Medina v. Planned Parenthood: Abandoning the Abortion “Distortion” Field For Section 1983 and the Spending Clause
Four decades ago, Justice O’Connor observed that the Supreme Court’s “abortion decisions ha[d] already worked a major distortion in the Court’s constitutional jurisprudence.” In the wake of Dobbs, the Court is slowly but surely eliminating that distortion field. Or as I put it, the Court is ending the epicycles of Roe.
Medina v. Planned Parenthood continues that effort.
Medicaid is a conditional spending program. The federal government gives money to the states with certain conditions. If the states do not comply with those conditions, the federal government can sue the states or withdraw the funding or do nothing at all. Conversely, if the states object to how the conditions are being enforced, the states can sue the federal government. Cases like South Dakota v. Dole and NFIB v. Sebelius illustrate how these principles work. (Justice Gorsuch’s majority opinion provides a very readable survey of this caselaw.)
Yet there is a wrinkle. In certain circumstances, the courts have allowed recipients of state Medicaid funding to sue the states under Section 1983 for not following the federal conditions. As relevant in Medina, the courts have allowed Planned Parenthood to sue states for cutting off their funding. I won’t walk through the precise statutory framework here. I think Justice Gorsuch’s majority opinion lays it out fairly clearly. What is significant, however, is the Court’s pivot.
In Wilder v. Virginia Hospital Association (1990), the Court “suggested that spending-power legislation can give rise to an enforceable right under §1983 so long as the legislation is ‘intended to benefit the putative plaintiff ‘and the plaintiff’s interest in the statute is not ‘too vague and amorphous.'” That is the sort of nebulous balancing test that was once the hallmark of the Supreme Court’s caselaw. No longer.
In Medina, the Fourth Circuit ruled that Planned Parenthood could invoke Section 1983 in light of Wilder and related precedents. But Justice Gorsuch contended that more recent precedents repudiated Wilder:
Some lower court judges, including in this case, still consult Wilder, Wright, and Blessing when asking whether a spending-power statute creates an enforceable individual right.
They should not. Gonzaga “reject[ed]” any reading of our prior cases that would “permit anything short of an unambiguously conferred right to support a cause of action brought under §1983.” Armstrong “repudiate[d]” any other approach. And Talevski reaffirmed that “Gonzaga sets forth our established method” for determining whether a spending-power statute confers individual rights.
Yet the Court doesn’t actually overrule Wilder–it just encourages lower courts not to rely on the precedent:
To the extent lower courts feel obliged, or permitted, to consider the contrary reasoning of Wilder, Wright, or Blessing, they should resist the impulse.
This reasoning has the scent of Lemon. In Kennedy v. Bremerton, Justice Gorsuch faulted the lower courts for not realizing that the Lemon test had been “abandoned,” even though the Court never expressly overruled the precedent. It is a longstanding rule that lower courts cannot anticipate that a Supreme Court precedent has already been, or will be, overruled. But Kennedy and Medina suggest otherwise. And Justice Gorsuch seem
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