US high court to decide if SC can take Planned Parenthood off Medicaid list for non-abortion care

The U.S. Supreme Court agreed Wednesday to hear a case asking whether South Carolina can block Medicaid patients from using Planned Parenthood clinics for non-abortion health care services.

The case began with Gov. Henry McMaster’s 2018 executive order directing the state’s Medicaid agency to remove abortion clinics from its list of providers for “family planning” services such as breast and cervical cancer screenings, birth control, and testing and treatment for sexually transmitted infections.

Planned Parenthood and one of its patients, Julie Edwards, sued the state to keep her coverage. A federal appeals court agreed, and McMaster’s order never went into effect.

This is the third time McMaster has asked the nation’s highest court to hear the case.

State law already forbids Medicaid dollars from paying for abortions in South Carolina. It also bars state employees’ health insurance plan from covering abortions, except in cases of rape, incest, or when the mother’s life is in jeopardy.

McMaster’s order, written when abortions were still legal in South Carolina through 22 weeks’ gestation, sought to end all taxpayer dollars going to Planned Parenthood’s clinics in Columbia and Charleston for any other reason.

It was an attempt to follow through on his 2018 campaign pledge, made amid a heated five-way GOP primary he won in a runoff, to defund Planned Parenthood.

“This case is politics at its worst: Anti-abortion politicians using their power to target Planned Parenthood and block people who use Medicaid as their primary form of insurance from getting essential health care like cancer screenings and birth control,” said Planned Parenthood South Atlantic President Jenny Black in a statement.

The Supreme Court will consider whether people covered by Medicaid — government-provided health insurance for the poor and disabled — have the right to choose which provider they use, regardless of whether or not the state agrees, as long as that provider has agreed to be part of the program, according to the petition the state filed.

“Today, the Supreme Court made it clear that people’s ability to choose their sexual and reproductive health care provider is in jeopardy,” said Alexis McGill Johnson, president of Planned Parenthood Federation of American, in a Wednesday statement.

Attorneys for the state are arguing that people using Medicaid should not be able to choose their provider if the state decides the provider isn’t qualified for any reason, whether that be fraud, malpractice or providing abortions, said John Bursch, an attorney with Alliance Defending Freedom, which is representing the state’s Medicaid agency.

“Taxpayer dollars shouldn’t be used to fund facilities that choose to profit off abortion, and South Carolina is free to use its limited funding to subsidize life-affirming health care,” Bursch told reporters Wednesday.

A law passed last year effectively bans abortions after six weeks gestation, though the state Supreme Court will hear arguments in February over whether the law’s wording means abortions should be allowed for several more weeks into a pregnancy.

But the Medicaid case isn’t about abortion directly. Instead, it more broadly questions a person’s right to choose their health care provider using taxpayer funds, Bursch said.

McMaster believes any clinic that offers abortions should not receive public support.

His July 2018 order followed his unsuccessful attempt to defund Planned Parenthood by vetoing $16 million from Medicaid in the state budget. The veto threatened to block money to all federally approved providers for birth control, prenatal care and annual exams. So, the order both directed the Medicaid agency to dip into reserves to continue paying for those services, while instructing the agency to take Planned Parenthood off the approved list.

Of the $35 million total spent on South Carolinians’ Medicaid-covered family planning services in 2022-23, Planned Parenthood received $88,464, or 0.2%, according to the latest data from the state Department of Health and Human Services.

“Taxpayer dollars should never fund abortion providers like Planned Parenthood,” McMaster said in the statement, posted to X, previously known as Twitter. “I’m confident the U.S. Supreme Court will agree with me that states shouldn’t be forced to subsidize abortions.”

That has not been the case in the past. A federal appeals court has decided three times the state cannot deny Medicaid patients from choosing the provider of their choice solely because it offers abortions also.

The most recent decision came in March, when the Fourth Circuit Court of Appeals reevaluated its decision at the request of the Supreme Court in light of a recent ruling on a different case.

After each appeals court decision, the state’s attorneys appealed the case to the U.S. Supreme Court, which twice declined to take up the issue.

The Fourth Circuit is one of seven regional federal courts to have heard similar cases, Bursch said. Five have made decisions in line with the Fourth Circuit’s ruling for South Carolina, that people covered by Medicaid have the right to choose any health care provider they’d like. Two have gone the other way, Bursch said.

“I think it was time for (the Supreme Court) to resolve this,” Bursch said.

A hearing date has not been set.

Editor Seanna Adcox contributed to this report.