Amicus Curiae Brief — Eunice Medina, Director, South Carolina Department of Health and Human Services, Petitioner v. Planned Parenthood South Atlantic, et al.

NO. 23-1275

IN THE

Supreme Court of the United States

EUNICE MEDINA, INTERIM DIRECTOR, SOUTH

CAROLINA DEPARTMENT OF HEALTH AND HUMAN

SERVICES,

Petitioner,

v.

PLANNED PARENTHOOD SOUTH ATLANTIC, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF OF WORLD FAITH FOUNDATION AND

NC VALUES INSTITUTE AS AMICI CURIAE

IN SUPPORT OF PETITIONER

TAMI FITZGERALD

NC VALUES INSTITUTE

9650 Strickland Rd.

Suite 103-226

Raleigh, NC 27615

DEBORAH J. DEWART

Attorney at Law

111 Magnolia Lane

Hubert, NC 28539

JAMES L. HIRSEN

Counsel of Record

505 S. Villa Real

Suite 101

Anaheim, CA 92807

(714) 283-8880

james@jameshirsen.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF CONTENTS ..............................................i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ............................................................... 1

ARGUMENT ............................................................... 4

I.

THERE IS AN URGENT NEED FOR CLARITY

AT EVERY LEVEL OF ANALYSIS IN THIS AND

OTHER CASES ARISING UNDER THE

SPENDING CLAUSE. .......................................... 4

A. The definition of “qualified” provider is a

critical aspect of this case. ............................. 4

B. State obligations must be set forth

unambiguously. .............................................. 5

C. Beneficiary rights must be set forth

unambiguously. .............................................. 6

II. EVEN ASSUMING BENEFICIARIES HAVE AN

“UNAMBIGUOUS RIGHT” TO SELECT AMONG

QUALIFIED PROVIDERS, THERE IS NO

“UNAMBIGUOUS” COROLLARY RIGHT TO

CHALLENGE THE STATE’S DETERMINATION

THAT A PARTICULAR PROVIDER IS NOT

QUALIFIED. ....................................................... 10

ii

A. South Carolina has not “knowingly and

willingly,” as a condition of receiving federal

funds, waived its right to define “qualified

provider” for the State’s Medicaid program.

…………………. ............................................. 11

B. South Carolina has not “knowing and

willingly,” as a condition of receiving federal

funds, accepted an obligation to allow a

beneficiary to challenge its decision that a

particular provider is not qualified….. ........ 12

III. FEDERAL AUTHORITY TO TAX AND SPEND

DOES

NOT

CREATE

REGULATORY

AUTHORITY

THAT

EXCEEDS

THE

CONSTITUTIONALLY

ENUMERATED

POWERS OF CONGRESS. ................................ 14

A. There is no federal regulatory authority to

commandeer the States. ............................... 15

B. The typical remedy, where a State violates the

conditions of spending legislation, is the

withdrawal of federal funds rather than

private enforcement against the State. ....... 18

C. There is no federal regulatory authority for

health in general or abortion in particular..20

CONCLUSION .......................................................... 23

iii

TABLE OF AUTHORITIES

Page(s)

Cases

A Vapeur v. Louisiana State Board of Health,

186 U.S. 380 (1902) .............................................. 23

Abbeville General Hosp. v. Ramsey,

3 F.3d 797 (5th Cir. 1993) .................................... 12

Ala. Ass'n of Realtors v. Dep't of Health &

Hum. Servs.,

141 S. Ct. 2485 (2021) .......................................... 23

Alexander v. Sandoval,

532 U.S. 275 (2001) ................................................ 9

Atascadero State Hosp. v. Scanlon,

473 U.S. 234 (1985) .............................................. 11

Barnes v. Gorman,

536 U.S. 181 (2002) .......................................... 5, 17

Blessing v. Freestone,

520 U.S. 329 (1997) ................................ 8, 9, 11, 19

BST Holdings, L.L.C. v. OSHA,

17 F.4th 604 (5th Cir. 2021) .................................. 2

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

596 U.S. 212 (2022) .............................................. 10

iv

Dobbs v. Jackson Women’s Health,

597 U.S. 215 (2022) .................................... 2, 20, 21

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

139 S. Ct. 408 (2018) ............................................ 14

Gibbons v. Ogden,

22 U.S. 1 (1824) .................................................... 22

Gonzaga University v. Doe,

536 U.S. 273 (2002) ................................ 8, 9, 10, 19

Harris v. McRae,

448 U.S. 297 (1980) .............................................. 21

Health & Hospital Corp. of Marion County v. Talevski,

599 U.S. 166 (2023) ................. 7, 8, 9, 14-19, 22, 23

Hillsborough Cnty., Fla. v. Automated Med. Labs.,

Inc.,

471 U.S. 707 (1985) .............................................. 22

Jacobson v. Massachusetts,

197 U.S. 11 (1905) ................................................ 21

Kerr v. Planned Parenthood,

95 F.4th 152 (4th Cir. 2024) ......... 4, 7, 8, 17, 19-21

Maine v. Thiboutot,

448 U.S. 1 (1980) .............................................. 8, 18

Maryland v. King,

567 U.S. 1301 (2012) ............................................ 23

v

MCP No. 165 v. United States DOL,

20 F.4th 264 (6th Cir. 2021) ................................ 23

Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996) .........................................22-23

