,

Plaintiffs filed a supplemental brief in this Court

arguing it should deny the Director’s petition because

it was about to become moot. Suppl. Br. for Resp’ts,

Baker, 141 S. Ct. 550 (2020) (No. 19-1186). The Court

denied the petition. Baker, 141 S. Ct. 550 (2020).

4. District court

injunction.

enters

permanent

After the district court granted Plaintiffs

summary judgment on their Count I, the parties

stipulated to dismiss Plaintiffs’ two remaining claims.

JA300–01. Next, the district court entered an order

permanently enjoining the Director and his

successors from “terminating or excluding” Planned

Parenthood from South Carolina’s Medicaid program

based on its performing abortions. App.30a.

5. Fourth Circuit notes change in circuit

split but reaffirms its prior decision.

On appeal of that final judgment, the Fourth

Circuit rejected the Director’s argument that it should

“reconsider [its] previous panel decision and hold that

Edwards cannot sue under § 1983 to enforce” the anyqualified-provider provision. App.14a. While acknowledging that the en banc Fifth Circuit “recently came

to a different conclusion,” the Fourth Circuit took the

“opportunity to reaffirm [its] prior decision,” noting

that it remained in “the majority of a rather lopsided

circuit split.” Id. at 14a–15a. On the scope of the right,

the court reiterated its belief that O’Bannon “resolved

an entirely different question” and thus “has little to

do with this case.” Id. at 25a–26a.

Concurring only in the judgment, Judge Richardson wrote separately to express his hope that this

Court will clear up the “confusion and uncertainty”

that “plague[s]” the Court’s “caselaw on implied

private rights of action.” App.28a. “Gonzaga arguably

laid down a different test than Wilder and Blessing.”

Ibid. Armstrong “questioned Wilder’s reasoning and

claimed later opinions ‘plainly repudiate’ its ‘ready

implication of a § 1983 action.’” Ibid. (quoting

Armstrong, 575 U.S. at 330 n.*). But the lower courts

“remain[ ] bound by Blessing and Wilder.”

REASONS FOR GRANTING THE WRIT

1. Like Talevski, this case raises “fundamental

questions about the appropriate framework for

determining when a cause of action is available under

§ 1983—an important legal issue independently

worthy of this Court’s attention.” Gee, 139 S. Ct. at

409 (Thomas, J., dissenting from denial of certiorari).

Unlike Talevski, this Court’s “own lack of clarity”

on that broader issue has created deep “division in the

lower courts” over the second question presented

here: “whether Medicaid recipients have a private

right of action to challenge a State’s determination of

‘qualified’ Medicaid providers.” Id. at 408, 409

(Thomas, J., dissenting from denial of certiorari). In

Talevski, all three Circuits reached the same result—

finding a privately enforceable right under certain

FNHRA provisions. Pet. for Writ of Cert. at 29,

Talevski, No. 21-806 (Nov. 23, 2021). Not so here: five

Circuits have held that Medicaid recipients have a

privately enforceable right; two have held they do not.

This Court has “in many instances recognized” the

value of such percolation: deciding a case against the

backdrop of “diverse opinions” from the lower courts

produces “a better informed and more enduring final

pronouncement by this Court.” Arizona v. Evans, 514

U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting). As the

discussion below shows, the “confusion” and

“uncertainty” this Court’s cases have sown can best be

understood—and resolved—by examining the deep

circuit split that has developed as “courts have relied

on the same set of opinions,” Gonzaga, 536 U.S. at

278, 283, to reach very different results.

2. Considering this case together with Talevski

also would guard against the possibility of that case

becoming moot. Talevski has not yet become final.

And the petitioners there have “several factual

defenses” that could prevail on remand as the case

proceeds below while the appeal is pending. Br. in

Opp’n at 18, Talevski, No. 21-806 (March 11, 2022).

The judgment in this case, by contrast, is final.

3. Granting certiorari also would allow the Court

to resolve a secondary circuit split over the meaning

of this Court’s decision in O’Bannon and the scope of

the alleged right to choose a qualified provider.

4. Finally, this case raises important and

recurring issues with far-reaching consequences, and

the Fourth Circuit got it wrong.

The Court should grant the petition, consolidate

this case for consideration with Talevski, and reverse.

This Court’s conflicting caselaw has created

a 5-2 circuit split over the enforceability of

the any-qualified-provider provision and

the broader framework issue underlying it.

Courts of appeals are split 5-2 over the narrower

question presented here: whether Medicaid recipients

have a private right of action to challenge a state’s

determination that a provider is not qualified to

provide certain medical services. That conflict “can be

explained in part by an evolution” in this Court’s

caselaw on the proper framework for determining

whether a statute creates rights that are privately

enforceable. Does, 867 F.3d at 1043.

A. In Wright and Wilder, the Court too easily

infers privately enforceable rights from

Spending Clause statutes.

Three decades ago, this Court decided two cases

that undergird the circuit split at issue here. In

Wright v. Roanoke Redevelopment and Housing

Authority, a divided Court found a privately

enforceable right to reasonable utility rates in the

Housing Act. 479 U.S. 418, 419 (1987). Looking to

“legislative history” and “agency actions” and drawing

a negative inference from textual silence, the Court

held that nothing in the Act or amendment

“evidence[d] that Congress intended to preclude [a]

§ 1983 claim.” Id. at 424–25, 429 (emphasis added).

Four justices dissented. Starting with “the face of

the statute,” they saw “nothing to suggest that

Congress intended that utilities be included within

the statutory entitlement.” Id. at 434 (O’Connor, J.,

dissenting) (emphasis added). Nor did the law’s

“legislative history, nor [the agency’s] interpretation”

support “the conclusion that Congress intended to

create [such] an entitlement.” Id. at 441.

Three years later in Wilder, an equally divided

Court held that a Medicaid Act amendment “create[d]

a right enforceable by health care providers” to

“reasonable and adequate” reimbursement rates. 496

U.S. at 509–10. Providers were the intended beneficiaries. Id. at 510. Wright proved that “reasonable”

requirements were not too “vague and amorphous” to

be enforced. Id. at 511–12, 519. The amendment’s

language about what a plan “must” provide was “mandatory.” Id. at 512. And the Secretary could “withhold

funds for noncompliance.” Id. at 512, 521. Considered

together with the “legislative history,” the Court

inferred “Congress intended to require States to adopt

rates that actually are reasonable and adequate” and

for “health care providers [to] be able to sue in federal

court” to enforce their rights. Id. at 515–16.

Citing the “traditional rule” that analysis starts

and ends with the statutory text, the four-justice

dissent chided the majority for “virtually ignor[ing]”

it. Id. at 526–27 (Rehnquist, C.J., dissenting). The

pertinent provision was “simply a part of the

thirteenth listed requirement for [state] plans.” Id. at

527. It did “not clearly confer any substantive rights

on Medicaid services providers.” Ibid. And the

majority’s contrary holding took serious “liberties

with the statutory language.” Id. at 528–29.

B. In Suter and Blessing, the Court pulls

back—adding a multi-factored test and a

rebuttable presumption.

Two years later, in Suter v. Artist M., this Court

reversed a Seventh Circuit decision that, “[r]elying

heavily” on Wilder, had held “that the ‘reasonable

efforts’ clause of the Adoption Act could be enforced”

through § 1983. 503 U.S. 347, 353–54 (1992).

Distinguishing Wilder, this Court held that “[c]areful

examination of the [statutory] language,” read “in the

context of the entire Act,” confirmed that “the

‘reasonable efforts’ language [did] not unambiguously

confer an enforceable right upon the Act’s beneficiaries.” Id. at 359, 363 (emphasis added). Instead, the

phrase could be “read to impose only a rather

generalized duty on the State, to be enforced not by

private individuals, but by the Secretary” through his

“authority to reduce or eliminate payments to a State”

for non-compliance or for a “substantial failure” to

comply with the state’s own plan. Id. at 360, 363.

Only two justices dissented. In their view, the

Court’s conclusion conflicted with Wilder. Id. at 365

(Blackmun, J., dissenting). They complained that “the

Court’s reasoning [was] consistent with the dissent in

Wilder,” but that it “flatly contradict[ed] what the

Court held in that case.” Id. at 373. And it did so “by

resurrecting arguments” Wilder “decisively rejected.”

Id. at 377.

Five years later, in Blessing, a unanimous Court

continued Suter’s trajectory, reversing a decision

holding that mothers whose children were eligible to

receive child support services had a privately

enforceable right under § 1983 to force a state to

achieve “substantial compliance” with the Social

Security Act’s requirements. 520 U.S. at 332–33. The

Ninth Circuit had “reconcil[ed] Suter and Wilder” by

reading Suter as “an elaboration and amplification of

the Wilder test rather than an unannounced and

unacknowledged departure.” Freestone v. Cowan, 68

F.3d 1141, 1148 (9th Cir. 1995).

This Court reversed, announcing a three-factored

test. Blessing, 520 U.S. at 340. “First, Congress must

have intended that the provision in question benefit

the plaintiff.” Ibid. “Second, the plaintiff must

demonstrate that the right assertedly protected by

the statute is not so vague and amorphous that its

enforcement would strain judicial competence.” Id. at

340–41 (cleaned up). “Third, the statute must unambiguously impose a binding obligation on the States.”

Id. at 341. Finally, “[e]ven if a plaintiff demonstrates

that a federal statute creates an individual right,

there is only a rebuttable presumption that the right

is enforceable under § 1983.” Ibid. Under Blessing,

that presumption can be rebutted if Congress has

“expressly” forbidden “recourse to § 1983 in the

statute itself,” or if it has done so “impliedly” by

“creating a comprehensive enforcement scheme that

is incompatible with individual enforcement under

§ 1983.” Ibid.

Careful not to “foreclose the possibility that some

provisions of Title IV–D give rise to individual rights,”

the Court held that the Ninth Circuit had painted

“with too broad a brush.” Id. at 342, 345. “[T]he

substantial compliance standard [was] designed

simply to trigger penalty provisions that increase the

frequency of audits and reduce” the state’s grant, so it

did “not give rise to individual rights.” Id. at 344.

Two justices concurred. Since they agreed with the

Court’s holding “under the test set forth” in Wright

and Wilder, they found it “unnecessary to reach the

question whether § 1983 ever authorizes the

beneficiaries of a federal-state funding and spending

agreement—such as Title IV-D—to bring suit.” Id. at

349 (Scalia, J., concurring). The concurrence noted

that the “law at the time § 1983 was enacted”

appeared to be that a “third-party beneficiary was

generally regarded as a stranger to the contract,” and

thus “could not sue upon it.” Id. at 349–50. That

argument “was not raised” in Wright or Wilder. Id. at

350. But the concurring justices joined the majority

because it left open the “possibility that third-partybeneficiary suits simply do not lie.” Ibid.

C. In Gonzaga, the Court tries to resolve the

uncertainty in its cases, clarifying that

only an unambiguously conferred right

can create a private cause of action.

Five years after Blessing, this Court granted

certiorari “to resolve [a] conflict among the lower

courts.” Gonzaga, 536 U.S. at 278. In Gonzaga, the

Washington Supreme Court had held that a student

could sue his private university to enforce FERPA,

the Family Educational Rights and Privacy Act,

which prohibited “federal funding of educational institutions [with] a policy or practice of releasing

education records to unauthorized persons.” Id. at

276, 278. This Court reversed, holding that the

relevant provisions did not create any “personal

rights to enforce” under § 1983. Id. at 276. Recognizing that its opinions “may not be models of clarity,”

the Court tried to reconcile them. Id. at 278.

First, the Court noted it had never held “spending

legislation drafted in terms resembling those of

FERPA can confer enforceable rights.” Id. at 279. To

the contrary, “unless Congress ‘speak[s] with a clear

voice,’ and manifests an ‘unambiguous’ intent to

confer individual rights, federal funding provisions

provide no basis for private enforcement by § 1983.”

Id. at 280 (quoting Pennhurst State Sch. and Hosp. v.

Halderman, 451 U.S. 1, 17, 28 & n.21 (1981)).

Second, the Gonzaga Court distinguished Wright

and Wilder because the provisions at issue there had

“explicitly conferred specific monetary entitlements

upon the plaintiffs.” Id. at 280 (emphasis added).

Third, the Court reiterated that its “more recent

decisions [had] rejected attempts to infer enforceable

rights from Spending Clause statutes.” Id. at 281

(discussing Suter and Blessing). Eschewing any “loose

standard” and referencing Blessing’s “factors,” the

Court noted that some of its opinions “might be read

to suggest that something less than an unambiguously conferred right is enforceable by § 1983.” Id. at

282. The Court made sure to “now reject the notion

that [its] cases permit anything short of an

unambiguously conferred right to support a cause of

action brought under § 1983.” Id. at 283.

Fourth, the Court rebuffed the idea “that [its]

implied right of action cases are separate and distinct

from [its] § 1983 cases.” Ibid. Wilder appeared “to

support [that] notion.” Ibid. But Suter and Pennhurst

appeared “to disavow it.” Ibid. So the Court clarified

that its “implied right of action cases should guide”

analysis under § 1983. Ibid. Under both, if “the text

and structure of a statute provide no indication that

Congress intends to create new individual rights,

there is no basis for a private suit.” Id. at 286. Period.

Fifth, the Court rebutted the dissent’s separationof-powers argument. Ibid. Appearing to disparage

Blessing’s three-factored test, the Court “fail[ed] to

see how relations between the branches are served by

having courts apply a multifactor balancing test to

pick and choose which federal requirements may be

enforced by § 1983.” Ibid. If “Congress intends to alter

the usual constitutional balance between the States

and the Federal Government, it must make its

intention to do so unmistakably clear in the language

of the statute.” Ibid. (emphasis added, cleaned up).

Accordingly, there was “no question that FERPA’s

nondisclosure provisions fail[ed] to confer enforceable

rights.” Id. at 287. The statute’s “focus” on the

Secretary of Education’s “distribution of public funds

to educational institutions” was “two steps removed

from the interests of individual students and

parents.” Id. at 287, 290. And “[r]ecipient institutions” could “avoid termination of funding so long as

they” substantially complied “with the Act’s requirements.” Id. at 288. The provisions “therefore create[d]

no rights enforceable under § 1983.” Id. at 290.

Two justices concurred; two dissented. The dissent

accused the majority of requiring “more of plaintiffs”

than the test “articulated in Blessing,” id. at 302

(Stevens, J., dissenting), and believed the majority

had “sub silentio overrule[d] cases such as Wright and

Wilder” by endorsing the implied-right-of-action

framework. Id. at 300 n.8.

D. Three Circuits find privately enforceable

rights under the any-qualified-provider

provision.

Even after Gonzaga, lower courts continued to

apply Blessing’s test and to rely heavily on Wilder’s

discredited decision to find privately enforceable

rights in Spending Clause statutes.

In Harris v. Olszewski, the Sixth Circuit did so

regarding the Medicaid Act’s any-qualified-provider

provision. 442 F.3d 456 (6th Cir. 2006). After applying

Blessing—and drawing mainly from Wilder—the

court rejected the State’s argument that the Act’s

enforcement scheme “implicitly foreclose[s]” private

enforcement. Id. at 461–63.

