Planned Parenthood South Atlantic v. Robert M. Kerr

Petition for writ of certiorari granted, December 18, 2024
Reversed and remanded by Supreme Court, June 26, 2025
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1043
PLANNED PARENTHOOD SOUTH ATLANTIC; JULIE EDWARDS, on her
behalf and on behalf of all others similarly situated,
Plaintiffs – Appellees,
v.
ROBERT M. KERR, in his official capacity as Director, South Carolina Department
of Health and Human Services,
Defendant – Appellant.
------------------------------
REPRODUCTIVE RIGHTS AND JUSTICE ORGANIZATIONS AND ALLIED
ORGANIZATIONS; NATIONAL HEALTH LAW PROGRAM; SOUTH
CAROLINA APPLESEED LEGAL JUSTICE CENTER; VIRGINIA POVERTY
LAW CENTER; NORTH CAROLINA JUSTICE CENTER; CHARLOTTE
CENTER FOR LEGAL ADVOCACY; IPAS; SEXUALITY INFORMATION
AND EDUCATION COUNCIL OF THE UNITED STATES; AMERICAN
ACADEMY OF FAMILY PHYSICIANS; AMERICAN ACADEMY OF
PEDIATRICS; AMERICAN COLLEGE OF NURSE-MIDWIVES; AMERICAN
COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS; AMERICAN
COLLEGE OF PHYSICIANS; AMERICAN MEDICAL ASSOCIATION;
AMERICAN PSYCHIATRIC ASSOCIATION; NURSE PRACTITIONERS IN
WOMENS HEALTH; SOCIETY FOR MATERNAL-FETAL MEDICINE;
SOCIETY OF GYNECOLOGIC ONCOLOGY; SOCIETY OF OB/GYN
HOSPITALISTS,
Amici Supporting Appellee.

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Appeal from the United States District Court for the District of South Carolina, at
Columbia. Mary G. Lewis, District Judge. (3:18−cv−02078−MGL)
Argued: December 8, 2023 Decided: March 5, 2024
Before WILKINSON, WYNN, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion in which Judge Wynn
joined. Judge Richardson wrote an opinion concurring in the judgment.
ARGUED: John J. Bursch, ALLIANCE DEFENDING FREEDOM, Washington, D.C.,
for Appellant. Avi Kupfer, MAYER BROWN LLP, Chicago, Illinois, for Appellees. ON
BRIEF: Kelly M. Jolley, Ariail B. Kirk, JOLLEY LAW GROUP, LLC, Columbia, South
Carolina; Christopher P. Schandevel, ALLIANCE DEFENDING FREEDOM,
Lansdowne, Virginia, for Appellant. Nicole A. Saharsky, MAYER BROWN LLP,
Washington, D.C.; Alice Clapman, Jennifer Sandman, PLANNED PARENTHOOD
FEDERATION OF AMERICA, Washington, D.C.; M. Malissa Burnette, Kathleen
McDaniel, BURNETTE, SHUTT & MCDANIEL, PA, Columbia, South Carolina, for
Appellees. Julie Rikelman, Pilar Herrero, Joel Dodge, CENTER FOR REPRODUCTIVE
RIGHTS, New York, New York; Da Hae Kim, NATIONAL ASIAN PACIFIC
AMERICAN WOMEN’S FORUM, Washington, D.C., for Amici Reproductive Rights and
Justice Organizations and Allied Organizations. Martha Jane Perkins, Catherine McKee,
Sarah Jane Somers, Sarah Grusin, NATIONAL HEALTH LAW PROGRAM, Chapel Hill,
North Carolina, for Amici National Health Law Program, South Carolina Appleseed Legal
Justice Center, Virginia Poverty Law Center, North Carolina Justice Center, Charlotte
Center for Legal Advocacy, IPAS, and Sexuality Information and Education Council of
the United States. Janice M. Mac Avoy, Alexis R. Casamassima, Danielle M. Stefanucci,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP, New York, New York, for
Amici American Academy of Family Physicians; American Academy of Pediatrics;
American College of Nurse-Midwives; American College of Obstetricians and
Gynecologists; American College of Physicians; American Medical Association;
American Psychiatric Association; Nurse Practitioners in Women’s Health; Society for
Maternal-Fetal Medicine; Society of Gynecologic Oncology; and Society of OB/GYN
Hospitalists.

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WILKINSON, Circuit Judge:
This case marks the third time that we have been called upon to resolve the same
legal issue: whether the free-choice-of-provider provision of the Medicaid Act, 42 U.S.C.
§ 1396a(a)(23), creates individual rights enforceable via 42 U.S.C. § 1983. See Planned
Parenthood S. Atl. v. Baker, 941 F.3d 687, 696 (4th Cir. 2019); Planned Parenthood S. Atl.
v. Kerr, 27 F.4th 945, 953 (4th Cir. 2022), cert. granted, judgment vacated, 143 S. Ct. 2633
(2023). After another round of briefing and oral argument, we respectfully conclude that
the answer is again yes.
South Carolina insists that we ought to abandon our prior position in light of the
Supreme Court’s recent opinion in Health and Hospital Corp. of Marion County v.
Talevski, 599 U.S. 166 (2023). It argues that Talevski compels the conclusion that the free-
choice-of-provider provision cannot be enforced by individual Medicaid beneficiaries.
We agree that enforceable rights under § 1983 are dependent on congressional
authorization, which under no circumstances may be casually implied. While Talevski
offered an illuminating analysis of the issue before us and a useful new example of
provisions enforceable via § 1983, we do not read it as toppling the existing doctrinal
regime. And even if Talevski could be read as embracing a wholly new test, we hold that
the free-choice-of-provider provision passes it. Accordingly, we remain in the good
company of four of our sister circuits 1 and reaffirm that a Medicaid beneficiary may use
1 See Planned Parenthood of Kan. v. Andersen, 882 F.3d 1205 (10th Cir. 2018);
Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960 (9th Cir. 2013); Planned
(Continued)

