Supreme court weighs SC effort to defund Planned Parenthood: 5 reactions from both sides

1. No 'rights-creating language'

John Bursch, senior counsel with the Alliance Defending Freedom, argued the case on South Carolina’s behalf during oral arguments last Wednesday. He asserted that there is no "rights-creating language" in the Medicaid Act provision for qualified providers. 

Much of the back-and-forth during oral arguments focused on the phrasing of the Medicaid provision and whether it created a right to choose Planned Parenthood as a provider or if specific words were necessary to prove it created certain rights.

"Congress did not use clear rights-creating language in the any-qualified-provider provision," Bursch argued. "The provision speaks merely of obtaining a benefit from a third party, unlike traditional rights-creating language, which confers a right directly." 

Justice Elena Kagan questioned Bursch on why he argued that a Medicaid provision is not a "right" if the state "has an obligation to provide this particular thing." 

"We understand colloquially that something might be a right doesn't mean that Congress has put a state on clear notice that it could be sued in federal court under [42 U.S. Code Section 1983] and subjected to liability and attorney fee shifting if it doesn't follow that provision," Bursch answered. 

The ADF attorney highlighted an administrative appeal process for both individuals and providers if they're rejected. He noted that Planned Parenthood hasn't "pursued their administrative appeal yet" but rather "went straight to court."

Kyle Hawkins, counselor to the solicitor general of U.S. Department of Justice, also asserted that the provider provision did not create a right for individuals to choose their doctor at all times.