PLANNED PARENTHOOD SOUTH ATLANTIC; JULIE EDWARDS, on her behalf and on behalf of all others similarly situated, Plaintiffs – Appellees, v. JOSHUA BAKER, in his official capacity as Director, South Carolina Department of Health and Human Services, Defendant – Appellant.
No. 18-2133
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: October 29, 2019
PUBLISHED. Argued: September 20, 2019. Appeal from the United States District Court for the District of South Carolina, at Columbia. Mary G. Lewis, District Judge. (3:18-cv-02078-MGL)
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Wynn and Judge Richardson joined. Judge Richardson wrote a concurring opinion.
ARGUED: Kelly McPherson Jolley, JOLLEY LAW GROUP, LLC, Columbia, South Carolina, for Appellant. Alice Joanna Clapman, PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, D.C., for Appellees. ON BRIEF: Ariail B. Kirk, JOLLEY LAW GROUP, LLC, Columbia, South Carolina, for Appellant. M. Malissa Burnette, Kathleen McDaniel, BURNETTE, SHUTT & MCDANIEL, PA, Columbia, South Carolina, for Appellees. Jane Liu, Mariah Lindsay, NATIONAL ASIAN PACIFIC AMERICAN WOMEN’S FORUM, Washington, D.C.; Julie Rikelman, Pilar Herrero, Amy Myrick, Carolina Van Der Mensbrugghe, CENTER FOR REPRODUCTIVE RIGHTS, New York , New York, for Amici Access Reproductive Care-Southeast, Center for Reproductive Rights, In Our Own Voice: National Black Women’s Reproductive Justice Agenda, National Asian Pacific American Women’s Forum, National Latina Institute for Reproductive Health, and Women’s Rights and Empowerment Network. Janice M. Mac Avoy, Andrew B. Cashmore, Alexandra Verdi, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP, New York, New York, for Amici American College of Obstetricians and Gynecologists, American Medical Association, Society for Maternal Fetal Medicine, American Academy of Pediatrics, American College of Physicians, and Society for Adolescent Health and Medicine. Martha Jane Perkins, Sarah Jane Somers, NATIONAL HEALTH LAW PROGRAM, Carrboro, North Carolina, for Amici National Health Law Program, IPAS, and Sexuality Information and Education Council of the United States.
This case raises a question of statutory construction. We ask whether, and on what basis, the Medicaid Act’s free-choice-of-provider provision affords a private right of action to challenge a state’s exclusion of a healthcare provider from its Medicaid roster. The district court here issued a preliminary injunction in favor of the individual plaintiff, a Medicaid recipient, in her suit challenging South Carolina’s decision to terminate Planned Parenthood South Atlantic’s (PPSAT) provider agreement because it offers abortion services. The plaintiff was likely to succeed on the merits of this claim, the district court held, for two interrelated reasons: first, the Medicaid Act’s free-choice-of-provider provision,
We now affirm. Based on the Supreme Court’s precedents, Congress’s intent to create an individual right enforceable under
A.
Medicaid is the nation’s public health insurance program for those of limited means. The original beneficiaries of this program were low-income children and their parents, the indigent elderly, the blind, and the disabled. Schweiker v. Gray Panthers, 453 U.S. 34, 37 (1981). Since 1965, Congress has periodically expanded the program, adding, for instance, pregnant women with family incomes up to 133% of the federal poverty level as a distinct beneficiary class. See
A joint federal-state effort ensures that the healthcare needs of these beneficiaries are met. In broad strokes, the Medicaid Act “offers the States a bargain: Congress provides federal funds in exchange for the States’ agreement to spend them in accordance with congressionally imposed conditions.” Armstrong v. Exceptional Child Ctr., 135 S. Ct. 1378, 1382 (2015). The Act, to that end, charges the federal government with crafting baseline eligibility requirements for recipients and providers, determining covered medical services, and establishing reimbursement standards to the states. See
Congress designed the Medicaid program to ensure that states dispense federal funds in compliance with federal rules. At the outset, states must propose and submit Medicaid plans for the approval of the Centers for Medicare and Medicaid Services. Douglas v. Indep. Living Ctr. of S. Cal., Inc., 565 U.S. 606, 610 (2012). State departures from federal requirements provide grounds for the Secretary of Health and Human Services (HHS) to withhold Medicaid funding, either in whole or in part. See
At issue here is the Medicaid Act’s free-choice-of-provider provision,
A State plan for medical assistance must— provide that any individual eligible for medical assistance . . . may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required . . . who undertakes to provide him such services . . . .
