Kerr v. Planned Parenthood back in appellate court



A federal circuit court will determine if pro-life states like South Carolina, where the court case originally took place, can be forced to spend taxpayer dollars funding abortion providers like Planned Parenthood.

The 4th U.S. Circuit Court of Appeals will consider Kerr v. Planned Parenthood South Atlantic, the case in question after it was remanded by the Supreme Court back to the appellate earlier this month.

“Practically speaking, this case will decide if taxpayers in pro-life states are going to be forced to see their taxpayer dollars being spent to fund abortion providers like Planned Parenthood,” Chris Schandevel, Senior Counsel with Alliance Defending Freedom, told The Center Square.

The original case sparked up because of an executive order from South Carolina Gov. Henry McMaster in 2018 barring any entity that operated abortion clinics from receiving Medicaid funding, per a statute prohibiting taxpayer dollars from funding abortions.

Planned Parenthood chose the federal court system rather than the state, saying the client’s individual right to choose their medical provider had been infringed.

The Medicaid Act requires the state to offer a list of “qualified providers,” which Schandevel said South Carolina has certainly done.

Schandevel asserted that the case aligned with a division of state and government powers argument, saying that Medicaid encouraged states to provide medical assistance to its citizens and that Congress intended it to be an “agreement” to increase available funding for people so they could afford health care.

Schandevel said that the state’s position is that Planned Parenthood is “unqualified to provide family planning services because they had insisted on continuing to perform abortions within the state of South Carolina despite the state’s very pro-life stance and despite the statute saying that no taxpayer dollars shall be used to fund abortions in the state.”

“Planned Parenthood has a choice to make,” Schandevel said. “It can choose to stop doing abortions in the state, and we think that if they made that choice their taxpayer funding would be restored. But they decided to insist on continuing to perform abortions. So as long as they continue to make that choice, at least in the state of South Carolina, they are going to be disqualified from receiving Medicaid funds.”

The U.S. Supreme Court’s remand followed its decision in Health and Hospital Corporation of Marion County v. Talevski. Justices ruled a specific statute in the Medicaid law clearly displayed that Congress was intending to create a private right to be free from “unnecessary physical or chemical restraints and to be discharged or transferred only when certain preconditions are satisfied.”

Schandevel said, however, that the requirements to show legal intention of a private right is “a very high bar.”

“We think that since it is so high the statute considered in Talevski is really the exception that proves the rule,” he said. “The statute in Talevski was very explicit that Congress intended to create a new right. The statute in our case is not at all clear. In fact, we think it’s clear that all Congress was intending to do was to give states direction on how to set up their health plans.”

Four other appellate courts reached the same conclusion as the 4th Circuit in similar cases to Kerr. The 5th and 8th circuits reached contrary conclusions; six others have no precedent.

The case also comes with a significant hindrance for states if the precedent from the 4th Circuit’s original ruling is kept. Allowing individuals to take state’s decisions to court on who can receive Medicaid funding would increase state’s litigation costs and discourage states from making important decisions about which providers are qualified to provide medical services to the people.

“Congress did not intend for private individuals to be able to file federal lawsuits and basically haul the state into federal court to force them to defend every single decision they make about who is and who is not qualified to provide health care services and to receive Medicaid funding,” Schandevel said.

In 28 states covered by five appellate courts, individuals can file federal lawsuits requiring states to defend their qualification decisions. In 10 states, they cannot, and 12 states have left the issue unresolved.

Schandevel expressed hope the Supreme Court will pick up the case to help resolve the circuit split if the case comes back before them to have nationwide consistency.

“The decision in Talevski really strengthens our arguments, and we think that by vacating the decision that the 4th Circuit reached last time, the Supreme Court is sending a clear signal that the court needs to reconsider both its outcome and the reasoning for reaching that outcome,” Schandevel said.

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