Hours before Politico’s leak of the Supreme Court’s draft abortion decision became public, the Court took a step that, in the context of equal justice under law, could prove virtually as radical. On Monday, May 2, the Court agreed to hear Health and Hospital Corp v Talevski, a Medicaid nursing home rights case. And on May 6, accompanied by multiple amici, the State of South Carolina filed a petition for certiorari, along with a motion to expedite, in Kerr v Edwards; this case involves Medicaid’s “free-choice-of-provider” guarantee, whose meaning and reach have long been a subject of dispute.
Depending on the outcome, the Court could use either or both cases to strip Medicaid beneficiaries and the providers that serve them—and, by extension, the beneficiaries of other state-administered health and welfare programs enacted pursuant to Congress’s constitutional Spending Clause powers—of access to court to prevent state officials from unlawfully denying, reducing, or terminating benefits guaranteed under federal law.
The implications of stripping judicial protections from those who receive benefits under state-administered public welfare programs are extraordinary. Building on philosophical groundwork laid over several decades—notably by Justices Antonin Scalia and Clarence Thomas— such an action by the Court could overturn longstanding legal precedents that permit beneficiaries and providers to seek the aid of courts when public assistance rights appear to be unlawfully threatened. There is no guarantee that plaintiffs in such cases prevail on their claims, and many do not. But many others have gone on to win, protecting untold numbers of children and adults from illegal and harmful conduct. Through this long line of cases, the poorest Americans have been given the right that others enjoy: to seek the help of the courts when rights to essential services such as medical care and food are threatened.
Were the Court to overrule these cases, its decision would affect the millions of Americans with limited means who depend on Spending Clause programs. Indeed, because the essence of legal entitlement is the ability to protect one’s benefits against arbitrary, unlawful termination or denial, the very feature that puts Medicaid on a par with Medicare or employer-sponsored health plans (both of which confer judicial enforceable rights) would disappear. Moreover, this result would be contrary to the relevant statutory law.
By the late 1960s the Court had begun to set the framework for determining when the courts could directly intervene, without awaiting federal agency action, and use their extraordinary injunctive powers to stop unlawful, harmful state policies from taking effect. Over decades, however, the basis of the Supreme Court’s reasoning has shifted, and the window for judicial intervention has appreciably narrowed—but not to the point that the Court now appears ready to go, which may be to completely foreclose access to the courts without regard to whether benefit guarantees are threatened unlawfully.
Foreclosure of access to the courts in these situations would essentially end these programs as legal entitlements, bringing us back decades to the time when public benefits were considered a privilege rather than a right. It would leave beneficiaries and providers at the mercy of state legislatures and public officials, who often embrace federal funding but resist the concept of beneficiary rights. State violations of federal statutes could still be subject to review by federal administrative agencies. But agency review is time-consuming and too often results in little action. Furthermore, federal law affords beneficiaries no opportunity to participate in the federal agency oversight and enforcement process, to argue their position, or to present evidence—a process not to be confused with the ability to submit comments when agencies develop regulations of general applicability. Nor do federal agencies, even when they find in favor of beneficiaries, have the power of the judiciary to move quickly, intervene if necessary, and enjoin unlawful action before it occurs. For all of these reasons, the Supreme Court recognized decades ago that judicial protection of rights—and the power to avert the harm caused by unlawful state action before it happens—is essential to the very concept of a federal legal entitlement.
As with abortion law, opponents of access to the courts by beneficiaries of state-administered federal public welfare programs have laid the groundwork for their legal strategy over decades. Unlike restoring the right to abortion however, which presents extraordinary remedial challenges, Congress could pretty forthrightly fix the problem created by a Court decision to curtail private enforcement rights. Indeed, in 1994 lawmakers moved in this direction by clarifying that programs that operate pursuant to a federally approved state plan are also subject to privately enforceable rights. A further clarification regarding the availability of § 1983 as the means of enforcing guarantees created in state-administered Spending Clause programs would do the job.