In its mechanics, the free-choice-of-provider provision comports with the Medicaid
B.
This dispute arose following South Carolina’s termination of two Planned Parenthood centers as Medicaid providers. PPSAT operates two healthcare centers in South Carolina, one in Charleston and the other in Columbia. These centers provide a range of family planning and preventative care services, including physical exams, cancer screenings, contraceptive counseling, and pregnancy testing. For four decades, PPSAT has been a South Carolina Medicaid provider that receives reimbursements for care provided to Medicaid beneficiaries. In recent years, PPSAT’s South Carolina centers have treated hundreds of patients insured through Medicaid annually.
Among those patients is the individual plaintiff in this case, who suffers from diabetes and its resulting complications. J.A. 75-78. Because doctors have advised that these complications would make it quite dangerous for her to carry a pregnancy to term, the plaintiff considers it imperative that she have access to safe, effective birth control. After the plaintiff had difficulty finding a doctor who accepted Medicaid patients and was willing to provide her preferred form of birth control, she turned to PPSAT’s Columbia
In July 2018, South Carolina’s Department of Health and Human Services (SCDHHS) terminated PPSAT’s Medicaid provider agreement. SCDHHS did not contend that PPSAT was providing subpar service to its Medicaid patients, or to any other patients. Instead, PPSAT was terminated solely because it performed abortions outside of the Medicaid program.1
According to SCDHHS, PPSAT’s termination was part of a plan by Governor Henry McMaster designed to prevent the state from indirectly subsidizing abortion services. In 1995, the South Carolina legislature passed a law preventing state funds appropriated for family planning services from being used to fund abortions.
C.
On July 27, 2018, PPSAT and the individual plaintiff (collectively, “plaintiffs“) filed suit in federal district court in South Carolina against Joshua Baker, in his official capacity as Director of SCDHHS. The individual plaintiff brought suit on her own behalf and that of a purported class of South Carolina Medicaid beneficiaries who received, or would like to receive, healthcare services at PPSAT. Plaintiffs brought this action under
The district court agreed with the plaintiffs and granted a preliminary injunction on August 28, 2018. Because the district court held that injunctive relief was appropriate based on the individual plaintiff’s Medicaid Act claim alone, it did not analyze PPSAT’s Medicaid Act claim. First, it held that the individual plaintiff’s Medicaid Act claim was likely to succeed on the merits. It agreed that the free-choice-of-provider provision confers a private right, enforceable under
Finally, the district court found that the other conditions necessary for a preliminary injunction—irreparable harm, balancing of the equities, and the public interest—were satisfied. In weighing the equities, the district court rejected South Carolina’s argument that the state would be forced to subsidize abortions if it were enjoined from terminating PPSAT’s provider agreement. Baker, 326 F. Supp. 3d at 49-50. First, because South
South Carolina timely appealed.
II.
The free-choice-of-provider provision lies at the heart of this appeal. As noted above, the provision states that:
A State plan for medical assistance must— provide that any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required (including an organization which provides such services, or arranges for their availability, on a prepayment basis), who undertakes to provide him such services . . . .
It is difficult to imagine a clearer or more affirmative directive. The provision applies to “any individual” eligible for Medicaid; grants these individuals the right to obtain medical treatment from “any institution” willing and “qualified to perform the service or services required“; and provides that state plans “must” comply.2
III.
A.
It is important at the outset to place this case in proper context. As a matter of black letter law, inferring a private right of action is a matter of statutory interpretation. If Congress is silent or ambiguous, courts may not find a cause of action “no matter how desirable that might be as a policy matter.” Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001).
