20200429152003850 Amicus Brief

No. 19-1186 In the Supreme Court of the United States __________________ JOSHUA BAKER, in his official capacity as Director, South Carolina Department of Health and Human Services, Petitioner, v. JULIE EDWARDS, on her behalf and on behalf of all others similarly situated, et al., Respondents. __________________ On Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit __________________ BRIEF OF AMICI CURIAE 86 CURRENT AND 2 FORMER SOUTH CAROLINA LEGISLATORS SUPPORTING PETITIONER __________________ TIMOTHY J. NEWTON Counsel of Record Murphy & Grantland, P.A. 4406-B Forest Drive P.O. Box 6648 Columbia, SC 29260 (803)782-4100 [email protected] Counsel for Amici Curiae April 29, 2020 Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i TABLE OF CONTENTS TABLE OF AUTHORITIES . iii INTEREST OF AMICI CURIAE ................ 1 SUMMARY OF ARGUMENT . 2 ARGUMENT . 4 I. South Carolina’s actions were consistent with its public policy interest in avoiding use of taxpayer funds to pay for abortions . 4 II. Our federal system allows States to retain their sovereignty except where expressly overridden by constitutionally authorized federal law . 5 III. Courts should be reticent to override state law in the context of Spending Clause legislation. That is why private enforceability of Spending Clause legislation has been interpreted narrowly . 6 IV. Edwards lacks a private right of action to challenge South Carolina’s decision to disqualify Planned Parenthood as a provider under its Medicaid program . 10 V. The improper posture adversely affected the substantive rights of the State of South Carolina and its citizens . 15 VI. Recognition of a private right of action to challenge a State’s qualification determination frustrates South Carolina’s interests and Congressional intent. 19 ii CONCLUSION. 21 APPENDIX Appendix A List of Amici Legislators and Former Legislators. App. 1 Appendix B Department of Health and Human Services Letter Regarding Rescinding SMD #16-005 Clarifying “Free Choice of Provider” Requirement (January 18, 2019) . App. 7 Appendix C Department of Health and Human Services Letter Regarding Clarifying “Free Choice of Provider” Requirement in Conjunction with State Authority to Take Action against Medicaid Providers (April 19, 2016) . App. 9 iii TABLE OF AUTHORITIES CASES Addis v. Whitburn, 153 F.3d 836 (7th Cir. 1998). 15, 16, 17 Alexander v. Sandoval, 532 U.S. 275 (2001). 9, 12, 13, 14 Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015). 9, 13, 14 Blessing v. Freestone, 520 U.S. 329 (1997). 8, 14 Bond v. U.S., 572 U.S. 844 (2014). 6 California v. Sierra Club, 451 U.S. 287 (1981). 13 Does v. Gillespie, 867 F.3d 1034 (8th Cir. 2017). 10, 19, 20 First Med. Health Plan, Inc. v. Vega-Ramos, 479 F.3d 46 (1st Cir. 2007) . 15 Gonzaga Univ. v. Doe, 536 U.S. 273 (2002). 8, 9, 13 Kelly Kare, Ltd. v. O’Rourke, 930 F.2d 170 (2nd Cir. 1991) . 16 Maher v. Roe, 432 U.S. 464 (1977). 5 iv Manion v. N.C. Med. Bd., 693 Fed. App’x 178 (4th Cir. 2017) . 16 Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461 (2018). 5, 6 Nat’l Fed’n of Independent Business v. Sebelius, 567 U.S. 519 (2012). 6, 7 O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773 (1980). passim Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1 (1981). 7 Planned Parenthood South Atlantic v. Baker, 326 F. Supp. 3d (D.S.C. 2018) . 10 Planned Parenthood South Atlantic v. Baker, 941 F.3d 687 (4th Cir. 2019). 10, 15, 16 Planned Parenthood of Greater Tex. Family Planning and Preventive Health Servs., Inc. v. Smith, 913 F.3d 551 (5th Cir. 2019). 16, 20, 21 Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445 (5th Cir. 2017). 20 Planned Parenthood of Indiana, Inc. v. Comm’r of the Indiana State Dep’t of Health, 699 F.3d 962 (7th Cir. 2012). 5 Rust v. Sullivan, 500 U.S. 173 (1991). 5 Suter v. Artist M., 503 U.S. 347 (1992). 19, 20 v Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498 (1990). 7, 8 Wright v. City of Roanoke Redevelopment and Housing Auth., 479 U.S. 418 (1987). 7, 14 STATUTES 42 C.F.R. § 431.51. 18 42 C.F.R. § 431.51(a)(1) . 18 42 C.F.R. § 431.51(b) . 18 42 C.F.R. § 431.51(b)(1)(i) . 11 42 C.F.R. § 431.51(c)(2) . 11, 18 42 U.S.C. § 1320a-2 . 13 42 U.S.C. § 1320a-10 . 13 42 U.S.C. § 1396a(a)(23)(A) . 3, 9, 15 42 U.S.C. § 1396a(p). 11 42 U.S.C. § 1396a(p)(1) . 13, 15 42 U.S.C. § 1396a(p)(3) . 11 42 U.S.C. § 1396d(l)(2)(A) . 17 42 U.S.C. § 1396r-1c(b)(2) . 17 42 U.S.C. § 1396r-1c(b)(2)(A) . 17 42 U.S.C. § 1396r-1c(b)(2)(B) . 17 42 U.S.C. § 1983 . 7, 21 vi 42 U.S.C. § 2000d . 9 S.C. Code Ann. § 43-5-1185 . 4 RULES AND REGULATIONS Sup. Ct. R. 37.3(a) . 