Six years later, the Seventh Circuit likewise held

that the provision “unambiguously creates private

rights presumptively enforceable by § 1983.” Planned

Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t

of Health, 699 F.3d 962, 974–75 (7th Cir. 2012)

(cleaned up). That holding allowed the plaintiff to

challenge a law eliminating “indirect subsidization of

abortion” by “prohibiting abortion providers from

receiving any state-administered funds.” Id. at 967.

Like the Sixth, the Seventh Circuit applied the

Blessing factors, found them satisfied, and held that

Indiana failed to rebut the resulting presumption that

the provision creates privately enforceable rights. Id.

at 973. Indiana’s position was “hard to reconcile” with

Wilder. Id. at 976. And the state’s “categorical

argument” that Spending Clause statutes cannot

create privately enforceable rights went further than

this Court had gone in Gonzaga. Ibid.

Less than a year later, the Ninth Circuit followed

suit, “joining the only two other circuits that [had]

decided the issue.” Planned Parenthood Ariz. Inc. v.

Betlach, 727 F.3d 960, 963 (9th Cir. 2013). Like the

courts before it, the Ninth Circuit applied the Blessing

factors, quoting Gonzaga out of context to declare

that, if “all three prongs are satisfied, ‘the right is

presumptively enforceable’ through § 1983.” Id. at 966

(quoting Gonzaga, 536 U.S. at 284).

E. In Armstrong, this Court repudiates

Wilder, and a plurality applies contract

principles to reject an argument for a private right under part of the Medicaid Act.

Less than two years after Betlach, this Court cast

even more doubt on Wilder, holding that Medicaid

providers cannot sue to enforce a provision requiring

plans to reimburse them at sufficiently high rates.

Armstrong, 575 U.S. at 324–25, 329. The providers

had argued for such a right either under the

Supremacy Clause or the Court’s equitable powers.

Id. at 326–27. The Court rejected both arguments. Id.

at 327–29.

In a footnote, the Court added that the providers

had “not claim[ed] that Wilder establishes precedent

for a private cause of action.” Id. at 330 n.*. The

Court’s “later opinions [had] plainly repudiate[d] the

ready implication of a § 1983 action that Wilder

exemplified.” Ibid. For example, Gonzaga had

“expressly reject[ed]” Wilder’s implicit notion that

“anything short of an unambiguously conferred right”

can support a § 1983 action. Ibid. (cleaned up).

In a plurality portion, four justices went further:

“The last possible source of a cause of action” was “the

Medicaid Act itself,” which the providers “rightly” did

not claim. Id. at 331. “[P]hrased as a directive to the

federal agency charged with approving” state plans,

the provision “lack[ed] the sort of rights-creating

language needed to imply a private right of action.”

Ibid. And “the explicitly conferred means” of

enforcement, namely “the Secretary’s withholding [of]

funding,” indicated that “other means” were

“precluded.” Id. at 331–32.

“Spending Clause legislation like Medicaid,” the

plurality emphasized, “is much in the nature of a

contract.” Id. at 332 (cleaned up). And “modern jurisprudence permitting intended beneficiaries to sue

does not generally apply to contracts between a

private party and the government—much less to

contracts between two governments.” Ibid. (cleaned

up). Moreover, “a private right of action under federal

law is not created by mere implication.” Ibid. It “must

be unambiguously conferred.” Ibid. (cleaned up). And

“[n]othing in the Medicaid Act suggests that Congress

meant to change that” for the reimbursement

provision. Ibid.

F. Three more Circuits reach conflicting

results over private rights of action under

the any-qualified-provider provision.

Following Armstrong, three more Circuits—the

Fifth, Eighth, and Tenth—weighed in on the second

question presented here.

The Fifth Circuit went first, “[j]oining every other

circuit” to address the issue and holding that the anyqualified-provider provision created “a private right

of action under § 1983.” Planned Parenthood of Gulf

Coast, Inc. v. Gee, 862 F.3d 445, 457 (5th Cir. 2017).

The court applied the Blessing factors, id. at 458–59,

cited other Circuits reaching the same result, ibid.,

and distinguished a portion of Armstrong’s majority

opinion, id. at 461–62. The court did not discuss the

plurality’s application of contract principles to

Spending Clause legislation. The full court divided 77 over en banc rehearing. 876 F.3d 699 (5th Cir. 2017).

In Does, the Eighth Circuit took a more principled

approach. Rather than rely on Wilder or apply the

three Blessing factors, the court applied Gonzaga and

Armstrong and examined the plain statutory text—

concluding that the any-qualified-provider provision

“does not unambiguously create a federal right for

individual patients that can be enforced under

§ 1983.” Does, 867 F.3d at 1037.

Gonzaga and Armstrong proved that the “standard

for identifying enforceable federal rights in spending

statues is more rigorous” than “Wilder and Blessing

might have suggested.” Id. at 1039 (cleaned up).

While the statutory provisions in Wilder had since

been repealed—leaving the Court “no occasion

formally to overrule” it—the Court’s “repudiation” of

Wilder was “the functional equivalent of overruling”

because “the Court uses the terms interchangeably.”

Id. at 1040 (cleaned up). And the any-qualifiedprovider provision could not clear the “more rigorous”

bar. Id. at 1039, 1041–43.

A dissenting judge would have applied Blessing

and “join[ed] the four other circuit courts” finding a

private right of action. Id. at 1049 (Melloy, J.,

dissenting). In his view, Gonzaga merely “amended

the first prong of the [Blessing] analysis.” Ibid.1 And

Armstrong was distinguishable. Id. at 1052.

The Tenth Circuit soon joined the circuit majority.

Planned Parenthood of Kan. v. Andersen, 882 F.3d

1205, 1224 (10th Cir. 2018). Quoting Gonzaga out of

context, the court posited that, “if the plaintiff satisfies the three Blessing requirements, ‘the right is presumptively enforceable’ under § 1983.” Id. at 1225

(quoting Gonzaga, 536 U.S. at 284). Reasoning that

the factors were satisfied, id. at 1225–28, Armstrong

was distinguishable and not entirely binding, id. at

1226–29, and “Wilder still is,” id. at 1229 & n.16, the

court felt “comfortable joining four out of the five

circuits” that had ruled on the any-qualified-provider

provision’s private enforceability, id. at 1224.

Others have tried to reconcile Blessing and Gonzaga differently. E.g., Health Sci. Funding, LLC v. N.J. Dep’t of Health &

Human Servs., 658 F. App’x 139, 141 (3d Cir. 2016) (“We have

interpreted Gonzaga University as requiring us to first apply the

three components of the Blessing test and then, to inquire into

whether the statutes in question unambiguously confer a

substantive right.”) (cleaned up).

G. The en banc Fifth Circuit moves a 6-1

circuit split to 5-2.

A year later, a Fifth Circuit panel decided another

any-qualified-provider case after Texas terminated

its provider agreements with Planned Parenthood

affiliates. Planned Parenthood of Greater Tex. Fam.

Plan. & Preventative Health Servs., Inc v. Smith, 913

F.3d 551, 554 (5th Cir. 2019). The panel was

“constrained” by its decision in Gee “to affirm the

district court’s conclusion that the plaintiffs

possess[ed] a private right of action.” Id. at 554. But

Judge Jones wrote a separate concurring opinion to

urge rehearing en banc on that issue, “which has

divided the appellate courts.” Ibid.

In her concurrence, Judge Jones primarily argued

that “Gee is inconsistent with [this] Court’s decision

in O’Bannon.” Id. at 571–72 (Jones, J., concurring).

But she also highlighted the Eighth Circuit’s decision

in Does and its reasoning that “structural indications”

in the Medicaid Act conflict with Gonzaga’s requirement that “Congress clearly intended to create an

enforceable federal right.” Id. at 572 (quoting Does,

867 F.3d at 1039).

The en banc Fifth Circuit overruled its prior panel

opinion in Gee and reversed. Planned Parenthood of

Greater Tex. Fam. Plan. & Preventative Health Servs.,

Inc. v. Kauffman, 981 F.3d 347, 350 (5th Cir. 2020).

The Kauffman court held that individuals who had

received or sought services from abortion providers

could not “bring a § 1983 suit to contest the State’s

determination that the Providers were not ‘qualified’

providers.” Id. at 353.

The court based that decision “primarily on two

independent bases: (1) [this] Court’s decision in

O’Bannon v. Town Court Nursing Center, and (2) the

text and structure” of the any-qualified-provider

provision, “which does not unambiguously provide

that a Medicaid patient may contest a State’s determination that a particular provider is not ‘qualified.’”

Id. at 350 (footnote omitted). Accordingly, and without applying the Blessing factors, the Fifth Circuit

vacated the preliminary injunction “prohibiting the

termination” of Planned Parenthood’s Medicaid provider agreements. Id. at 352.

H. The Fourth Circuit continues to apply

Wilder and Blessing while mostly ignoring

Armstrong, and a concurring judge pleads

for clarity.

The Fourth Circuit’s decisions below present an

ideal vehicle for this Court to resolve the substantial

disagreement among the lower courts over the state

of play post-Gonzaga and Armstrong. In its first

opinion, the Fourth Circuit aligned itself with the

circuit majority, applying the Blessing factors—

reading Gonzaga as merely a gloss on the first—and

then, citing Wilder, asserting that this Court has

“already held that the Medicaid Act’s administrative

scheme is not sufficiently comprehensive to foreclose

a private right of action enforceable under § 1983.”

App.63a. Recognizing that Gonzaga had “cut back” on

Wilder, the court maintained that “Wilder’s reasoning

as to the comprehensiveness of the Medicaid Act’s

enforcement scheme has not been overturned.”

App.63a–64a.

Even worse, the court ignored the Armstrong

plurality’s position that “intended beneficiaries” to

“contracts between two governments” do not have a

right to sue to enforce those contracts. Armstrong, 575

U.S. at 332. Instead, the court cited two words from

that part of the opinion—the phrase “unambiguously

conferred”—and turned the plurality’s position on its

head by insisting courts should not relieve “sovereign

signatories to a contract” of the “consequences” of

their agreement, including conferring private rights

of action on third parties. App.68a (cleaned up).

In its second opinion—which was briefed and

argued after the Fifth Circuit issued its en banc

decision in Kauffman—the Fourth Circuit doubled

down on its earlier conclusions. The court again

applied the three Blessing factors and found them

satisfied, adding that “if this statute does not survive

the Blessing factors, we cannot imagine one that

would.” App.22a. And the court rejected the Director’s

argument that “Gonzaga effectively abrogated

Blessing” because, according to the court of appeals,

“Gonzaga never indicated that Blessing is no longer

good law.” App.22a–23a.

Against this backdrop, it is easy to appreciate

Judge Richardson’s repeated pleas for this Court to

provide “clarity.” App.28a, App.88a. The lower courts

disagree vigorously over whether Wilder has “been

repudiated (or even effectively overruled).” App.84a.

The same goes for the Blessing factors. App.86a. In

Gonzaga, the Court “seemed to consider this

multifactor test problematic, to say the least.” Ibid.

But so far, only two Circuits have followed Gonzaga

and Armstrong to their logical end. Does, 867 F.3d at

1039–43; Kauffman, 981 F.3d at 350.

“So are Wilder, specifically, and the Blessing

factors, generally, still good law?” App.87a. Lower

courts feel powerless to answer these questions.

App.84a (“But we do not lightly conclude that the

Supreme Court has overruled its prior cases—that job

is for the Supreme Court alone.”). Accord Sabree, 367

F.3d at 194 (“While the analysis and decision of the

[lower court] may reflect the direction that future

Supreme Court cases in this area will take, currently

binding precedent supports the decision of the

Court.”) (Alito, J., concurring).

After years of confusion and litigation, this Court

must definitively answer these questions. Answering

them against the backdrop of this mature circuit split

will ensure a “better informed and more enduring

final pronouncement by this Court.” Evans, 514 U.S.

at 23 n.1 (Ginsburg, J., dissenting).

II. This case implicates the same broad

questions as Talevski and provides a more

secure vehicle for making sure those questions are resolved.

When this case last came before this Court, 137

Members of Congress filed a brief in support of the

petition. Br. for 137 Members of Cong. as Amici

Curiae Supporting Cert., Baker v. Edwards, 141 S. Ct.

550 (2020) (No. 19-1186). In their brief, those

Members advanced the same arguments in support of

granting certiorari in this case as the petitioners are

making in Talevski: “because Spending Clause

legislation is contractual, it cannot give rise to thirdparty suits, absent an expressly granted right and

remedy.” Id. at 3.

The Members of Congress are correct in their

assertion that, “if Congress intends to allow private

parties to enforce Spending Clause legislation, it

should explicitly create a private right and a private

remedy.” Br. for 137 Members of Cong. at 20, Baker,

141 S. Ct. 550 (2020) (No. 19-1186). As are the

petitioners in Talevski.

Unfortunately, mootness concerns due to the

case’s interlocutory posture likely explain why the

Court did not resolve that question the last time this

case came before it. And given that Talevski is in a

similar interlocutory posture—arising from the court

of appeals’ reinstatement of claims—similar mootness issues could arise that would prevent the Court

from resolving these important and recurring

questions in that case, too. The petitioners there have

“several factual defenses” that could still prevail as

the case proceeds below while the appeal is pending.

Br. in Opp’n at 18, Talevski, No. 21-806 (March 11,

2022). And because the plaintiffs in Talevski only

raised claims for damages—unlike the plaintiffs here

who sought injunctive relief—this Court’s recent

decision in Cummings v. Premier Rehab Keller,

P.L.L.C., No. 20-219, 2022 WL 1243658 (U.S. Apr. 28,

2022), could provide the Talevski petitioners with yet

another viable defense.

This case, by contrast, raises no mootness

concerns now that Petitioner is appealing a decision

affirming the grant of a permanent injunction.

Indeed, when Respondents appeared to suggest below

that Edwards had chosen not to seek medical care

from Planned Parenthood since before filing her

complaint, Petitioner flagged the issue in his reply

brief so Respondents could provide evidence that

Edwards still intends to use Planned Parenthood in

the future. And Respondents did so, producing a

supplemental declaration from Edwards explaining

that she had “seen no other providers for such care

since her appointment with Planned Parenthood in

2018,” that she recently “had made an appointment

for future care with Planned Parenthood,” and that if

“Planned Parenthood [were] not able to provide this

care under Medicaid,” she would “be forced to look

elsewhere.” App.12a. That evidence resolved any

potential mootness concerns, so the Fourth Circuit

held that the case still “presents a live case or

controversy.” App.14a.

Given the ongoing mootness concerns in Talevski,

and the fact that any such concerns have been

resolved in this case, Members of Congress are

preparing to file a brief in support of this petition,

asking the Court to grant the petition alongside

Talevski to ensure that a justiciable controversy

exists until the Court has an opportunity to rule. The

Court should grant that request.

III. This case also implicates a second circuit

split over the proper reading of this Court’s

decision in O’Bannon.

The second question presented here also

implicates a second circuit split over the meaning of

this Court’s decision in O’Bannon and the scope of the

alleged right to choose a qualified Medicaid provider.

In its first opinion, the Fourth Circuit read the

any-qualified-provider provision broadly to “confer[ ]

an individual right on Medicaid recipients to select

the willing and competent provider of their choice.”

