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ACLJ Files Amicus Brief Urging Supreme Court To Hear Case Involving South Carolina’s Decision To Defund Planned Parenthood and Disqualify It as a Medicaid Service Provider


Laura Hernandez

May 17, 2022

4 min read

Pro Life



The ACLJ just filed a friend-of-the-court brief with the Supreme Court in Kerr v. Planned Parenthood South Atlantic. This is a critically important case that could have a dramatic impact on the ability of states to stop the flow of taxpayer dollars to the nation’s largest abortion provider. This case could set a major precedent allowing other states to defund Planned Parenthood and abortion.

As we explained earlier, this case arose after South Carolina’s governor, Henry McMaster, issued an executive order directing the South Carolina Department of Health & Human Services (DHHS) to deem abortion clinics unqualified to receive Medicaid funding. Planned Parenthood and an individual plaintiff immediately sued in federal court, challenging the state’s decision.

Earlier this month, in Health and Hospital Corp. of Marion County v. Talevski, the U.S. Supreme Court granted review in a case involving similar legal issues under a different federal law. Kerr involves interpretation of the Medicaid Act but Talevski involved interpretation of the Federal Nursing Home Reform Act (“FNHRA”). Both Acts were passed pursuant to Congress’s Spending Clause power. Spending Clause legislation involves a contract between the states and the federal government in which Congress provides federal funds for a wide variety of programs including medical care (Medicaid) and nursing home care (FNHRA). Combining federal money with state taxpayer funds, the states typically administer the programs.

The primary issue in both Kerr and Talevski is whether private beneficiaries of the programs can sue the states when the state administers the program in a manner that a beneficiary dislikes. In Talevski, a nursing home resident who repeatedly sexually assaulted female residents and staff sued Indiana when the state-owned nursing home administered sedation medication and then transferred him to a male-only facility. In Kerr, Planned Parenthood and one of its patients sued South Carolina for disqualifying Planned Parenthood as a Medicaid service provider.

Once the Court granted review in Talevski, South Carolina moved quickly to file its petition for writ of certiorari, asking the Court to hear the cases together. Because the lower federal courts are deeply divided about how to interpret the relevant provision of the Medicaid Act, it is very important that the Supreme Court gives clear guidance to resolve both cases. 

South Carolina asked us to move quickly to support their request for consolidation of the cases, and we filed our amicus brief within four days of their request. Our brief argues the Supreme Court should hear the case because the Fourth Circuit Court of Appeals wrongly read the Medicaid Act to grant private citizens the right to sue the states over their disqualification of Medicare providers. Congress did not authorize any such right. As we explained in our brief:

In finding a privately enforceable right in the Medicaid Act’s “any-qualified-provider” provision, 42 U.S.C. § 1396a(a)(23), the Fourth Circuit ignored the heightened solicitude for federalism that pervades this Court’s recent Tenth Amendment and other Spending Clause decisions.  Implying a private right of action for a Spending Clause program condition with no direct textual support directly assaults federalism, undermining the States’ status as independent sovereigns.

We argued further that there is nothing in the statute indicating that Congress intended to limit South Carolina’s sovereign authority to ensure that taxpayer funds do not subsidize Planned Parenthood and the abortion industry.  “The Fourth Circuit’s contrary conclusion effectively coerces states to allocate taxpayer monies to Planned Parenthood irrespective of the citizenry’s opposition to such allocation.”

This case could strike a devastating blow against the abortion purveyor. If the Court grants review, we will, with your generous support, continue the fight against taxpayer subsidization of Planned Parenthood and the abortion industry.  

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