Moyle v. United States,

144 S. Ct. 2015 (2024) .......................................... 22

Murphy v. Nat'l Collegiate Athletic Ass'n,

584 U.S. 453 (2018) .............................................. 15

Nat'l Fed’n of Indep. Bus. v. DOL, OSHA,

142 S. Ct. 661 (2022) ............................................ 23

Nat'l Fed'n of Indep. Bus. v. Sebelius (“NFIB”),

567 U.S. 519 (2012) ............................ 10, 15, 17, 18

New York v. United States,

505 U.S. 144 (1992) .................................. 15, 16, 22

O’Bannon v. Town Court Nursing Center,

447 U.S. 773 (1980) .............................. 5, 6, 7, 8, 13

Pennhurst State School and Hospital v. Halderman,

451 U.S. 1 (1981) ........ 5, 7, 8, 10, 13, 17, 18, 19, 24

Planned Parenthood of Greater Texas Family

Planning & Preventative Health Services, Inc. v.

Kauffman,

981 F.3d 347 (5th Cir. 2020) .................................. 4

vi

Printz v. United States,

521 U.S. 898 (1997) .........................................17-18

Roe v. Wade,

410 U.S. 113 (1973) .............................................. 22

Rust v. Sullivan,

500 U.S. 173 (1991) ................................................ 2

South Bay United Pentecostal Church v. Newsom,

140 S. Ct. 1613 (2020) .......................................... 21

South Dakota v. Dole,

483 U.S. 203 (1987) .............................................. 18

Steward Machine Co. v. Davis,

301 U.S. 548 (1937) .............................................. 18

Suter v. Artist M.,

503 U.S. 347 (1992) .............................................. 20

Thorpe v. Rutland & B. R. Co.,

27 Vt. 140 (1855) .................................................. 22

Townsend v. Swank,

404 U.S. 282 (1971) .............................................. 16

United States v. Morrison,

529 U.S. 598 (2000) .............................................. 22

Webster v. Reprod. Health Servs.,

492 U.S. 490 (1989) ................................................ 2

vii

Wilder v. Virginia Hospital Ass’n,

496 U.S. 498 (1990) ................................................ 9

Wright v. Roanoke Redevelopment and Housing

Authority,

479 U.S. 418 (1987) ................................................ 9

Statutes

42 U.S.C. § 1396a(a)(23) ............................................. 4

42 U.S.C. § 1396a(a)(23)(A)......................................... 2

42 U.S.C. § 1396a(p)(1) ............................................... 3

42 U.S.C. § 1396r(c)(1)(A)(ii) ....................................... 7

42 U.S.C. § 1396r(c)(2)(A)-(B) ..................................... 7

42 U.S.C. § 1983 .......................................................... 4

Patient Protection and Affordable Care Act ............ 17

S.C. Code Ann. § 43-5-1185................................... 2, 20

Other Authorities

Federal Statute: 42 U.S.C. § 1983 Spending Clause

Health & Hospital Corp. of Marion County v.

Talevski,

137 Harv. L. Rev. 380 (November 2023) ......... 9, 10

viii

David E. Engdahl, The Spending Power,

44 Duke L.J. 1 (October 1994) ................. 13, 15, 16

David E. Engdahl, The Contract Thesis of the

Federal Spending Power,

52 S. D. L. Rev. 496 (2007) ............................. 16, 17

1

INTEREST OF AMICI CURIAE1

Amici curiae respectfully urge this Court to

reverse the decision of the Fourth Circuit.

World Faith Foundation (“WFF”) is a California

religious non-profit, tax-exempt corporation formed

on May 2, 2005 to preserve and defend the customs,

beliefs, values, and practices of religious faith and

speech, as guaranteed by the First Amendment,

through education, legal advocacy, and other means.

WFF's founder is James L. Hirsen, who has served as

professor of law at Trinity Law School and Biola

University in Southern California and is the author of

New York Times bestseller, Tales from the Left Coast,

and Hollywood Nation. Mr. Hirsen is a frequent

media commentator who has taught law school

courses on constitutional law. Co-counsel Deborah J.

Dewart is the author of Death of a Christian Nation

(2010) and holds a degree in theology (M.A.R.,

Westminster Seminary, Escondido, CA). WFF has

made numerous appearances in this Court as amicus

curiae.

NC Values Institute (“NCVI”), formerly known as

the Institute for Faith and Family, is a North

Carolina nonprofit corporation established to

preserve and promote faith, family, and freedom by

working in various arenas of public policy to protect

constitutional liberties, including the right to life.

1 Amici curiae certify that no counsel for a party authored this

brief in whole or in part and no person or entity, other than

amici, their members, or their counsel, has made a monetary

contribution to its preparation or submission.

2

NCVI joined WFF in an amicus brief supporting

Petitioners in Dobbs v. Jackson Women’s Health, 597

U.S. 215 (2022). See https://ncvi.org.

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

This Court has explicitly returned abortion

regulation to the states. Dobbs, 597 U.S. 215.

Allowing the private right of action sought by

Respondents would undermine the states’ ability to

exercise their newly recognized regulatory authority.

Laws vary from state to state. S.C. Code Ann. § 43-51185 prohibits the use of state funds to pay for

abortions, and that prohibition undergirds the State’s

decision to disqualify Planned Parenthood as a

Medicaid provider. Even before Dobbs, states had “no

affirmative duty to commit any resources to funding

abortion.” Rust v. Sullivan, 500 U.S. 173, 201 (1991)

(quoting Webster v. Reprod. Health Servs., 492 U.S.