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§ 1983 to vindicate her right under the Medicaid Act to freely choose among qualified
healthcare providers, of which Planned Parenthood is one.
I.
A.
Medicaid was established in 1965 to provide “medical assistance on behalf of
families with dependent children and of aged, blind, or disabled individuals, whose income
and resources are insufficient to meet the costs of necessary medical services.” 42 U.S.C.
§ 1396-1. It does so via a partnership with the states, offering “federal financial assistance
to States that choose to reimburse certain costs of medical treatment for needy persons.”
Harris v. McRae, 448 U.S. 297, 301 (1980). In short, it “is a cooperative federal-state
program that provides medical care to needy individuals.” Douglas v. Indep. Living Ctr. of
S. Cal., Inc., 565 U.S. 606, 610 (2012).
Medicaid was enacted through Congress’s Spending Clause authority, and,
characteristically, “offers the States a bargain: Congress provides federal funds in exchange
for the States’ agreement to spend them in accordance with congressionally imposed
conditions.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 323 (2015). States
draft “plans for medical assistance” and submit them for approval to the Secretary of Health
and Human Services, who reviews the plans for compliance with federal statutory and
regulatory requirements. 42 U.S.C. § 1396-1.
Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962 (7th Cir.
2012); Harris v. Olszewski, 442 F.3d 456 (6th Cir. 2006).

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The statute also tasks the Secretary with ensuring that states keep their end of the
bargain. If the Secretary later discovers “that in the administration of the plan there [has
been] a failure to comply substantially” with federal requirements, the Secretary may
withhold funds until “satisfied that there will no longer be any such failure to comply.” 42
U.S.C. § 1396c.
Two years following the enactment of the Medicaid Act, Congress grew concerned
that states were restricting beneficiaries to certain providers. Accordingly, Congress
amended the Act to add the free-choice-of-provider provision to the list of requirements
with which states must comply to be eligible for federal funds. That provision, which is at
issue here, states:
A state plan for medical assistance must . . . provide that . . . any individual
eligible for medical assistance . . . may obtain such assistance from any
institution, agency, community pharmacy, or person, qualified to perform the
service or services required . . . who undertakes to provide him such services.
42 U.S.C. § 1396a(a)(23).
B.
Plaintiff Planned Parenthood South Atlantic serves both Medicaid and non-
Medicaid patients at two South Carolina health centers in Charleston and Columbia. It
offers a wide range of specialized services, including contraception and contraceptive
counseling, cancer screenings, sexually transmitted infection screenings and treatment,
pregnancy testing, and physical exams. Planned Parenthood also performs abortions, but
pursuant to federal law, South Carolina Medicaid funds cannot be used to cover abortions
except in life-threatening circumstances or in the case of rape or incest. See Consolidated

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Appropriations Act, 2021, Pub. L. No. 116-260, div. H, tit. V, §§ 506–07, 134 Stat. 1182,
1622 (“the Hyde Amendment”).
Planned Parenthood has crafted its care to provide greater access to low-income
patients, many of whom are covered by Medicaid. For instance, Planned Parenthood clinics
offer short wait times, same-day appointments, and extended clinic hours. These policies
provide flexibility to individuals with rigid or unpredictable working hours. Planned
Parenthood clinics also offer translation services for patients who request them. Thousands
of South Carolinians have visited Planned Parenthood in connection with their healthcare.
See Br. of the American Academy of Family Physicians as Amicus Curiae Supporting
Plaintiff-Appellees 14.
Julie Edwards, the individual plaintiff in this case, is one of those South Carolinians.
Edwards is insured through Medicaid and previously struggled to find a provider who could
provide her with the contraceptive care she sought. Doctors at Planned Parenthood
addressed her problem by inserting an intrauterine contraceptive device and advising her
that follow-up care was needed for her high blood pressure. Edwards was pleased with her
treatment at Planned Parenthood and planned to move “all [her] gynecological and
reproductive health care there.” J.A. 61. She noted, however, that she would “not be able
to continue going there if the services [were] not covered” by Medicaid because she could
not afford “to pay out of pocket.” J.A. 61.
Edwards’s concerns were real ones. In July 2018, the Governor of South Carolina
issued an executive order directing South Carolina’s Department of Health and Human
Services (DHHS) “to deem abortion clinics . . . that are enrolled in the Medicaid program

