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Supreme Court Tells Fourth Circuit To "Do-Over" Its Decision Denying South Carolina Authority To Defund Planned Parenthood as a Medicaid Service Provider


Laura Hernandez

June 26, 2023

3 min read

Pro Life



Recently, the Supreme Court decided an important case, Health and Hospital Corp. of Marion County v. Talevski. As we explained here, the case is significant because it involved legal issues similar to those involved in a different case challenging the ability of states to defund Planned Parenthood, Kerr v. Planned Parenthood South Atlantic.

You may remember from our earlier posting that Kerr 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. Both the district court and the Court of Appeals for the Fourth Circuit ruled against South Carolina.

Kerr is a critically important case that could have a dramatic impact on the ability of the states to stop the flow of taxpayer dollars to the nation’s largest abortion provider – to defund Planned Parenthood.

South Carolina asked the Supreme Court to grant review, and the ACLJ filed a friend-of-the-court brief supporting South Carolina and the right of states to disqualify Planned Parenthood as a Medicaid health care provider.

The Supreme Court decided Talevski first. Talevski, which was not an abortion case, involved the interpretation of the Federal Nursing Home Amendments Act (“FNHRA”) – a statute different from the Medicaid Act. Nevertheless, the Court’s analysis in Talevski provided clear guidance to the lower courts, including the Fourth Circuit, about how to analyze the statutory interpretation issues that are also present in Kerr.

Less than two weeks after deciding Talevski, the Court issued a ruling in Kerr. Here is the technical explanation of what the Supreme Court did: The Court granted review in Kerr but vacated (nullified) the Fourth Circuit’s decision. The high Court then remanded the case (sent it back), instructing the Fourth Circuit to reconsider its earlier decision in light of the Supreme Court’s Talevski opinion. What that means in plain English is that rather than considering arguments on the legal merits in Kerr, the Court sent the case back to the Fourth Circuit for a “do-over.” The Fourth Circuit must now reconsider its previous decision in Kerr and apply the guidance set forth in Talevski to its interpretation of the Medicaid Act.

The good news is the Supreme Court did, in fact, vacate the problematic Fourth Circuit ruling (it is no longer precedent), which is what we asked the Supreme Court to do, in part.

Now the question is, will the Fourth Circuit follow the Talevski Court’s guidance and reach the right decision? We don’t know. Will the case go back up to the Supreme Court after the Fourth Circuit’s “do-over?” It’s quite possible.

What we do know for certain is that the battle to defund Planned Parenthood is far from over and may yet be ultimately decided at the Supreme Court. We also know for certain that, with your continued support, we will continue the fight against taxpayer subsidization of abortion mills.

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