490, 511 (1989)). Coerced qualification of abortion

providers, using 1983 private enforcement as a

vehicle, would sneak forbidden funding through the

back door into South Carolina and other pro-life

states. Although this case is not about abortion rights

per se, the relevant circuit split has emerged among

cases involving Planned Parenthood, thrusting the

underlying legal issues to the forefront of the

discussion.

Each participating state must allow a Medicaid

beneficiary to choose “any qualified provider.” 42

U.S.C. § 1396a(a)(23)(A). This “right to choose” hinges

on the state’s prior determination that the chosen

provider is “qualified.” Federal law does not define

3

“qualified provider.” Each state retains the

responsibility and authority to establish that

definition and apply it. Thereafter, its obligation is to

fund each beneficiary’s choice among the providers it

has qualified. A provider may be disqualified “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” that states themselves retain to exclude

providers. 42 U.S.C. § 1396a(p)(1).

A Medicaid beneficiary has the right to choice

among qualified providers, but not the choice to

determine who is qualified. Qualification is a matter

between the provider and the state, not between the

beneficiary and the state. The state must provide for

appeal rights if a provider is disqualified (as South

Carolina does), but there is no analogous requirement

to provide appeal rights for beneficiaries. The statute

does not grant beneficiaries the right to challenge a

state’s disqualification of a preferred provider—only

the right to select from among providers the state has

approved as qualified. There is no express

authorization for a private right of action against a

state’s determination that a particular provider is not

qualified.

Spending clause issues emerge. The State of South

Carolina has not “knowingly and willingly” accepted,

as a condition of receiving federal funds, a specific

definition of “qualified provider” that would obligate

it to certify Planned Parenthood (or any other

particular entity). Nor has South Carolina “knowingly

and willingly” accepted an obligation to allow a

beneficiary to challenge its disqualification of a

4

particular provider. Forcing states to allow

beneficiary challenges would create additional costs

and administrative burdens on state taxpayers, plus

the risk of losing Medicaid funds.

ARGUMENT

I.

THERE IS AN URGENT NEED FOR

CLARITY AT EVERY LEVEL OF ANALYSIS

IN THIS AND OTHER CASES ARISING

UNDER THE SPENDING CLAUSE.

A. The definition of “qualified provider” is

a critical aspect of this case.

The “dispositive issue” in this case “is whether 42

U.S.C. § 1396a(a)(23) gives Medicaid patients a right

to challenge, under 42 U.S.C. § 1983, a State's

determination that a health care provider is not

‘qualified’ within the meaning of § 1396a(a)(23).”

Planned Parenthood of Greater Texas Family

Planning & Preventative Health Services, Inc. v.

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

critical question can only be answered if key terms,

such as “qualified provider,” can be clearly defined.

The Fourth Circuit acknowledged that “[t]he

Medicaid Act limits the right of a beneficiary's choice

to qualified medical providers.” Kerr v. Planned

Parenthood, 95 F.4th 152, 169 (4th Cir. 2024). But the

court skips over by presupposing that “Planned

Parenthood is professionally qualified to provide the

care that the plaintiff seeks” and wrongly asserting

that “[t]he State has not contested this.” Ibid. On the

contrary,

South

Carolina

deemed

Planned

Parenthood “unqualified to provide family planning

5

services,” and accordingly, terminated its enrollment

in the State’s Medicaid program. Id. at 157 (emphasis

added). Federal law does not define “qualified” but

leaves the determination of “whether a provider is

‘qualified’ within the meaning of § 1396a(a)(23),” as “a

matter to be resolved between the State (or the

federal government) and the provider.” Kauffman,

981 F.3d at 350.

The definition of “qualified,” critical to the

outcome of this case, has been left to each state

participating in Medicaid—not federal law, not

federal (or state) courts, and not individual

beneficiaries. After the State establishes criteria and

approved providers it deems “qualified,” the State’s

Medicaid plan “must permit an individual eligible for

medical assistance to obtain that assistance from any

‘qualified’ provider who undertakes to provide such

services.” Kauffman, 981 F.3d at 354, citing subpart

23(A) of the statute. Nowhere in the text and

structure of § 1396a(a)(23) is there any provision

allowing a Medicaid patient to contest a State's

determination that a particular provider is not

"qualified." Id. at 350, 357; O’Bannon v. Town Court

Nursing Center, 447 U.S. 773, 785-786 (1980).

B. State obligations must be set forth

unambiguously.

This case arises in the context of spending

legislation, characterized by this Court as “much in

the nature of a contract.” Barnes v. Gorman, 536 U.S.

181, 186 (2002) (quoting Pennhurst State School and

Hospital v. Halderman, 451 U.S. 1, 17 (1981)). The

contractual relationship is between the federal

6

government and each participating state, although

the State’s compliance with the terms may be

relevant to its relationship with beneficiaries of the

program.

If the State’s obligations are ambiguous, that

inevitably casts uncertainty on the scope of

beneficiary rights. Congress did not confer on

beneficiaries a “clear and unambiguous right” to

challenge the State’s qualification decisions but did

grant States “wide latitude” to determine who is or is

not “qualified” to provide services to Medicaid

beneficiaries. The States are not restrained by a

federal statutory definition. Kauffman, 981 F.3d at

378 (Elrod, J., concurring). A variety of statutory

provisions “permit a State to exclude providers from

Medicaid plans for a host of reasons,” and such

exclusion includes the refusal to enter a new

agreement or renew a prior agreement. Id. at 360.