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as unqualified to provide family planning services and, therefore, to immediately terminate
them upon due notice and deny any future such provider enrollment applications for the
same.” J.A. 54. Accordingly, DHHS informed Planned Parenthood that it was “no longer
. . . qualified to provide services to Medicaid beneficiaries” and that its “enrollment
agreements with the South Carolina Medicaid programs [were] terminated” effective
immediately. J.A. 56.
C.
Planned Parenthood and Edwards sued the Director of DHHS under 42 U.S.C.
§ 1983 in federal district court, seeking to enjoin enforcement of the executive order as
applied to Planned Parenthood. The suit alleged that the State had violated the free-choice-
of-provider provision of the Medicaid Act. 2 Thus began this case’s circuitous route through
the federal courts.
The plaintiffs quickly moved for a preliminary injunction, which the district court
granted. Planned Parenthood S. Atl. v. Baker, 326 F. Supp. 3d 39, 42 (D.S.C. 2018). The
district court concluded that Edwards had demonstrated she was likely to succeed on her
Medicaid Act claim, as the free-choice-of-provider provision conferred rights individually
enforceable via § 1983 and the State had violated that provision in terminating Planned
Parenthood’s Medicaid enrollment agreement. Id. at 44–48. The court also found that the
other equitable factors for preliminary injunctive relief favored Edwards. Id. at 48–50. It
2 The parties stipulated to the dismissal of the plaintiffs’ Fourteenth Amendment
claim. J.A. 302–03.

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thus enjoined South Carolina from terminating Planned Parenthood’s enrollment
agreement. Id. at 50.
South Carolina appealed, and this court affirmed. Baker, 941 F.3d at 691. We
applied the three factors articulated by the Supreme Court in Blessing v. Freestone, 520
U.S. 329 (1997), as well as the guidance offered in Gonzaga University v. Doe, 536 U.S.
273 (2002), to conclude that the free-choice-of-provider provision indeed created an
individually enforceable right for Medicaid beneficiaries. Baker, 941 F.3d at 696–98. We
also concluded that the Medicaid Act did not evince a congressional intent to foreclose
resort to § 1983 to enforce the free-choice-of-provider provision. Id. at 698–99.
We then turned to the scope of the right created by the provision to see whether it
had in fact been violated by the termination of Planned Parenthood’s enrollment agreement.
Id. at 701. The statute instructs that a Medicaid-eligible patient must be allowed to seek
care from any provider “qualified to perform the service or services required.” 42 U.S.C.
§ 1396a(a)(23). We held that a provider was “qualified to perform the service or services
required” so long as that provider was professionally competent to do so. Baker, 941 F.3d
at 702. We recognized that states maintained discretionary authority under the statute to
“disqualify providers as professionally incompetent” for legitimate medical and
nonmedical reasons. Id. at 705. However, because “South Carolina’s exclusion of [Planned
Parenthood] from its Medicaid network ha[d] nothing to do with professional misconduct
or . . . with [Planned Parenthood’s] ability to safely and professionally perform plaintiff’s
required family-planning services,” we agreed that Edwards had demonstrated a likelihood
of success on the merits. Id. After considering the remaining equitable factors, we held that

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the district court had not abused its discretion in enjoining the State from terminating
Planned Parenthood’s enrollment agreement. Id. at 706–07.
South Carolina petitioned for a writ of certiorari, which the Supreme Court denied.
Baker v. Planned Parenthood S. Atl., 141 S. Ct. 550 (2020). Upon the case’s return, the
district court granted summary judgment to the plaintiffs and “issue[d] a permanent
injunction” forbidding the State “from terminating [Planned Parenthood] from Medicaid
as a result of its provision of lawful abortion-related services.” Planned Parenthood S. Atl.
v. Baker, 487 F. Supp. 3d 443, 448–49 (D.S.C. 2020).
Once again, South Carolina appealed to this court, urging us to “reconsider our
previous panel decision and hold that Edwards cannot sue under § 1983 to enforce the free-
choice-of-provider provision.” Kerr, 27 F.4th at 953. We declined to do so. We started by
noting that this was a “striking request” that could not “be reconciled with the nature of
precedent in our judicial system.” Id. Nonetheless, we took the “opportunity to reaffirm
our prior decision.” Id. Again, we relied both on Blessing and Gonzaga to conclude that
the provision conferred an individual right. As for the first Blessing factor, which had been
clarified by Gonzaga, we stressed that “nothing ‘short of an unambiguously conferred
right,’ rather than the ‘broader or vaguer’ notion of ‘benefits or interests’ may support a
cause of action under § 1983.” Id. at 955 (quoting Gonzaga, 536 U.S. at 283). We found
that the free-choice-of-provider provision met this high bar, as it “‘unambiguously g[ave]
Medicaid-eligible patients an individual right’ to their choice of qualified provider.” Id.
(quoting Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699

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F.3d 962, 974 (7th Cir. 2012)). We then turned to the remaining Blessing factors and
concluded they were satisfied as well. Id. at 956.
We then turned to the next stage of the analysis: whether the Medicaid Act “evinces
Congress’s intent to ‘specifically foreclose[] a remedy under § 1983.’” Id. at 957 (quoting
Blessing, 520 U.S. at 341) (alteration in original). For the second time, we explained why
the statute did “no such thing.” Id. We stressed that “the Supreme Court has instructed us
to focus on whether ‘an aggrieved individual lack[s] any federal review mechanism,’” and
noted that the Act lacked a remedy for “individual Medicaid recipients . . . to contest the
disqualification of their preferred provider.” Id. (quoting Gonzaga, 536 U.S. at 290)
(alteration in original). Further, there was “nothing in the statute to suggest” that Congress
intended to preclude enforcement of the free-choice-of-provider provision by beneficiaries.
Id. at 958. Thus, we affirmed the district court and upheld the right of individual
beneficiaries to bring suit via § 1983 to enforce the free-choice-of-provider provision. Id.
at 959.
Judge Richardson concurred in the judgment. He wrote that he “continue[d] to
believe that applying existing Supreme Court precedents requires that we find
§ 1396a(a)(23) to unambiguously create a right privately enforceable under § 1983 to
challenge a State’s determination of whether a Medicaid provider is qualified.” Id. (internal
citations omitted) (internal quotation marks omitted). Yet he stressed that “the caselaw on
implied private rights of action remains plagued by confusion and uncertainty,” as “recent
Supreme Court cases . . . cast doubt on—but fail to explicitly overrule—earlier precedent.”