1 Sup. Ct. R. 37.6. 1 S.C. Code Regs. 126-150 . 19 S.C. Code Regs. 126-404 . 19 1 INTEREST OF AMICI CURIAE1 Amici are 86 current and 2 former South Carolina state legislators. Amici have interests in supporting the State of South Carolina’s longstanding tradition of promoting a culture that values human life, in upholding South Carolina state law prohibiting state family planning funds from being used to pay for abortions, and in ensuring that agencies that do not perform abortions receive sufficient funding to be able to provide medical care and important women’s health and family planning services to women in South Carolina. Amici also have an interest in ascertaining that when the State of South Carolina enters into agreements with the federal government, this State knows the terms of those agreements—including whether private third parties will be allowed to sue to enforce them. Furthermore, Amici have an interest in maintaining their ability to determine whether providers are qualified to provide certain medical services under the State of South Carolina’s Medicaid program. A list of the amici legislators and former legislators is included in the appendix of this brief. 1 Pursuant to Supreme Court Rule 37.3(a), amici certify that Petitioners and Respondents received timely notice of the intent to file and have given consent to the filing of amicus briefs. Pursuant to Supreme Court Rule 37.6, counsel for amici certifies that no counsel for a party authored this brief in whole or in part and that no person other than amici or their counsel made a monetary contribution intended to fund the preparation or submission of this brief. 2 SUMMARY OF ARGUMENT Medicaid represents more than 15% of every healthcare dollar spent in the United States and is the primary financing vehicle for states to provide health coverage to low-income residents. Because of the Medicaid program’s size, the federal government vests states with considerable authority over how to run their Medicaid programs, leaving many program aspects to a state’s discretion. If a state Medicaid plan deviates from those broad federal guidelines, there is a simple remedy: the federal government can withhold the federal funding stream. But unless there is express language to the contrary, the Medicaid statutory regime generally does not confer Medicaid providers or beneficiaries with private rights that can be invoked in a federal lawsuit such as a § 1983 civil rights action. Provider and beneficiary complaints must be made, if at all, through the state’s administrative appeal process. The Fourth Circuit’s decision here upsets this straightforward framework. The State of South Carolina has public policy interests in promoting life, in ensuring that taxpayer dollars do not fund abortions, and in ensuring that providers of family planning services that receive state funding do not contravene those interests. In furtherance of this policy, South Carolina deemed abortion clinics and associated medical practices as unqualified under the Medicaid program to provide family planning services. Rather than pursue available state administrative remedies, Respondents Julie Edwards, a Medicaid beneficiary, and Planned Parenthood South Atlantic 3 (hereinafter “Planned Parenthood”), a Medicaid provider, sued in federal court. But Medicaid gives neither Respondent a private right in these circumstances, and the Fourth Circuit was wrong to enjoin South Carolina’s decision by implying such a right absent a Congressional clear statement. The Circuits are split over whether Medicaid’s any- qualified-provider requirement, 42 U.S.C. § 1396a(a)(23)(A), creates a private right of action in favor of Medicaid recipients seeking medical services, and this case provides this Court an ideal opportunity to resolve the conflict. What’s more, this Court should reverse the decision below. This Court has held that government action directed at a third party and affecting a plaintiff only indirectly or incidentally does not give rise to a right enforceable by that plaintiff. This Court has also held that a plaintiff must establish a private right of action under the specific statute at issue. And Edwards cannot show a private right to dictate to the State of South Carolina which providers are qualified under the Medicaid Act. At most, the Medicaid Act provides administrative remedies for medical providers—the only parties directly affected by such decisions—to challenge adverse state action, and Planned Parenthood pursued those remedies after the deadline for doing so.

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