“None of these statutes suggest that Medicaid

patients have a right to challenge whether, as either

a factual or legal matter, a State's exclusion or

removal of a provider is permitted or mandated by

these statutes.” Ibid. Termination of a provider’s

agreement—by the State—is permissible on many

grounds and does not require that the provider also

be precluded from providing services to non-Medicaid

patients. Id. at 368.

C. Beneficiary rights must be set forth

unambiguously.

The right at stake in this case, “to choose among

a range of qualified providers, without government

interference” (O’Bannon, 447 U.S. at 785) arises in

7

the context of the Medicaid Act—spending legislation

that provides federal funds to participating states.

“States can opt out of spending programs, completely

nullifying whatever force the spending conditions

once had.” Health & Hospital Corp. of Marion County

v. Talevski, 599 U.S. 166, 201 (2023) (Thomas, J.,

dissenting). The free-choice-of-provider right operates

solely within the administration of Medicaid and is

irrelevant outside that context, in contrast to rights

that are independent of Medicaid administration and

might be vindicated through other federal or state

statutes. See, e.g., id. at 166 (nursing home residents’

right to be free of unnecessary-restraints, 42 U.S.C. §

1396r(c)(1)(A)(ii) and (2)(A)-(B)); O’Bannon, 447 U.S.

773 (nursing home facility); Pennhurst, 451 U.S. 1

(unsanitary, inhumane, and dangerous conditions in

state hospital for developmentally disabled).

The Medicaid Act entitles each beneficiary to

choose his or her “preferred qualified provider

without state interference.” Kerr, 95 F.4th at 168

(emphasis added). But this begs the question: Who is

a “qualified” provider? According to the Fourth

Circuit, this provision “dictates that ‘any individual’

eligible for Medicaid ‘may obtain’ services from ‘any’

provider ‘who undertakes to provide him such

services.’ 42 U.S.C. § 1396a(a)(23) (emphasis added).”

Id. at 170. But this right presupposes a qualified

provider, not merely “any” provider or “a” provider.

The right is to choose among qualified providers, per

the State’s prior qualification. The Medicaid Act does

not grant a beneficiary a unilateral right to decide

who is qualified or to overrule or challenge the State’s

decision that a specific provider is not qualified. If the

State refuses to qualify a beneficiary’s preferred

8

provider, such “decertification does not reduce or

terminate a patient's financial assistance, but merely

requires him to use it for care at a different facility.”

O’Bannon, 447 at 785-786.

Courts have strayed far from the simple right to

choose from among qualified providers, using § 1983

as an enforcement vehicle. In such actions, courts

require “the violation of a federal right, not merely a

violation of federal law." Blessing v. Freestone, 520

U.S. 329, 341 (1997) (the right “must be couched in

mandatory . . . terms”); Kerr, 95 F.4th at 160. A

plaintiff seeking private enforcement must show that

Congress “unambiguously conferred a presumptively

enforceable right. . . . upon a discrete class of

beneficiaries.” Id. at 163; Gonzaga University v. Doe,

536 U.S. 273, 282-283 (2002); id. at 290 (“clear and

unambiguous terms” required to create new rights);

Talevski, 599 U.S. at 186. This Court has allowed

spending power legislation to confer federal

individual rights presumptively enforceable through

a § 1983 action. See, e.g., Maine v. Thiboutot, 448 U.S.

1, 4 (1980) (expanding § 1983 enforcement to

encompass federal statutory rights as well as

constitutional violations); Pennhurst, 451 U.S. at 17,

28, and n. 21 (Congress must “speak[] with a clear

voice” that manifests an “unambiguous intent to

confer individual rights”); Gonzaga, 536 U.S. at 290;

Talevski, 599 U.S. at 172; id. at 193 (Barrett, J.,

concurring); Kerr, 95 F.4th at 160.

This case does not even present the violation of a

federal law, let alone a federal right, because the

State retains the right to qualify or disqualify

providers. The right conferred – to choose among

9

qualified providers – is “couched in mandatory . . .

terms” (Blessing, 520 U.S. at 341) but does not settle

the question of who has the authority to determine

whether a particular provider is “qualified.” The

Medicaid Aid has already settled the “who” question

– the State identifies qualified providers – yet courts

continue to analyze a mind-boggling array of details

to sometimes create enforcement rights for

beneficiaries.

Courts scrutinize many factors. The intent to

benefit a discreet class is one of them. Blessing, 520

U.S. at 340-341 (mothers receiving child support

services under the Social Security Act); Wilder v.

Virginia Hospital Association, 496 U.S. 498 (1990)

(hospital management). On the other hand,

"[s]tatutes that focus on the person regulated rather

than the individuals protected create 'no implication

of an intent to confer rights on a particular class of

persons.'" Gonzaga, 536 U.S. at 287 (quoting

Alexander v. Sandoval, 532 U.S. 275, 289 (2001)); id.

at 282 (a provision focused on “aggregate services”

rather than “the needs of any particular person” does

not confer enforceable rights). Courts also consider

whether "Congress has foreclosed such enforcement of

the statute in the enactment itself." Wright v.

Roanoke Redevelopment and Housing Authority, 479

U.S. 418, 423 (1987). The result of a string of cases

and splits among the circuit courts, as described in

the Petition, concerning whether “the Medicaid Act

grants Medicaid beneficiaries a § 1983 enforceable

right to a provider of their choice.” Federal Statute: 42

U.S.C. § 1983 Spending Clause Health & Hospital

Corp. of Marion County v. Talevski, 137 Harv. L. Rev.

