The Volokh Conspiracy
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Medina v. Planned Parenthood: Abandoning the Abortion "Distortion" Field For Section 1983 and the Spending Clause
The Court faults lower courts for not anticipating the abandonment of Wilder and other Section 1983 precedents.
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 seems kind of annoyed that the lower courts didn't take the hint. Perhaps Hill v. Colorado has been abandoned as well, even if lower courts haven't gotten the memo yet. And I think Goldey. v. Fields, decided without recorded dissent, signals that Bivens has been abandoned as well.
For the past 45 years, this Court has consistently declined to extend Bivens to new contexts. See Egbert, 596 U. S., at 490–491. We do the same here.
Get the picture?
In dissent, Justice Jackson assails the majority for contracting a landmark Reconstruction Era law. She compares Medina to decisions like the Civil Rights Cases and Cruikshank.
The Court's decision today is not the first to so weaken during the Reconstruction Era. See, e.g., Civil Rights Cases, 109 U. S. 3 (1883); United States v. Cruikshank, 92 U. S. 542 (1876); Blyew v. United States, 13 Wall. 581 (1872). That means we do have a sense of what comes next: as with those past rulings, today's decision is likely to result in tangible harm to real people.
I, of all people, understand the value of using hyperbole. But this argument is a bit much. Cruikshank, which followed from Slaughter-House and Bradwell, ruled that the Fourteenth Amendment did not "incorporate" any provisions of the Bill of Rights. The Civil Rights Cases effectively eliminated Congress's power to remedy private discrimination under Section 5 of the Fourteenth Amendment, and narrowed Congress's powers under Section 2 of the Thirteenth Amendment to actual chattel slavery. These were foundational decisions interpreting the newly-ratified amendments. They were not mere constructions of statutes. KBJ's criticism misses the mark wildly. Justice Gorsuch described the limited nature of Medina: "we reach the unsurprising conclusion that it generally belongs to the federal government to supervise compliance with its own spending programs."
If Justice Jackson is serious about undoing Cruikshank, she should go on record and join Justice Thomas in overruling the Slaughter-House cases. Or would Justice Jackson be opposed to reinvigorating the Privileges or Immunities Clause because it is limited to "citizens," or out of fear of Lochner? Until we see some actual action, KBJ is just hurling empty rhetorical bombs that fizzle out.
Justice Thomas, as he often does, writes that the Court should reconsider its Section 1983 jurisprudence in an appropriate case. Over the decades, the Court has transformed Section 1983 into an all-purpose tool to challenge state action. Thomas explains:
The "scant resemblance" between §1983 today and §1983 as it was traditionally understood creates good reason to doubt our modern understanding. Crawford-El, 523 U. S., at 611 (Scalia, J., dissenting). After all, a statute's meaning turns on what its words "conveyed to reasonable people at the time they were written." A. Scalia & B. Garner, Reading Law 16 (2012). To ensure that we are not "elevat[ing] demonstrably erroneous decisions" over "duly enacted federal law," we should in appropriate cases revisit the proper bounds of §1983. Gamble v. United States, 587 U. S. 678, 711 (2019) (THOMAS, J., concurring). Although the potential problems are numerous, this case implicates two in particular: the extension of §1983 into the spending-power context, and an a historically modern understanding of the "rights" protected by §1983. . . . This case does not present an occasion to remedy our error because the petitioner did not ask us to revisit our precedents. But, in a case where the issue is properly presented, I would make clear that spending conditions—which are by definition conditional—cannot "secure" rights. . . . Separately, I question whether our current understanding of §1983 is overbroad with respect to the range of"rights, privileges, or immunities" covered by that statute.Given the degree to which the judicial conception of "rights"evolved over the 20th century, I doubt that §1983, as originally understood, protects the full range of "rights" that courts now construe it to cover. . . In light of the distinctly modern nature of our §1983 jurisprudence, I doubt that we have correctly interpreted the term "rights"for purposes of §1983.
Usually when Justice Thomas calls for the reconsideration of an entire line of doctrine, his colleagues ignore him. But not Justice Jackson. She charges that Thomas has not yet done enough work to justify this effort:
Finally, JUSTICE THOMAS's concurrence calls for a "fundamental reexamination of our §1983 jurisprudence" based on his view that the "history of §1983 makes clear that thestatute has exceeded its original limits." Ante, at 1–2, 13. Because his opinion is not tethered to the specific facts or arguments presented in this case, an extensive response isnot necessary here. But it is worth pausing briefly to think about whether the historical account he offers reflects the level of depth, nuance, or context needed to support thewholesale reappraisal he is envisioning. . . . All of which is to say: more caution (and more research)may be warranted before our longstanding precedents inthis area can be seriously scrutinized or attacked—especially in cases where no party has made such a claim or presented any such argument.
Justice Thomas responds to Justice Jackson:
The dissent questions whether sufficient "research" supports my current conclusions. Post, at 20–21 (opinion of JACKSON, J.). But, my point is precisely that further examination is warranted. Insofar as the dissent highlights the existence of other "historical sources" beyond the scope of this concurring opinion, the "broader" historical record at which the dissent gestures only reinforces the need to consider the relationship (or lack thereof) between our current §1983 jurisprudence and §1983's original meaning. Post, at 21.
Most people do not understand the role that Justice Thomas plays on the Court. He sets the agenda. The Chief Justice may think he is playing a "long game" but Roberts is mostly treading to keep the Court above water, one case at a time. Thomas sets the long-term intellectual arc of the Court. Over the decades, he has written so many concurrences and dissents that would later become, or at least influence, majority opinions. Thomas single-handedly shifts the Overton Window. Is it any surprise that none of Thomas's colleagues join him?
Moreover, Justice Thomas's separate writing are like a Bat Signal that scholars, lawyers, and lower court judges can see. I'm sure we will now see a outburst of writings about the Court's Section 1983 decisions. Will the Court ever adopt Thomas's approach in whole? Who knows? But we will keep moving in his direction. We should all be grateful for the invaluable role Justice Thomas plays--but I am still salty about his joining Justice Barrett's Skrmetti concurrence, which rehabilitated Footnote 4.
