(Probably Won't) See You in Court
A critical freedom is further weakened by the Supreme Court
My Dad and I like to discuss Supreme Court cases. We read the opinions, I write something up and send it to him, and when we get together (I live a couple of hrs away), we get into the details. Usually, I pick one area of law or another to write about. For Medina v Planned Parenthood, I examined the history of 42USC§1983, the Court’s long-winded framing of the Unitary Executive, and what I think KBJ should have made clearer in her dissent.
I’m not a lawyer, I’m not a law student. I’m only a person reading what the Court puts out and talking about it with my Dad. The following are excerpts from my Jan 3 email.
Medina v Planned Parenthood
Question: Does 42USC§1983 supply a cause of action to enforce a provision of the federal Medicaid Act that guarantees Medicaid patients the ability to select a qualified provider of their choice? Section 1983 authorizes lawsuits for deprivation of rights, privileges or immunities secured by federal law. The Medicaid Act is a federal law, codified in the US Code.
Answer (Gorsuch): No. The Section does not apply here. Medicaid isn’t just a ‘regular’ federal law; it is “spending power legislation” … states agree to certain conditions to get federal money to fund the state’s version of Medicaid. “Spending power legislation” is more akin to contract law, not civil law. So the Medicaid Act can’t be enforced under civil law. There’s a better, more succinct argument for this conclusion, but Gorsuch drags it out for pages.
History of §1983 – The Reconstruction Era
This section of the Civil Rights Act of 1871 was the enforcement mechanism for 14th Amendment provisions, leveraging the Article III authority of the courts to hold States accountable when they failed to protect the constitutional and statutory civil rights of individual persons. The KKK was running rampant and the States failed to protect people from them. The Act emphasizes the Article III authority of federal courts to hold states accountable to federal law.
Since the 14th Amendment and Civil Rights Act of 1871 are not categorized as “spending power legislation” that incentivize States and give them a choice to participate, but a mandate –
Congress wasn’t incentivizing anyone; they compelled States to comply via (1) amending the Constitution and (2) allowing individuals to sue them in federal court when States failed to protect their civil rights
– to use that section of the Act as an argument in this case is misplaced. At the time, there were few to zero state laws protecting the civil rights of Blacks. For Congress to include the statutory caveat is forward-looking and preventative but the fact that it really didn’t matter in 1871 is good for Originalists.
If in 1871 Congress had expanded Constitutional rights to include ‘access to healthcare via the provider of patient’s choice’ -or- if in 1965 the text of the law in question had been explicit about enforcement, then the provision would apply. Although I read the text differently, the majority here says in the context of §1983, Constitutional rights are different from statutory rights.
Because Gorsuch is a ‘textualist’ and ‘originalist,’ he could have stopped there if he had used this argument, but he did not. He spends the rest of the opinion explaining why KBJ’s dissent is wrong.
Justice Thomas goes on to say that §1983 is preferably actionable by the Federal Government – the Court should tack this way in future. He’s particularly upset at the ruling in Monroe v Pape (1961). The victims in this case were Black, and state actors violated their rights … BUT … for Thomas, this case opened the door for ‘anyone’ to sue any state entity/official for a violation of civil rights, a much broader interpretation of the law than ‘originally intended’. In Monroe, the Monroes - a Black family in Chicago - sued the Chicago PD, and the lower courts all dismissed the case. The Court recognized a federal remedy exists for any victim under US Code when any state official abuses their position. Way too broad for Thomas. He seems to want the Executive branch to take States to court on behalf of individual civil rights violations or investigate state entities that demonstrate systemic violence against minorities. Note: The police officers in Monroe were never charged criminally either by the state or the feds but a jury found them personally civilly liable for $13k in damages to the Monroe family. Qualified Immunity, the 10th/11thA, and this ‘contract’ theory weakens the ability for individuals to find relief against unlawful State action via the federal courts.
Unitary Executive
As revealed in Medina, the current Executive branch is not going to enforce this law nor is it going to remove Medicaid funding from the state b/c of its actions – they’ll do it via federal budgeting. Patients have no remedy from the state or the feds. Because healthcare is not a legally recognized ‘civil right,’ the §1983 argument seems a dead letter.
Thomas’ interpretation would leave all civil rights protections at the mercy of the Executive branch’s ‘political will’ to enforce those laws. Under this framework, if I’m a person who’s civil rights have been violated by the state, and the feds choose not to enforce a remedy on my behalf, and I have no individual remedy via the federal courts, where am I living? North Korea?
Section 1983 was designed to create an environment where civil rights were protected by all federal and state entities – period the end, even if what states were doing was ‘legal’ in their state. The Civil Rights Act of 1871 superseded all state remedies to civil rights violations in response to the active complicity of state actors who willfully failed to enforce federal law. In contrast, Medicaid is a voluntary program, incentivized by the Feds, and healthcare is not an explicit civil right. ((If you said this to many Americans, they would not believe you.))