380, 386 (November 2023). It is quite possible that

10

“Gonzaga muddled, rather than clarified, the

doctrine” by leaving open the question of “whether a

statute that include[s] ‘rights-creating language’ and

a directive to funding recipients to comply with that

language [is] focused on the benefited class or the

funding recipient.” 137 Harv. L. Rev. at 386.

II. EVEN ASSUMING BENEFICIARIES HAVE

AN “UNAMBIGUOUS RIGHT” TO SELECT

AMONG QUALIFIED PROVIDERS, THERE

IS NO “UNAMBIGUOUS” COROLLARY

RIGHT TO CHALLENGE THE STATE’S

DETERMINATION THAT A PARTICULAR

PROVIDER IS NOT QUALIFIED.

When Congress uses its spending power to enact

legislation, the legitimacy of that exercise of power

“rests on whether the State voluntarily and

knowingly accepts the terms” of the “contract”

established. Nat'l Fed'n of Indep. Bus. v. Sebelius

(“NFIB”), 567 U.S. 519, 577 (2012) (quoting

Pennhurst, 451 U.S. at 17). Clarity is imperative

when Congress attaches conditions to the grant of

federal funds, because it "enable[s] the States to

exercise their choice . . . knowingly, cognizant of the

consequences of their participation," i.e., to

“knowingly decide whether or not to accept those

funds.” Pennhurst, 451 at 17, 24. This critical

safeguard ensures that spending legislation does not

“undermine the status of the States as independent

sovereigns in our federal system.” NFIB, 567 U.S. at

577. Unlike legislation that “imposes congressional

policy” on regulated parties involuntarily, spending

legislation is based on informed consent. Cummings

v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 219

11

(2022). Congress must not alter the “usual

constitutional balance between the States and the

Federal Government” without using “unmistakably

clear” language. Atascadero State Hosp. v. Scanlon,

473 U.S. 234, 242 (1985).

The Medicaid Act is devoid of any language—

“unmistakably clear” or otherwise—requiring the

States to waive their right to define “qualified

provider” or requiring them to litigate beneficiary

challenges to their qualification decisions. Indeed, the

any-qualified-provider

provision

governs

the

relationship between the federal and state

governments and is thus “two steps removed” from

the individual Medicaid beneficiaries. Kauffman, 981

F.3d at 372 (Elrod, J., concurring).

A. South Carolina has not “knowingly and

willingly,” as a condition of receiving

federal funds, waived its right to define

“qualified provider” for the State’s

Medicaid program.

The right conferred, to choose among qualified

providers, may be “couched in mandatory . . . terms”

(Blessing, 520 U.S. at 341), but that does not settle

the question as to who has the authority or

responsibility to determine whether a particular

provider is “qualified.” The State retains broad

discretion to set criteria for qualifying providers. (See

Sect. I-A.) A provider who has been disqualified,

excluded, or suspended has the right to an

administrative appeal of the State’s decision. No

comparable appellate rights are provided for

beneficiaries. Even if there were a right to private

12

enforcement, judicial review should evaluate claims

using the arbitrary-and-capricious standard, so as not

“to relegate states to the position of distrusted,

second-class decisionmakers without an express

indication in the statute saying as much.” Kauffman,

981 F.3d at 378 (Elrod, J., concurring), citing

Abbeville General Hosp. v. Ramsey, 3 F.3d 797, 804

(5th Cir. 1993).

B. South Carolina has not “knowing and

willingly,” as a condition of receiving

federal funds, accepted an obligation to

allow a beneficiary to challenge its

decision that a particular provider is not

qualified.

South Carolina has not assumed a legal duty to

grant beneficiaries the right to appeal its

disqualification of a provider. If the State were

refusing to fund a provider it had qualified, this would

be a different case. The State does have an obligation

to comply with the free-choice-of-qualified-provider

provision. But that provision does not encompass a

right to demand that a specific provider be qualified.

Such a “corollary right” does not follow logically, nor

does it comport with spending clause principles.

South Carolina is only obligated to fund a

beneficiary’s choice among qualified providers, not to

fund a beneficiary’s choice to seek care from a

disqualified provider, such as Planned Parenthood.

“It is conceivable that recipients might be required

as a condition of funding to agree to respond on the

merits to claims of third parties,” such as the

Medicaid beneficiaries in this case.

David E.

13

Engdahl, The Spending Power, 44 Duke L.J. 1, 98-99

(October 1994). Such a condition must be made

“unmistakably clear,” and would be “binding only by

force of contract and not by virtue of the funding

statute as law in itself.” Id. at 99. No such condition

is present here, either in the statutory text or

implicitly.

“Where

is

the

language

in §

1396a(a)(23) that grants a right to a Medicaid patient,

either independent of the provider's right or exercised

in tandem with the provider, to have a particular

provider declared ‘qualified’? It is not there, and that

is why [this] Court held as it did in O'Bannon.”

Kauffman, 981 F.3d at 358. A Medicaid patient has

“no right to insist that a particular provider is

‘qualified’ when the State has determined otherwise.”

Ibid. There is simply no “unambiguous right” for

Plaintiffs in this case to force South Carolina to pay

for the services of a disqualified provider, particularly

contrary to the State’s explicit statutory policy not to

use government funds for abortion.

There is also no warrant for finding an implied

right of private enforcement. “The case for inferring

intent is at its weakest where, as here, the rights

asserted impose affirmative obligations on the States

to fund certain services, since we may assume that

Congress will not implicitly attempt to impose

massive financial obligations on the States.”