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Id. As such, he recognized that “this Court remains bound by Blessing and Wilder” and
therefore “reach[ed] the same result” as the majority. Id.
South Carolina once more petitioned for a writ of certiorari. While that petition was
pending, the Supreme Court decided Talevski, which held that nursing home residents
could use § 1983 to enforce two provisions of the Federal Nursing Home Reform Act
(FNHRA), 42 U.S.C. §§ 1396a(a)(28), 1396r, because those two provisions
unambiguously conferred individual rights. 599 U.S. at 172. The Supreme Court thereafter
granted South Carolina’s petition in this case, vacated the judgment, and remanded the case
to this court “for further consideration in light of [Talevski].” Kerr v. Planned Parenthood
S. Atl., 143 S. Ct. 2633, 2634 (2023). We directed the parties to file supplemental briefs
addressing the impact of Talevski on this case and heard oral arguments on the issue.
Upon careful review of those briefs and the parties’ arguments, we conclude that
Talevski did not change the law to an extent that would call our previous determinations
into question. And now, with the benefit of Talevski’s guidance, we again hold that the
free-choice-of-provider provision in the Medicaid Act confers an individual right
enforceable via § 1983.
II.
Section 1983 provides a private federal remedy against any person who, acting
“under color of” state law, has deprived the plaintiff of “any rights, privileges, or
immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983.
This provision was enacted in 1871 as a response to “postbellum state actors . . . continuing

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to deprive American citizens of federally protected rights.” Talevski, 599 U.S. at 176.
While certainly a seminal piece of legislation, the statute “does not provide an avenue for
relief every time a state actor violates a federal law.” City of Rancho Palos Verdes v.
Abrams, 544 U.S. 113, 119 (2005). Instead, a plaintiff “must assert the violation of a federal
right, not merely a violation of federal law.” Blessing, 520 U.S. at 340. Therefore,
“[a]lthough federal statutes have the potential to create § 1983-enforceable rights, they do
not do so as a matter of course.” Talevski, 599 U.S. at 183. And “[f]or Spending Clause
legislation in particular,” like the Medicaid Act, “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.” Id. (quoting Gonzaga, 536 U.S. at 280).
That is not to say, however, that Spending Clause legislation can never create rights
enforceable under § 1983. The Supreme Court has counseled that Spending Clause
legislation is subject to the same test as other legislative acts. See Talevski, 599 U.S. at 180.
Thus, even Spending Clause legislation is enforceable under § 1983 so long as it
unambiguously confers individual rights, absent evidence of congressional intent to
foreclose such relief. Id.
III.
Twice we have found that the free-choice-of-provider provision satisfies both
requirements: it explicitly gives individual Medicaid beneficiaries the right to the provider
of their choice, and there is no indication that Congress wanted to foreclose such

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individuals from seeking relief under § 1983. Baker, 941 F.3d at 690, 699; Kerr, 27 F.4th
at 957–58. South Carolina insists that we revisit our previous deliberations. In light of
Talevski, the State posits, our prior position is “‘no longer tenable’ and this court should
‘decline to follow [it].’” Appellant’s Suppl. Br. 16 (quoting United States v. Banks, 29
F.4th 168, 178 (4th Cir. 2022)).
We are unconvinced that Talevski effected such a clear doctrinal transformation.
Instead, the decision emphasized a well-known point: that the key inquiry in discerning
whether a federal statute creates individually enforceable rights is “whether Congress has
‘unambiguously conferred’ ‘individual rights upon a class of beneficiaries’ to which the
plaintiff belongs.” Talevski, 599 U.S. at 183 (quoting Gonzaga, 536 U.S. at 283, 285–86).
Our previous decisions relied on the same textual probe.
Nonetheless, the State here contends that Talevski requires a do-over. We disagree.
We shall carefully trace the Court’s decisions on statutory grants of private rights
actionable under § 1983, in order to demonstrate why Talevski was not such a dramatic
departure from precedents past. We thus begin with a discussion of that evolution before
turning to its implications for the case at hand.
A.
We start with Wilder v. Virginia Hospital Ass’n., where the Supreme Court
considered whether the Boren Amendment to the Medicaid Act was enforceable by health
care providers via § 1983. 496 U.S. 498, 501–02 (1990). That provision (which is codified
in the same section as the free-choice-of-provider provision) required states to reimburse
health care providers according to rates that were “reasonable and adequate to meet the