Instead of this concise textualist argument, Gorsuch relies heavily on Gonzaga v Doe (2002) to explain in a zillion pages why KBJ is incorrect. Written by Rehnquist, the main idea in Gonzaga is that just because a law protects you, doesn’t automatically mean you can sue when ‘you think’ the law is broken. Congress must be explicit in their provisions of enforcement and relief. The Medicaid section in question reads; when States don’t comply with the law they will lose federal funds (as the method of enforcement), not that individuals have a right to sue (as a method of enforcement).
Going further back in time, Rehnquist cited Pennhurst State School and Hospital v Halderman (1981) – he also wrote this majority opinion, lol – I love it when Justices cite themselves – and reused the “clear and unambiguous” and ‘contractual’ concept terminology concerning Congressional intention. Context: a patient at a mental hospital sued over horrible conditions under an enumerated “Bill of Rights” provision of the Act in question, created by Congress pursuant to sec 5 of the 14th Amendment.
In the Pennhurst case, Congress textually enumerated the “Bill of Rights,” but the enforcement of those rights was not tied to federal funds.
KEY POINT: Rehnquist reasoned that because Congress was incentivizing state action, rather than setting up enforcement to prevent action by the state (like all of Reconstruction, the CRA of 1871, or the VRA of 1964), the 14th Amendment/Sec5 protection does not apply. This is where Gorsuch gets his “these ‘spending’ laws can’t be enforced by civil rights laws, instead of using the text of the 1871 Act / US Code.
As support in Pennhurst, Rehnquist cited Employees v Dept of Public Health (1973): Congress wasn’t clear and unambiguous in the Fair Labor Standards Act that workers could sue when they’re not paid overtime, and Welfare and Edelman v Jordan (1974): Illinois officials were delaying payments to the blind and disabled under the Social Security Act; recipients sued. States can’t be sued unless they agree to it (#11th Amendment) and the Court parsed Ex parte Young (1908) to define “prospective relief” and “retroactive monetary relief.” The State didn’t have to pay retroactively. Congress was too ambiguous about individual right of action in each of these cases. (Again, healthcare/labor related and applicable under my concise argument.)
Under Gorsuch/Rehnquist “contract” logic, any existing federally funded statutory program lives/dies at the mercy of the Executive branch’s willingness to enforce federal law against a State, and if the Feds do not, there’s nothing any one person can do about it. It seems problematic as the President’s only job is to “faithfully execute the law.”
The language the majority likes is the specific language: an “individual has a right to be free from” as in Talevski (2022). Gorsuch calls the wording in that case rare and “atypical” – is he asking Congress to make it typical by amending existing law or is he telling individuals ‘stop suing the state’ over these issues. ?? He’s probably signaling to lawyers … don’t take these cases.
In this case (Medina), even though the state changed their mind on which provider receives Medicaid funding – violating the federal guideline of the patient’s “free choice of provider” – it’s not enough for individuals to sue via the federal court system under section 1983. Congress would have to create a clear and unambiguous “individual right to healthcare” via federal statue or via Constitutional Amendment for section 1983 to apply. Again, the majority want Congress to be up front and let the State know precisely what is expected in order to receive federal funds, but the State is allowed to screw over patients by removing funding for their preferred provider. Fine.
What KBJ should have said
All this is well and good, but here, the State is ‘breaking the terms of the contract.’ But, since they’re in cahoots with the Executive (and when the budget passes, Congress also), the patient is left with no remedy. If the majority’s argument is that the state/fed relationship is like a contract, and the State breaks the terms, but the feds don’t enforce the law because it serves its political/policy interests, that’s pretty explosive in the context of Section 1983. Technically, this is the exact conspiratorial behavior prohibited by the Reconstruction Amendments and early Civil Rights Acts that contained §1983 in the first place. The minority has to point out the obvious, especially when civil rights are at stake.
First Amendment Argument
So, what about the First Amendment’s protection of ‘freedom of association or assembly’? This is America, why can’t I choose my own doctor?
Dobbs prioritized State interests over individual autonomy – so even this argument would likely fail, even though it’s what Gorsuch is arguing for here: “Congress or the Constitution has to list individual rights, but even when they do, the States interest will prevail on where/how individuals my receive health care.” Per Dobbs, the ‘intimate association’ right does not extend to the Dr/Patient relationship and medical care necessary to prevent death via pregnancy, for example. The Biden Era HHS strengthened HIPPA’s reproductive health privacy rules, but those changes were vacated this year in Texas (via Major Questions Doctrine) making it easier for States to identify patients who receive prenatal care via court orders and warrants. (I can’t believe I’m typing that sentence into existence. FFS).
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