REBEKAH GEE, SECRETARY, LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS
PLANNED PARENTHOOD OF GULF COAST, INC., ET AL.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
petition for a writ of certiorari is denied.
Justice Thomas, with whom Justice Alito and JUSTICE GORSUCH
join, dissenting from the denial of certiorari.
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).
This case and Andersen v. Planned Parenthood of Kan. and
Mid-Missouri, No. 17-1340, present a 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 under 42 U.S.C.
§1396a(a)(23) and Rev. Stat. §1979, 42 U.S.C.
§1983. Five Circuits have held that Medicaid recipients
have such a right, and one Circuit has held that they do
last three Circuits to consider the question have themselves
question is important and recurring. Around 70 million
Americans are on Medicaid, and the question presented
directly affects their rights. If the majority of the courts
of appeals are correct, then Medicaid patients could sue
when, for example, a State removes their doctor as a Medicaid
provider or inadequately reimburses their provider. E.g.,
Bader v. Wernert, 178 F.Supp.3d 703 (ND Ind. 2016);
Women's Hospital Foundation v. Townsend, 2008 WL
2743284 (MD La., July 10, 2008). 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.
question presented also affects the rights of the States,
many of which are amid requesting our guidance.
Under the current majority rule, a State faces the threat of
a federal lawsuit-and its attendant costs and fees- whenever
it changes providers of medical products or services for its
Medicaid recipients. E.g., Harris v. Olszewski, 442
F.3d 456 (CA6 2006). Not only are the lawsuits themselves a
financial burden on the States, but the looming potential for
complex litigation inevitably will dissuade state officials
from making decisions that they believe to be in the public
interest. State officials are not even safe doing nothing, as
the cause of action recognized by the majority rule may
enable Medicaid recipients to challenge the failure
to list particular providers, not just the removal of former
providers. E.g., Kapable Kids Learning Center, Inc. v.
Arkansas Dept. of Human Servs., 420 F.Supp.2d 956 (ED
Ark. 2005); Martin v. Taft, 222 F.Supp.2d 940 (SD
Ohio 2002). Moreover, allowing patients to bring these claims
directly in federal court reduces the ability of States to
manage Medicaid, as the suits give Medicaid providers
"an end run around the administrative exhaustion
requirements in [the] state's statutory scheme." 876
F.3d 699, 702 (CA5 2017) (Elrod, J., dissenting from denial
of rehearing en banc).
the disagreement over §1396a(a)(23) implicates
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. The division in the lower courts
stems, at least in part, from this Court's own lack of
clarity on the issue. As one court observed, the disagreement
"can be explained in part by an evolution in the
law," Does v. Gillespie, 867 F.3d 1034, 1043
(CA8 2017)-a tactful way of saying that this Court made a
mess of the issue. We have acknowledged as much, explaining
that language in our early opinions could be "read to
suggest that something less than an unambiguously conferred
right" can give rise to a cause of action under
§1983, and that "[t]his confusion has led some
courts" astray. Gonzaga Univ. v. Doe, 536 U.S.
273, 282-283 (2002). We have "[f]uel[ed] this
uncertainty" by equivocating on whether the standards
for implying private rights of action have any "bearing
on the standards for discerning whether a statute creates
rights enforceable by §1983." Id., at 283.
Courts are not even able to identify which of our decisions
are "binding"; in Planned Parenthood of Kan. v.
Andersen, 882 F.3d 1205 (CA10 2018), the Court of
Appeals applied a decision that this Court recently said had
been "'plainly repudiate[d].'"
Id., at 1229, and n. 16 (quoting Armstrong
v. Exceptional Child Center, Inc., 575 U.S.
___, ___, n. (2015) (slip op., at 9, n.), in turn citing
Wilder v. Virginia Hospital Assn., 496 U.S. 498
(1990)). One can hardly blame the Tenth Circuit for
misunderstanding. We created this confusion. We should clear
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. It is true that these particular cases
arose after several States alleged that Planned Parenthood
affiliates had, among other things, engaged in "the
illegal sale of fetal organs" and "fraudulent
billing practices," and thus removed Planned Parenthood
as a state Medicaid provider. Andersen, 882 F.3d, at
1239, n. 2 (Bacharach, J., concurring in part and dissenting
in part). But these cases are not about abortion rights. They
are about private rights of action under the Medicaid Act.
Resolving the question presented here would not even affect
Planned Parenthood's ability to challenge the States'
decisions; it concerns only the rights of individual Medicaid
patients to bring their own suits.
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." The Federalist No. 78, pp. 469-470 (C.
Rossiter ed. 1961) (A. Hamilton). We are not "to consult
popularity," but instead to rely on "nothing . . .
but the Constitution and the laws." Id., at
responsible for the confusion among the lower courts, and it
is our job to fix it. I respectfully dissent from the
Court's decision to deny certiorari.
Compare Planned Parenthood of Kan. v. Andersen, 882
F.3d 1205, 1225-1229 (CA10 2018); 862 F.3d 445, 457-462 (CA5
2017) (case below); Planned Parenthood of Ariz., Inc. v.
Betlach,727 F.3d 960, 966-968 (CA9 2013); Planned
Parenthood of Ind., Inc. v. Commissioner of Ind. State Dept.
of Health,699 F.3d 962, 974-977 (CA7 2012); Harris
v. Olszewski,442 F.3d 456, ...