App.76a. But as the Fifth Circuit explained in

Kauffman, this Court’s decision in O’Bannon proves

that the lower court’s understanding of the scope of

the alleged right is “demonstrably incorrect.”

Kauffman, 981 F.3d at 365, 366.

In O’Bannon, this Court held that the anyqualified-provider provision “gives recipients the

right to choose among a range of qualified providers,

without government interference.” 447 U.S. at 785.

“But it clearly does not confer a right on a recipient to

[seek services from] an unqualified [provider] and

demand a hearing to certify it, nor does it confer a

right on a recipient to continue to receive benefits for

care [from a provider] that has been decertified.” Ibid.

The Fourth Circuit reached the exact opposite

conclusion below. And even after the Fifth Circuit

explicitly pointed out its earlier error, the Fourth

Circuit stood by its erroneous reading of O’Bannon.

App.25a. (O’Bannon “actually resolved an entirely

different question and, to the extent that it has any

application here, it only supports the existence of a

private right.”).

Accordingly, this petition’s second question presented also offers the Court an opportunity to resolve

a 3-1 circuit split over the scope of any alleged right

under the any-qualified-provider provision and the

proper reading of O’Bannon. App.75a (joining “three

of the four circuits to have addressed this issue,” one

of which, the Fifth, reversed course in Kauffman). See

also Does, 867 F.3d at 1046 (Shepherd, J., concurring)

(O’Bannon “tells us the right created by § 23(A) is far

more narrow: the right to choose among a range of

qualified providers”).

IV. This case raises important and recurring

issues with far-reaching consequences, and

the Fourth Circuit got it wrong.

1. Whether Medicaid’s any-qualified-provider

provision creates a privately enforceable right is a

recurring question of great national importance. More

than “70 million Americans are on Medicaid, and the

question[s] presented directly affect[ ] their rights.”

Gee, 139 S. Ct. at 409 (Thomas, J., dissenting from

denial of certiorari). “Tens of thousands of provider

entities are subject to the Medicaid program’s

detailed scheme of integrated federal and state

regulation.” Smith, 913 F.3d at 570 (Jones, J.,

concurring). And “[b]ecause of this Court’s [past]

inaction, patients in different States—even patients

with the same providers—have different rights to

challenge their State’s provider decisions.” Gee, 139 S.

Ct. at 409 (Thomas, J., dissenting from denial of

certiorari).

Moreover, the Medicaid “program is already one of

the most expensive components of state budgets.”

Smith, 913 F.3d at 571 (Jones, J., concurring). And

the majority rule imposes the “threat of a federal

lawsuit—and its attendant costs and fees—whenever

[a state makes] changes” to its plan. Gee, 139 S. Ct. at

409 (Thomas, J., dissenting from denial of certiorari).

2. Even if the Court concludes that a Spending

Clause statute can create rights privately enforceable

under § 1983, the decisions below are wrong under

Gonzaga and Armstrong.

First, in deciding the threshold question, the

Fourth Circuit misread and misapplied Gonzaga

while applying Blessing’s three-factored test and the

rebuttable presumption. App.18a–25a, 58a–65a. In

Gonzaga, this Court did not apply Blessing’s

“multifactor balancing test.” 536 U.S. at 286. Instead,

it repeatedly criticized Blessing and the “confusion” it

has inspired, ultimately “reject[ing] the notion that

[the Court’s] cases permit anything short of an

unambiguously conferred right to support a cause of

action brought under § 1983.” Id. at 282–83, 286.

The Eighth Circuit’s decision in Does and the Fifth

Circuit’s Kauffman decision exemplify principled,

post-Gonzaga approaches to deciding whether a given

statute creates privately enforceable rights under

§ 1983. For example, applying Gonzaga, the Eighth

Circuit highlighted three “significant difficulties with

the contention” that the any-qualified-provider

provision “unambiguously creates an enforceable

federal right.” 867 F.3d at 1041. First, the “focus” of

the provision—on the “federal agency charged with

approving” state plans—is “two steps removed from

the interests of the patients who seek services from a

Medicaid provider.” Ibid. “Second, Congress expressly

conferred another means of enforcing” compliance:

the “withholding of federal funds by the Secretary.”

Ibid. And “[t]hird, statutes with an ‘aggregate’ focus,”

like the Medicaid Act’s “substantial compliance

regime,” do not “give rise to individual rights.” Id. at

1042 (quoting Gonzaga, 536 U.S. at 288).

The Eighth Circuit’s reasoning is sound. And it

proves that, untethered from Blessing’s “multifactor

balancing test,” Gonzaga, 536 U.S. at 286, courts can

more easily heed this Court’s admonition that nothing

“short of an unambiguously conferred right,” id. at

283, can confer a cause of action under § 1983.

Second, the Fourth Circuit relied heavily on the

dubious Wilder decision. App.63a–64a. According to

the court below, this “Court has already held [in

Wilder] that the Medicaid Act’s administrative

scheme” does not “foreclose a private right of action.”

App.63a. But courts should place “little stock in

[Wilder’s] paradigm after Armstrong’s express

disavowal of Wilder’s mode of analysis.” Does, 867

F.3d at 1042.

Third, like the majority in a recent Second Circuit

decision, the Fourth Circuit “misconstrue[d] the

controlling precedent provided by [this] Court’s 2015

Armstrong decision.” N.Y. State Citizens’ Coal. for

Child. v. Poole, 922 F.3d 69, 97–98 (2d Cir. 2019)

(Livingston, J., dissenting). Armstrong emphasized

that the “sole remedy … for a State’s failure to comply

with Medicaid’s requirements—for the State’s

‘breach’ of the Spending Clause contract—is the

withholding of Medicaid funds by the Secretary.” 575

U.S. at 328. And the majority rejected the “dissent’s

complaint” that the “cut-off of funding” is “too massive

to be a realistic source of relief.” Id. at 331.

Resurrecting that overruled complaint, the Fourth

Circuit dismissed Congress’s chosen remedy as a

“drastic” and “illogical” means of “vindicating the

interests of individual Medicaid beneficiaries.”

App.63a. The court also got Armstrong’s plurality

portion backwards, claiming that it was refusing to

relieve “sovereign signatories to a contract” of the

“consequences” of their agreement, App.68a (cleaned

up), even though the signatories themselves have

made no such claim.

In sum, this case is “not about abortion rights.”

Gee, 139 S. Ct. at 410 (Thomas, J., dissenting from

denial of certiorari). It is about “private rights of

action under the Medicaid Act.” Ibid. And by

extension, it is about every Spending Clause statute

“in the nature of a contract” between states and the

federal government. Armstrong, 575 U.S. at 332.

Certiorari is warranted to eradicate confusion in this

Court’s caselaw and to make clear that Spending

Clause statutes like the Medicaid Act do not—and

cannot—create privately enforceable rights “by mere

implication.” Ibid. No court should be reading private

rights into silent statutory text.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

MAY 2022

KELLY M. JOLLEY

ARIAIL B. KIRK

JOLLEY LAW

GROUP, LLC

810 Bellwood Road

Columbia, SC 29205

(803) 809-6500

JOHN J. BURSCH

Counsel of Record

KRISTEN K. WAGGONER

ERIN M. HAWLEY

CHRISTOPHER P. SCHANDEVEL

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

APPENDIX

APPENDIX TABLE OF CONTENTS

United States Court of Appeals

for the Fourth Circuit,

Opinion in 21-1043

Issued March 8, 2022 ............................................... 1a

United States District Court

for the District of South Carolina,

Declaratory Judgment and

Permanent Injunction

Issued December 14, 2020 ..................................... 29a

United States District Court

for the District of South Carolina,

Memorandum Opinion and Order

Issued September 17, 2020 .................................... 31a

United States Court of Appeals

for the Fourth Circuit,

Opinion in 18-2133

Issued October 29, 2019 ......................................... 43a

United States District Court

for the District of South Carolina,

Memorandum Opinion and Order

Issued August 28, 2018 .......................................... 89a

42 U.S.C. 1396a(a)(23) ......................................... 110a

42 U.S.C. 1396a(b) ............................................... 110a

42 U.S.C. 1396c .................................................... 111a

iia

Office of the Governor

Executive Order 2017-15

Dated August 24, 2017 ......................................... 112a

Excerpts from Governor Henry McMaster’s

Veto Letter regarding FY2018-19 General

Appropriations Act

Dated July 5, 2018 ............................................... 116a

Office of the Governor

Executive Order 2018-21

Dated July 13, 2018 ............................................. 119a

Letter from South Carolina Department of

Health & Human Services to Planned

Parenthood South Atlantic

Dated July 13, 2018 ............................................. 123a

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

________________

No. 21-1043

________________

PLANNED PARENTHOOD SOUTH ATLANTIC;

JULIE EDWARDS, on her behalf and on behalf of all

others similarly situated,

Plaintiffs – Appellees,

ROBERT M. KERR, in his official capacity as

Director, South Carolina Department of Health and

Human Services,

Defendant – Appellant.

-----------------------------REPRODUCTIVE

RIGHTS

AND

JUSTICE

ORGANIZATIONS AND ALLIED ORGANIZATIONS; NATIONAL HEALTH LAW PROGRAM;

SOUTH CAROLINA APPLESEED LEGAL JUSTICE

CENTER; VIRGINIA POVERTY LAW CENTER;

NORTH

CAROLINA

JUSTICE

CENTER;

CHARLOTTE CENTER FOR LEGAL ADVOCACY;

IPAS; SEXUALITY INFORMATION AND EDUCATION COUNCIL OF THE UNITED STATES;

AMERICAN ACADEMY OF FAMILY PHYSICIANS;

AMERICAN

ACADEMY

PEDIATRICS;

AMERICAN COLLEGE OF NURSE-MIDWIVES;

AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS; AMERICAN COLLEGE OF

PHYSICIANS; AMERICAN MEDICAL ASSOCIATION; AMERICAN PSYCHIATRIC ASSOCIATION;

NURSE PRACTITIONERS IN WOMENS HEALTH;

SOCIETY FOR MATERNAL-FETAL MEDICINE;

SOCIETY OF GYNECOLOGIC ONCOLOGY;

SOCIETY OF OB/GYN HOSPITALISTS,

Amici Supporting Appellee.

____________________

Appeal from the United States District Court for the

District of South Carolina, at Columbia. Mary G.

Lewis, District Judge. (3:18-cv-02078-MGL)

____________________

Argued: January 26, 2022

Decided: March 8, 2022

___________________

Before WILKINSON, WYNN, and RICHARDSON,

Circuit Judges.

___________________

Affirmed by published opinion. Judge Wilkinson

wrote the opinion, in which Judge Wynn joined. Judge

Richardson wrote an opinion concurring in the

judgment.

___________________

ARGUED:

John

Bursch,

ALLIANCE

DEFENDING FREEDOM, Washington, D.C., for

Appellant. Nicole A. Saharsky, MAYER BROWN,

LLP, Washington, D.C., for Appellees. ON BRIEF:

Kelly M. Jolley, Ariail B. Kirk, JOLLEY LAW

GROUP, LLC, Columbia, South Carolina, for

Appellant. Avi M. Kupfer, MAYER BROWN LLP,

Chicago, Illinois; Alice Clapman, PLANNED

PARENTHOOD FEDERATION OF AMERICA,

Washington, D.C.; M. Malissa Burnette, Kathleen

McDaniel, BURNETTE, SHUTT & MCDANIEL, PA,

Columbia, South Carolina, for Appellees. Julie

Rikelman, Pilar Herrero, Joel Dodge, CENTER FOR

REPRODUCTIVE RIGHTS, New York, New York; Da

Hae Kim, NATIONAL ASIAN PACIFIC AMERICAN

WOMEN’S FORUM, Washington, D.C., for Amici

Reproductive Rights and Justice Organizations and

Allied Organizations. Martha Jane Perkins,

Catherine McKee, Sarah Jane Somers, Sarah Grusin,

NATIONAL HEALTH LAW PROGRAM, Chapel Hill,

North Carolina, for Amici The National Health Law

Program, South Carolina Appleseed Legal Justice

Center, Virginia Poverty Law Center, North Carolina

Justice Center, Charlotte Center for Legal Advocacy,

IPAS, and Sexuality Information and Education

Council of the United States. Janice M. Mac Avoy,

Alexis R. Casamassima, Danielle M. Stefanucci,

FRIED, FRANK, HARRIS, SHRIVER & JACOBSON

LLP, New York, New York, for Amici American

Academy of Family Physicians, American Academy of

Pediatrics, American College of Nurse-Midwives,

American College of Obstetricians and Gynecologists,

American College of Physicians, American Medical

Association, American Psychiatric Association, Nurse

Practitioners in Women’s Health, Society for

Maternal-Fetal Medicine, Society of Gynecologic

Oncology, and Society of OB/GYN Hospitalists.

___________________

WILKINSON, Circuit Judge:

This case arises out of South Carolina’s

termination of Planned Parenthood South Atlantic’s

Medicaid provider agreement, an action that South

Carolina took because Planned Parenthood offers

abortion services. But this case is not about abortion.

It is about Congress’s desire that Medicaid recipients

have their choice of qualified Medicaid providers.

Here South Carolina terminated Planned Parenthood’s agreement notwithstanding the fact that all

parties agree that Planned Parenthood is perfectly

competent to provide the non-abortive healthcare the

individual plaintiff sought and requested. To allow

the State to disqualify Planned Parenthood would

nullify Congress’s manifest intent to provide our less

fortunate citizens the opportunity to select a medical

provider of their choice, an opportunity that the most

fortunate routinely enjoy.

At the outset of this litigation, the district court

issued a preliminary injunction preventing South

Carolina from terminating Planned Parenthood’s

provider agreement. We affirmed its decision then.

South Carolina now returns to our court to appeal the

district court’s subsequent permanent injunction. For

the following reasons, we again affirm the district

court’s judgment.

Congress created Medicaid in 1965 to provide

“federal financial assistance to States that choose to

reimburse certain costs of medical treatment for

needy persons.” Harris v. McRae, 448 U.S. 297, 301

(1980). The program furnishes “medical assistance on

behalf of families with dependent children and of

aged, blind, or disabled individuals, whose income

and resources are insufficient to meet the costs of

necessary medical services.” 42 U.S.C. § 1396-1. In

this way, Medicaid effectively serves as a nationwide

system of public health insurance for those who

cannot afford medical care on their own.

Although it is federal in scope, Medicaid is

administered by the states and, “[l]ike other Spending

Clause legislation, Medicaid offers the States a

bargain: Congress provides federal funds in exchange

for the States’ agreement to spend them in accordance

with congressionally imposed conditions.” Armstrong

v. Exceptional Child Ctr., Inc., 575 U.S. 320, 323

(2015). The scheme of the Medicaid program reflects

the cooperative nature of this enterprise. Under the

Medicaid Act, the federal government is tasked with

crafting general eligibility requirements and

standards. See 42 U.S.C. § 1396 et seq. States then

submit Medicaid plans for approval by the Secretary

of Health and Human Services, who reviews these

plans to ensure that they comply with the statutory

and regulatory requirements governing Medicaid. See

Douglas v. Indep. Living Ctr. of S. Cal., Inc., 565 U.S.

606, 610 (2012). Upon approval, states receive federal

matching funds that they may use to reimburse

providers. See id. at 611. On the other hand, the

Secretary may withhold funds if he finds “that in the

administration of the plan there is a failure to comply

substantially” with the requirements of the Medicaid

Act. 42 U.S.C. § 1396c.

