In June 2017, the Fifth U.S. Circuit Court of Appeals ruled that the Medicaid Act "authorizes a private right of action," allowing Medicaid recipients to challenge the disqualification of a health care provider.  Louisiana and Kansas, which had stripped Planned Parenthood of state Medicaid funds after evidence that the abortion provider was harvesting and selling fetal materials, proceeded to appeal the ruling to the United States Supreme Court.  On 10 December 2018, by a vote of six to three, the High Court declined to hear the appeal, thereby letting the lower court ruling stand.  Justices Thomas, Alito, and Gorsuch dissented.  Instead of supplying the fourth vote needed for a hearing, Chief Justice Roberts and Justice Kavanaugh sided with the four liberals on the Court.

The arguments Louisiana and Kansas planned to present make for instructive reading.  Documents of record are available on the Supreme Court's website.  Here is a link to the one filed by Louisiana, docketed on May 1, 2018.  Also available on the website is the lengthy dissent Justice Thomas presented, which lays out the consequences of Supreme Court inaction in the case.

The Louisiana and Thomas documents lead to some interesting bottom lines.  In stating them, blunt language seems to me appropriate to get at the heart of the matter.

Bottom line, Louisiana: The Supreme Court is allowing itself to be overruled.

This case raises an issue of national importance: whether Medicaid's Free Choice of Provider provision (42 U.S.C. § 1396a[a][23]) authorizes a private right of action for a Medicaid recipient to challenge the merits of a state's decision to disqualify or decertify a provider from the pool of state-approved Medicaid providers.  A sharply divided Fifth Circuit found it does so, flatly disregarding the Supreme Court's binding precedent in O'Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980), which held that the Free Choice of Provider provision "gives recipients the right to choose among a range of qualified providers," but "it clearly does not confer ... a right on a recipient to continue to receive benefits" from a provider who "has been determined to be unqualified." Id. at 785.  [Italics in original.]

Bottom line, Thomas: The Supreme Court is sowing confusion.

One of this Court's primary functions is to resolve "important matter[s]" on which the courts of appeals are "in conflict."  Sup. Ct. Rule 10(a); e.g., Thompson v. Keohane, 516 U. S. 99, 106 (1995). ... Because of this Court's inaction, patients in different States – even patients with the same providers – have different rights to challenge their State's provider decisions. ... We are responsible for the confusion among the lower courts, and it is our job to fix it.

Bottom Line, Louisiana: The Supreme Court is ranking one circuit court above others.

In addition to ignoring binding precedent, the Fifth Circuit's decision has created a split in the circuits.  Most recently, in Does v. Gillespie, 867 F.3d 1034 (8th Cir. 2017), the Eighth Circuit determined that Medicaid recipients do not have a private right of action under §1983 to challenge a state's disqualification of a Medicaid provider pursuant to the Free Choice of Provider provision because the provision does not create an enforceable federal right.  Similarly in Kelly Kare, Ltd. v. O'Rourke, 930 F.2d 170 (2d Cir. 1991), the Second Circuit held that Medicaid recipients do not have a vested right to choose a nursing home that is being decertified as a health-care provider.

Bottom Line, Thomas: The Supreme Court is bowing to Planned Parenthood.

So what explains the Court's refusal to do its job here?  I suspect it has something to do with the fact that some respondents in these cases are named "Planned Parenthood."  That makes the Court's decision particularly troubling, as the question presented has nothing to do with abortion. ... Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty.  If anything, neutrally applying the law is all the more important when political issues are in the background.  The Framers gave us lifetime tenure to promote "that independent spirit in the judges which must be essential to the faithful performance" of the courts' role as "bulwarks of a limited Constitution," unaffected by fleeting "mischiefs."

One hopes that Justices Roberts and Kavanaugh will revisit the issue in due course and join Justices Thomas, Alito, and Gorsuch in granting Louisiana and the other states "their day in court."

Photo credit: Joe Ravi.