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costs which must be incurred by efficiently and economically operated facilities.” Id. at
503 (quoting 42 U.S.C. § 1396a(a)(13)(A)). To the Court, it was clear that “health care
providers [were] the intended beneficiaries of the Boren Amendment” and significant that
the Amendment was “cast in mandatory rather than precatory terms.” Id. at 510, 512. The
Court rejected the argument that the obligation was too “vague and amorphous” to be
judicially enforceable, finding that determining reasonable and adequate rates was “well
within the competence of the judiciary.” Id. at 519–20. The Court then addressed the
contention that “Congress has foreclosed enforcement of the Medicaid Act under § 1983,”
and noted that it found “little merit in this argument,” as the Act’s remedial scheme was
not “sufficiently comprehensive to demonstrate a congressional intent to withdraw the
private remedy of § 1983.” Id. at 520–22. It thus held that health care providers could resort
to § 1983 to enforce the Boren Amendment. Id. at 524.
A bit later came Blessing v. Freestone, where the Court sought to synthesize the
preexisting doctrine into a multifactor test. 520 U.S. at 340–41. The Court noted that it had
“traditionally looked at three factors when determining whether a particular statutory
provision gives rise to a federal right.” Id. at 340. First, there had to be evidence that
“Congress . . . intended that the provision in question benefit the plaintiff.” Id. Second, “the
right assertedly protected by the statute” must not be “so vague and amorphous that its
enforcement would strain judicial competence.” Id. at 340–41 (internal quotation marks
omitted). Finally, “the statute must unambiguously impose a binding obligation on the
States” in that it “must be couched in mandatory, rather than precatory, terms.” Id. at 341.

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Despite the Blessing Court’s attempt to cohere the doctrine, confusion among the
lower courts remained. See Gonzaga, 536 U.S. at 278 (“[S]tate and federal courts have
divided on the question of . . . enforceability under § 1983.”). The Court thus saw fit to
take up the question of § 1983-enforceable rights again to resolve any confusion. Id. (“We
therefore granted certiorari to resolve the conflict among the lower courts and in the process
resolve any ambiguity in our own opinions.”). In Gonzaga, the Court concluded that a
nondisclosure provision of the Family Educational Rights and Privacy Act (FERPA) was
not enforceable by individual students via § 1983. Id. FERPA directed the Secretary of
Education to withhold federal funds from educational institutions if they failed to abide by
certain conditions. Id. at 279. The pertinent condition in Gonzaga required that funds be
withheld from “any educational agency or institution which has a policy or practice of
permitting the release of education records . . . of students without . . . written consent.” Id.
at 279 (quoting 20 U.S.C. § 1232g(b)(1)).
Before analyzing the provision, though, the Court acknowledged that “[s]ome
language in our opinions might be read to suggest that something less than an
unambiguously conferred right is enforceable by § 1983,” leading “some courts to interpret
Blessing as allowing plaintiffs to enforce a statute under § 1983 so long as the plaintiff falls
within the general zone of interest that the statute is intended to protect.” Id. at 282–83.
The Court corrected this misunderstanding, explicitly “reject[ing] the notion that our cases
permit anything short of an unambiguously conferred right to support a cause of action
brought under § 1983.” Id. at 283. The Court emphasized that Blessing itself had taken
pains to assert “that it is only violations of rights, not laws, which give rise to § 1983

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actions.” Id. at 282–83 (citing Blessing, 520 U.S. at 340). Far from repudiating Blessing,
then, the Gonzaga Court merely repudiated an inaccurate but persistent understanding of
that case. What the Court had written in Blessing endured; what lower courts had stretched
the case to mean did not.
With that clarification put forth, the Gonzaga Court turned to whether FERPA’s
nondisclosure provision created an individually enforceable right. “For a statute to create
such private rights,” it noted, “its text must be ‘phrased in terms of the persons benefited.’”
Id. at 284 (quoting Cannon v. Univ. of Chi., 441 U.S. 677, 692 n.13 (1979)). The Court
concluded that “there is no question that FERPA’s nondisclosure provision[] fail[s] to
confer enforceable rights.” Id. at 287. The provision lacked “the sort of ‘rights-creating’
language critical to showing the requisite congressional intent to create new rights.” Id.
(quoting Alexander v. Sandoval, 532 U.S. 275, 288 (2001)). The provision spoke “only to
the Secretary of Education, directing that ‘[n]o funds shall be made available’ to any
‘educational agency or institution’ which has a prohibited ‘policy or practice.’” Id. (quoting
20 U.S.C. § 1232g(b)(1)). “This focus,” the Court stressed, “is two steps removed from the
interests of individual students and parents and clearly does not confer the sort of
‘individual entitlement’ that is enforceable under § 1983.” Id. (quoting Blessing, 520 U.S.
at 343). Plus, the nondisclosure provision spoke “only in terms of institutional policy and
practice, not individual instances of disclosure” and thus had “an ‘aggregate’ focus.” Id. at
288 (quoting Blessing, 520 U.S. at 343). Because the provision was “not concerned with
‘whether the needs of any particular person ha[d] been satisfied,’” it could not “give rise
to individual rights.” Id. (quoting Blessing, 520 U.S. at 343, 344). With the first Blessing