The Early Supreme Court Decisions: From King To Pennhurst
This saga begins with a powerful quartet of cases: King v Smith (392 U.S.309, (1968)); Rosado v Wyman (397 U.S. 397 (1970)); Goldberg v Kelly (397 U.S. 254 (1970)); and Townsend v. Swank (404 U.S. 282 (1971)). All four decisions, which involved eligibility for Aid to Families with Dependent Children (AFDC), were decided at a time of an expansive view on the part of the judiciary of the role of the courts in matters of equal justice and social welfare. The decisions came in the wake of publication of The New Property by Charles Reich, undoubtedly one of the most influential law review articles ever written on the deeper meaning of government programs that provide crucial support to individuals such as subsistence funding or health insurance. The New Property played a seminal role in moving the nation away from aid to the poor as largesse and into a modern era of a government-guaranteed safety net of essential services.
Under the U.S. Constitution’s federalism framework, the programs about which Reich wrote can, of course, operate in two basic ways: As directly federally administered programs such as Social Security, Medicare, or Supplemental Security Income; or, alternatively, as jointly administered, jointly financed programs operated by states pursuant to state plans overseen by the Secretary of Health and Human Services (HHS), such as Medicaid. The second type of program can create powerful individual guarantees in addition to state plan operational rules. Whether these guarantees were privately enforceable was the focus of the Court’s quartet.
King, the first case, was brought under 42 U.S. C. § 1983, part of the body of laws passed immediately after the Civil War, which specifies that
[e]very person who, under color of [law] of any State or Territory or the District of Columbia, subjects . . . any citizen of the United states or other person within the jurisdiction thereof to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable . . . in an action at law, suit in equity, or other proper proceeding for redress. . .
The Court never questioned the King plaintiffs’ reliance on § 1983 as the means of enforcing federal guarantees; in its review, the Court took for granted that the law in question (AFDC) had conferred federal statutory rights that allegedly were being violated by state officials. King further acknowledged that the violation of these rights could be connected to the unlawful administration of a state plan (n.34):
There is of course no question that the Federal Government . . . may impose the terms and conditions upon which its money allotments to the States shall be disbursed, and that any state law or regulation inconsistent with such federal terms and conditions is to that extent invalid.
Three years later, Townsend made clear this assumption that violating the terms of federal laws could, in turn, create rights legally enforceable through § 1983: (p. 386):
Thus, King v. Smith establishes that, at least in the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause.
In these early cases, the Court rejected the state’s assertion that beneficiaries first needed to pursue state administrative hearing rights, since access to § 1983 does not depend on first attempting to seek resolution from the very state officials who are abridging individual rights. Rosado further clarified that beneficiaries did not need to pursue federal administrative remedies—the AFDC statute, like other Social Security Act grant programs such as Medicaid, affords people no legal right to federal agency review in advance of allegedly unlawful state action, nor does the law vest federal officials with injunctive powers. Indeed, wrote the Rosado Court, “HEW [the predecessor agency of HHS] has no procedures whereby welfare recipients may trigger and participate in the Department’s review of state welfare programs.” (p. 408).
In none of these cases did the Court waver in the concept of state-administered Spending Clause statutes creating a legal entitlement. Goldberg, which established a constitutional right to due process when benefits are denied, reduced, or terminated, similarly proceeded with no question regarding the application of constitutional due process to recipients of benefits under state-administered programs.
These early decisions thus rested on the assumption that Spending Clause programs create both state operational rules and federal rights of the type recognized in the context of § 1983 actions. For this reason, people threatened with the denial or loss of benefits could seek judicial intervention and injunctive relief upon a showing of likely success on the merits of their claims. This assumption was affirmed in Edelman v. Jordan, 415 U.S. 651 (1974). Edelman allowed prospective injunctive relief against state officials, even as the Court held that the Constitution barred lawsuits against states for back benefits illegally withheld in violation of the federal Social Security laws and, furthermore, that the Social Security Act itself did not create a right to sue.
