The Supreme Court v. Public Health, Part 2

Indiana's claims in the Talevski case would not only undermine Medicaid, it would set a precedent for limiting everyone's day in court when rights are denied

In my last GoozNews article, I stupidly overlooked the upcoming Supreme Court case that poses the most direct and far-reaching threat to public health. The right of individuals and groups to sue state agencies for failing to deliver on promised federal benefits – think Medicaid, food stamps, children’s health insurance and more – will be on the line when the high court hears oral arguments in Health and Hospital Corp. of Marion County, Indiana v. Talevski on November 8.

“This case is to Medicaid what Dobbs was to abortion,” Sara Rosenbaum, a professor of health law and policy at George Washington University’s school of public health, told Talking Points Memo for an article posted early last month.

“If the Court ruled that people could not sue to protect their rights, it would affect people who use not only Medicaid but Medicare, SNAP, CHIP, TANF, foster care, juvenile system-involved youth, and homeless people,” Access Living, a disability rights group based in Chicago, wrote on its website. “It could weaken your ability to sue over discrimination based on sex, race, color, national origin or disability.”

Citing legal precedents stretching back more than 40 years, hundreds of civil rights and antipoverty organizations, legal scholars, patient advocacy groups and health care providers have weighed in with friend-of-the-court briefs urging the Supreme Court to reject the Indiana county’s claim that the family of a patient in state-financed nursing home had no right to sue for improper care. All of the conservative jurists who control the court, including Chief Justice John Roberts, have signaled their intent to scale back individuals’ right to sue when denied federal rights, especially if they are poor.

At issue is Section 1983 of an 1871 civil rights statute, which gave recently freed slaves the right to sue in federal court when denied their rights by state and local officials. Since the 1960s, the statute has been successfully used to enforce numerous constitutional rights, including those that involve the spending clause of the constitution, which covers joint state-federal programs like Medicaid.   

How kids benefited from Section 1983

For instance, in their brief to the court, lawyer for the nation’s pediatric health care providers point out it took dozens of lawsuits to force some state Medicaid agencies, primarily in the deep South and Southwest, to treat children’s mental and physical ailments as mandated in the 1967 amendments to the basic Medicaid law. “In the face of state policies that impermissibly restrict children’s access to Medicaid services, children and families have long relied on Section 1983 to defend their federal right to comprehensive coverage and timely provision of medically necessary services,” wrote lawyers at Manatt Phelps & Phillips, which represents the Children’s Hospital Association, the American Academy of Pediatrics and others.

Yet in their successful petition for a Supreme Court review of their case, lawyers for Marion County claimed the 1965 law establishing Medicaid set up a contract between the federal government and the states, not an enforceable set of rights. “At the time that Section 1983 was enacted, third-party beneficiaries had no right to sue to enforce a contract,” they wrote. “Even today, private right of action as third-party beneficiaries to government contracts.”

And in a direct reference to previous writings by conservative members of the court, the county’s petition for certiorari concluded: “For those reasons, many members of this court questioned when Section 1983 provides a private right of action for third-party beneficiaries to enforce cooperative federal-state spending clause programs.”

Legal scholars took direct aim at those claims in their brief to the high court. “In the 1870s, American common law did recognize a third-party beneficiary’s right to bring suit on a contract,” they wrote. “Many of the secondary sources that petitioners rely upon are from the 1880s or later – and thus are irrelevant to the state of the law when section 1983 was enacted.”

A case of bad law following a hard case

A difficult case created the opening for the high court to eviscerate the right of every American to turn to the courts for justice. Gorgi Talevski was suffering from dementia when his family sent him to a nursing home, where he was given psychotropic drugs as a chemical restraint and then transferred against the family’s wishes to an all-male facility. His family argued that was a violation of the 1987 Federal Nursing Home Reform Act (FHNRA), which enumerated a “bill of rights” for nursing home residents.

The home’s administrators claimed he had been abusive to staff, including alleged sexual assaults against female aides. “Such garden-variety medical disputes now give rise to a federal civil rights lawsuit, based on little more than unelaborated references to ‘rights’ in FHNRA,” the state agency’s lawyers argued in their petition.

The state agency’s lawyers also articulated a second issue, one that perhaps gets to the heart of the matter as far as the nursing home operator was concerned. “Such lawsuits allow dissatisfied nursing facility residents to circumvent important state policies. Indiana, for example, has enacted a cap on damages and attorneys’ fees in medical malpractice cases, but now any resident (or, more realistically, any enterprising plaintiff’s lawyer) can mollify those limitations by suing in federal court under Section 1983, which has no damages cap.”

A ruling in favor of Marion County (home to Indianapolis) will sharply reduce federal oversight of public programs. It will leave harmed individuals with few levers to challenge state and local officials wishing to ignore federal mandates.

“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,” Tim Jost, a professor emeritus at Washington and Lee University School of Law and an expert on health care law, told Talking Points Memo.

Footnote to this story:

While I usually don’t borrow quotes from other publications, I wanted to give a special shout out to reporter Kate Riga at Talking Points Memo, who has been closely following this case (see stories here and here). It has yet to receive a mention in the New York Times and received just one notice in the Washington Post (and that as the very last item in a long column where the reporter only mentioned that Democrats in Congress were also weighing in on the issue).