Pennhurst, 451 at 16-17. In addition to the cost of

funding services, massive unnecessary costs would be

imposed on the States forced to defend a multitude of

beneficiary lawsuits for disqualifying, or refusing to

qualify, specific providers. In the absence of an

unambiguous statement within the Medicaid Act, “it

is difficult to conclude from so thin a read of §

14

1396a(a)(23) that Congress

envisioned

States

spending additional millions of dollars defending

suits in courts across the country brought by

Medicaid patients.” Kauffman, 981 F.3d at 364. The

consequences could be “drastic . . . opening the

floodgates of litigation against states that make

hundreds of routine Medicaid termination decisions

every year” (id. at 373-374 (Elrod, J., concurring)),

perhaps including challenges to the State’s “failure to

list particular providers.” Id. (quoting Gee v. Planned

Parenthood of Gulf Coast, Inc., 139 S. Ct. 408, 409

(2018) (Thomas, J., dissenting from denial of

certiorari)).

III. FEDERAL AUTHORITY TO TAX AND

SPEND DOES NOT CREATE REGULATORY

AUTHORITY

THAT

EXCEEDS

THE

CONSTITUTIONALLY

ENUMERATED

POWERS OF CONGRESS.

For decades, it was “virtually undisputed that

Congress’ spending power” did not encompass any

“regulatory authority” to “secure rights” to

individuals or “impose duties” on the States, “even

with their consent.” Talevski, 599 U.S. at 219

(Thomas, J., dissenting). The so-called “Spending

Clause” – more accurately known as the General

Welfare Clause – allows Congress to tax and spend,

but “confers no independent regulatory power.” Id. at

209 (Thomas, J., dissenting).

Among the powers not granted to the federal

government are health in general and abortion in

particular. Congress may not coerce the States in

these matters or use its spending authority to

15

circumvent the States’ regulatory rights. “[T]he

Constitution has never been understood to confer

upon Congress the ability to require the States to

govern according to Congress' instructions.” NFIB,

567 U.S. at 577 (quoting New York v. United

States, 505 U.S. 144, 162 (1992). “Congress—and, a

fortiori, federal courts – cannot displace state law in

order to effectuate federal policy for matters

extraneous to the enumerated powers.” Engdahl, The

Spending Power, 44 Duke L.J. at 97. South Carolina

law prohibits state funding of abortion. The federal

courts may not displace that state law to effectuate

the pro-abortion policy preferred by Planned

Parenthood and its clients who are Medicaid

beneficiaries.

In Talevski, Justice Gorsuch noted the presence of

other issues “lurking” for “another day.” 599 U.S. at

192-193 (Gorsuch, J., concurring); see NFIB, 567 U.S.

at 575-78; Murphy v. Nat'l Collegiate Athletic Ass'n,

584 U.S. 453, 469-476 (2018). That day has arrived,

and now this Court must consider “whether legal

rights provided for in spending power legislation,”

like the Medicaid Act, “are ‘secured’ as against States

in particular and whether they may be so secured

consistent with

the

Constitution’s

anticommandeering principle.” Talevski, 599 U.S. at 192

(Gorsuch, J., concurring).

A. There is no federal regulatory authority

to commandeer the States.

Spending

legislation

has

become

“an

extraordinarily potent instrument of federal control.”

Talevski, 599 U.S. at 199 (Thomas, J., dissenting).

16

Due to the “profound consequences of spending

conditions” and the resulting “fundamental shift . . .

in our federalist system, a sound understanding of

their constitutional basis and permissible legal effects

is essential.” Ibid. Rights may be “secured” by laws

that Congress enacts using its regulatory authority

(id. at 201), but it would be “incompatible with this

Court’s anticommandeering doctrine” to equate a

State’s breach of spending conditions with a violation

of rights secured by federal law (id. at 202).

Congress “may not conscript state governments

as its agents,” nor “compel the States to enact or

administer a federal regulatory program.” New York,

505 U.S. at 162, 188. States are free to “opt out of

spending programs, completely nullifying whatever

force the spending conditions once had.” Talevski, 599

U.S. at 201 (Thomas, J., dissenting). Outside the

context of conditions imposed by spending legislation,

“Congress’ legislative powers cannot be avoided by

simply opting out.” D. Engdahl, The Contract Thesis

of the Federal Spending Power, 52 S. D. L. Rev. 496,

498

(2007) (emphasis

deleted);

see

also

Townsend v. Swank, 404 U.S. 282, 292 (1971)

(Burger, C. J., concurring in result) (“Congress has

used the ‘power of the purse’ to force the States to

adhere to its wishes to a certain extent; but adherence

to the provisions of Title IV is in no way mandatory

upon the States under the Supremacy Clause”).

Obligations and third party are created only by

voluntary agreement between federal and state

governments, “not by force of law.” Engdahl, The

Spending Power, 44 Duke L. J. at 104. It is therefore

important that this Court does not “simply ignore[]

the crucial difference between restraints accepted as

17

conditions of funding, and restraints imposed by

virtue of a legislative power.” Engdahl, The Contract

Thesis of the Federal Spending Power, 52 S. D. L. Rev.

at 509.

This Court has repeatedly characterized spending

legislation as “much in the nature of a contract.”