Over the first two years of the Medicaid program,

Congress grew concerned that states might deny

recipients the opportunity to choose the provider of

their choice. In Puerto Rico, for instance, indigent

patients could receive medical services “only in

Commonwealth facilities.” President’s Proposals for

Revision in the Social Security System: Hearing on

H.R. 5710 before the H. Comm. on Ways & Means,

Part 4, 90th Cong. 2273 (1967). And in Massachusetts, private physicians at teaching hospitals were

not reimbursed under Medicaid. Id. at 2301.

Accordingly, Congress amended the Medicaid Act

to include the free-choice-of-provider provision, which

is at issue here. That provision states:

A State plan for medical assistance must . . .

provide that . . . any individual eligible for

medical assistance . . . may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform

the service or services required . . . who

undertakes to provide him such services. . . .

42 U.S.C. § 1396a(a)(23).

Planned Parenthood South Atlantic offers

patients a number of family planning and reproductive health services at two South Carolina health

centers in Charleston and Columbia. These services

include, for instance, contraception and contraceptive

counseling, cancer screenings, screenings and treatment for sexually transmitted infections, pregnancy

testing, and physical exams. Planned Parenthood also

performs abortions, although South Carolina

Medicaid only covers abortions in certain rare

circumstances required by federal law, such as rape,

incest, or the need to protect the mother’s life. See

Consolidated Appropriations Act, 2021, Pub. L. No.

116–260, div. H, tit. V, §§ 506–07, 134 Stat. 1182,

1622 (Hyde Amendment).

Julie Edwards, the individual plaintiff in this

case, is insured through Medicaid and suffers from

Type 1 diabetes, for which she has obtained frequent

medical attention. She has been advised by doctors

that, due to high blood pressure and high blood sugar,

it would be dangerous for her to try to carry a

pregnancy to term. After finding that local Medicaid

providers were unable or unwilling to provide her

with the contraceptive care that she sought, Edwards

made an appointment at Planned Parenthood’s office

in Columbia. Doctors there inserted an intrauterine

device to prevent pregnancy and told her that her

blood pressure was very high, for which she sought

follow-up care. Edwards was impressed with her visit

and planned to shift “all [her] gynecological and

reproductive health care there,” including her

“annual well woman exam.” J.A. 61. However, she

stated that she “[would] not be able to continue going

there if the services are not covered” by Medicaid and

she is required “to pay out of pocket.” J.A. 61.

In July 2018, the Governor of South Carolina

issued an executive order directing South Carolina’s

Department of Health and Human Services (DHHS)

“to deem abortion clinics . . . that are enrolled in the

Medicaid program as unqualified to provide family

planning services and, therefore, to immediately

terminate them upon due notice and deny any future

such provider enrollment applications for the same.”

J.A. 54. The Governor stated that the purpose of this

decision was to prevent South Carolina from

indirectly subsidizing the practice of abortion. On

that same day, DHHS sent Planned Parenthood a

letter stating that it was “no longer . . . qualified to

provide services to Medicaid beneficiaries” and that

its “enrollment agreements with the South Carolina

Medicaid programs [were] terminated” effective

immediately. J.A. 56.

Two weeks later, Planned Parenthood and

Edwards filed suit under 42 U.S.C. § 1983 against the

Director of DHHS in federal district court, alleging

that South Carolina had violated the Medicaid Act

and the Fourteenth Amendment. The plaintiffs soon

moved for a preliminary injunction and a temporary

restraining order, contending that they were likely to

succeed on their claim that South Carolina’s

termination of Planned Parenthood’s Medicaid

provider agreement violated the Medicaid Act’s freechoice-of-provider provision. South Carolina opposed

this motion, arguing that the plaintiffs lacked a cause

of action under § 1983 to sue to enforce that provision.

The district court granted the preliminary

injunction,

concluding

that

Edwards

had

demonstrated that she was likely to succeed on her

Medicaid Act claim since the free-choice-of-provider

provision conferred a private right enforceable under

§ 1983 and since South Carolina had violated that

provision by terminating Planned Parenthood’s

Medicaid provider agreement. See Planned

Parenthood S. Atl. v. Baker, 326 F. Supp. 3d 39, 44–

48 (D.S.C. 2018). The district court concluded that the

other equitable factors also favored Edwards and it

enjoined South Carolina from terminating Planned

Parenthood’s provider agreement during the

pendency of the litigation. See id. at 48–50. Because

it held that preliminary relief was warranted on the

basis of Edwards’s Medicaid Act claim, it declined to

consider whether such relief would also be

appropriate on the basis of Planned Parenthood’s

claim. See id. at 50.

South Carolina appealed and this panel affirmed.

Planned Parenthood S. Atl. v. Baker, 941 F.3d 687,

691 (4th Cir. 2019). After applying the three factors

articulated by the Supreme Court in Blessing v.

Firestone, 520 U.S. 329 (1997), we first concluded that

the free-choice-of-provider provision conferred on

Edwards a private right enforceable under § 1983. See

Baker, 941 F.3d at 696–98. We noted that the statute

was couched in terms of individual beneficiaries and

that it used the phrase “any individual,” indicating

Congress’s specific intention to confer a right on the

class of Medicaid recipients. Id. at 697. In addition,

the statute was not so “vague and amorphous” as to

strain judicial competence and the text clearly

imposed a “binding obligation on the States.” Id.

(quoting Blessing, 520 U.S. at 340–41). Since the

enforcement scheme did not indicate that Congress

had foreclosed a remedy under § 1983, we concluded

that Edwards could sue under that statute to enforce

the free-choice-of-provider provision. See id. at 698–

700.

10a

Next, we determined that a provider was

“qualified to perform the service or services required”

under the terms of the statute, 42 U.S.C. §

1396a(a)(23), if it was professionally competent to do

so, although states retained discretionary authority

to disqualify providers as professionally incompetent.

See id. at 701–06. Since South Carolina’s exclusion of

Planned Parenthood had “nothing to do with

professional

misconduct”

with

Planned

Parenthood’s “ability to safely and professionally

perform

plaintiff’s

required

family-planning

services,” we agreed with the district court that

Edwards had demonstrated a substantial likelihood

of success on her Medicaid Act claim. Id. at 705.

Likewise, we concluded that the district court had not

abused its discretion in determining that the

remaining equitable factors favored Edwards and we

affirmed its judgment. See id. at 706–07.

Following our decision, South Carolina petitioned

for a writ of certiorari, which the Supreme Court

denied. Baker v. Planned Parenthood S. Atl., 141 S.

Ct. 550 (2020). The district court subsequently

granted summary judgment to the plaintiffs on

Edwards’s Medicaid Act claim, noting that, under this

panel’s previous decision, “Edwards, as a matter of

law, may seek to enforce the free-choice-of-provider

provision in this § 1983 action” and that it was

“required to follow Fourth Circuit precedent” on this

question. Planned Parenthood S. Atl. v. Baker, 487 F.

Supp. 3d 443, 446, 448 (D.S.C. 2020). Since it

concluded that South Carolina had violated this

provision, the district court entered summary

judgment for the plaintiffs. See id. The parties

stipulated to a dismissal of their remaining

11a

Fourteenth Amendment claims, following which the

district court entered a declaratory judgment in favor

of the plaintiffs and “permanently enjoined” South

Carolina “from terminating or excluding [Planned

Parenthood] from participation in the South Carolina

Medicaid Program on the grounds it is an abortion

clinic or provides abortion services.” J.A. 302–03.

South Carolina now appeals.

II.

Before we turn to the merits of South Carolina’s

appeal, however, we must satisfy ourselves that we

have jurisdiction. South Carolina contends for the

first time on this appeal that it believes this case is

moot. We do not share that view.

Under Article III of the Constitution, our

jurisdiction is limited to “the adjudication of actual

cases and controversies.” Mellen v. Bunting, 327 F.3d

355, 363 (4th Cir. 2003). This requirement “extends

throughout the pendency of the action,” id., and “a

case is moot when the issues presented are no longer

‘live’ or the parties lack a legally cognizable interest

in the outcome,” Powell v. McCormack, 395 U.S. 486,

496 (1969). As such, mootness is closely related to

standing and we have made clear that “a case is moot

if, at any point prior to the case’s disposition, one of

the elements essential to standing, like injury-in-fact,

no longer obtains.” Am. Fed’n of Gov’t Emps. v. Office

of Special Counsel, 1 F.4th 180, 187 (4th Cir. 2021).

To establish standing, the plaintiff must allege an

injury that is “concrete, particularized, and actual or

imminent; fairly traceable to the challenged action;

and redressable by a favorable ruling.” Monsanto Co.

v. Geertson Seed Farms, 561 U.S. 139, 149 (2010). In

12a

its reply brief, South Carolina alleges for the first time

that Edwards no longer satisfies these requirements,

on the grounds that she has not used Planned

Parenthood’s services since filing her complaint and

therefore faces no concrete injury if South Carolina

terminates Planned Parenthood’s Medicaid provider

agreement. Although this contention is offered late in

the day, we are bound to consider it fully.

Upon doing so, however, we are satisfied that

Edwards’s claims are not moot. It is uncontested that

Edwards is insured through Medicaid and that she

has previously relied on Planned Parenthood for

gynecological and reproductive healthcare. In

addition, Edwards asserts in a supplemental

declaration that she has seen no other providers for

such care since her appointment with Planned

Parenthood in 2018. In this declaration, executed in

July of last year, Edwards states that she in fact had

made an appointment for future care with Planned

Parenthood before learning of South Carolina’s

mootness argument. If Planned Parenthood is not

able to provide this care under Medicaid, Edwards

will be forced to look elsewhere and she will

experience a concrete, particularized injury.

South Carolina has not undermined Edwards’s

declaration or the contents thereof; instead, it

suggests that her stated intentions to seek care from

Planned Parenthood are insufficient to establish a

concrete or imminent injury for Article III purposes.

But a future injury satisfies Article III as long as “the

threatened injury is certainly impending, or there is

a substantial risk that the harm will occur.” Dep’t of

Commerce v. New York, 139 S. Ct. 2551, 2565 (2019)

(quoting Susan B. Anthony List v. Driehaus, 573 U.S.

13a

149, 158 (2014)). Here there is a substantial risk that

Edwards will be harmed, given that she has

previously used Planned Parenthood for gynecological

and reproductive care, has seen no other providers for

this care since, and has made a future appointment to

receive this care from Planned Parenthood. And while

Edwards may not have visited Planned Parenthood as

regularly as she predicted in her complaint, the

frequency of medical appointments may not be so

perfectly predicted in advance. It is commonplace for

patients to see multiple providers and equally routine

to defer care until the need arises or until symptoms

in some way manifest themselves. We are given no

reason to doubt Edwards’s contention that she

intends Planned Parenthood to be her medical

provider for certain forms of healthcare. The fact that

she did not require such care in the time between the

outset of this litigation and the present may simply

reflect the happenstance of medical need, coupled

with the unique hindrances of the covid pandemic.

We note that our conclusion here is a narrow one,

drawn from the particular facts of Edwards’s

situation. And we are fully mindful of the Supreme

Court’s admonition that “‘some day’ intentions—

without any description of concrete plans, or indeed

even any specification of when the some day will be—

do not support a finding of the ‘actual or imminent’

injury that our cases require.” Lujan v. Defs. of

Wildlife, 504 U.S. 555, 564 (1992). Here, however,

Edwards has made just the “concrete plans” that

Lujan requires. And while the plaintiffs in Lujan

asserted injury on the basis of abstract and indefinite

intentions to visit certain countries, see id., it is far

more likely that Edwards will fulfill her stated

14a

intention to seek gynecological or reproductive care

from Planned Parenthood in the future, given the fact

that Planned Parenthood’s proximity and match with

her medical needs led her to seek its services in the

past. Under the particular circumstances present

here, we conclude this case presents a live case or

controversy. To hold otherwise would be to deprive

Edwards both of the access to court which is her due

and of the access to her chosen qualified medical

provider.

III.

On the merits, South Carolina argues that we

should reconsider our previous panel decision and

hold that Edwards cannot sue under § 1983 to enforce

the free-choice-of-provider provision.1 In essence,

South Carolina suggests that we reverse the district

court for applying a legal conclusion that we

previously set forth in a binding opinion. This is a

striking request, and one that cannot be reconciled

with the nature of precedent in our judicial system. In

any event, we remain persuaded that our previous

holding is correct and we take this opportunity to

reaffirm our prior decision.

In asking us to reconsider our previous decision,

South Carolina would deny it any precedential

weight. The State’s position here is quite misguided.

While law is indeed not static, it is also not open to

1 Notably, South Carolina does not challenge the district

court’s determination (and our own previous conclusion) that

South Carolina violated this provision by terminating Planned

Parenthood’s Medicaid provider agreement.

15a

reversal in the manner that appellant suggests. After

all, the question at issue here is identical to the legal

question we resolved in the prior case: whether § 1983

provides a cause of action to enforce the Medicaid

Act’s free-choice-of-provider provision. We answered

that question as a legal matter after full briefing and

oral argument, and we presented our conclusion in a

published opinion. Such a decision “is binding on

other panels unless it is overruled by a subsequent en

banc opinion of the court or a superseding contrary

decision of the Supreme Court.” United States v.

Dodge, 963 F.3d 379, 383 (4th Cir. 2020) (quoting

United States v. Collins, 415 F.3d 304, 311 (4th Cir.

2005)).

South Carolina points to no such en banc opinion

or Supreme Court decision. Instead, the only

intervening change highlighted by South Carolina is

that the Fifth Circuit recently came to a different

conclusion than our own. See Planned Parenthood of

Greater Tex. Family Planning & Preventative Health

Servs., Inc. v. Kauffman, 981 F.3d 347, 353 (5th Cir.

2020) (en banc). Even setting aside the fact that we

remain on the majority of a rather lopsided circuit

split,2 it is hard to see how that could justify our

reconsideration of the case. If we were free to overturn

our own prior position whenever another circuit took

2 Compare Planned Parenthood of Kan. v. Andersen, 882

F.3d 1205, 1224 (10th Cir. 2018); Planned Parenthood Ariz. Inc.

v. Betlach, 727 F.3d 960, 965–66 (9th Cir. 2013); Planned

Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health,

699 F.3d 962, 968 (7th Cir. 2012); Harris v. Olszewski, 442 F.3d

456, 461 (6th Cir. 2006) (all finding a right of action under §

1983) with Kauffman, 981 F.3d at 353; Does v. Gillespie, 867 F.3d

1034, 1037 (8th Cir. 2017) (finding no right of action under §

1983).

16a

a different view, it would utterly destabilize the law

of our circuit, placing it at the sufferance of any circuit

court anywhere that took a contrary step—something

that often happens between the courts of appeals. As

useful as we may find decisions from the other

circuits, they of course carry only persuasive weight

in our own.

