Alexandra Soisson, Associate Member, University of Cincinnati Law Review
The now infamous video released in July of 2015 depicting a Planned Parenthood executive discussing prices for fetal tissue stunned viewers and fueled many anti-abortion advocates to call for the defunding and closure of all Planned Parenthood facilities. Today, the consequences of the video release as well as the subsequent debate over the issues involved linger in homes and courtrooms across the country. In particular, the question of whether state and federal funding of Planned Parenthood facilities should continue dominates this debate. The Eighth Circuit addressed this question in the context of Medicaid benefits. Breaking with precedent established by the Fifth, Sixth, Seventh, and Ninth circuits, the Eighth Circuit found that the choice-provider provision of the Medicaid Act does not create a federal right for individuals to enforce payments to specific medical providers, namely Planned Parenthood.
This ruling resulted from litigation concerning the Arkansas Department of Human Services’ decision to suspend Medicaid payments to Planned Parenthood facilities after the 2015 video was released. The Eighth Circuit held that the Arkansas patients had no private right of action under 42 U.S.C. §1983 guaranteed by the relevant section of the Medicaid Act. However, the Eighth Circuit’s reading of the provision failed to see the unambiguous right conferred in the statute and incorrectly found that Congress did not intend for Medicaid beneficiaries to have a right of action under §1983.
Does v. Gillespie
Following the release of the 2015 Planned Parenthood video, the Arkansas Department of Human Services terminated its Medicaid provider agreements with Planned Parenthood of Arkansas and Eastern Oklahoma. Three Arkansas Medicaid patients sued the director of the Department of Human Services under 42 U.S.C. §1983 claiming the termination of the contract with Planned Parenthood violated their federal rights guaranteed under §23(A) of the Medicaid Act. The lower courts agreed that the Act provided such a remedy and enjoined the Department from suspending payments to Planned Parenthood facilities. However, the Eighth Circuit Court of Appeals reversed, holding that no such right exists.
The Eighth Circuit applied a three-part analysis to determine that §23(A) of the Medicaid Act does not unambiguously create an enforceable federal right. First, the court argued that the focus of the Act is “two steps removed” from the interests of the patients who seek the services. Second, the court reasoned that Congress had already plainly conferred another means of enforcing State’s compliance. Finally, the court argued that the aggregate focus of the Act as a whole does not give rise to an individual right. Relying on these three conclusions, the court vacated the injunction enacted by the lower court which prevented the Arkansas Department of Human Services from suspending Medicaid payments to Planned Parenthood. In other words, the court upheld the suspension of payments from Medicaid to Planned Parenthood.
Holdings of the Fifth, Sixth, Seventh, & Ninth Circuits
Prior to the holding in Does, the Fifth, Sixth, Seventh, and Ninth Circuits examined the same provision of the Act and came to the opposite conclusion. All four earlier rulings applied the same framework and held that §23(A) of the Medicaid Act, or the “freedom-of-choice” provision, did create a private right of action enforceable under §1983. Notably, all five courts, including the Eighth Circuit, relied on Gonzaga University v. Doe, which held that in order to support an action under §1983, a plaintiff must establish that Congress clearly intended to create an enforceable federal right. Interpreting the plain language of the relevant provision, each of the other four circuit courts found that Congress’ intent was clear within the language of the provision. Specifically, those courts relied on the interpretation that §23(A) refers to “any individual eligible for medical assistance.” The Fifth, Sixth, Seventh, and Ninth Circuits all emphasized the use of the word “individual” within the provision coupled with other textual support – including “rights-creating language” within the Act— to support the conclusion that Congress intended to create an enforceable individual right within the Act.
The Intent Is Clear
The Eighth Circuit offered its three-part analysis to explain why the plaintiffs would not succeed on their §1983 claim. However, each part of the analysis fails to stand up to precedent or reason. First, the court posed that the Act is “two steps removed” from the interests of the patients because it is considered a directive to a federal agency, not a directive to an individual. The court relied on the holding in University Research Association, Inc. v. Coutu, which held that a statute phrased as a directive to a federal agency typically does not confer an enforceable right to an individual. However, a key difference between the statute analyzed in that case and the statute relevant to the case at hand is that the statute in Coutu did not use the word “individual” to describe the protected person, but rather only described “classes of laborers.” This difference in wording is essential to the analysis. The Eighth Circuit noted several times in their opinion that the plaintiff’s claim failed because §23(A) of the Act did not confer an “unambiguous right” to an individual, as required by Gonzaga. However, unlike the statute in Coutu, the Medicaid freedom of choice provision does clearly and unambiguously state that “any individual eligible for medical assistance may obtain such assistance.” Therefore, the ambiguity in the Coutu statute that the court cites is not present in the Medicaid Act; the clear language of the text does unambiguously confer a right to an individual.
