Elena Kagan Presses Attorney On Differences Between A ‘Benefit And A Right’ To Abortion Care

4/2/2025

During Wednesday's Supreme Court oral arguments for the case Medina v. Planned Parenthood South Atlantic, Justice Elena Kagan questioned attorney John Bursch about the benefit or right to Medicaid coverage for abortion.

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00:00Could we talk about, Mr. Bursch, the difference between a benefit and a right?

00:03I mean, I assume from your answer to Justice Sotomayor that you agree that the state has

00:08an obligation here.

00:09Is that correct?

00:10To provide benefits on the plan, but significantly, it's—

00:13The state has an obligation to provide this particular thing, right, which is the state

00:19has an obligation to ensure that a person—I don't even know how to say this without

00:25saying right—has a right to choose their doctor.

00:28That's what this provision is.

00:30It's impossible to even say the thing without using the word right.

00:34Has a benefit to choose their doctor?

00:37The state has to ensure that individuals have a benefit to choose their doctor?

00:42The state has to ensure that individuals have a right to choose their doctor.

00:46That's what this provision is.

00:48Well, the language that you're focused on, may obtain, is not clear rights-creating language

00:53for four reasons.

00:54I don't want four reasons.

00:55I want you to answer my question.

00:58The obligation is to ensure that individuals can choose their doctor.

01:03And when we speak of that, the obligation is to—I mean, there's a correlative right.

01:09There's an obligation.

01:10There's a right.

01:11And the right is the right to choose your doctor.

01:14Justice Kagan, I won't go through my list.

01:16There's many reasons why that analysis is wrong.

01:19But simply because we understand colloquially that something might be a right doesn't mean

01:23that Congress has put a state on clear notice that it could be sued in federal court under

01:271983 and subjected to liability and attorney fee shifting if it doesn't follow that provision,

01:33particularly in a substantial compliance regime.

01:35Well, here's what the state knows.

01:36The state knows it has an obligation.

01:39The state knows that that obligation runs to individuals and that individuals are specifically

01:45discussed in the statute.

01:47And the state knows the content of that obligation, which is that every individual has a right

01:52to choose their doctor.

01:53So what doesn't the state know that's important here?

01:56Whether it's going to be sued in federal court.

01:58Well, if you know that you have an obligation and you know that the individual has a right

02:04to choose their doctor, that suggests that there's some kind of enforcement.

02:08Gonzaga makes clear that there's a difference between a duty to provide a benefit and a

02:13right that subjects you to 1983 liability.

02:16We would expect a provision like this to use individual because, of course, a doctor treats

02:20an individual.

02:21But the word individual can't be rights creating.

02:24It appears more than 400 times just in 1396A.

02:27That's hardly atypical.

02:30One of the benefits provided by the act is that you may choose your own doctor.

02:36If the person thinks that's not being provided, what remedies do they have?

02:43They have a very specific remedy if they are denied benefits.

02:46There's an administrative appeal process that they can go through.

02:48But there is a separate remedy for providers who are disqualified.

02:52They also have an administrative appeal that could go through the state court system and

02:56that could come to this court if necessary.

02:58And it makes sense that Congress would create the appeal right for the disqualification

03:02in the provider, not the beneficiary, because I'm sorry, the Medicaid recipient can only

03:10sue a denial for services that were actually rendered.

03:15Yes.

03:16If a doctor can't render them, then they can't sue under that.

03:19That's correct.

03:20And the requirement of an administrative review process is not actually required by the act.

03:27It is something that a state can choose to give and they can choose its limits.

03:32Here they can only challenge, providers can only challenge a certain subset of disqualifications

03:38via South Carolina's administrative review process.

03:42They can only challenge a disqualification because of a criminal conviction or abuse.

03:49So the providers here did go through the administrative process and they were told

03:53they can't sue for this here.

03:55Justice Sotomayor, that is what they put in their brief.

03:57That is absolutely not what that regulation says.

04:00126.404 says that those particular things that you mentioned, like a criminal conviction

04:04or recouping payments.

04:05So why were they denied here?

04:08Can I finish?

04:09They're not.

04:10Go ahead.

04:11Yeah.

04:12So first of all, those things that you mentioned, that gives them advance review before consequences

04:16take place.

04:17But the regulations make absolutely clear that they could raise anything that they wanted

04:21in their administrative appeal.

04:22And the reality is, they haven't pursued their administrative appeal yet.

04:25They went straight to court, they recruited a beneficiary, they filed their 1983 suit.

04:30The state responded to that with a brief in opposition to preliminary injunction motion

04:35and said, hey, your remedy, which you agreed in your contract was your exclusive remedy,

04:40is to go through the administrative appeal that we offer.

Elena Kagan Presses Attorney On Differences Between A ‘Benefit And A Right’ To Abortion Care

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