Against these pressing considerations, South

Carolina suggests that the law-of-the-circuit

framework is inapposite here. It contends instead

that only law-of-the-case governs where a panel

rehears a legal issue stemming from the same case as

a prior opinion. But we need not dance on the head of

a pin as to whether our previous decision implicates

law-of-the-case or whether it’s binding law-of-thecircuit. As between the two, South Carolina loses

either way. Without exception, this court has

understood that the resolution of a purely legal issue,

absent a change in controlling law, governs

subsequent panels, including in later appeals

following a prior interlocutory appeal. L.J. v. Wilbon,

633 F.3d 297, 308 (4th Cir. 2011); U.S. Dep’t of Hous.

& Urban Dev. v. Cost Control Mktg. & Sales Mgmt. of

Va., Inc., 64 F.3d 920, 925 (4th Cir. 1995); see also

Tatum v. RJR Pension Inv. Comm., 855 F.3d 553, 560

n.5 (4th Cir. 2017) (noting that a previous opinion by

an identical panel in the same case constituted both

“law of the case” and “Fourth Circuit precedent”). We

are hardly alone in this understanding. See Howe v.

City of Akron, 801 F.3d 718, 740 (6th Cir. 2015)

(collecting cases from the other courts of appeals).

“What has once been settled by a precedent will

not be unsettled overnight, for certainty and

uniformity are gains not lightly to be sacrificed.”

17a

Benjamin N. Cardozo, The Paradoxes of Legal Science

29–30 (1928). Justice Cardozo’s predecessor on the

Supreme Court was of the same mind and once

commented, in response to an article criticizing the

common law: “We must add that we sincerely hope

that the editors will fail in their expressed desire to

diminish the weight of precedents with our courts. We

believe the weight attached to them is about the best

thing in our whole system of law.” Oliver Wendell

Holmes Jr., Summary of Events, 7 Am. L. Rev. 579,

579 (1873). We agree with our forebears. Our fidelity

to our previous decisions is a necessary service to the

parties before us, as well as to the public generally. It

ensures stability in the law and provides clear signals

to litigants so that they may rely on our decisions. The

alternative is a legal system where each thing is up

for grabs every time. The very guidance that law

purports to provide for human conduct would by

degrees recede. So even assuming, purely arguendo,

that we were free to reexamine our precedents, we

would not do so here. Our previous decision was

handed down as a matter of law and resolved the

precise legal issue upon which South Carolina now

seeks review. For the above multiplicity of reasons we

stand by it. In Latin: stare decisis.

Furthermore, we take this occasion to reaffirm

our prior holding. To reiterate, the legal question is

whether individuals such as Edwards may sue under

42 U.S.C. § 1983 to enforce the Medicaid Act’s freechoice-of-provider provision. Section 1983 provides

that:

18a

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of

Columbia, subjects, or causes to be subjected,

any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured . . . .

42 U.S.C. § 1983. The Supreme Court has interpreted

the phrase “and laws” to provide a cause of action for

individuals who are deprived of a right, privilege, or

immunity secured by federal statute. Maine v.

Thiboutot, 448 U.S. 1, 4 (1980). As the Supreme Court

has cautioned, however, a litigant seeking to assert a

cause of action under § 1983 “must assert the

violation of a federal right, not merely a violation of

federal law.” Blessing, 520 U.S. at 340.

As we explained in our previous opinion, rights of

action brought under § 1983 are different from private

rights of action inferred directly from a statute. See

Baker, 941 F.3d at 694–95. The Supreme Court has

warned against readily finding statutory rights of

action under § 1983. It is not enough for a plaintiff to

fall “within the general zone of interest” of a federal

statute. Gonzaga Univ. v. Doe, 536 U.S. 273, 283

(2002). Rather, nothing “short of an unambiguously

conferred right,” rather than the “broader or vaguer”

notion of “‘benefits’ or ‘interests’” may support a cause

of action under § 1983. Id. This is particularly

important in the Spending Clause context since such

legislation is akin to a contract and “[t]he legitimacy

of Congress’ power to legislate under the spending

power thus rests on whether the State voluntarily and

19a

knowingly accepts the terms of the ‘contract.’”

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.

1, 17 (1981). But where it is clear and unambiguous

that Congress intended to create a private right, we

are obliged to follow its intention. As we noted,

“[c]ourts cannot deprive the sovereign signatories to a

‘contract’ such as the Medicaid Act of the benefit of

their bargain.” Baker, 941 F.3d at 701.

In Blessing, the Supreme Court articulated three

factors to determine whether a statute creates a

private right enforceable under § 1983:

First, Congress must have intended that the

provision in question benefit the plaintiff.

Second, the plaintiff must demonstrate that

the right assertedly protected by the statute

is not so “vague and amorphous” that its

enforcement

would

strain

judicial

competence. Third, the statute must

unambiguously impose a binding obligation

on the States. In other words, the provision

giving rise to the asserted right must be

couched in mandatory, rather than precatory

terms.

520 U.S. at 340–41 (citations omitted). If these three

factors are satisfied, there is “a rebuttable

presumption that the right is enforceable under §

1983,” provided that Congress has not expressly or

implicitly foreclosed a § 1983 remedy. Id. at 341.

To repeat, the free-choice-of-provider provision

states that “[a] State plan for medical assistance must

. . . provide that any individual eligible for medical

20a

assistance . . . may obtain such assistance from any

institution . . . qualified to perform the service or

services required.” 42 U.S.C. § 1396a(a)(23)

(emphases added). “It is difficult to imagine a clearer

or more affirmative directive.” Baker, 941 F.3d at 694.

The statute plainly reflects Congress’s desire that

individual Medicaid recipients be free to obtain care

from any qualified provider and it implements this

policy in direct and unambiguous language. For this

reason, all three of the Blessing factors are met.

As to the first factor, the free-choice-of-provider

provision “unambiguously gives Medicaid-eligible

patients an individual right” to their choice of

qualified provider. Planned Parenthood of Ind., Inc. v.

Comm’r of Ind. State Dep’t of Health, 699 F.3d 962,

974 (7th Cir. 2012). The provision clearly and

expressly identifies the intended beneficiaries: “any

individual eligible for medical assistance” under

Medicaid. 42 U.S.C. § 1396a(a)(23)(A). And as we

noted, “Congress’s use of the phrase ‘any individual’

is a prime example of the kind of ‘rights-creating’

language required to confer a personal right on a

discrete class of persons—here, Medicaid beneficiaries.” Baker, 941 F.3d at 697. Indeed, this phrase

closely mirrors the common example that the

Supreme Court has given of such language. See

Gonzaga, 536 U.S. at 287 (“No person . . . shall . . . be

subjected to discrimination.”). The statutory text

therefore unmistakably evinces Congress’s intention

to confer on Medicaid beneficiaries a right to the free

choice of their provider.

As to the second factor, the provision is hardly so

“vague and amorphous” as to preclude judicial

enforcement, Blessing, 520 U.S. at 340, since it merely

21a

requires courts to make two discrete assessments: (i)

that the provider is “qualified to perform the service

or services required” and (ii) that the provider

“undertakes” to provide those services, 42 U.S.C. §

1396a(a)(23)(A). By way of comparison, the Supreme

Court has concluded that a statute does not confer an

enforceable right where it simply required a state to

make “‘reasonable efforts’ to maintain an abused or

neglected child in his home” without any “further

statutory guidance.” Suter v. Artist M., 503 U.S. 347,

359–60 (1992). Here, by contrast, the statute does not

require courts to “engage in any balancing of

competing concerns or subjective policy judgments,

but only to answer factual, yes-or-no questions: Was

an individual denied the choice of a (1) qualified and

(2) willing provider?” Planned Parenthood Ariz. Inc. v.

Betlach, 727 F.3d 960, 967 (9th Cir. 2013). Courts are

routinely tasked with resolving questions just like

these.

Indeed, the facts of this case make it particularly

easy to apply the free-choice-of-provider provision.

Planned Parenthood has provided the medical

services that Edwards seeks for almost four decades,

without any apparent challenge to its professional

competence until now. We of course would give due

respect and weight to South Carolina’s judgment that

a particular provider is unqualified. But the language

of the statute makes clear that the relevant

qualifications are medical qualifications, and, as we

noted in our prior decision, South Carolina “does not

the contest the fact” that Planned Parenthood “is

professionally qualified to deliver the services that

the individual plaintiff seeks.” Baker, 941 F.3d at 702.

Given these facts, it is straightforward to apply the

22a

free-choice-of-provider provision here.

Finally, as to the third factor, the statute is

couched in just the “mandatory, rather than precatory

terms” that the Supreme Court has required,

Blessing, 520 U.S. at 341, since states “must provide”

a Medicaid recipient with her choice of qualified

provider. Again, a comparison makes the point clear:

the Supreme Court found that provisions “were

intended to be hortatory, not mandatory” where they

were expressed only as “findings respecting the rights

of persons with developmental disabilities,” such as

that these persons have a right to “appropriate

treatment.” Pennhurst, 451 U.S. at 13, 24. Here, by

contrast, the text clearly imposes a definite obligation

on state governments; indeed, it is hard to imagine

how Congress could have more plainly used

mandatory language.

In short, if this statute does not survive the

Blessing factors, we cannot imagine one that would.

Congress used emphatic, mandatory language to

affirm the right of Medicaid recipients to receive the

healthcare of their choice from a willing provider, and

there is nothing about this inquiry that would strain

the judicial role. In every respect, the statute

resembles those laws which the Supreme Court has

determined confer enforceable rights and we do not

see how we could hold otherwise without repudiating

Congress’s clear intention.

In fact, South Carolina does not dispute our

analysis of the Blessing factors. Rather, it argues that

we erred altogether in applying these factors and

suggests that the Supreme Court’s decision in

Gonzaga effectively abrogated Blessing. But Gonzaga

23a

never indicated that Blessing is no longer good law;

instead, it simply criticized courts that interpreted

Blessing “as allowing plaintiffs to enforce a statute

under § 1983 so long as the plaintiff falls within the

general zone of interest that the statute is intended to

protect.” 536 U.S. at 282–83. Indeed, our court has

held that the Blessing factors continue to govern

following Gonzaga. Doe v. Kidd, 501 F.3d 348, 355

(4th Cir. 2007).

While South Carolina contends we disregarded

Gonzaga in our prior decision, we in fact took pains to

heed Gonzaga’s instruction that there must be an

“unambiguously conferred right to support a cause of

action brought under § 1983.” Gonzaga, 536 U.S. at

283; see Baker, 941 F.3d at 695, 697, 700. As we

stated, “courts are most definitely not at liberty to

imply private rights of action willy-nilly.” Baker, 941

F.3d at 700. But where Congress’s intent to make a

right enforceable under § 1983 is indeed “clear and

unambiguous,” Gonzaga, 536 U.S. at 290, we are

bound to respect it. Because Congress’s intent is clear

and unambiguous here, we conclude that the freechoice-of-provider provision confers on Medicaid

recipients an individual right.

Since the Blessing factors are satisfied, the freechoice-of-provider provision may be enforced under §

1983 unless the Medicaid Act evinces Congress’s

intent to “specifically foreclose[] a remedy under §

1983.” Blessing, 520 U.S. at 341 (quoting Smith v.

Robinson, 468 U.S. 992, 1005 n.9 (1984)). “We do not

lightly conclude that Congress intended to preclude

reliance on § 1983 as a remedy.” Smith, 468 U.S. at

24a

1012. And as we explained at length in our previous

opinion, the statute here does no such thing. See

Baker, 941 F.3d at 698–700.

The Medicaid Act provides three potential

remedies in this context: the Secretary of Health &

Human Services may take the drastic step of cutting

off Medicaid funds, providers may follow state

administrative processes to challenge termination

decisions, or Medicaid recipients may use similar

procedures to challenge claim denials. See id. at 698.

None of these remedies provides individual Medicaid

recipients any mechanism to contest the

disqualification of their preferred provider, even

though the statutory language benefits these

individual recipients specifically and even though the

Supreme Court has instructed us to focus on whether

“an aggrieved individual lack[s] any federal review

mechanism.” Gonzaga, 536 U.S. at 290. And as we

noted previously, see Baker, 941 F.3d at 698–99, the

Supreme Court has already held in Wilder v. Virginia

Hospital Ass’n, 496 U.S. 498 (1990), that the Medicaid

Act does not foreclose remedies under § 1983 for just

these reasons, see id. at 521–23.

In response, South Carolina argues that we

erroneously relied on Wilder and that this decision

has been repudiated by the Supreme Court. This

suggestion misreads both our previous decision and

the Supreme Court’s discussion of Wilder. To be sure,

§ 1983 does not operate as some sort of ubiquitous

backstop conferring a private right of action where

the underlying statute fails to do so. The Court has

made clear that we should not rely on Wilder’s mode

of analysis in determining whether a statute confers

a private right enforceable under § 1983. See

25a

Gonzaga, 536 U.S. at 283 (rejecting the view “that our

cases permit anything short of an unambiguously

conferred right to support a cause of action brought

under § 1983”); Armstrong, 575 U.S. at 330 n* (noting

that “our later opinions plainly repudiate the ready

implication of a § 1983 action that Wilder

exemplified”). But the Supreme Court has never

extended this criticism to Wilder’s subsequent

analysis as to whether a statute’s remedial scheme

forecloses the enforcement of a plainly conferred

cause of action under § 1983. In fact, the Court

approvingly cited Wilder on this point following

Gonzaga. See City of Ranchos Palos Verdes v. Abrams,

544 U.S. 113, 122 (2005).

Suffice it to say that it is difficult to imagine that

Congress would have passed such an emphatic

provision and yet would not have approved some

private enforcement mechanism on the part of those

very people whom the statute was designed to benefit.

It would be an odd state of affairs if Congress had

categorically precluded enforcement on the part of

these very beneficiaries, and there is nothing in the

statute to suggest that it did.

Finally, we conclude that the Supreme Court’s

decision in O’Bannon v. Town Court Nursing Center,

447 U.S. 773 (1980), does not undermine this

analysis. South Carolina interprets O’Bannon to hold

that the free-choice-of-provider provision does not

confer any individual rights on Medicaid recipients.

But that case actually resolved an entirely different

question and, to the extent that it has any application

here, it only supports the existence of a private right.

26a

In O’Bannon, the plaintiffs were residents of a

nursing home who argued that they were entitled

under the Due Process Clause to a hearing before the

government decertified their home. See id. at 775–77.

The state sought to do so upon the recommendation of

the federal government and had cited a number of

reasons for decertification, all of which had to do with

professional competence. See id. at 775–76 & n.3. The

plaintiffs did not argue that they could sue to enforce

the terms of the Medicaid Act but only that the Act

granted them a “property right to remain in the home

of their choice absent good cause for transfer” or that

such a transfer would deprive them of life or liberty.

Id. at 784. So, as we noted previously, see Baker, 741

F.3d at 704, the Supreme Court had no reason to

consider the existence or scope of a statutory cause of

action to enforce the Medicaid Act, and none of its

reasoning bears on that question. The Court simply

rejected the procedural due process claim brought by

the plaintiffs, concluding that the decertification of an

unqualified facility “does not amount to a deprivation

of any interest in life, liberty, or property.” O’Bannon,

447 U.S. at 787.

O’Bannon therefore has little to do with this case.

But to the extent that it is at all applicable, language

from that decision only supports the plaintiff’s

position here. While the Court rejected the notion that

plaintiffs might possess some constitutional interest

to receive benefits from an unqualified provider, it

repeatedly indicated that the free-choice-of-provider

provision “gives recipients the right to choose among

a range of qualified providers without government

interference.” Id. at 785; see also id. n.18 (noting that

“the statute referred to above would prohibit any . . .

