This column by ACRU General Counsel Ken Klukowski was published August 20, 2017 by Breitbart.

A federal appeals court last week ruled against Planned Parenthood’s lawsuit demanding taxpayer funding for abortion, creating a split with other federal appeals courts that might finally take this issue to the highest court in the land.

The Supreme Court in 1973 invented a constitutional right to abortion in Roe v. Wade, even though nothing in the text, structure, or history of the Constitution suggests the existence of such a right. But even the pro-Roe Court held in its 1980 decision Harris v. McRae that Roe’s right to abortion does not include the additional right to make taxpayers foot the bill for it.

Although the Constitution does not mandate abortion funding, Medicaid nonetheless provides money through state governments to Planned Parenthood, the nation’s largest abortion provider. Planned Parenthood performs 320,000 abortions per year and receives $554 million in taxpayer money.

Yet polls show that 62 percent of Americans oppose taxpayers’ funding abortions, even while some of these funding opponents believe that abortion should be legal.

Given that poll, it is not surprising that in recent years, several states passed laws discontinuing taxpayer funding for abortion. This is typically done by a state’s deciding that Planned Parenthood is no longer an approved health care provider for purposes of Medicaid payments.

Planned Parenthood has sued each of those states and won several challenges to these defunding measures.

But on August 16, the U.S. Court of Appeals for the Eighth Circuit split from its sister circuits on this issue, holding that private parties cannot file a federal civil rights lawsuit under the Medicaid statute, and therefore that no federal court has authority to rule on the merits of the legal claim in such a case.

“Planned Parenthood and the Arkansas Department of Human Services were parties to contracts under which Planned Parenthood participated in the Arkansas Medicaid program,” Judge Steven Colloton began for the court’s three-judge panel hearing the case. “The contracts provided that either party could terminate them without cause by giving thirty days’ notice.”

After giving the required notice, Arkansas terminated Planned Parenthood’s contract on September 14, 2015. Although state law provides a procedure for terminated providers to appeal the termination to the Department of Human Services, Planned Parenthood opted instead to find three women “who were willing to join the organization in a federal lawsuit.”

These “Janes Does” and Planned Parenthood filed a federal civil rights lawsuit under 42 U.S.C. § 1983. The U.S. District Court for the District of Arkansas issued a preliminary injunction to block the state from suspending the flow of taxpayer money to the abortion provider while the case is ongoing.

The issue before the Eighth Circuit on appeal is whether Planned Parenthood can invoke the federal civil rights statute to assert a legal claim for the money. “Section 1983 provides a cause of action against any person who, under color of law, subjects a citizen to the deprivation of any rights secured by the laws of the United States,” Colloton wrote.

“General speaking, § 1983 supplies the remedy for vindication of rights arising from federal statutes,” Colloton continued. Quoting a seminal Supreme Court precedent on the issue, he added, “For legislation enacted pursuant to Congress’s spending power, however, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.”

“To support an action under § 1983, a plaintiff relying on a federal law must establish that Congress clearly intended to create an enforce a federal right,” the panel opinion added. Although the Supreme Court recognized such a statutory right to Medicaid payments back in 1990 in Wilder v. Virginia Hospital Association, the Eighth Circuit noted that later in 2002 the Supreme Court declared “that the governing standard for identifying enforceable federal rights in spending statues is more rigorous” than the standard applied in 1990.

“It is now settled that nothing short of an unambiguously conferred right will support a cause of action under § 1983,” the appellate court declared, adding that the Supreme Court’s 2015 case Armstrong v. Exceptional Child Center made clear that this higher for the federal civil rights statute applies to Medicaid claims like Planned Parenthood’s here.

The Eighth Circuit quoted Armstrong’s language that the federal law here “is phrased as a directive to the federal agency charged with approving state Medicaid plans, not as a conferral of the right to sue upon the beneficiaries of the State’s decision to participate in Medicaid.” Quoting another Supreme Court case, the appeals court added that the Medicaid statute “focuses neither on the individuals protected nor even on the funding recipients being regulated, but on the agency that will do the regulating.”

The St. Louis-based appeals court also found three additional reasons in Supreme Court precedent to rule against Planned Parenthood, including that the Medicaid statute’s procedure for appealing contract terminations suggests Congress intended that specific method to be the only route to pursue situations like this one.

The Eighth Circuit examined the precise language from other appeals courts that have come to a contrary conclusion, and reasoned that the Supreme Court’s 2015 Armstrong decision effectively overruled the 1990 Wilder decision that would have required a ruling in Planned Parenthood’s favor, but that most of the appellate decisions addressing Planned Parenthood’s arguments occurred before 2015.

The appeals court further noted that there were other restrictions on Arkansas’s authority to terminate Medicaid contracts but that none of those were implicated by this case. “We conclude only that Congress did not unambiguously confer the particular right asserted by the [plaintiffs] in this case,” Colloton wrote.

Judge Bobby Shepherd fully joined Colloton’s opinion, then also wrote a concurring opinion presenting an alternative ground for ruling in Arkansas’s favor. Judge Michael Melloy dissented.

Now that this 2-1 decision has created a split with other federal appeals courts on this issue, this case becomes a prime candidate for Supreme Court review if Planned Parenthood petitions the High Court to hear the case.

The case is Doe v. Gillespie, No. 15-3271 in the U.S. Court of Appeals for the Eighth Circuit.