While the early welfare cases had been brought under § 1983, they had each raised constitutional claims independent of their claim based on violation of federal statutes. In Maine v. Thiboutot, 448 U.S. 1 (1980), however, the Supreme Court squarely held that a suit could be brought under § 1983 to enforce Social Security Act claims, because § 1983 provides for redress of violation of the “Constitution and laws” of the United States. The Court made explicit what was at least implicit from all of the cases that preceded Thiboutot, namely, that Spending Clause programs themselves create § 1983-enforceable legal rights.
One year after Thiboutot, the Court decided Pennhurst State School v Halderman (451 U.S. 1, (1981)), a non-Social Security Act case that arose under the Mental Health and Mental Retardation Act of 1966. The focus of Pennhurst was access to adequate treatment. Holding that the law in question did not create a right to treatment, the Court rejected the existence of any rights under the Act in question but did absolutely nothing to alter its holding in Thiboutot or the earlier cases that such rights exist in Social Security Act programs and are enforceable through § 1983. At the same time, the decision contains a passage that in recent years has been repeatedly taken out of context and quoted:
. . .legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” . . . Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. . . .. By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation.
This passage makes the (obvious) point that there certainly can be Spending Clause programs that create no guarantees for individuals but instead impose general administration duties on the part of participating states. In these circumstances, of course, were the federal government to intend to allow states to be sued by individuals for failing to honor their interests, it would have to clearly so state. But in leaving Thiboutot untouched, the Court also made the opposite point: Federal laws that do create individual guarantees can be enforced through § 1983. Going forward, the question clearly became what type of federal law the courts would be dealing with—one that combined federal rights with federal administrative duties or one limited only to the latter.
Extending § 1983 And The Concept Of Privately Enforceable Rights To Medicaid: The Wilder Decision
In 1990, the Court clarified that Thiboutot extended to Medicaid. In Wilder v. Virginia Hospital Association (496 U.S. 498 (1990)), the Court addressed the Boren amendment, which established the concept of “reasonable and adequate” payment for hospital services under Medicaid. The Court concluded that the Boren amendment also created a privately enforceable right on the part of hospitals under § 1983. In doing so, the Court distinguished Pennhurst, holding that unlike the Boren amendment, the language at issue in Pennhurst was merely advisory or precatory, not a guarantee of rights.
The question for the Court came down to whether the provision of Medicaid establishing a payment standard was clear and substantive and could be administered by the courts as in other rate-setting cases. The Court held in the affirmative. It furthermore held that nothing in the federal Medicaid program foreclosed the use of § 1983 to enforce those rights, even though Medicaid, like AFDC, provided for federal agency oversight. Wilder thus established, in a Medicaid context, that § 1983 actions to enforce federal rights are proper where such actions are not barred by law and where a state-administered Social Security Act program contains provisions that are “intended to benefit” plaintiffs and create a “binding obligation” on states, rather than a general “congressional preference” for a particular type of state activity. (Notably, as Jane Perkins points out in her excellent review of Medicaid and § 1983 enforcement, the George H.W. Bush administration took Virginia’s side in Wilder, arguing that Pennhurst foreclosed private enforcement. Then Deputy Solicitor-General John Roberts, who is now of course the Chief Justice of the Supreme Court, argued for the administration.)
A Post-Wilder World: Suter, Blessing, And Gonzaga
In Wilder’s wake, three decades of Supreme Court cases would carefully scrutinize the text of Social Security Act provisions contained in state-administered programs to determine whether the provision at issue was rights-creating or merely a general state operational directive enforceable only by the HHS Secretary. To make out a § 1983 case, the plaintiff would need to allege a violation of a provision that amounted to an individual right, not simply a “violation of federal law”. (Golden State Transit Co. v City of L.A., 493 U.S. 103, 106 (1989)).
Suter v. Artist M, Blessing v. Freestone, and Gonzaga University v. Doe involved non-Medicaid spending clause statutes. Suter and Blessing involved respectively, child welfare and child support enforcement, both Social Security Act programs, while Gonzaga involved the Family Educational Rights and Privacy Act (FERPA), a non-Social Security Act program. In each case, culminating with Gonzaga, the Court provided further clarity regarding enforceable rights in Spending Clause programs and what a plaintiff seeking relief under § 1983 would need to show to proceed.