27a

interference with the patient’s free choice among

qualified providers”). As the Court made clear, a

patient has “no enforceable expectation of continued

benefits to pay for care in an institution that has been

determined to be unqualified” but does have “a right

to continued benefits to pay for care in the qualified

institution of his choice.” Id. at 786. Here, of course,

the issue is precisely that Planned Parenthood

remains a qualified institution under the terms of the

statute, and South Carolina’s termination of its

Medicaid provider agreement impinges on Edwards’s

“right to choose among a range of qualified providers

without government interference.” Id. at 785.

IV.

In sum we refuse to nullify Congress’s undeniable

desire to extend a choice of medical providers to the

less fortunate among us, individuals who experience

the same medical problems as the more fortunate in

society but who lack under their own means the same

freedom to choose their healthcare provider. In the

Medicaid Act, Congress attempted a modest

corrective to this imbalance. If we were to restrict the

opportunity that these individuals have to access

prenatal care that would both assist the mother and

help bring healthy babies into this world, we would be

reaching what we think is a legally impermissible

result.

For the foregoing reasons, the judgment of the

district court is

AFFIRMED.

28a

RICHARDSON, Circuit Judge, concurring in the

judgment:

Despite some reservations, I agree that the case

is not moot given the facts before this Court. The

State’s attempt to introduce information outside the

record, which allegedly comes from an internal

database, cannot establish mootness.

I also continue to believe 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.’” Planned Parenthood S. Atl. v. Baker,

941 F.3d 687, 707 (4th Cir. 2019) (Richardson, J.,

concurring). As a result, it matters not whether our

previous decision is binding circuit precedent or the

“law of the case.” I would reach the same result either

way.

At the same time, the caselaw on implied private

rights of action remains plagued by confusion and

uncertainty. Id. at 708–10. This confusion stems from

recent Supreme Court cases which cast doubt on—but

fail to explicitly overrule—earlier precedent. Gonzaga

arguably laid down a different test than Wilder and

Blessing. See Gonzaga Univ. v. Doe, 536 U.S. 273, 283

(2002). And Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320, 330 n.* (2015), questioned Wilder’s

reasoning and claimed later opinions “plainly

repudiate” its “ready implication of a § 1983 action.”

Yet this Court remains bound by Blessing and Wilder.

Baker, 941 F.3d at 709–10 (Richardson, J.,

concurring). So I am left hoping that clarity will soon

be provided.

29a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

PLANNED

PARENTHOOD SOUTH

ATLANTIC and JULIE

EDWARDS, on her behalf

and on behalf of all others

similarly situated,

Plaintiffs,

JOSHUA BAKER, in his

official capacity as Director, §

South Carolina Department §

of Health and Human

Services,

Defendant.

Civil Action No.:

3:18-2078-MGL

DECLARATORY

JUDGMENT

AND

PERMANENT

INJUNCTION

This Court having granted Plaintiffs’ Motion for

Summary Judgment based on the Court’s holding

that Defendant Joshua Baker’s decision to terminate

Planned Parenthood South Atlantic (PPSAT) from

Medicaid violates the Medicaid Act as a matter of law:

30a

IT IS HEREBY DECLARED that Baker’s

decision to terminate PPSAT from Medicaid violates

the Medicaid Act, is unlawful, and will be void and of

no effect;

IT IS FURTHER ORDERED that Baker and

his successors are permanently enjoined from

terminating or excluding PPSAT, including its

employees, contractors, or successors, from

participation in the South Carolina Medicaid

Program on the grounds it is an abortion clinic or

provides abortion services.

IT IS SO ORDERED.

Signed this 14th day of December 2020, in

Columbia, South Carolina.

s/ Mary Geiger Lewis

MARY GEIGER LEWIS

UNITED STATES DISTRICT JUDGE

31a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

PLANNED

PARENTHOOD SOUTH

ATLANTIC and JULIE

EDWARDS,

§ Civil Action No.:

Plaintiffs,

§ 3:18-2078-MGL

vs.

JOSHUA BAKER, in his

official capacity as Director, §

South Carolina Department §

of Health and Human

Services,

Defendant.

MEMORANDUM OPINION AND ORDER

GRANTING PLAINTIFFS’ MOTION FOR

SUMMARY JUDGMENT AS TO COUNT ONE

OF THE COMPLAINT

32a

INTRODUCTION

Plaintiffs Planned Parenthood South Atlantic

(PPSAT) and Julie Edwards (Edwards) (collectively,

Plaintiffs) brought this action against Defendant

Joshua Baker (Baker), the director of the South

Carolina Department of Health and Human Services

(SCDHHS), alleging Baker’s termination of PPSAT

from South Carolina’s Medicaid program violates 42

U.S.C. § 1396a(a)(23)(A), a provision of the Medicaid

Act (the Act), as well as the Fourteenth Amendment

of the United States Constitution. The Court has

jurisdiction over this matter under 28 U.S.C. § 1331.

Pending before the Court is Plaintiffs’ motion for

summary judgment as to Count One of the complaint.

Having carefully considered Plaintiffs’ motion, the

response, the reply, the record, and the applicable

law, it is the judgment of the Court Plaintiffs’ motion

will be granted.

II. FACTUAL AND PROCEDURAL HISTORY

This action arises out of SCDHHS’s termination

of PPSAT from South Carolina’s Medicaid program.

SCDHHS is the state agency that administers South

Carolina’s Medicaid program.

PSSAT operates two health centers in South

Carolina: one in Charleston and one in Columbia.

Prior to SCDHSS’ termination of PPSAT from South

Carolina’s Medicaid program, PPSAT treated

patients insured through Medicaid at both of its

South Carolina locations. PPSAT offers its patients,

including but not limited to those insured through

Medicaid, a range of family planning, reproductive

health, and preventive care services at its Charleston

33a

and Columbia health centers.

PPSAT performs abortions at its South Carolina

health centers, but South Carolina Medicaid does not

cover abortions, except under limited circumstances

required by federal law. Edwards is a South Carolina

resident insured through Medicaid, who has been

treated at the Columbia location of PPSAT.

On August 24, 2017, South Carolina Governor

Henry McMaster (McMaster) issued Executive Order

No. 2017-15, directing all State agencies to “take any

and all necessary actions . . . to cease providing State

or local funds . . . to any physician or professional

medical practice affiliated with an abortion clinic and

operating concurrently with and in the same physical,

geographic location or footprint as an abortion clinic.”

On July 13, 2018, Governor McMaster issued

Executive Order No. 2018-21, instructing SCDHHS to

“deem abortion clinics . . . and any affiliated

physicians or professional medical practices . . .

enrolled in the Medicaid program as unqualified to

provide family planning services and, therefore, to

immediately terminate them upon due notice and

deny any future such provider enrollment

applications for the same.” That same day, SCDHHS

notified PPSAT it was no longer qualified to provide

services to Medicaid beneficiaries, and SCDHHS was

therefore terminating PPSAT’s Medicaid enrollment

agreements effectively immediately.

Plaintiffs filed their complaint in this matter on

July 27, 2018. Edwards initially brought suit on her

own behalf and as the representative of a purported

class of South Carolina Medicaid beneficiaries who

have obtained or seek to obtain covered healthcare

34a

services from PPSAT. As the Court noted above, in

Plaintiffs’ complaint, they allege Baker’s actions in

terminating PPSAT from South Carolina’s Medicaid

program violate the Act, as well as the Fourteenth

Amendment of the United States Constitution.

Plaintiffs sought declaratory and injunctive relief,

and the Court granted Plaintiffs’ motion for a

temporary restraining order and preliminary

injunction. See Planned Parenthood S. Atl. v. Baker,

326 F. Supp. 3d 39, 49 (D.S.C. 2018) (Baker I). Baker

appealed that decision to the Fourth Circuit, which

effectively stayed the proceedings before this Court.

Thereafter, the Fourth Circuit affirmed the Court’s

decision. See Planned Parenthood S. Atl. v. Baker, 941

F.3d 687, 699–700 (4th Cir. 2019) (Baker II).

Plaintiffs subsequently filed the instant motion,

after which the Court denied Plaintiffs’ motion for

class certification and Baker’s motions to dismiss for

lack of subject matter jurisdiction and for a failure to

state a claim.

III. STANDARD OF REVIEW

“The court shall grant summary judgment if the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Summary judgment should be granted under Rule 56

when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

the affidavits, if any, show there is no genuine issue

as to any material fact and the moving party is

entitled to a judgment as a matter of law.” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine

issue of material fact exists “if the evidence is such

35a

that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). A fact is material if it might

“affect the outcome of the suit under the governing

law.” Id. On a motion for summary judgment, all

evidence must be viewed in the light most favorable

to the nonmoving party. Perini Corp. v. Perini Constr.,

Inc., 915 F.2d 121, 123–24 (4th Cir. 1990).

“If a party fails to properly support an assertion

of fact or fails to properly address another party’s

assertion of fact as required by Rule 56(c), the court

may . . . grant summary judgment if the motion and

supporting materials—including the facts considered

undisputed—show that the movant is entitled to it.”

Fed. R. Civ. P. 56(e). The adverse party must show

more than “some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986). If an

adverse party completely fails to make an offer of

proof concerning an essential element of that party’s

case on which that party will bear the burden of proof,

then all other facts are necessarily rendered

immaterial and the moving party is entitled to

summary judgment. Celotex, 477 U.S. at 322–23.

Hence, the granting of summary judgment involves a

three-tier analysis.

First, the Court determines whether a genuine

issue actually exists so as to necessitate a trial. Fed.

R. Civ. P. 56(e). An issue is genuine “if the evidence is

such that a reasonable [trier of fact] could return a

verdict for the nonmoving party.” Anderson, 477 U.S.

at 248. Second, the Court must ascertain whether

that genuine issue pertains to material facts. Fed. R.

Civ. P. 56(e). The substantial law of the case identifies

36a

the material facts, that is, those facts that potentially

affect the outcome of the suit. Anderson, 477 U.S. at

248. Third, assuming no genuine issue exists as to the

material facts, the Court will decide whether the

moving party shall prevail solely as a matter of law.

Fed. R. Civ. P. 56(e).

Summary judgment is “properly regarded not as

a disfavored procedural shortcut, but rather as an

integral part of the Federal Rules as a whole, which

are designed ‘to secure the just, speedy and

inexpensive determination of every action.’” Celotex,

477 U.S. at 327 (quoting Fed. R. Civ. P. 1). The

primary issue is whether the material facts present a

substantive disagreement as to require a trial, or

whether the facts are so sufficiently one-sided that

one party should prevail as a matter of law. Anderson,

477 U.S. at 251–52. The substantive law of the case

identifies which facts are material. Id. at 248. Only

disputed facts potentially affecting the outcome of the

suit under the substantive law preclude the entry of

summary judgment.

IV. DISCUSSION AND ANALYSIS

Plaintiffs have moved for summary judgment

solely on Count One of the complaint: Edwards’s

claim that Baker’s actions violate the Act by denying

PPSAT’s patients the right to choose any willing,

qualified healthcare provider in the Medicaid

program. The Act provides, in relevant part, that “any

individual eligible for medical assistance . . . may

obtain such assistance from any institution, agency,

community pharmacy, or person, qualified to perform

the service or services required . . . who undertakes to

provide him such services . . . .”

37a

As an initial matter, the Act’s free-choice-ofprovider provision creates a private right of

enforcement under § 1983. See Baker II, 941 F.3d at

699–700 (“Because South Carolina has not rebutted

the presumption that a private right of action exists,

we join the Fifth, Sixth, Seventh, Ninth, and Tenth

Circuits in finding that the free-choice-of-provider

provision creates a private right enforceable under §

1983.”) (citing cases). Thus, in the Fourth Circuit,

Edwards, as a matter of law, may seek to enforce the

free-choice-of-provider provision in this § 1983 action.

Turning to Plaintiffs’ claim PPSAT is a medically

and professionally qualified provider, there is no

dispute as to whether Baker asserts PPSAT afforded

less than adequate care to its patients. He does not.

See id. at 692 (Baker “did not contend that PPSAT

was providing subpar service to its Medicaid patients,

or to any other patients. Instead, PPSAT was

terminated solely because it performed abortions

outside of the Medicaid program.”) (footnote omitted).

And, Baker, in his response in opposition to

Plaintiffs’ motion, fails to dispute PPSAT is

unqualified to perform any services under the Act.

Consequently, the record is void of any argument or

evidence PPSAT was unqualified to perform any

services as set forth in the Act.

In Baker’s response, however, he sets forth nine

arguments as to why the Court should deny Plaintiffs’

motion.

First, Baker argues Plaintiffs’ motion should be

denied and the case should move forward with a

ruling on his then-pending motions to dismiss. This

argument is now moot, as the Court has since denied

38a

Baker’s motions to dismiss for lack of subject matter

jurisdiction and for a failure to state a claim.

Second, Baker asserts the motion should be

denied as a result of the dispute resolution sections of

the Enrollment Agreements PPSAT entered into with

SCDHHS which, according to Baker, foreclose PPSAT

from pursuing a § 1983 claim in a federal forum.

Baker opines “[s]ince PPSAT waived its right to

pursue a § 1983 claim in a federal forum by entering

into its Enrollment Agreements with the SCDHHS,

this Court lacks subject matter jurisdiction over its

claims and PPSAT should be dismissed as a plaintiff,

not granted summary judgment.” Baker’s Response at

But, Baker misreads Plaintiffs’ motion for

summary judgment. Both plaintiffs have moved for

summary judgment solely as to Edwards’s first claim

in the complaint. Thus, Baker’s objection regarding

PPSAT’s claims has no relevancy to this motion.

Third, Baker avers the motion should be denied

due to PPSAT’s failure to exhaust all administrative

remedies under South Carolina law. Much in line

with his second argument, Baker confuses PPSAT

moving for summary judgment on Edwards’ first

claim with improperly making arguments as to why

it should be allowed to move for summary judgment

on its own § 1983 claim. Thus, the Court need not

address this argument.

Fourth, Baker complains the motion should be

denied because Edwards has failed to meet the injuryin-fact requirement of the Article III standing

analysis. However, this Court already held Edwards

meets the injury-in-fact element of the standing

39a

analysis. See Baker I, 326 F. Supp. 3d at 49 (“Ms.

Edwards . . . will suffer irreparable harm in the

absence of an injunction because [she] will be

deprived of [her] statutory right to the qualified

provider of [her] choice.”). The Court reaffirmed this

holding in a subsequent ruling. See Planned

Parenthood S. Atl. v. Baker, No. 3:18-02078, 2020 WL

1434946 at *3 (D.S.C. Mar. 23, 2020) (“Edwards

meets the injury-in-fact element of the standing

analysis.”). The Court’s previous holdings apply here.

See United States v. Aramony, 166 F.3d 655, 661 (4th

Cir. 1999) (“[T]he doctrine of the law of the case posits

that when a court decides upon a rule of law, that

decision should continue to govern the same issues in

subsequent stages of the same case.”).

Fifth, Baker argues Edwards’ claim is not ripe for

adjudication. Whether Edwards’s action is ripe for

adjudication has also already been answered in the

affirmative by the Court. See Planned Parenthood S.

