There Will Be No Winners in the Supreme Court’s Next Big Abortion Decision

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The Supreme Court’s next big abortion decision might barely mention the word abortion. That was clear during oral argument in Planned Parenthood of South Atlantic v. Medina this week. In 2018, South Carolina’s Republican governor prohibited any provider that offers abortions from participating in the state’s Medicaid program. That order applied to Planned Parenthood—and by design. It also triggered litigation about a familiar question: whether part of the Medicaid statute allowing patients to choose their own qualified providers is actually enforceable in federal court. It was hard to get a read on which direction the justices were leaning on that question in this week’s oral argument. But whatever happens in Medina, the decades-long fight to defund Planned Parenthood will go full steam ahead.

Anti-abortion leaders became obsessed with Planned Parenthood in the early 1980s, as the organization emerged as both a major provider of reproductive health services and a political powerhouse. Conservative politicians like Sen. Orrin Hatch considered proposals to gut Title X, a federal family planning program, partly with an eye to wounding Planned Parenthood. Conservatives also proposed an investigation into whether Planned Parenthood was misusing Medicaid money for abortion. And in 1988, the Reagan administration also took aim at Planned Parenthood with what was called the gag rule, which barred Title X recipients from counseling people about or referring them for abortions. At the time, defunding Planned Parenthood particularly interested the movement’s absolutists, like James Sedlak, the founder of a group called Stop Planned Parenthood (STOPP), which tried to undermine the organization’s work on contraception and sex education.

But President Bill Clinton rolled back the gag rule, and for decades, the fight to defund Planned Parenthood went relatively quiet. Anti-abortion absolutists despised Planned Parenthood because its affiliates offered services beyond abortion, but that limited the appeal of the defunding campaign for a movement trying to build enough political support to overturn Roe.

Defunding Planned Parenthood became more central to the anti-abortion movement after 2006 when an undergraduate at UCLA named Lila Rose released a video that she claimed showed a Planned Parenthood affiliate uncritically willing to offer an abortion to a victim of statutory rape. More videos would follow. The clips were heavily edited, but it didn’t matter: They stirred up a political scandal. Conservative states began trying to bar Planned Parenthood from receiving Title X or Medicaid dollars. The Tea Party, which became a household name after the 2010 midterm, took up the fight to defund Planned Parenthood, led by Indiana Gov. Mike Pence, the future vice president.

But it wasn’t clear if states could simply shut Planned Parenthood out of Medicaid. The Medicaid statute includes a provision stating that any beneficiary “may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required.” Beneficiaries argued that this provision gave them the right to pick any qualified provider, including Planned Parenthood, and to enforce that right in federal court. States like South Carolina responded that Congress didn’t intend to make the right to choose a qualified Medicaid provider enforceable in federal court—or at least, that the statute wasn’t clear about the subject.

Litigation on the issue has raged on for decades, but the Supreme Court didn’t take up the question of the meaning of the choice-of-provider statute until the new conservative supermajority took shape. In the meantime, the court weighed in on other parts of the Medicaid statute, explaining that they do confer a right to sue in federal court.

In Medina, South Carolina insisted that this section of the Medicaid statute was different. Arguing for the state, John Bursch, who works with the Alliance Defending Freedom (the most prominent group in the conservative Christian legal movement), contended that the choice-of-provider provision simply wasn’t clear enough because it didn’t use the words right, privilege, or entitlement. Planned Parenthood responded that the statute was more than clear enough—as most circuit courts had already concluded.

Justice Brett Kavanaugh, who could cast a deciding vote, seemed convinced that the circuit courts were still confused on the matter—and that requiring Congress to use magic words like right may clear the matter up. Some of the court’s most conservative justices, including Clarence Thomas and Samuel Alito, seemed to share his view. Chief Justice John Roberts and Justice Amy Coney Barrett were harder to read, although they seemed at least somewhat sympathetic to Planned Parenthood’s position. All of that makes it challenging to predict exactly how the Supreme Court will resolve the case.

What is clear is that Medina won’t be the end of conflicts about Planned Parenthood’s funding. For example, the Supreme Court in Medina is not addressing whether Planned Parenthood is a qualified Medicaid provider—the right to a choice of provider applies only to those medical professionals who meet that definition.

Relevant regulations establish that states can set “reasonable” standards for who counts as a qualified provider. In 2016, the Obama administration issued a letter explaining that providers weren’t qualified if they couldn’t meet relevant medical standards or if they defrauded patients. Political targeting—like disqualifying providers who performed abortions—was out of bounds. The Trump administration rescinded that letter in 2018. Even if the Supreme Court resolves Medina in Planned Parenthood’s favor, states like South Carolina will almost certainly try a new justification for defunding Planned Parenthood, arguing that it isn’t a qualified provider in the first place.

All of that raises the question of why abortion opponents are still so fixated on defunding Planned Parenthood. The answer may seem easy: Planned Parenthood is the nation’s largest abortion provider, and one of the most politically powerful advocates for reproductive rights. But the kind of move South Carolina is making won’t really gut Planned Parenthood. State affiliates are the ones who rely disproportionately on Medicaid dollars, and these providers already don’t perform Medicaid-funded abortions because of the Hyde Amendment. Meanwhile, Planned Parenthood’s national office has a track record of raising prodigious amounts of money when conservative states threaten the organization, and under Planned Parenthood’s bylaws, most of that money goes to the very kind of political and legal work that infuriates anti-abortion leaders. The upshot of a South Carolina win in Medina could well be less money for facilities in already underserved areas, and potentially more money for political advocacy for reproductive rights.

So what’s in that for the anti-abortion movement? The answer is simple: political ammunition. Since at least the late 1970s, the anti-abortion movement has argued that abortion providers in general—and Planned Parenthood in particular—have prioritized profits over patients and delivered subpar care. This argument about “abortionists” has fueled any number of restrictions and bans, and now, after the fall of Roe, the same arguments are at the center of the first post-Roe prosecutions of abortion providers. Trump administration officials have gestured to similar concerns in calling for an investigation of mifepristone, a drug used in more than half of all the nation’s abortions. Defunding local affiliates creates financial stresses that could make it harder to deliver quality care. And if that happens, anti-abortion leaders will point to those struggles as evidence that abortion providers across the country cannot be trusted.

Besides, the anti-abortion movement is still on the hunt for common ground with the Trump administration, which for the most part has been reluctant to deliver on the movement’s wish list. Cutting money for Planned Parenthood seems like a perfect fit in the era of the Department of Government Efficiency. The irony is that if this effort works, the result may not be a hobbled Planned Parenthood, least of all in national politics. More likely, patients who already struggle to find a gynecologist or primary care doctor will be the ones holding the short end of the stick.