But it was not always this way, and a brief overview of this history is useful background to the present lawsuit. We begin with J.I. Case Co. v. Borak, 377 U.S. 426 (1964), where the Supreme Court stated that federal courts were partners of Congress, making it “the duty of the courts to be alert to provide such remedies as are necessary to
Some years later, Justice Powell derided Borak’s approach in an oft-quoted dissent. Cannon v. Univ. of Chicago, 441 U.S. 677, 742 (1979) (Powell, J., dissenting). In Powell’s view, freely implying private rights of action posed two related constitutional problems. First, to infer from silence the right to file suit in federal court interferes with Congress’s Article III power to set “the jurisdiction of the lower federal courts.” Id. at 730. Second, an expansive approach to implied private rights of action “cannot be squared with the doctrine of the separation of powers.” Id. This is because a court’s “substitut[ion of] its own views as to the desirability of private enforcement,” id. at 740, dispatches Congress’s Article I “policymaking authority” to the Third Branch of government, id. at 743. “When Congress chooses not to provide a private civil remedy, federal courts should not assume the legislative role of creating such a remedy and thereby enlarge their jurisdiction.” Id. at 730-31. Therefore, “[a]bsent the most compelling evidence of affirmative congressional intent, a federal court should not infer a private cause of action.” Id. at 731.
Justice Powell’s dissent primed the Court for a doctrinal about-face. The Court incrementally swore “off the habit of venturing beyond Congress’s intent,” Sandoval, 532 U.S. at 286-87 (tracing this doctrinal evolution), instead limiting its focus to the specific statutory text at issue. In Sandoval, the Court summed up the result of this doctrinal
But there was a loose end remaining—what to do with implied rights of action brought under
B.
With this background as guidance, we review the district court’s entry of a preliminary injunction for “abuse of discretion, accepting the court’s findings of fact absent clear error, but reviewing its conclusions of law de novo.” Child Evangelism Fellowship of Md., Inc. v. Montgomery Cty. Pub. Sch., 373 F.3d 589, 593 (4th Cir. 2004). To that end, the individual plaintiff “must establish that [s]he is likely to succeed on the merits, that [s]he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in h[er] favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). We are mindful at once that a preliminary injunction is an “extraordinary remedy,” id. at 22, but its issuance “is
IV.
First we consider the threshold question whether the Medicaid Act’s free-choice-of-provider provision creates a private right enforceable under
Three factors guide us in determining whether a statute creates a private right enforceable under
Taking the first Blessing factor, the free-choice-of-provider provision “unambiguously gives Medicaid-eligible patients an individual right” to their choice of provider qualified to perform a medical service. Planned Parenthood of Ind., 699 F.3d at 974. The provision has an “unmistakable focus,” Gonzaga, 536 U.S. at 284, on its intended class of beneficiaries: “any individual eligible for medical assistance” under the Medicaid Act,
Congress’s use of the phrase “any individual” is a prime example of the kind of “rights-creating” language required to confer a personal right on a discrete class of persons—here, Medicaid beneficiaries. See, e.g., Sandoval, 532 U.S. at 288 (providing an example of rights-creating language: “No person . . . shall . . . be subjected to discrimination . . . .“). Put differently, by adopting as its benchmark whether the “needs of
As for the second Blessing factor, the free-choice-of-provider provision is not so “vague and amorphous,” Blessing, 520 U.S. at 340-41, that its enforcement would strain judicial competence. The provision protects the right of a Medicaid recipient to seek care from his or her provider of choice, subject to two criteria: (1) the provider must be “qualified to perform the service or services required,” and (2) the provider must “undertake[] to provide [the recipient] such services.”
In an attempt to create ambiguity, South Carolina focuses on the word “qualified” in isolation, Appellant’s Reply Brief at 9-10, ignoring the reality that the term is “tethered to an objective benchmark: ‘qualified to perform the service or services required.‘” Betlach, 727 F.3d at 967-68 (quoting
Finally, the free-choice-of-provider provision “unambiguously impose[s] a binding obligation on the States.” Blessing, 520 U.S. at 341. Under the provision, states “must provide” a Medicaid recipient with his or her choice of provider qualified to perform the service at issue.