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factor unmet, the Court concluded that that the plaintiff could not invoke § 1983 to force
institutional compliance with FERPA. Id. at 290.
That brings us to Talevski. There, family members of a nursing home resident filed
suit via § 1983 against the nursing home, claiming it had violated the resident’s rights under
the Federal Nursing Home Reform Act (FNHRA). 599 U.S. at 174. In particular, the family
claimed that the nursing home had improperly used chemical restraints on the resident and
transferred him without advance notice, in violation of 42 U.S.C. §§ 1396r(c)(1)(A)(ii) and
(2)(A)–(B). Talevski, at 181–82. The Court held that the relevant FNHRA provisions
“unambiguously confer individually enforceable rights on nursing-home residents” and
were thus actionable via § 1983. Id. at 174.
As a preliminary matter, the Court rejected the claim that any legislation passed
pursuant to Congress’s spending power could not create individual rights enforceable under
§ 1983. Id. at 177–80. It then turned to the question of whether the relevant FNHRA
provisions created such rights. Id. at 180. To determine whether the provisions at issue
could be enforced via § 1983, the Court emphasized that “Gonzaga sets forth [the]
established method for ascertaining unambiguous conferral” of individual rights. Id. at 183.
The Gonzaga test is satisfied “where the provision in question is ‘phrased in terms of the
persons benefited’ and contains ‘rights-creating,’ individual-centric language with an
‘unmistakable focus on the benefited class.’” Id. (quoting Gonzaga, 536 U.S. at 284, 287).
On the other hand, a provision would fail the test if it “‘contain[ed] no rights-creating
language,’ had ‘an aggregate, not individual focus,’ and ‘serve[d] primarily to direct the

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[Federal Government’s] distribution of public funds.’” Id. at 183–84 (quoting Gonzaga,
536 U.S. at 290) (alteration in original).
The relevant provisions met the Gonzaga criteria. Id. at 184. Both were found in a
section of the FNHRA that expressly concerned “[r]equirements relating to residents’
rights.” Id. (quoting 42 U.S.C. § 1396r(c)). And both contained explicit rights-creating
language. As for the first provision, deemed the “unnecessary-restraint provision,” it
required nursing homes to “protect and promote . . . [t]he right to be free from . . . any
physical or chemical restraints . . . not required to treat the resident’s medical symptoms.”
Id. (quoting 42 U.S.C. § 1396r(c)(1)(A)(ii)). Likewise, the second provision, deemed the
“predischarge-notice provision,” was “[n]estled in a paragraph concerning ‘transfer and
discharge rights,’” and specified that nursing homes “must not transfer or discharge [a]
resident” until certain conditions were met, including advance notice of the transfer or
discharge. Id. at 184–85 (quoting 42 U.S.C. §§ 1396r(c)(2)(A)–(B)). These provisions thus
“satisf[ied] Gonzaga’s stringent standard.” Id. at 186.
Having concluded that the provision unambiguously conferred a presumptively
enforceable right, the Court reiterated that “a defendant ‘may defeat [that] presumption by
demonstrating that Congress did not intend’ that § 1983 be available to enforce those
rights.” Id. (quoting Rancho Palos Verdes, 544 U.S. at 120). But the Court concluded that
the statute at issue in Talevski “lack[ed] any indicia of congressional intent to preclude
§ 1983 enforcement, such as an express private judicial right of action.” Id. at 188. The
Court thus held that “the test that our precedents establish leads inexorably to the
conclusion that the FNHRA secures the particular rights that Talevski invokes, without

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otherwise signaling that enforcement of those rights via § 1983 is precluded as
incompatible with the FNHRA’s remedial scheme.” Id. at 192.
One can see from this long preceding line of Supreme Court precedents that there
are somewhat varying formulations and somewhat different emphases on the matter of
statutory creation of privately enforceable rights under § 1983. But any inconsistency
should not be exaggerated, because one central inquiry eclipses all the rest. Throughout,
the Court’s decisions have asked whether Congress conferred a clear and unambiguous
right upon a discrete class of beneficiaries. Absent that crucial grant, the federal statute has
not made available a private right actionable under § 1983.
B.
The State, however, would divert the inquiry. South Carolina contends that
“Talevski ‘clearly undermined’ and thus superseded this Court’s prior decisions applying
the three factors listed in Blessing,” because Talevski “declin[ed] to apply the Blessing
factors and instead confirm[ed] that Gonzaga—not Blessing—sets out the correct test that
lower courts are to apply to decide whether Spending Clause statutes create § 1983-
enforceable rights.” Appellant’s Suppl. Br. 15 (quoting United States v. Williams, 155 F.3d
418, 421 (4th Cir. 1998)).
It is certainly true that Gonzaga remains a crucial precedent. It is also true that
Talevski shed some new light on Blessing that was theretofore unknown to us. Importantly,
by declining to apply all three factors, the Talevski Court indicated that no one of them is
strictly mandatory for finding a private right had been created. Instead, the analysis
employed by the Talevski Court indicated that the Blessing factors are just that:

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considerations to be taken into account by courts, rather than rigid conditions to be checked
off before a private right could be discerned. Nevertheless, it is ultimately true that, for
Spending Clause legislation at least, a privately enforceable right constitutes “the atypical
case,” and the Court’s precedent sets for such actions “a demanding bar.” Talevski, 599
U.S. at 180, 183. At bottom, we are still required to rigorously examine the provision at
hand to determine whether it evinces an unmistakable congressional intent to confer
individually enforceable rights. Id. at 180.
The State, moreover, mistakes our place in the hierarchy of the judicial system. Our
role in a system of vertical stare decisis is subordinate. It is not our prerogative to proclaim
a Supreme Court precedent overthrown. The Supreme Court has been clear that its
“decisions remain binding precedent until [the Court] see[s] fit to reconsider them,
regardless of whether subsequent cases have raised doubts about their continuing vitality.”
Hohn v. United States, 524 U.S. 236, 252–53 (1998). We therefore remain bound by
Blessing until given explicit instructions to the contrary—instructions that have yet to
come. The Talevski Court did not reckon with the fate of Blessing. It did not examine
whether the “traditional justifications” to overturn the precedent had been met. See Kimble
v. Marvel Ent., LLC, 576 U.S. 446, 458–59 (2015). It did not inquire into “the quality of
[Blessing’s] reasoning, the workability of the rule it established, its consistency with other
related decisions, developments since the decision was handed down, [or] reliance on the
decision.” Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448,
2478–79 (2018). We would certainly expect some discussion of Blessing had it been
jettisoned. See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 266–67 (2022)

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(“[O]verruling a precedent is a serious matter. It is not a step that should be taken lightly.”).
Our job is not to read between the lines, but rather to adhere faithfully to the lines as written.
Perhaps we will someday be told to abandon Blessing once and for all, but it takes more
than a whisper to supplant the force of Supreme Court precedent.
It is thus not up to us to assess the degree to which Blessing has or has not fallen
into disfavor with the Court. Moreover, with or without Blessing, the central analysis
remains the same. Talevski recognized that courts are to look primarily to Gonzaga to
ascertain “whether Congress has ‘unambiguously conferred’ ‘individual rights upon a class
of beneficiaries’ to which the plaintiff belongs.” Talevski, 599 U.S. at 183 (quoting
Gonzaga, 536 U.S. at 283, 285–86). That is the nub of it. That is what our earlier decisions
turned upon. Our previous decisions relied heavily on Gonzaga to conclude that the free-
choice-of-provider provision had an “‘unmistakable focus’ on its intended class of
beneficiaries: ‘any individual eligible for medical assistance’ under the Medicaid Act.”
Baker, 941 F.3d at 697 (quoting Gonzaga, 536 U.S. at 284; 42 U.S.C. § 1396a(a)(23)(A));
see also Kerr, 27 F.4th at 956. We are unconvinced that Talevski calls that analysis into
question. In fact, Talevski supports it.
Our confidence in this conclusion is not shaken by the fact that the Supreme Court
issued a grant, vacate, and remand (“GVR”) order in this case. As several courts have
recognized, the issuance of a GVR does not speak to the underlying merits of the case and
does not necessitate an automatic reversal. See In re Whirlpool Corp. Front-Loading
Washer Prod. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013) (“[A] GVR order does not
necessarily imply that the Supreme Court has in mind a different result in the case, nor

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does it suggest that our prior decision was erroneous.”) (citing Tyler v. Cain, 533 U.S. 656,
666 n.6 (2001); Henry v. City of Rock Hill, 376 U.S. 776, 777 (1964)); Gonzalez v. Justices
of Mun. Court of Bos., 420 F.3d 5, 7 (1st Cir. 2005) (“[A] GVR order is neither an outright
reversal nor an invitation to reverse; it is merely a device that allows a lower court that had
rendered its decision without the benefit of an intervening clarification to have an
opportunity to reconsider that decision and, if warranted, to revise or correct it.”); Texas v.
United States, 798 F.3d 1108, 1116 (D.C. Cir. 2015) (“[I]t is well-settled that a GVR has
no precedential weight and does not dictate how the lower court should rule on remand.”).
IV.
We now reconfirm that Medicaid recipients like Edwards can enforce the free-
choice-of-provider provision by bringing suit under § 1983. And we respectfully repeat
that Talevski itself supports our analysis. Talevski mapped out an inquiry that largely
conformed to the one we undertook at previous stages of the case. As before, we first look
to the provision at issue to determine whether it “unambiguously create[s] § 1983-
enforceable rights.” Talevski, 599 U.S. at 172. We then consider whether the Medicaid Act
forecloses recourse to 1983 to vindicate that right. Id.
A.
We continue to read the free-choice-of-provider provision as creating an individual
right. Talevski does not alter that conclusion, even to the extent that it cast doubt upon the
Blessing test. As noted, our earlier analysis relied heavily on Gonzaga to determine that
the free-choice-of-provider provision creates an individually enforceable right. See Baker,

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941 F.3d 696–97; Kerr, 27 F.4th at 955–56. If anything, Talevski bolstered our previous
conclusion by providing additional examples of rights-creating language similar to the
language at issue here.
Recall the text of the Medicaid free-choice-of-provider provision. It requires that
state plans under the Medicaid Act “must . . . provide that . . . any individual . . . eligible
for medical assistance . . . may obtain such assistance from any institution, agency,
community pharmacy, or person, qualified to perform the services required . . . who
undertakes to provide him such services.” 42 U.S.C. § 1396a(a)(23) (emphasis added). This
text “unambiguously confers rights upon” individual Medicaid recipients. Talevski, 599
U.S. at 184. Like the text at issue in Talevski, the “necessary focus” of the provision is the
“rights bearer[]”—specifically, “any individual . . . eligible for medical assistance” under
the program. Id. at 185; 42 U.S.C. § 1396a(a)(23). By focusing on discrete beneficiaries
and guaranteeing them a choice free from state interference, the provision “speak[s] ‘in
terms of the persons benefited,’ and ha[s] an ‘unmistakable focus on the benefited class.’”
Talevski, 599 U.S. at 186 (quoting Gonzaga, 536 U.S. at 284, 287, 290). Indeed,
“Congress’s use of the phrase ‘any individual’ is a prime example of the kind of ‘rights-
creating’ language required to confer a personal right on a discrete class of persons—here,
Medicaid beneficiaries.” Baker, 941 F.3d at 697; see also Gonzaga, 536 U.S. at 284 n.3
(describing the instruction that “[n]o person . . . shall . . . be subjected to discrimination”
as “explicit” rights-creating language); Ball v. Rodgers, 492 F.3d 1094, 1108 (9th Cir.2007)
(“While express use of the term ‘individuals’ (or ‘persons’ or similar terms) is not essential
to finding a right for § 1983 purposes, usually such use is sufficient for that purpose.”). In

