There’s a sleeper case on the Supreme Court’s docket that could blow a gaping hole in the social safety net and give states leeway to neglect or end care for tens of millions of the most vulnerable Americans.
“This case is to Medicaid what Dobbs was to abortion,” Sara Rosenbaum, professor of health law and policy at George Washington University’s school of public health, told TPM.
And it’s not just Medicaid, though the program enrolling nearly 90 million Americans is the biggest one at risk. This case could leave all of those who depend on federally funded, state-administered programs — think SNAP (formerly known as food stamps) or WIC, which helps low-income pregnant women and mothers with young children buy food — without any recourse, should states stop providing the benefits they’re required to give.
The echoes of Dobbs are eerie.
Here too, the Court’s decision to take up the case surprised and alarmed experts in equal measure. There was no circuit court split, no raging lower court controversy to settle. It was a fairly run-of-the-mill case, not unlike hundreds that had come before. A county in a red state, eyeing the right-wing composition of the Court, calculated that the time was ripe to lodge a bigger ask, to use a pedestrian vehicle to do away with a broader right it opposes. And the justices quietly took it up — dragging behind them a paper trail peppered with their inclination to overturn 50 years of precedent.
The Case
The case comes from a nursing home run by a municipal corporation owned by Marion County, Indiana. That’s key, since many nursing homes are privately owned.
The family of a patient who was suffering from dementia alleges that he was given a slew of unnecessary medications and improperly transferred to different facilities hours away. So they sued, arguing that his treatment violated the Federal Nursing Home Reform Act, which establishes the rights of residents of nursing homes that receive Medicaid and Medicare funding.
But the case, Health and Hospital Corp. of Marion County, Indiana v. Talevski, quickly became much bigger than the allegedly poor treatment of the late Gorgi Talevski.
The county-run corporation, sensing an opportunity, tacked on a bigger ask than the initial dispute over nursing home protections. It asked the Supreme Court to reexamine and nix altogether the pathway that people participating in these federal spending programs can use to sue when their rights are violated.
If the Supreme Court’s conservative majority bites, experts warn, it could have implications far beyond nursing homes.
If a state decided to, say, keep pocketing Medicaid funding but to abruptly stop providing coverage without any due process, those neglected beneficiaries would have recourse. They could sue in federal court under Section 1983, part of a civil rights statute passed in 1871. At the time, it was enacted as a federal remedy against officials who terrorized newly freed slaves under the color of state law. It remains a critical pathway for enforcing constitutional rights, and is frequently used in cases of police brutality.
A century after its passage, Section 1983 protections were interpreted to apply to rights under laws too — not just constitutional ones. In the next two decades, a body of court cases squarely applied it to Medicaid.
“For 50 years now, the Supreme Court has recognized that people can sue under 1983 if their rights are violated under federal law, including spending clause statutes like Medicaid or food stamps,” Tim Jost, professor of law, emeritus, at the Washington and Lee University School of Law, told TPM. “This goes back even beyond Roe.”
Its Potential Ramifications
“The way the state is arguing Talevski is that 1983 rights of action should not be available in any spending program … well, that’s our social safety net!” Nicole Huberfeld, professor of health law, ethics and human rights at Boston University’s school of public health, told TPM.
Suing under Section 1983 to check state violations is critical. The federal government has extremely limited tools in its arsenal to force states into compliance with requirements that come attached to these programs, and the beneficiaries of them, even fewer.
“There’d be very little anyone could do if a red state decided to just stop following the Medicaid statute, and certainly nothing that beneficiaries could do,” Jost said of a world without 1983 actions.
“This case will essentially determine whether Medicaid continues to exist as an enforceable legal entitlement,” added Rosenbaum.
These aren’t hypotheticals. In just one example of very many, in 2004, the Supreme Court forced Texas to provide basic health care services to Medicaid-eligible children after a protracted court battle where their parents sought relief under Section 1983.
“Children as a class sued and won on the grounds that they have entitlement to dental care under Medicaid, and the state couldn’t just take it away because it didn’t feel like spending money on poor children anymore,” Rosenbaum said.
That’s the kind of protection Section 1983 offers. It also raises flags to Health and Human Services (HHS) about the most egregious violators of these rights, so the department can better police who isn’t delivering on what they agreed to provide.
If the Court rips back that protection, as Huberfeld puts it, it “closes the courthouse doors” to low-income people who states are failing to fulfill their duty to, and makes it much easier for states to ignore the requirements that come with federal money. As it is, a bunch of states joined Indiana’s cause as amici, seeking to be rid of the guardrails that let them be dragged to court if they refuse to care for their constituents.
The Court
As was the case with Dobbs, the conservative justices on the Court have littered their previous writing with proof that they’re hungry to shut down this avenue to state accountability.
A 2015 case in particular, Armstrong v. Exceptional Child Center, Inc., gave justices the chance to take a big step towards the precipice they’re standing on now.
“Scalia sent warning shots across the bow that he’s not putting up with this 1983 stuff anymore,” Rosenbaum said. “The only reason he didn’t prevail and we didn’t face armageddon then was because Breyer wouldn’t go along with that part of the decision.”
John Roberts, in his earlier life as deputy solicitor general, once wrote an amicus brief expressing doubt that individual interests that stem from federal funding are enforceable as rights. Justices Clarence Thomas and Samuel Alito have been similarly hostile to private rights of action to enforce spending clause legislation.
The case also fits with broader themes of this Court, including a reluctance to give agencies any leeway when it comes to broad interpretations of their congressional-delegated authority — part of the right-wing legal world’s greater battle against the administrative state.
“There are members of this Court — Alito stands out in my mind, but also Gorsuch and Kavanaugh and Roberts — who believe that Congress’ spending power needs to be shrunk,” Huberfeld said. She added that Indiana and the other red states are likely clocking that this Court in particular is “not necessarily concerned about the practical implications of its decisions.”
With this case, the conservative majority has the opportunity to do enormous damage to people who are already often the most vulnerable in our society. The Court could hand down a narrower ruling about nursing home rights in particular — and indeed, the Department of Justice seems to be nudging the majority towards that less catastrophic offramp with its filing — but experts are skeptical.
With Dobbs, the justices theoretically could have greenlit Mississippi’s 15 week gestational ban and left Roe hobbled, but standing. But every court watcher knew that this very conservative court’s decision to take up a garden variety abortion ban case likely signaled something much more ominous.
“This is right up there with Dobbs and the EPA case and the gun case, where the Supreme Court is threatening to take a 180-degree turn and deny people rights that they’ve had for generations,” Jost warned.