Since the three Blessing factors are satisfied, the individual plaintiff benefits from a rebuttable presumption that the free-choice-of-provider provision is enforceable under
Nor can such an intent be implied: the Medicaid Act does not contain a “comprehensive enforcement scheme . . . incompatible with individual enforcement under § 1983.” Id. Because South Carolina assumed that the free-choice-of-provider requirement did not confer an individual right, it did not expressly press a rebuttal argument before this
These remedies, taken together, are quite different from the “unusually elaborate enforcement provisions” that the Supreme Court has taken as evidence that Congress intended to preclude individual enforcement under
Nothing comparable to this detailed enforcement scheme exists in the Medicaid Act. To state the obvious, individuals are not ordinarily plaintiffs in provider suits, and an
The illogic of this argument aside, the Supreme Court has already held that the Medicaid Act’s administrative scheme is not sufficiently comprehensive to foreclose a private right of action enforceable under
In sum, the Medicaid Act’s enforcement scheme is not sufficiently “comprehensive” because, inter alia, it does not provide a private remedy—either judicial or administrative—
See City of Rancho Palos Verdes, 544 U.S. at 121 (“[I]n all of the cases in which we have held that § 1983 is available for violation of a federal statute, we have emphasized that the statute at issue . . . did not provide a private judicial remedy (or, in most of the cases, even a private administrative remedy) for the rights violated.“). The reason Congress did not specify a method of private enforcement is plain: Section 1983 was to be the remedy for patients seeking to enforce their rights under the free-choice-of-provider provision. Permitting private enforcement of this type of suit, Congress realized, “in no way interferes” with the Secretary of HHS’s authority to audit and sanction noncompliant state Medicaid plans. Planned Parenthood of Ind., 699 F.3d at 975.
Thus, the Medicaid Act provides no comprehensive enforcement scheme sufficient to overcome the presumption that the free-choice-of-provider provision is enforceable under
V.
We are mindful of two principal, and principled, objections to according the plaintiff her requested relief. First, we should not freely infer private rights of action that are enforceable under
First, courts are most definitely not at liberty to imply private rights of action willy-nilly. Congress‘s intent to make a private right enforceable under
We do not reach this conclusion lightly, but only after closely examining Congress‘s intent underlying the “specific statutory provision” at issue. Blessing, 520 U.S. at 342-43. South Carolina reaches beyond the plain and narrow text of the free-choice-of-provider provision—to eighty-two other provisions in the Medicaid Act—to conclude that the provision is no more than a “plan requirement,” rather than an individual right. Appellant‘s Opening Brief at 23. However, Congress foreclosed any argument that an individual plan requirement in the Medicaid Act cannot be enforceable through an implied private right of action.
So much is true here. The terms of the Medicaid agreement are clear; in return for substantial federal funds, states are required to comply with the unambiguous terms of the free-choice-of-provider provision. And for the reasons described above, this obligation is enforceable by recipients, the intended beneficiaries of the provision. When, as here, the private cause of action is “unambiguously conferred” on a third party, see Armstrong, 135 S. Ct. at 1388 (plurality), courts cannot deprive the sovereign signatories to a “contract” such as the Medicaid Act of the benefit of their bargain.
Nor may courts relieve them of the agreement‘s consequences. Here, South Carolina would like to avoid the obligations imposed by this fair bargain. In essence, the state argues that some Supreme Court decisions might suggest a move away from inferring private rights of action in Spending Clause legislation. See, e.g., Appellant‘s Opening Brief at 29-30 (“The [Gonzaga] Court noted that ‘[m]ore recent decisions have rejected attempts to infer enforceable rights from Spending Clause statutes.‘“) (quoting Gonzaga, 536 U.S. at 281). South Carolina may or may not be correct in its doctrinal forecast, but for now its argument remains speculative and conjectural. As the Seventh Circuit noted:
[N]othing in Armstrong, Gonzaga, or any other case we have found supports the idea that plaintiffs are now flatly forbidden in section 1983 actions to rely on a statute passed pursuant to Congress‘s Spending Clause powers. There would have been no need, had that been the Court‘s intent, to send lower courts off on a search for “unambiguously conferred rights.” A simple “no” would have sufficed.