Barnes, 536 U.S. at 186 (quoting Pennhurst, 451 U.S.

at 17). The Fourth Circuit acknowledged that

“Medicaid was enacted through Congress's Spending

Clause authority,” offering funds to the States on

stated conditions. Kerr, 95 F.4th at 156. Respondents

ask this Court to find a private right under §1983,

enforceable against the State. Their request “run[s]

headlong into the anticommandeering doctrine and

long-recognized limitations on the federal spending

power.” Talevski, 599 U.S. at 229 (Thomas, J.,

dissenting). Transforming a spending condition into a

state obligation would “unravel[] the very rationale”

this Court has used to uphold “far-reaching spending

programs.” Id. at 228-229. The State’s obligation is to

fund a beneficiary’s choice among providers it has

deemed qualified, and the beneficiary’s right is to

choose among such qualified providers.

This Court rejected an attempt to impose a broad

expansion of Medicaid on the States, threatening the

loss of all Medicaid funds for States that declined new

coverage requirements imposed by the Patient

Protection and Affordable Care Act. The Court

emphatically reaffirmed its anti-commandeering

doctrine, citing its precedent “strik[ing] down federal

legislation that commandeers a State's legislative or

administrative apparatus for federal purposes.”

NFIB, 567 U.S. at 577; see, e.g., Printz v. United

18

States, 521 U.S. 898, 933 (1997) (mandated

background checks on handgun purchasers). The

Court has also “scrutinize[d] Spending Clause

legislation “to ensure that Congress is not using

financial inducements to exert a “power akin to

undue influence.” NFIB, 567 U.S. at 577 (quoting

Steward Machine Co. v. Davis, 301 U.S. 548, 590

(1937)). Congress may encourage and incentivize,

offering funds to the States that “induce [them] to

adopt policies that the Federal Government itself

could not impose.” NFIB, 567 U.S. at 537 (citing South

Dakota v. Dole, 483 U.S. 203, 205-206 (1987)

(conditioning federal highway funds on States raising

their drinking age to 21)). “But when ‘pressure turns

into compulsion,’ the legislation runs contrary to

our system of federalism.” Id. at 577-578. This is

particularly troubling where Congress “surprise[es]

participating States with post-acceptance or

retroactive conditions,” as it attempted in NFIB. Id.

at 584 (quoting Pennhurst, 451 U.S. at 25).

B. The typical remedy, where a State

violates the conditions of spending

legislation, is the withdrawal of federal

funds rather than private enforcement

against the State.

This Court escaped the “constitutional quandary”

created by its ruling in Maine v. Thiboutot “only by

recognizing spending conditions, not as rightssecuring laws, but as the terms of possible contracts

that secure rights only by virtue of an offeree’s

acceptance.” Talevski, 599 U.S. at 196-197 (Thomas,

J., dissenting). That “quandary” is the dilemma

sparked by treating spending conditions that benefit

19

third parties as equivalent to rights secured by

federal legislative power. Ibid. Such equivalence

“would contradict the bedrock constitutional

prohibition against federal commandeering of the

States.” Id. at 196.

Private enforcement against the State is a

questionable remedy in the context of spending

legislation, veering perilously close to breaching the

anti-commandeering doctrine. The “typical remedy”

for the State’s failure to comply with federally

imposed conditions is “action by the Federal

Government to terminate funds to the State,” not a

private cause of action against the State. Talevski,

599 U.S. at 183; (quoting Gonzaga, 536 U.S. at 280,

quoting Pennhurst, 451 U.S. at 28); Kerr, 95 F.4th at

160. Any exceptions require Congress to “speak[] with

a clear voice” spelling out its “unambiguous” intent to

create enforceable rights for individuals. Gonzaga,

536 U.S. at 280 (quoting Pennhurst, 51 U.S. at 17, 28,

and n. 21).

In Gonzaga, the terminology in Titles VI and IX

focused on individuals—“no person shall be subjected

to discrimination.” 53 U.S. at 287. The statutory

provisions contained directions that "no funds shall be

made available” to any “educational agency or

institution" which has a prohibited "policy or

practice." Ibid. This language “clearly does not confer

the sort of ‘individual entitlement’ that is enforceable

under § 1983.” Ibid. (quoting Blessing, 520 U.S. at

343 (emphasis in original)).

The Fourth Circuit admitted that a private right

against the State is “the atypical case” subject to “a

20

demanding bar.” Kerr, 95 F.4th at 164 (quoting

Talevski, 599 U.S. at 180, 183). That high bar requires

courts to “rigorously examine” whether there is “an

unmistakable congressional intent to confer

individually enforceable rights.” Id. at 180. It is tough

to hump the high hurdle. In a case arising under the

Adoption Act, this Court rejected efforts to find that

child beneficiaries had individual rights to enforce a

requirement imposed on the States to make

“reasonable efforts” to prevent a child’s removal from

his home or reunify him with his family if removed.

Suter v. Artist M., 503 U.S. 347, 364 (1992). It is

questionable whether there is ever an enforceable

individual right for the third party beneficiaries of

spending legislation, but at the very least, there is a

demanding test that must be met.

C. There is no federal regulatory authority

for health in general or abortion in

particular.

The State’s authority over provider qualification is

consistent with the States’ primary responsibility for

health. This case does not seek affirmative

recognition of abortion rights, but allowing the

private right of action sought by Respondents would

undermine the States’ regulatory authority. If this

Court recognizes a Medicaid beneficiary’s right to

demand that South Carolina certify Planned

Parenthood, that would fling open the back door for

abortion funding, contrary to the State’s law (S.C.