Suter involved the Adoption Assistance and Child Welfare Act of 1980, which set the framework for state programs. The adequacy of Illinois’ program under the Act was the issue, and the suit aimed to force changes in state administration approaches. Finding that the Act created no individual guarantees enforceable through § 1983 and that the Act itself provided no separate ability on the part of individuals to sue to enforce its terms, the Court foreclosed remedies other than those created by federal oversight actions. In keeping with Pennhurst, which the Court relied on, the result was not surprising. Following Suter, Congress amended the Social Security Act to clarify that state-administered Spending Clause programs could contain general administration directives enforceable by HHS while at the same time not foreclosing § 1983 actions where individual guarantees did exist.
Blessing, which involved Arizona’s administration of the federal Child Support Enforcement program, established a three-pronged, case-by-case test of whether a § 1983 claim could prevail: (1) whether a particular federal provision in question was intended to benefit an individual plaintiff; (2) whether the provision was sufficiently specific that a court could go about the business of enforcement; and (3) whether the provision created a binding obligation on a state (as opposed to merely a general federal expectation). If the answer was “yes” to all three questions, then the presumption would be that a plaintiff could enforce the provision unless Congress had foreclosed the right to use § 1983 through a detailed remedial scheme laid out in law, or had explicitly barred use of § 1983. In Wilder the Court had held specifically, in keeping with Rosado, that the federal Medicaid HHS enforcement scheme did not represent such an alternative to § 1983, since it affords no role for directly affected individuals and simply allows HHS at its discretion to take certain remedial steps (most specifically to withhold funding). Nor does the HHS enforcement provision permit the agency to bar a state from taking action before threatened harm occurs.
Gonzaga, which involved FERPA, underscored the role of Congressional intent—that is, whether the provision alleged to form the basis of the lawsuit evidences Congressional intent that a particular statutory provision benefit a particular plaintiff.
The Suter/Blessing/Gonzaga Aftermath In A Medicaid Context
Medicaid creates a thorny set of problems. Clearly the program is a mixed bag given the case-by-case approach dictated by the decisions just discussed; it combines highly specific provisions that guarantee medical assistance for certain individuals carefully described in the statute, along with certain precise, provider-specific participation and payment rules, with general administration directives to states. Of course, general administration rules can have an enormous, indirect impact on the accessibility and quality of medical assistance. Nonetheless, under the Blessing test, as reinforced by Gonzaga, provisions determined to be general administration rules would not lend themselves to § 1983 enforcement, and, per Suter, could not be directly enforced by program beneficiaries. Enforcement of these provisions would be the exclusive purview of HHS. A difficult situation to be sure, but nonetheless protective of judicial access when individual guarantees are at stake.
A couple of examples are helpful. The heart of the Medicaid statute is 42 U.S.C. § 1396a(a)(10), which describes individuals to whom states must (or may) extend “medical assistance” (principally but not exclusively described in 42 U.S.C. § 1396d and its ensuing definitional provisions). Certain categories (e.g., pregnant women and children with incomes up to 138 percent FPL) are classified as “mandatory,” that is, states have no discretion over whether they are entitled to medical assistance if eligible. Other categories create state options (e.g., near-poor pregnant women). But once the category is included in the state’s plan, these individuals also become intended beneficiaries of medical assistance if eligible.
Were a state to announce that it would cease covering people who fall into these eligibility categories until a new fiscal year, applicants denied coverage would be able to bring a § 1983 enforcement action. (Of course, a state could amend its state plan to eliminate an optional category altogether but would need to follow strict federal requirements to do so). Similarly, virtually all courts have found that children have strong private enforcement rights under § 1983 where Medicaid’s Early Periodic Screening, Diagnosis, and Treatment (EPSDT) benefit guarantee is concerned. Likewise, courts have consistently found that community health centers have a legal right to be paid in accordance with the statutory “federally qualified health centers” payment formula and can enforce that right through § 1983.