BT Bourbonnais Care, LLC v. Norwood, 866 F.3d 815, 820-21 (7th Cir. 2017). We agree. At bottom, the Court‘s cases require us to find an “unambiguously conferred” right, Armstrong, 135 S. Ct. at 1387-88 (plurality), which is exactly what we have done here. In the end, the concerns identified above are not controlling in this case, because the free-choice-of-provider provision unambiguously creates a private right in favor of the individual plaintiff.
VI.
Having decided that Congress unambiguously intended to create a private right of action in the free-choice-of-provider provision, we turn now to consider the scope of the right it confers on Medicaid recipients. A reasoned textual analysis in this case requires only two steps. First, “[a]s always, we start with the specific statutory language in dispute.” Murphy v. Smith, 138 S. Ct. 784, 787 (2018). In the free-choice-of-provider provision, “qualified to perform the service or services required” means what it says: professionally fit to perform the medical services the patient requires. Second, we look to
A.
First principles guide us in deciding what it means for a provider to be “qualified to perform the service or services required” under the free-choice-of-provider provision. “Unless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning.” BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006). Because the Medicaid Act does not define the term “qualified,” we consider its plain meaning—namely, “having an officially recognized qualification to practice as a member of a particular profession; fit, competent.” Oxford English Dictionary (3d ed. 2007); see also Black‘s Law Dictionary 1360 (9th ed. 2009) (defining “qualified” as “[p]ossessing the necessary qualifications; capable or competent“).
Every circuit to have considered this issue is in accord with that straightforward definition. See, e.g., Andersen, 882 F.3d at 1230; Gee, 862 F.3d at 459-60; Betlach, 727 F.3d at 967-68; Planned Parenthood of Ind., 699 F.3d at 978. But see Gillespie, 867 F.3d at 1046 (declining to reach this question after concluding that the free-choice-of-provider provision does not provide patients with a private right of action enforceable under
South Carolina does not contest the fact that PPSAT is professionally qualified to deliver the services that the individual plaintiff seeks. Nowhere in its submissions to this court does the state seek to raise doubts that PPSAT satisfies the ordinary definition of “qualified” as being professionally capable or competent. Instead, the state seeks to persuade us that “qualified” means something other than what it says or that the structure
The term, however, is in a federal statute and we are obliged to give it the meaning that Congress intended, so long as that meaning is clear to its state partners in this cooperative program. There is no question that the ordinary meaning of the term “qualified” is the one Congress intended. Were there any doubt as to its intent, Congress provided more specificity in the terms surrounding “qualified.” The free-choice-of-provider provision guarantees Medicaid recipients the right to “obtain [medical] assistance from any institution, agency . . . or person[] qualified to perform the service or services required.”
Reading “qualified to perform” in the free-choice-of-provider provision to mean professionally competent accords with the way Congress ordinarily uses the phrase. See Mount Lemmon Fire Dist. v. Guido, 139 S. Ct. 22, 26 (2018) (finding it “instructive” that a phrase “occurs dozens of times throughout the U.S. Code, typically carrying [its ordinary meaning]“). Consider, for example,
In short, Congress‘s handiwork here makes good sense. As a matter of ordinary English, one‘s preferred dry cleaner is not made unqualified to perform cleaning services because he disfavors bicycles or because he did not vote in the last state election, even though the state may prefer otherwise. Yet that is precisely the sort of result produced by South Carolina‘s reading of “qualified,” which would allow the state to exclude providers based on any conceivable state interest. PPSAT, as South Carolina all but admits, is perfectly competent to perform the family-planning services required by plaintiff and is licensed to do so. The state nevertheless suggests that it may disqualify a competent provider under state law so long as there is “good reason.” See Appellant‘s Opening Brief at 24. Today that reason is PPSAT‘s provisioning of abortion services, but we cannot glean any principled limit to the state‘s exclusion authority under South Carolina‘s interpretation.
