A "magic words" misstep by Justice Kavanaugh in a case over Medicaid providers.
Chris Geidner at Law Dork:
The U.S. Supreme Court heard arguments on Wednesday over South Carolina’s effort to exclude Planned Parenthood from its Medicaid program because the state’s Republican leaders don’t like the abortion health care that the organization provides. That is not in dispute. The question is whether federal law allows an individual receiving their insurance through Medicaid to sue over that decision. After a little more than 90 minutes of arguments, it appeared that Planned Parenthood had the upper hand. Of the Republican appointees — two of whom would have to join the Democratic appointees to create a majority — Chief Justice John Roberts and Justices Amy Coney Barrett and Neil Gorsuch asked questions skeptical of South Carolina’s arguments against the right to sue here. The case is over a provision in the Medicaid law. Planned Parenthood’s lawyers summed up the “any qualified provider” provision as such: It “states that ‘any individual eligible for medical assistance’ ‘may obtain such assistance from any institution’ that is ‘qualified to perform the service or services required’ and ‘undertakes to provide him such services.’ 42 U.S.C. 1396a(a)(23)(A).”
The question before the justices is whether that provision creates a right for a Medicaid beneficiary to choose a specific provider — and, as such, sue under Section 1983 (the federal provision authorizing private lawsuits for violations of rights) if the state refuses them that choice. Alliance Defending Freedom, a far-right Christian legal advocacy organization, is representing South Carolina in the litigation, and ADF’s John Bursch went first on Wednesday, representing the state before the justices.
[...] Later, however, when Nicole Saharsky, a partner from Mayer Brown, got up representing Planned Parenthood South Atlantic, she returned to that. “[T]his idea that ‘may’ is like too wimpy of language, I just don't think is a good line to draw,“ she said, discussing that “‘may’ is used in a lot of contexts to reflect a protected choice or a right.” For example, she noted, “judicial review provisions,” including of Federal Trade Commission orders or Security and Trade Commission orders “that say any person may obtain judicial review of such order by filing in a court of appeals.” In other words, although “may” is discretionary language, it can be read to create a right when it places the discretion — the “may” — in the hands of the individual. As Kagan said at one point when questioning Kyle Hawkins, the new counselor to the solicitor general in the Justice Department, “[W]e're not forcing people to see doctors. So that's the way the ‘may’ functions in the sentence.“ Hawkins, a former clerk for Alito who later served as Texas solicitor general, also had to explain the Justice Department’s changed position about the enforceability of the statute after 20 years. “[W]ith the change in administration, the federal government re-evaluated its position in this case, and we believe that the view we're advancing today is the best reading of the statute,“ was the best he could muster in response to Justice Sonia Sotomayor.
SCOTUS justices seek skeptical of South Carolina’s bid to ban Planned Parenthood from its Medicaid program.