Other provisions are more ambiguous and thus have been subject to more searching judicial review, and disagreement among federal judicial circuits considering the same provision is not uncommon. A particularly clear example is Medicaid’s free-choice-of-provider provision. This provision states that “any individual eligible for medical assistance may obtain such assistance from any . . . person qualified to perform the service”. A caveat to this provision exempts managed care, with its closed provider networks, from this guarantee. But the free-choice statute also contains a key exception to the managed care caveat. Regardless of other considerations, beneficiaries get to choose any Medicaid-qualified family planning provider, a provision designed to ensure maximum access to family planning services.
In recent years, a number of states have attempted to disqualify Planned Parenthood clinics from Medicaid participation on multiple grounds, the principal one being that these clinics also offer abortion services. The fact that a provider may offer some services that Medicaid does not cover obviously has nothing to do with whether the provider is qualified to furnish Medicaid-covered services, but HHS has a spotty record of barring such policies. (The Obama administration notified states that such policies are unlawful but did not otherwise take action to prevent state practices; the Trump administration actually encouraged exclusion.)
The courts are split, however, on whether the free-choice-of-provider statute is rights-creating under the Blessing test or falls short as a general state directive. The United States Court of Appeals for the Fourth Circuit recently came down on the rights-creating side of the argument in Planned Parenthood South Atlantic v. Kerr, which involved South Carolina’s effort to exclude Planned Parenthood. But other circuits have held that the free-choice-of-provider statute is simply a general directive, not rights-creating under Blessing, and therefore § 1983 is not available. (South Carolina has just asked that the Court expedite its petition and observers expect that the Court may agree to hear Kerr and consolidate the case with Talevski).
Breadcrumbs Indicating Where The Court May Be Heading In Talevski And Kerr
Certain Justices had been sending signals for years of their interest in reconsidering this mixed-approach framework in favor of an absolute bar against the concept of individually enforceable rights within state-administered Spending Clause statutes. One sign came in Justices Scalia’s and Thomas’s concurrences in a 2003 decision, Pharmaceutical Research and Manufacturers of America v. Walsh. Walsh was brought by manufacturers who argued (successfully, although they ultimately lost on the merits) that the Supremacy Clause allowed them to challenge the legality of Maine’s Medicaid drug pricing control system. Justice Scalia noted that he would have thrown the case out as failing the Blessing test applicable to § 1983 cases. Justice Thomas reiterated in a concurring opinion the language found in Pennhurst, a non-Social-Security-Act program: Spending Clause statutes are “much in the nature of a contract,” which in turn would reduce affected private individuals to mere third-party beneficiaries, who cannot sue to enforce a contract in the absence of a specific agreement by the parties themselves.
Justice Thomas’s framing of Medicaid as “much in the nature of a contract” lacking third-party enforcement rights did not represent the majority, but it would not be a great leap for this language to be picked up in a majority opinion. At least one lower federal court attempted to do so and was rejected on appeal. See Westside Mothers v. Haveman, which involved Michigan’s effort to curtail EPSDT coverage for children.
The “in the nature of a contract” language surfaced again in the Court’s 2015 decision in Armstrong v Exceptional Child Center. Justice Scalia, in writing the opinion, stated in dicta that § 1983 actions (which Armstrong was not) simply cannot be based on programs like Medicaid because such programs were “much in the nature of a contract.” Notably, Justice Breyer, who concurred in the Court’s ruling, specifically withheld concurrence from this portion of Scalia’s opinion, depriving it of a majority on this point.