And there‘s the rub. If credited, South Carolina‘s submission that the term
South Carolina nonetheless contends that the Medicaid Act‘s silence as to the meaning of “qualified” is grounds for interpreting it to allow states expansive exclusionary powers. See Appellant‘s Reply Brief at 10 (“Congress leaving the term ‘qualified’ undefined purposely creates a vague or amorphous provision with the idea being that doing so allows the states to tailor their State Plan.“). That, however, is not how we ordinarily interpret undefined statutory terms, let alone a term pegged to a phrase as clear as “to perform the [medical] service or services required.”
The state next seeks refuge in the canon against surplusage. If “qualified” means professionally competent, South Carolina argues, then its inclusion in the free-choice-of-provider provision is “pointless and redundant” because state licensing schemes already exclude incompetent providers from the Medicaid pool. See Appellant‘s Reply Brief at 13. But this view ignores the language of the free-choice-of-provider provision. We do not lightly impute to Congress an intent to use terms that “have no operation at all.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). And as noted above, South Carolina‘s reading works precisely this result by allowing states—at their discretion—to nullify the free-choice-of-provider provision entirely. Granted, South Carolina agrees that a state‘s policies cannot eliminate “all recipient choice,” which the state interprets to require only that at least two “qualified” providers remain available. See Appellant‘s Opening Brief at 36-37. But that cannot be right. The free-choice-of-provider provision “does not simply bar the states from ending all choice of providers, it guarantees to every Medicaid beneficiary the right to choose any qualified provider.” Planned Parenthood of Ind., 699 F.3d at 979. In order to do that, a state must be restricted in its ability to terminate providers for reasons unrelated to professional competency.
The case law also does not support South Carolina‘s position. On this front, the state argues that the Court‘s decision in O‘Bannon v. Town Court Nursing Ctr., 447 U.S. 773 (1980), interpreted the free-choice-of-provider provision to apply only to providers that “continue[] to be qualified” in the Medicaid program as a matter of state law. Appellant‘s Opening Brief at 35 (quoting O‘Bannon, 447 U.S. at 785). Not so. O‘Bannon spoke to the narrow question whether residents of a nursing home had a right to a pre-termination hearing before the state could close a home that all parties agreed was professionally “unqualified” to render patient care. See 447 U.S. at 775-76; see also id. at 776 n.3 (cataloguing the home‘s noncompliance with statutes governing, among other topics, nursing services, physical environment, and medical records). In point of fact, the patients there did not bring a substantive claim seeking to vindicate their rights under the free-choice-of-provider provision, but rather sued for violation of their procedural due process
B.
Although the free-choice-of-provider provision imposes limits on a state‘s qualification authority, states retain discretionary authority with regards to healthcare providers. Section
In addition to any other authority, a State may exclude any individual or entity for purposes of participating under the State plan under this subchapter for any reason for which the Secretary [of Health and Human Services] could exclude the individual or entity from participation in a program under subchapter XVIII under section 1320a–7, 1320a–7a, or 1395cc(b)(2) of this title.
This provision confirms that states may and do set standards that relate to providers’ ability to practice in a professionally competent manner. Take the cross-references to start. They identify various forms of misconduct including patient abuse, failure to furnish medically necessary services, fraud, license revocation, excessive charges, and failure to disclose necessary information to state regulators.
Putting all this together,
South Carolina attempts to disrupt the congruence between these two provisions by reading the savings clause “for more than it‘s worth.” Planned Parenthood of Ind., 699 F.3d at 979. The state argues that the phrase “[i]n addition to any other authority” in
The district court rejected this interpretation, concluding that reading the savings clause this way would render the right conferred by the free-choice-of-provider provision meaningless. Baker, 326 F. Supp. 3d at 47-48. We agree. If Congress had in fact harbored the sweeping intent that South Carolina gleans from
Moreover, South Carolina‘s interpretation also finds no support in the four corners of
What we are left with, ironically, is the state‘s attempt to eliminate almost the entirety of
Consider also the cases cited by the state to support its broad reading of the savings clause. In Guzman v. Shewry, 552 F.3d 941 (9th Cir. 2009), the Ninth Circuit did not hold that
In the end, to read
VII.