Further, the Freedom of Choice provision uses rights-creating language to indicate Congress’ clear intention to provide rights to individuals under the Medicaid Act. For example, the language of the Act which reads that Medicaid-managed care organizations “…shall not restrict the choices of the qualified person from whom the individual may receive services” creates a clear right for the individual. The use of the word “individual” paired with the rights assured to that individual in the statute, make it clear that congress intended to extend specific rights to individual patients under the Act and thus it is not removed from the interest of those patients.
Second, the Court reasoned that because Congress created a method for enforcing state compliance through withholding of federal funds, it is reasonable to conclude that Congress did not intend to create another enforceable right for individual patients. Specifically the Eighth Circuit noted concern for potential parallel litigation with inconsistent results. However, the existence of alternative remedies does not serve as a bar to §1983 relief. As noted by the Does dissent, Blessing v. Freestone – which set forth a controlling test for determining whether a statutory provision creates a private right of action enforceable under §1983 – established that the presence of alternative administrative mechanisms to protect the plaintiff’s interests does not prohibit relief based under §1983. The presence of alternative remedies can hardly be considered clear evidence that Congress intended to prevent any other potential remedy, especially when the alternative remedies are for organizations and not for the individuals themselves. Furthermore, the controlling law specifically surrounding §1983 remedies does not create such a barrier.
Finally, the plurality in Does posed that because the Medicaid statute has an “aggregate focus” as opposed to an “individual focus,” there is no implied individual right. The court reasoned that the statute has an aggregate focus because the Medicaid Act links federal funding to substantial compliance by providers instead of individual compliance. By categorizing this “focus,” the court explained that because the focus is on the aggregate compliance of the providers and not the individual, the remedy should be sought through the providers and not the individual. In this case, that means the provider who has stopped receiving funding from Medicaid should file an administrative appeal and the individual can be “represented” through that process. In short, the court argued that the individual is “covered” through the provider’s remedy. However, permitting a provider to file an appeal does not provide nearly enough protection for the rights of the patients. As was seen in Does, the provider did not choose to file such an appeal, and therefore, the individual patients were left with no remedy. The argument that because one actor has the ability to seek a remedy, another actor, with no power to influence the first party, is protected by that right cannot hold weight.
The Medicaid Act was designed to provide medical assistance to a class of citizens often most in need of medical care and without the means to procure it. The rights of those individual patients must be the first priority of the program and Congress’ intent in writing the provisions of the Act should be read in that light. Four circuit courts and several district courts below affirmed the ability of an individual patient to protect his right to choose his healthcare provider. The Eighth Circuit holding fails to interpret the language of the Act in the way that it should be understood: as a voice for the patients. Even using the court’s own “unambiguous intent” standard, it is clear that Congress intended for the rights of the individuals to be protected when they wrote the word “individual” into the free choice provider provision of the statute. The language is not removed from the rights of the individual and the analysis should likewise not be removed from that lens. The Medicaid Act did create an unambiguous federal right for individual patients under §1983 and that right should be upheld.
On July 14, 2015 an anti-abortion group called “The Center For Medical Progress” released a secretly recorded video of Deborah Nucatola, the senior director of medical services at Planned Parenthood, discussing the procurement of fetal tissues when conducting abortions. See Steve Almasy, Planned Parenthood exec, fetal body parts subject of controversial video, CNN.com (July 15, 2015), http://www.cnn.com/2015/07/15/health/planned-parenthood-undercover-video/index.html.
 Does v. Gillespie, 867 F.3d 1034, 1037 (8th Cir. 2017).
 Id. at 1046.
 Id. at 1038.
 Id. at 1040; 42 U.S. Code § 1983, Civil action for deprivation of rights: Creates a right of action for any citizen deprived of any rights, privileges, or immunities secured by the Constitution.
 Does, 867 F.3d at 1037.
 Id. at 1038; §23(A) provides 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”
 Does, 867 F.3d at 1035.
 Id. at 1045.
 Id. at 1041.
 Id.; Congress allows for withholding of federal funds as the means of ensuring state compliance.
 Does, 867 F.3d at 1042.
 Id. at 1045.
 Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445 (5th Cir. 2017); Harris v. Olszewski, 442 F.3d 456, 461-62 (6th Cir. 2006); Planned Parenthood of Ind., Inc. v. Comm’r of the Ind. State Dep’t of Health, 699 F.3d 962, 974-76 (7th Cir. 2012); Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 966-67 (9th Cir. 2013).
 Does, 867 F.3d at 1050.
 536 U.S. 273, 283 (2002).
 Does, 867 F.3d at 1042.
 Id. (emphasis added).
 Id.; Rights creating language includes language that confers a right to the beneficiaries to sue, etc.
 Id. at 1041.
 450 U.S. 754, 756 (1981).
 Id. at 757.
 Does, 867 F.3d at 1041.
 Id. at 1040. (emphasis added).
 Id. at 1041.
 Does, 867 F.3d at 1051.
 Id. citing 520 U.S. 329, 347 (1997).
 Id. at 1041.
 Does, 867 F.3d at 1038.