A more recent clue that a more conservative Court would be ready to move into the Thomas camp came in Gee v Planned Parenthood of Gulf Coast. In that case, the Court refused to hear Louisiana’s appeal in a Medicaid free-choice-of-provider case involving the state’s effort to exclude Planned Parenthood from its program. As noted, the circuits are split on whether the free-choice provision amounts to general language or an individual guarantee that meets the Blessing test and thus is enforceable under § 1983. But in 2018, an insufficient number of Justices (four are needed to grant a certiorari petition) wanted to hear the claim. Joined by Justices Alito and Gorsuch, Justice Thomas dissented from the denial of certiorari. Pointing to the circuit split, the dissent noted the burdens faced by states in § 1983 Medicaid rights enforcement cases and argued that “allowing patients to bring these claims directly in federal court reduces the ability of States to manage Medicaid, as the suits give Medicaid providers an end run around the administrative exhaustion requirements in [the] state’s statutory scheme.” This of course ignored the fact that settled Supreme Court precedent repeatedly has underscored that in § 1983 actions (beneficiaries also were plaintiffs) no exhaustion is needed.
But the dissent went further still, stating that the case implicated “fundamental questions about the appropriate framework for determining when a cause of action is available under § 1983—an important legal issue independently worthy of this Court’s attention.” Arguing that the Suter/Blessing/Gonzaga rules were unworkable, the dissenters implied that individual enforcement might turn on the nature of state-administered spending clause statutes and the burden that recognizing private rights enforceable under § 1983 places on states. The dissent hinted at the possibility of a general rule barring § 1983 actions linked to such programs, while making no effort to square this preference with the 1994 Congressional amendment clarifying that spending clause programs such as Medicaid can create both general requirements and individual guarantees.
This bring us to Talevski, as well as the latest run at Medicaid’s free-choice-of-provider guarantee in Kerr.
Talevski, decided in 2021 by the 7th Circuit Court of Appeals, involved allegations of nursing home abuse that could serve as the basis for a state law negligence case. In 1987, Congress amended Medicaid and Medicare, adding the Federal Nursing Home Reform Act (FNHRA), designed to assure reasonable care for nursing home residents. Among other provisions, FNHRA includes a “patient bill of rights.”
Because the nursing home defendant in Talevski was county-owned, plaintiffs brought the case as a federal § 1983 action to vindicate rights protected by law, rather than as a state law negligence claim. Like other federal appeals courts that have heard FNHRA cases, the 7th Circuit held that bill-of-rights violations can indeed form the basis of a § 1983 claim, since FNHRA claims meet the Blessing three-pronged test and are not foreclosed by an alternative, detailed federal remedial scheme. The nursing home appealed.
Since the federal circuit courts were not split on this issue, the Court presumably would have refused to hear the case. But a recent non-Medicaid Supreme Court decision written by Chief Justice Roberts that limits § 1983 remedies, Cummings v. Premier Rehab Keller, also involved no circuit split. Talevski seems to follow this pattern.
In taking the case, the Court might have confined review to the question of whether FNHRA in fact creates enforceable rights for purposes of § 1983, especially since the case could have been brought as a state malpractice action. It did not do so. The questions the petitioner presented to the Court in Talevski, which the Court agreed to decide and which could be consolidated with the freedom-of-choice appeal noted above, are worth considering in full:
Since the high-water mark in Wilder v. Virginia Hospital Association, this Court has consistently rebuffed efforts to find privately enforceable rights in Spending Clause statutes. Indeed, several Justices have suggested that the entire project of enforcing such rights under 42 U.S.C. § 1983 is mistaken: Spending Clause statutes are “much in the nature of a contract,” and when Section 1983 was enacted, contracts in general—and contracts with governmental entities in particular—did not give rise to claims by third-party beneficiaries. The Seventh Circuit’s decision below illustrates just how flawed this project is. Notwithstanding the Court’s instructions to the contrary, see Pennhurst State Sch. and Hosp. v. Halderman, and Gonzaga Univ. v. Doe, the court of appeals relied on the appearance of the word “right” several times in . . . FNHRA to hold that patients may use Section 1983 to second-guess garden-variety transfer and medication decisions—thereby federalizing much medical-malpractice litigation and nullifying important state medical-malpractice rules. This case presents the following questions:
- Whether, in light of compelling historical evidence to the contrary, the Court should reexamine its holding that Spending Clause legislation gives rise to privately enforceable rights under Section 1983.