Atl. v. Baker, No. 3:18-02078, 2020 WL 1434946 at *3

(Edwards’s “claims are ripe for adjudication.”).

Sixth, Baker posits the case should move forward

via his filing of an answer and commencing discovery,

assuming his motions to dismiss are denied. As the

Court mentioned above, Baker’s motions to dismiss

for lack of subject matter jurisdiction and a failure to

state a claim were denied, so the Court must analyze

only whether Baker is entitled to discovery.

Baker seeks discovery from Plaintiffs in the

following areas: (1) Impact on PPSAT, (2) Impact on

Edwards, (3) Class allegations, (4) Affirmative

Defenses to be filed when appropriate, and (5)

information known to the four fact witnesses listed by

40a

Plaintiffs in their Local Rule 26.03 interrogatories.

Plaintiffs have agreed that, if the Court grants

their motion for summary judgment on Count One of

the complaint, it is unnecessary for the Court to

consider their remaining claims inasmuch as such a

ruling would dispose of the controversy. Thus, in light

of the Court’s decision to grant Plaintiffs’ motion, this

Order properly ends the case, and no further

discovery is needed.

Seventh, Baker insists Plaintiffs’ motion should

be denied because the Court, according to Baker, “has

no record on which to adjudge summary judgment for

the simple fact that there is no factual record in this

case aside from affidavits and declarations filed by

the parties in August, 2018 which have not been

updated or vetted through the discovery process.”

Baker’s Response at 9.

When entertaining Plaintiffs’ motion, the Court

has one overarching objective: to determine whether

the movant shows there is no genuine dispute as to

any material fact. Fed. R. Civ. P. 56(a). As discussed

in detail above, the record demonstrates to the Court

it can adjudicate Plaintiffs’ motion based only on

questions of law. Thus, the scant factual record Baker

speaks of is of no consequence.

Eighth, Baker contends the Fourth Circuit

incorrectly held (1) the Medicaid Act’s free-choice-ofprovider provision affords a private right of action to

a Medicaid recipient and (2) the Act does not

authorize a private right of action under § 1983 to

collaterally attack a state agency’s decision to exclude

a provider from the state’s Medicaid program. This

argument is made to the wrong court. The Court is

41a

required to follow Fourth Circuit precedent, and no

argument from Baker will persuade the Court

otherwise.

Ninth, Baker avows “judicial economy is best

served by allowing discovery and mediation to

proceed in this matter as set forth in this Court’s

Amended Scheduling Order.” Baker’s Response at 10.

If a legal matter before the Court consists purely

of a question of law, as opposed to a question of fact,

judicial economy mandates a timely decision, without

discovery, by the Court. Furthermore, the existence of

an Amended Scheduling Order is merely a procedural

mechanism that has no bearing on the merits of the

underlying action. Regardless, with this Order, the

need for further proceedings ends, so Baker’s

contention is now moot.

VI. CONCLUSION

For the reasons stated above, the Court GRANTS

Plaintiffs’ motion for summary judgment as to Count

One of the complaint, and their request for a

declaratory judgment that Baker’s decision to

terminate PPSAT from Medicaid violates the

Medicaid Act is, and will be, void and of no effect.

In addition, the Court will issue a permanent

injunction enjoining Baker and his agents, employees,

appointees,

delegates,

and

successors

from

terminating PPSAT from Medicaid as a result of its

provision of lawful abortion-related services to

PPSAT clients.

As per Local Civil Rule 7.10, except as modified

herein, within seven days from the entry of this

Order, Plaintiffs’ counsel shall provide to the Court

42a

and to opposing counsel a draft order granting

Plaintiffs’ request for a permanent injunction. See

Fed. R. Civ. P. 65(d).

Defense counsel shall have seven days after

receiving the draft order to submit any comments on

the proposed order to the Court.

IT IS SO ORDERED.

Signed this 17th day of September 2020, in

Columbia, South Carolina.

s/ Mary Geiger Lewis

MARY GEIGER LEWIS

UNITED STATES DISTRICT JUDGE

43a

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

________________

No. 18-2133

________________

PLANNED PARENTHOOD SOUTH ATLANTIC;

JULIE EDWARDS, on her behalf and on behalf of all

others similarly situated,

Plaintiffs – Appellees,

JOSHUA BAKER, in his official capacity as Director,

South Carolina Department of Health and Human

Services,

Defendant – Appellant.

-----------------------------ACCESS REPRODUCTIVE CARE-SOUTHEAST;

AMERICAN

ACADEMY

PEDIATRICS;

AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS; AMERICAN COLLEGE OF

PHYSICIANS;

AMERICAN

MEDICAL

ASSOCIATION; CENTER FOR REPRODUCTIVE

RIGHTS; IPAS; IN OUR OWN VOICE: NATIONAL

BLACK WOMEN’S REPRODUCTIVE JUSTICE

AGENDA;

NATIONAL

ASIAN

PACIFIC

AMERICAN WOMEN’S FORUM; NATIONAL

HEALTH LAW PROGRAM; NATIONAL LATINA

44a

INSTITUTE FOR REPRODUCTIVE HEALTH;

SEXUALITY INFORMATION AND EDUCATION

COUNCIL OF THE UNITED STATES; SOCIETY

FOR ADOLESCENT HEALTH AND MEDICINE;

SOCIETY FOR MATERNAL FETAL MEDICINE;

WOMEN’S

RIGHTS

AND

EMPOWERMENT

NETWORK,

Amici Supporting Appellee.

____________________

Appeal from the United States District Court for the

District of South Carolina, at Columbia. Mary G.

Lewis, District Judge. (3:18-cv-02078-MGL)

____________________

Argued: September 20, 2019

Decided: October 29, 2019

___________________

Before WILKINSON, WYNN, and RICHARDSON,

Circuit Judges.

___________________

Affirmed by published opinion. Judge Wilkinson

wrote the opinion, in which Judge Wynn and Judge

Richardson joined. Judge Richardson wrote a

concurring opinion.

___________________

ARGUED: Kelly McPherson Jolley, JOLLEY LAW

GROUP, LLC, Columbia, South Carolina, for

Appellant. Alice Joanna Clapman, PLANNED

PARENTHOOD FEDERATION OF AMERICA,

45a

Washington, D.C., for Appellees. ON BRIEF: Ariail

B. Kirk, JOLLEY LAW GROUP, LLC, Columbia,

South Carolina, for Appellant. M. Malissa Burnette,

Kathleen McDaniel, BURNETTE, SHUTT &

MCDANIEL, PA, Columbia, South Carolina, for

Appellees. Jane Liu, Mariah Lindsay, NATIONAL

ASIAN PACIFIC AMERICAN WOMEN’S FORUM,

Washington, D.C.; Julie Rikelman, Pilar Herrero,

Amy Myrick, Carolina Van Der Mensbrugghe,

CENTER FOR REPRODUCTIVE RIGHTS, New

York , New York, for Amici Access Reproductive CareSoutheast, Center for Reproductive Rights, In Our

Own Voice: National Black Women’s Reproductive

Justice Agenda, National Asian Pacific American

Women’s Forum, National Latina Institute for

Reproductive Health, and Women’s Rights and

Empowerment Network. Janice M. Mac Avoy,

Andrew B. Cashmore, Alexandra Verdi, FRIED,

FRANK, HARRIS, SHRIVER & JACOBSON LLP,

New York, New York, for Amici American College of

Obstetricians and Gynecologists, American Medical

Association, Society for Maternal Fetal Medicine,

American Academy of Pediatrics, American College of

Physicians, and Society for Adolescent Health and

Medicine. Martha Jane Perkins, Sarah Jane Somers,

NATIONAL HEALTH LAW PROGRAM, Carrboro,

North Carolina, for Amici National Health Law

Program, IPAS, and Sexuality Information and

Education Council of the United States.

___________________

46a

WILKINSON, Circuit Judge:

This case raises a question of statutory

construction. We ask whether, and on what basis, the

Medicaid Act’s free-choice-of-provider provision

affords a private right of action to challenge a state’s

exclusion of a healthcare provider from its Medicaid

roster. 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 (PPSAT) 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 now affirm. Based on the Supreme Court’s

precedents, Congress’s intent to create an individual

right enforceable under § 1983 in the free-choice-ofprovider provision is unambiguous. In addition, a

plain-language reading of the provision’s mandate—

that states “must” furnish Medicaid recipients the

right to choose among providers “qualified to perform

the service or services required”—bars states from

excluding providers for reasons unrelated to professional competency. See 42 U.S.C. § 1396a(a)(23)(A),

(p)(1). Finding the remaining preliminary injunction

factors satisfied, we shall uphold the trial court’s

judgment.

47a

Medicaid is the nation’s public health insurance

program for those of limited means. The original

beneficiaries of this program were low-income

children and their parents, the indigent elderly, the

blind, and the disabled. Schweiker v. Gray Panthers,

453 U.S. 34, 37 (1981). Since 1965, Congress has

periodically expanded the program, adding, for

instance, pregnant women with family incomes up to

133% of the federal poverty level as a distinct

beneficiary class. See 42 U.S.C. § 1396a(a)(10)(A)(i),

(l); Medicare Catastrophic Coverage Act of 1988, Pub.

L. No. 100-360, § 302, 102 Stat. 683, 750; Omnibus

Budget Reconciliation Act of 1989, Pub. L. No. 101239, § 6401, 103 Stat. 2106, 2258.

A joint federal-state effort ensures that the

healthcare needs of these beneficiaries are met. In

broad strokes, the Medicaid Act “offers the States a

bargain: Congress provides federal funds in exchange

for the States’ agreement to spend them in accordance

with congressionally imposed conditions.” Armstrong

v. Exceptional Child Ctr., 135 S. Ct. 1378, 1382

(2015). The Act, to that end, charges the federal

government with crafting baseline eligibility requirements for recipients and providers, determining

covered medical services, and establishing reimbursement standards to the states. See 42 U.S.C. § 1396 et

seq.; NFIB v. Sebelius, 567 U.S. 519, 541-42 (2012).

Cooperating states then implement the program,

agreeing to abide by federal conditions in return for

federal matching funds that are used for expenses

such as provider reimbursements. See Armstrong, 135

48a

S. Ct. at 1382. Such funds are substantial; federal

coffers finance anywhere from fifty to eighty-three

percent of state expenses, 42 U.S.C. § 1396d(b), an

aggregate figure that accounts for over ten percent of

most states’ total revenue, NFIB, 567 U.S. at 542.

Congress designed the Medicaid program to

ensure that states dispense federal funds in

compliance with federal rules. At the outset, states

must propose and submit Medicaid plans for the

approval of the Centers for Medicare and Medicaid

Services. Douglas v. Indep. Living Ctr. of S. Cal., Inc.,

565 U.S. 606, 610 (2012). State departures from

federal requirements provide grounds for the

Secretary of Health and Human Services (HHS) to

withhold Medicaid funding, either in whole or in part.

See 42 U.S.C. § 1396c; 42 C.F.R. § 430.12(c). If federal

requirements are met, however, states have “substantial discretion to choose the proper mix of

amount, scope, and duration limitations on coverage,

as long as care and services are provided in ‘the best

interests of the recipients.’” Alexander v. Choate, 469

U.S. 287, 303 (1985) (quoting 42 U.S.C.

§ 1396a(a)(19)).

At issue here is the Medicaid Act’s free-choice-ofprovider provision, 42 U.S.C. § 1396a(a)(23), which

states:

A State plan for medical assistance must—

provide that any individual eligible for

medical assistance . . . may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform

the service or services required . . . who

undertakes to provide him such services . . . .

49a

42 U.S.C. § 1396a(a)(23)(A). That provision

guarantees patients access to qualified and willing

providers. A state plan must generally allow Medicaid

recipients to obtain care from any provider who is

“qualified to perform the service or services required”

and “who undertakes to provide . . . such services.”

In its mechanics, the free-choice-of-provider

provision comports with the Medicaid Act’s dual

emphasis on federal standard-setting and state

flexibility. While Medicaid beneficiaries may

generally seek medical services from willing providers

of their choice, states retain discretionary authority

to determine whether entities are medically “qualified

to perform the service or services required.” States

may also exclude providers from their plans “for any

reason for which the [federal] Secretary of [Health

and Human Services] could exclude the individual or

entity,” 42 U.S.C. § 1396a(p)(1), or on certain statelaw grounds, see 42 C.F.R. § 431.51(c)(2).

This dispute arose following South Carolina’s

termination of two Planned Parenthood centers as

Medicaid providers. PPSAT operates two healthcare

centers in South Carolina, one in Charleston and the

other in Columbia. These centers provide a range of

family planning and preventative care services,

including physical exams, cancer screenings, contraceptive counseling, and pregnancy testing. For four

decades, PPSAT has been a South Carolina Medicaid

provider that receives reimbursements for care

provided to Medicaid beneficiaries. In recent years,

PPSAT’s South Carolina centers have treated

hundreds of patients insured through Medicaid

50a

annually.

Among those patients is the individual plaintiff in

this case, who suffers from diabetes and its resulting

complications. J.A. 75-78. Because doctors have

advised that these complications would make it quite

dangerous for her to carry a pregnancy to term, the

plaintiff considers it imperative that she have access

to safe, effective birth control. After the plaintiff had

difficulty finding a doctor who accepted Medicaid

patients and was willing to provide her preferred form

of birth control, she turned to PPSAT’s Columbia

center. At her PPSAT appointment, the doctors

inserted an intrauterine device to prevent pregnancy

and informed her that her blood pressure was

elevated. As a result, she sought follow-up care from

her endocrinologist to control her blood pressure.

Because the plaintiff was impressed with the care she

received at PPSAT, she planned to switch her

gynecological and reproductive health care there.

In July 2018, South Carolina’s Department of

Health and Human Services (SCDHHS) terminated

PPSAT’s Medicaid provider agreement. SCDHHS did

not contend that PPSAT was providing subpar service

to its Medicaid patients, or to any other patients.

Instead, PPSAT was terminated solely because it

performed abortions outside of the Medicaid

program.1

1 South Carolina does not provide Medicaid reimbursements

for abortion services except in cases where it is required to do so

by federal law. Such cases involve rape, incest, or the need to

protect the mother’s life. See Consolidated Appropriations Act,

2018, Pub. L. No. 115-141, div. H, tit. V, §§ 506-507, 132 Stat.

348, 763-64 (Hyde Amendment).

51a

According to SCDHHS, PPSAT’s termination was

part of a plan by Governor Henry McMaster designed

to prevent the state from indirectly subsidizing

abortion services. In 1995, the South Carolina legislature passed a law preventing state funds appropriated for family planning services from being used

to fund abortions. S.C. Code Ann. § 43-5-1185 (1995).