Because the individual plaintiff has a private right of action to challenge South Carolina‘s denial of her right to the qualified and willing family-planning provider of her choice, we agree with the district court that she has demonstrated a substantial likelihood of success on her free-choice-of-provider claim. We also hold that the district court did not
It is clear that the plaintiff would suffer irreparable harm in the absence of a preliminary injunction. Denial of her statutory right to select a qualified provider visits a tangible harm: diminished access to high-quality health care suited to the individual plaintiff‘s needs. See Appellees’ Brief at 39. That PPSAT may be one of many providers available to the individual plaintiff through South Carolina‘s Medicaid network is not dispositive; the free-choice-of-provider provision, as we have noted, guarantees a patient‘s access to her preferred provider, save on matters of professional integrity and competency. South Carolina has a legitimate interest in ensuring that state dollars do not subsidize abortion. But we are not prepared to disrupt the district court‘s finding that the state‘s reimbursement of PPSAT on a fee-for-service basis guards against the indirect subsidization of abortion. Finally, an injunction would serve the public interest by preserving the individual plaintiff‘s statutory right under the free-choice-of-provider provision and ensuring “affordable access to competent health care by some of South Carolina‘s neediest citizens,” Baker, 326 F. Supp. 3d at 50, whose health challenges are every bit as real as those of citizens of greater means.
We do not doubt that South Carolina‘s termination of PPSAT‘s provider agreement was intended “to further [its] own legitimate interests in protecting prenatal life.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 853 (1992). Reasonable people can disagree with how Congress chose to balance state flexibility on the one hand, and enforcement of federal entitlements on the other. But in all events federal courts are ill-suited to second-
AFFIRMED
I join in affirming the grant of the preliminary injunction. The Majority correctly recognizes that applying existing Supreme Court precedents requires that we find
As lower court judges, we are bound to do our level best to apply the law as it is, not how it may become. We have done so here. But when binding precedents present us with a bit of “a mess of the issue,” Gee v. Planned Parenthood of Gulf Coast, Inc., 139 S. Ct. 408, 409 (2018) (Thomas, J., dissenting from denial of certiorari), our job becomes particularly challenging.
Like this case, Wilder involved a question of whether a subsection of
Seven years later in Blessing, the Supreme Court instructed courts to apply these “three principal factors” to determine whether a statutory provision creates an enforceable right under
When the Supreme Court again revisited privately enforcing a statutory right under
The multifactor test is not the only aspect of Wilder that has been questioned. Wilder had noted that its analysis was “a different inquiry than that involved in determining whether a private right of action can be implied from a particular statute.” 496 U.S. at 508 n.9. On this point, the Court in Gonzaga would later “reject the notion” that ”Wilder appears to support” that “our implied private right of action cases have no bearing on the standards for discerning whether a statute creates rights enforceable by
So are Wilder, specifically, and the Blessing factors, generally, still good law? On the one hand, we look to the three factors from Blessing. 520 U.S. at 338, 340–41. But on
But Gonzaga did not explicitly overrule Blessing‘s three-factor approach. Nor did it plainly discard Wilder‘s application of the factors. See Gonzaga, 536 U.S. at 289–90 (distinguishing Wilder on its facts). More recently, the Court has more directly questioned Wilder‘s reasoning and validity. Armstrong, 135 S. Ct. at 1386 n.* (“Respondents do not claim that Wilder establishes precedent for a private cause of action in this case. They do not assert a
Despite the “confusion” and “uncertainty,” we must apply the law as we find it. Today, our opinion is “guide[d]” by the three factors from Blessing. Majority Op. at 14. Following their guide requires that we find a private right of action under