- Whether, assuming Spending Clause statutes ever give rise to private rights enforceable via Section 1983, FNHRA’s transfer and medication rules do so.
In the context of the Court’s history, question 2, while deeply troubling given the nature of FNHRA, at least is consistent with prior efforts by the Court to closely read the statutory text of Spending Clause programs. But question 1 is a full-throated invitation to revisit 55 years of judicial precedent and signals the Court’s disregard of everything that has happened over the intervening decades, from the vast expansion of Medicaid as the nation’s largest public health insurer to the 1994 Congressional amendments clarifying the dual nature of Social Security Act programs as both general administration directives and as individual guarantees. Indeed, the language in the cert petition ignores the very text of § 1983—Medicaid beneficiaries are not third-party beneficiaries of contracts. They enjoy the direct protection of federal law and, as such, § 1983 offers a means for them to protect themselves against incursions into their federal rights. The Blessing test remains a serious one, of course, which determines whether any specific provision of Medicaid rises to the level of a right protected by § 1983. But Talevski will not be confined to this narrow question; instead, an entire half-century of jurisprudence will be under the microscope.
So, too, with Kerr. In its fast-track cert petition, the state of South Carolina expressly references the Court’s decision to hear Talevski. The state argues basically that its case would offer the Court the far better opportunity to end the confusion over the Court’s narrow, § 1983 exception to the rule established in Armstrong, namely, that private individuals cannot bring claims against state Medicaid officials for violations of federal Medicaid law. The state petitioners argue that their case is the more straightforward one, representing the type of classic split in the circuits that more logically invites intervention by the Court. In pressing their argument to serve as the basis for the elimination of § 1983 actions, the Kerr petitioners also stress that their case allows for the same broad question as that raised by Talevski: whether Wilder should be overturned.
How big are these cases? According to our colleagues Leighton Ku and Erin Brantley, who performed a quick, informal assessment of 2020 Census Bureau data from the American Community Survey (with more formal work likely to follow), before Medicaid’s recent growth under COVID-related expansions, about 84 million Americans received benefits from Medicaid, the Supplemental Nutrition Assistance Program (SNAP), or Temporary Assistance for Needy Families (TANF). (The number has probably grown since then.) That’s about 26 percent of the total US population. Medicaid, of course, was the largest of the three, representing some 66 million people. Another 45 million children and adults received SNAP benefits, while only about 0.5 million got cash welfare (i.e., TANF) benefits. Some received more than one benefit, of course.
The question of whether to foreclose § 1983 actions in the case of Medicaid and similar programs is a matter of fundamental health equity and equal justice under law. Racial and ethnic minorities are disproportionately represented in public benefit programs because, of course, they have disproportionately lower incomes. Thus, of the 84 million beneficiaries in 2020, 41 percent were white non-Hispanic, 20 percent were black non-Hispanic, 27 percent were Hispanic, 5 percent were Asian and 6 percent were other/multi-race.
Access to the courts is also a women’s health issue. In 2020, the majority of program beneficiaries were women. And it is a children’s issue: that year, 37 percent were children. In some states, a considerable proportion of the population depends on these programs: 31 percent of West Virginians, 30 percent of Kentuckians, 35 percent of Louisianans, 26 percent of Floridians, 30 percent of Mississippians, and 24 percent of Texans, just to cite a few examples.
The Supreme Court has put the nation at a crossroads where access to abortion and reproductive rights are concerned. Now, it appears, we are also at a turning point on equal justice, looking at a time when state officials will be able to simply suspend Medicaid enrollment or deny covered treatments without having to face the prospects of a court injunction. They will be confident in the knowledge that, long after the state policy takes effect and the impact occurs, federal officials might—or might not—send a cease-and-desist letter coupled with a toothless corrective action plan. This is not where a just society lands. More to the point, this result completely contravenes the law itself and refutes decades of efforts to provide some degree of equity where access to the courts are concerned.