Code Ann. § 43-5-1185). Such a mandate would defy

this Court’s anti-commandeering doctrine, its explicit

ruling in Dobbs, 597 U.S. 215 returning abortion to

21

the States, and even pre-Dobbs precedent protecting

the States from such coercion.

“Our Constitution principally entrusts ‘the safety

and the health of the people’ to the politically

accountable officials of the States ‘to guard and

protect.’” South Bay United Pentecostal Church v.

Newsom, 140 S. Ct. 1613 (2020) (Roberts, C.J.,

concurring), quoting Jacobson v. Massachusetts, 197

U.S. 11, 38 (1905). These matters “do not ordinarily

concern the National Government.” Id. The “police

power of a State” embraces “reasonable regulations

established directly by legislative enactment” to

“protect the public health and the public safety.” Id.

at 25. There is nothing extraordinary about abortion

that warrants any sort of federal intervention,

particularly after Dobbs.

As the Fourth Circuit admits, Medicaid is a

“partnership with the states,” offering "federal

financial assistance to States that choose to

reimburse certain costs of medical treatment for

needy persons." Kerr, 95 F.4th at 156 (quoting Harris

v. McRae, 448 U.S. 297, 301 (1980)). “[T]he Congress

that enacted Title XIX did not intend a participating

State to assume a unilateral funding obligation for

any health service in an approved Medicaid plan,” let

alone “any services [abortion] for which a subsequent

Congress has withheld federal funding” (per the Hyde

Amendment), and certainly not a procedure (abortion)

this Court has now unequivocally held to be a matter

of state governance. Harris, 448 U.S. at 309 (Title XIX

did not require a participating state to pay for

medically necessary abortions for which federal

reimbursement was unavailable). “The Federal

22

Government cannot buy (or rent) the States’ power to

implement a federal program [Medicaid] and then

regard the conditions that the States are

implementing themselves as having the force of

federal law.” Talevski, 599 U.S. at 204 (Thomas, J.,

dissenting).

"[T]he Framers crafted the federal system of

Government so that the people's rights would be

secured by the division of power" between federal and

state governments. United States v. Morrison, 529

U.S. 598, 616 n.7 (2000); see also New York, 505 U.S.

at 181 (federal-state division of authority is “for the

protection of individuals . . . . [S]tate sovereignty is

not just an end in itself.”). “‘[A]ny time a State is

enjoined by a court from effectuating statutes enacted

by representatives of its people, it suffers a form of

irreparable injury.’” Moyle v. United States, 144 S. Ct.

2015, 2035 (2024) (Alito, J., dissenting), quoting

Maryland v. King, 567 U.S. 1301, 1303 (2012)

(Roberts, C. J., in chambers).

With Roe v. Wade, 410 U.S. 113 (1973) now

overruled, states may freely regulate abortion. “[T]he

regulation of health and safety matters is primarily,

and historically, a matter of local concern.”

Hillsborough Cnty., Fla. v. Automated Med. Labs.,

Inc., 471 U.S. 707, 719 (1985). As then Chief Justice

Marshall observed two centuries ago, the power to

enact “health laws of every description" is reserved to

the states. Gibbons v. Ogden, 22 U.S. 1, 203 (1824).

That understanding has stood the test of time. See,

e.g., Thorpe v. Rutland & B. R. Co., 27 Vt. 140, 149

(1855) (states legislate to protect “the lives, limbs,

health, comfort, and quiet of all persons”); Medtronic,

23

Inc. v. Lohr, 518 U.S. 470, 475 (1996) (“states have

exercised their police powers to protect the health and

safety of their citizens”). It is “beyond question” that

Congress recognized, “from an early day,” the power

of states to enforce health and safety regulations for

their own residents. Compagnie Francaise De

Navigation A Vapeur v. Louisiana State Board of

Health, 186 U.S. 380, 387 (1902). Congress must use

"exceedingly clear language if it wishes to

significantly alter the balance between federal and

state power." Ala. Ass'n of Realtors v. Dep't of Health

& Hum. Servs., 141 S. Ct. 2485, 2489 (2021)

(quotation omitted) (emphasis added); Nat'l Fed’n of

Indep. Bus. v. DOL, OSHA, 142 S. Ct. 661, 667 (2022).

“It's worth remembering that the power of a

federal agency to regulate is the power to preempt—

to nullify the sovereign power of the States in the

area” which explains why 27 States opposed the

emergency OSHA vaccine rule several years ago.

MCP No. 165 v. United States DOL, 20 F.4th 264, 273

(6th Cir. 2021) (Sutton, J., dissenting from denial of

initial hearing en banc). The State of South Carolina

“ha[s] an interest in seeing [its] constitutionally

reserved police power over public health policy

defended from federal overreach.” BST Holdings,

L.L.C. v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021).

CONCLUSION

The “right” in this case operates solely within a

state’s administration of Medicaid, unlike the

independent rights in other cases, e.g., nursing home

residents’ right to be free of chemical/physical

24

restraints (Talevski), or patient rights to humane

conditions in a state hospital (Pennhurst).

Respectfully submitted,

James L. Hirsen

Counsel of Record

505 S. Villa Real Dr.

Suite 101

Anaheim Hills, CA 92807

(714) 283-8880

james@jameshirsen.com

Deborah J. Dewart

Attorney at Law

111 Magnolia Lane

Hubert, NC 28539

Tami Fitzgerald

NC Values Institute

9650 Strickland Rd.

Suite 103-226

Raleigh, NC 27615

Counsel for Amici Curiae

World Faith Foundation

NC Values Institute