After taking office in 2017, Governor McMaster

issued two executive orders designed to further this

objective. The first, Executive Order 2017-15, directed

state agencies “to take any and all necessary actions

. . . to the extent permitted by law, to cease providing

State or local funds . . . to any physician or professional medical practice affiliated with an abortion

clinic . . . .” J.A. 56-58. The second, Executive Order

2018-21, directed SCDHHS to “deem abortion clinics

. . . and any affiliated physicians or professional

medical practices . . . that are enrolled in the

Medicaid program as unqualified to provide family

planning services and, therefore, to immediately

terminate them . . . .” J.A. 70-71. SCDHHS responded

quickly. On the day the second order was issued,

SCDHHS Officer of Health Programs Amanda

Williams notified PPSAT by letter that “[t]he

Governor’s actions result in Planned Parenthood no

longer being qualified to provide services to Medicaid

beneficiaries” and that PPSAT’s enrollment

agreement with South Carolina was terminated

effective immediately. J.A. 73. As a result, PPSAT’s

two South Carolina centers began to turn away

Medicaid patients. J.A. 13-14.

On July 27, 2018, PPSAT and the individual

plaintiff (collectively, “plaintiffs”) filed suit in federal

52a

district court in South Carolina against Joshua

Baker, in his official capacity as Director of SCDHHS.

The individual plaintiff brought suit on her own

behalf and that of a purported class of South Carolina

Medicaid beneficiaries who received, or would like to

receive, healthcare services at PPSAT. Plaintiffs

brought this action under 42 U.S.C. § 1983, seeking

injunctive and declaratory relief on the grounds that

SCDHHS violated their rights under the Medicaid

Act and the Fourteenth Amendment. On July 30,

plaintiffs filed for preliminary injunctive relief solely

on the basis of their Medicaid Act claims. The district

court held hearings on plaintiffs’ motion on August

23. In their complaint and at the hearing, plaintiffs

argued that the Medicaid Act’s free-choice-of-provider

provision confers on recipients a private right,

enforceable under 42 U.S.C. § 1983, to use the

qualified and willing provider of their choice, and that

South Carolina violated this right when it terminated

PPSAT for reasons unrelated to its professional

competence to provide medical services.

The district court agreed with the plaintiffs and

granted a preliminary injunction on August 28, 2018.

Because the district court held that injunctive relief

was appropriate based on the individual plaintiff’s

Medicaid Act claim alone, it did not analyze PPSAT’s

Medicaid Act claim. First, it held that the individual

plaintiff’s Medicaid Act claim was likely to succeed on

the merits. It agreed that the free-choice-of-provider

provision confers a private right, enforceable under 42

U.S.C. § 1983, on Medicaid-eligible patients, guaranteeing their right to choose any willing provider

“qualified to perform” the relevant service. Critically,

the court held that “qualified” should be given its

53a

ordinary

meaning—professionally

competent.

Relatedly, the district court rejected South Carolina’s

contention that § 1396a(p)(l) of the Medicaid Act gives

a state plenary authority to exclude providers from its

program “for any reason whatsoever as long as the

reason is bolstered by State law.” Planned Parenthood

S. Atl. v. Baker, 326 F. Supp. 3d 39, 47-48 (D.S.C.

2018). To the contrary, it held that the state’s

authority to exclude providers is limited by the freechoice-of-provider provision.

Finally, the district court found that the other

conditions necessary for a preliminary injunction—

irreparable harm, balancing of the equities, and the

public interest—were satisfied. In weighing the

equities, the district court rejected South Carolina’s

argument that the state would be forced to subsidize

abortions if it were enjoined from terminating

PPSAT’s provider agreement. Baker, 326 F. Supp. 3d

at 49-50. First, because South Carolina’s Medicaid

program does not cover abortions except in the

narrow circumstances required by federal law, there

was no direct subsidization of non-covered abortions.

See id. at 47. Second, because “PPSAT is reimbursed

for Medicaid services on a fee-for-service basis,” id. at

49, at rates that do not cover its costs, PPSAT’s

participation in Medicaid did not generate excess

funds that could be used to indirectly subsidize

abortions. See id. at 47, 49-50. Accordingly, the

district court granted a preliminary injunction

preventing South Carolina from terminating PPSAT’s

Medicaid enrollment agreement.

South Carolina timely appealed.

54a

II.

The free-choice-of-provider provision lies at the

heart of this appeal. As noted above, the provision

states that:

A State plan for medical assistance must—

provide that any individual eligible for

medical assistance (including drugs) may

obtain such assistance from any institution,

agency, community pharmacy, or person,

qualified to perform the service or services

required (including an organization which

provides such services, or arranges for their

availability, on a prepayment basis), who

undertakes to provide him such services . . . .

42 U.S.C. § 1396a(a)(23)(A) (emphases added).

It is difficult to imagine a clearer or more

affirmative directive. The provision applies to “any

individual” eligible for Medicaid; grants these

individuals the right to obtain medical treatment

from “any institution” willing and “qualified to

perform the service or services required”; and

provides that state plans “must” comply.2

Congress could have made an exception for

providers offering abortion services. But it did not do

so. Because we “presume that a legislature says in a

statute what it means and means in a statute what it

2 Violation of a Medicaid recipient’s statutory right under

the free-choice-of-provider provision visits “concrete” harm that

is “real” and “tangible,” because the recipient can no longer

receive care at his or her provider of choice. See Spokeo, Inc. v.

Robins, 136 S. Ct. 1540, 1548-49 (2016). This is the exact harm

that Congress intended the provision to prevent. See id.

55a

says there,” Connecticut Nat’l Bank v. Germain, 503

U.S. 249, 253-54 (1992), this court cannot write into a

statute an exception that Congress did not create.

Accordingly, we take the free-choice-of-provider

provision to mean that a Medicaid recipient has the

right to challenge a state’s exclusion of a provider

from its Medicaid plan on grounds unrelated to that

provider’s willingness and professional competency to

furnish the required medical service.

III.

It is important at the outset to place this case in

proper context. As a matter of black letter law,

inferring a private right of action is a matter of

statutory interpretation. If Congress is silent or

ambiguous, courts may not find a cause of action “no

matter how desirable that might be as a policy

matter.” Alexander v. Sandoval, 532 U.S. 275, 286-87

(2001).

But it was not always this way, and a brief

overview of this history is useful background to the

present lawsuit. We begin with J.I. Case Co. v. Borak,

377 U.S. 426 (1964), where the Supreme Court stated

that federal courts were partners of Congress, making

it “the duty of the courts to be alert to provide such

remedies as are necessary to make effective the

congressional purpose” expressed by a statute. Id. at

433. During the Borak era, the “exercise of judicial

power” was not “justified in terms of statutory

construction,” but rather as a means of crafting

“substantive social policy.” Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388, 402, 402 n.4 (1971) (Harlan, J., concurring in

56a

judgment).

Some years later, Justice Powell derided Borak’s

approach in an oft-quoted dissent. Cannon v. Univ. of

Chicago, 441 U.S. 677, 742 (1979) (Powell, J.,

dissenting). In Powell’s view, freely implying private

rights of action posed two related constitutional

problems. First, to infer from silence the right to file

suit in federal court interferes with Congress’s Article

III power to set “the jurisdiction of the lower federal

courts.” Id. at 730. Second, an expansive approach to

implied private rights of action “cannot be squared

with the doctrine of the separation of powers.” Id. This

is because a court’s “substitut[ion of] its own views as

to the desirability of private enforcement,” id. at 740,

dispatches Congress’s Article I “policymaking authority” to the Third Branch of government, id. at 743.

“When Congress chooses not to provide a private civil

remedy, federal courts should not assume the

legislative role of creating such a remedy and thereby

enlarge their jurisdiction.” Id. at 730-31. Therefore,

“[a]bsent the most compelling evidence of affirmative

congressional intent, a federal court should not infer

a private cause of action.” Id. at 731.

Justice Powell’s dissent primed the Court for a

doctrinal about-face. The Court incrementally swore

“off the habit of venturing beyond Congress’s intent,”

Sandoval, 532 U.S. at 286-87 (tracing this doctrinal

evolution), instead limiting its focus to the specific

statutory text at issue. In Sandoval, the Court

summed up the result of this doctrinal progression:

“The judicial task is to interpret the statute Congress

has passed to determine whether it displays an intent

to create not just a private right but also a private

remedy.” Id. at 286.

57a

But there was a loose end remaining—what to do

with implied rights of action brought under § 1983.

Some litigants argued that § 1983 provided plaintiffs

with a separate cause of action if they fell “within the

general zone of interest” of a federal statute. Gonzaga

Univ. v. Doe, 536 U.S. 273, 282-83 (2002) (citing

Blessing v. Freestone, 520 U.S. 329, 340-41 (1997)).

The Court swiftly corrected this misunderstanding in

Gonzaga, instructing that § 1983 creates a cause of

action to enforce a federal statute only when the

underlying statute itself unambiguously “confers an

individual right” on the plaintiff. Id. at 284-85. If so,

the § 1983 remedy follows as a matter of course;

litigants need not separately demonstrate Congress’s

intent to create a private remedy. Id.

With this background as guidance, we review the

district court’s entry of a preliminary injunction for

“abuse of discretion, accepting the court’s findings of

fact absent clear error, but reviewing its conclusions

of law de novo.” Child Evangelism Fellowship of Md.,

Inc. v. Montgomery Cty. Pub. Sch., 373 F.3d 589, 593

(4th Cir. 2004). To that end, the individual plaintiff

“must establish that [s]he is likely to succeed on the

merits, that [s]he is likely to suffer irreparable harm

in the absence of preliminary relief, that the balance

of equities tips in h[er] favor, and that an injunction

is in the public interest.” Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008). We are mindful at

once that a preliminary injunction is an “extraordinary remedy,” id. at 22, but its issuance “is

committed to the sound discretion of the trial court,”

Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188

(4th Cir. 2013) (en banc) (quoting Quince Orchard

58a

Valley Citizens Ass’n v. Hodel, 872 F.2d 75, 78 (4th

Cir. 1989)).

IV.

First we consider the threshold question whether

the Medicaid Act’s free-choice-of-provider provision

creates a private right enforceable under § 1983.

Section 1983 creates a federal remedy against anyone

who, under color of state law, deprives a person “of

any rights, privileges, or immunities secured by the

Constitution and laws.” 42 U.S.C. § 1983. Of course,

it “does not provide an avenue for relief every time a

state actor violates a federal law.” City of Rancho

Palos Verdes v. Abrams, 544 U.S. 113, 119 (2005).

Rather a plaintiff seeking redress “must assert the

violation of a federal right, not merely a violation of

federal law.” Blessing, 520 U.S. at 340.

Three factors guide us in determining whether a

statute creates a private right enforceable under

§ 1983. Id. at 340-41. “First, Congress must have

intended that the provision in question benefit the

plaintiff.” Id. at 340. “Second, the plaintiff must

demonstrate that the right assertedly protected by

the statute is not so ‘vague and amorphous’ that its

enforcement would strain judicial competence.” Id. at

340-41. “Third, the statute must unambiguously

impose a binding obligation on the States” by

speaking “in mandatory, rather than precatory,

terms.” Id. at 341. If these three factors are satisfied,

there is “a rebuttable presumption that the right is

enforceable under § 1983,” id., which may be defeated

by showing that Congress expressly or implicitly

foreclosed a § 1983 remedy, City of Rancho Palos

Verdes, 544 U.S. at 120.

59a

Applying these principles, we agree with the

district court—and five of our six sister circuits to

have addressed this issue—that the free-choice-ofprovider provision confers a private right, enforceable

under § 1983, on Medicaid recipients. See Planned

Parenthood of Kan. & Mid-Mo. v. Andersen, 882 F.3d

1205, 1224 (10th Cir. 2018); Planned Parenthood of

Gulf Coast, Inc. v. Gee, 862 F.3d 445, 457 (5th Cir.

2017); Planned Parenthood Ariz. Inc. v. Betlach, 727

F.3d 960, 965-66 (9th Cir. 2013); Planned Parenthood

of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health,

699 F.3d 962, 968, 972-74 (7th Cir. 2012); Harris v.

Olszewski, 442 F.3d 456, 461 (6th Cir. 2006). But see

Does v. Gillespie, 867 F.3d 1034, 1037, 1041, 1046 (8th

Cir. 2017).

Taking the first Blessing factor, the free-choice-ofprovider provision “unambiguously gives Medicaideligible patients an individual right” to their choice of

provider qualified to perform a medical service.

Planned Parenthood of Ind., 699 F.3d at 974. The

provision has an “unmistakable focus,” Gonzaga, 536

U.S. at 284, on its intended class of beneficiaries: “any

individual eligible for medical assistance” under the

Medicaid Act, 42 U.S.C. § 1396a(a)(23)(A). See Doe v.

Kidd, 501 F.3d 348, 356 (4th Cir. 2007) (finding that

42 U.S.C. § 1396a(a)(8), which refers to “all

individuals wishing to make application for medical

assistance,” confers an individual right).

Congress’s use of the phrase “any individual” is a

prime example of the kind of “rights-creating”

language required to confer a personal right on a

discrete class of persons—here, Medicaid beneficiaries. See, e.g., Sandoval, 532 U.S. at 288 (providing

an example of rights-creating language: “No person

60a

. . . shall . . . be subjected to discrimination . . . .”). Put

differently, by adopting as its benchmark whether the

“needs of any particular person have been satisfied,”

Gonzaga, 536 U.S. at 288, Congress left no doubt that

it intended to guarantee each Medicaid recipient’s

free choice of provider.

As for the second Blessing factor, the free-choiceof-provider provision is not so “vague and

amorphous,” Blessing, 520 U.S. at 340-41, that its

enforcement would strain judicial competence. The

provision protects the right of a Medicaid recipient to

seek care from his or her provider of choice, subject to

two criteria: (1) the provider must be “qualified to

perform the service or services required,” and (2) the

provider must “undertake[ ] to provide [the recipient]

such services.” 42 U.S.C. § 1396a(a)(23)(A). These

criteria are objective. The second is “a simple factual

question no different from those courts decide every

day.” Betlach, 727 F.3d at 967. And the first, which

“may require more factual development or expert

input,” still falls squarely “within the range of judicial

competence.” Id.

In an attempt to create ambiguity, South Carolina

focuses on the word “qualified” in isolation,

Appellant’s Reply Brief at 9-10, ignoring the reality

that the term is “tethered to an objective benchmark:

‘qualified to perform the service or services required.’”

Betlach, 727 F.3d at 967-68 (quoting 42 U.S.C.

§ 1396a(a)(23)(A)). That omission makes all the

difference. Courts can “readily determine” whether a

provider is qualified to perform a service by “drawing

on evidence such as descriptions of the service

required; state licensing requirements; the provider’s

credentials, licenses, and experience; and expert

61a

testimony regarding the appropriate credentials for

providing the service.” Id. at 968. This factual

determination “is no different from the sorts of

qualification or expertise assessments that courts

routinely make in various contexts.” Id.3

Finally, the free-choice-of-provider provision

“unambiguously impose[s] a binding obligation on the

States.” Blessing, 520 U.S. at 341. Under the

provision, states “must provide” a Medicaid recipient

with his or her choice of provider qualified to perform

the service at issue. 42 U.S.C. § 1396a(a)(23)(A). Thus

the provision is “couched in mandatory, rather than

precatory, terms.” Blessing, 520 U.S. at 341; see also

Kidd, 501 F.3d at 356 (holding, as mandatory, a

Medicaid provision requiring that state plans “must”

provide for reasonably prompt medical assistance).

Since the three Blessing factors are satisfied, the

individual plaintiff benefits from a rebuttable presumption that the free-choice-of-provider provision is

enforceable under § 1983. Blessing, 520 U.S. at 34

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