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sum, the language of the free-choice-of-provider provision clearly evinces Congress’s
intent to bestow upon Medicaid beneficiaries the right to freely choose their qualified
health care providers.
South Carolina presents three arguments that seek to undermine the force of the
statutory language. Its contentions focus on three aspects of the free-choice-of-provider
provision: Congress’s chosen words; the target of Congress’s instructions; and Congress’s
mandated threshold for compliance. We take each in turn.
1.
The State first complains that the word “right” cannot be found in the free-choice-
of-provider provision, in contrast to the FNHRA provisions at issue in Talevski. Thus,
according to the State, the free-choice-of-provider provision lacks the requisite rights-
creating language to satisfy Gonzaga. We reject the invitation, however, to strip Congress
of its prerogative to use synonyms. To hold otherwise would be to limit Congress to a thin
thesaurus of our own design, something we neither have the desire nor the power to do. Cf.
FAA v. Cooper, 566 U.S. 284, 291 (2012) (“We have never required that Congress use
magic words.”).
2.
The State next posits that the free-choice-of-provider provision has an “aggregate
focus” because it speaks to the government official overseeing the funding of state
Medicaid plans. The State points out that the Medicaid Act directs the Secretary of Health
and Human Services to “approve any [state Medicaid] plan which fulfills” eighty-seven
separate conditions, including the free-choice-of-provider provision. 42 U.S.C.

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§§ 1396a(a), (b). According to the State, because this provision gives a direction to a
government official, its focus cannot possibly be on individual Medicaid beneficiaries.
We disagree. With individual Medicaid recipients as the provision’s focus, one can
scarcely describe it as having only the “aggregate” purpose of “direct[ing] the
[government’s] distribution of public funds.” Gonzaga, 536 U.S. at 290. Moreover, the
Supreme Court has already held that a different funding condition enumerated in
§ 1396a(a) confers individual rights enforceable via 42 U.S.C. § 1983. Wilder, 496 U.S. at
509–10 (holding that the Boren Amendment to the Medicaid Act, 42 U.S.C.
§ 1396a(a)(13)(A), is privately enforceable via 42 U.S.C. § 1983). This would appear to
doom the State’s argument at the starting gate.
The State, however, urges us to hold that the Supreme Court sub silentio overruled
Wilder in Armstrong. There, the Court noted in a footnote that “our later opinions plainly
repudiate the ready implication of a § 1983 action that Wilder exemplified” and cited
Gonzaga as “expressly ‘reject[ing] the notion,’ implicit in Wilder, ‘that our cases permit
anything short of an unambiguously conferred right to support a cause of action brought
under § 1983.’” Armstrong, 575 U.S. at 330 n.*. We fail to see how this would allow us to
conclude Wilder has been overturned. The serious business of spurning a precedent cannot
be precipitated by winks and nods.
But even if we were to take the Armstrong footnote to mean what the State says it
does—that Gonzaga abrogated Wilder—the State’s argument remains unpersuasive. The
provisions specified in § 1396a(a) tell the federal government and the states what must be
included in a Medicaid plan before funds can be distributed. South Carolina posits that

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directions aimed at government officials cannot bestow private rights because they
necessarily lack an individual focus. But Talevski rejected the argument that provisions
that speak to and place obligations on third parties cannot create individual rights. When a
provision “establish[es] who it is that must respect and honor the[] statutory rights” there
is no “material diversion from the necessary focus” on the beneficiaries. Talevski, 599 U.S.
at 185. “Indeed, it would be strange to hold that a statutory provision fails to secure rights
simply because it considers, alongside the rights bearers, the actors that might threaten
those rights.” Id. Alerting the federal government and the state that beneficiaries must have
unfettered access to qualified providers for funds to be distributed does not distract from
the individual focus of the free-choice-of-provider provision. Again, the touchstone is
whether “the provision in question is ‘phrased in terms of the persons benefited’ and
contains ‘rights-creating,’ individual-centric language with an ‘unmistakable focus on the
benefited class.’” Id. at 183. The free-choice-of-provider provision readily passes this test.
Congress, too, has rejected the view that its inclusion of an individual right in a list
of requirements for a state plan subject to federal supervision necessarily implies an intent
to render that right unenforceable via § 1983. The Social Security Act states that “[i]n an
action brought to enforce a provision of this chapter, such provision is not to be deemed
unenforceable because of its inclusion in a section of this chapter requiring a State plan or
specifying the required contents of a State plan.” 42 U.S.C. § 1320a-2. See L.J. v. Wilbon,
633 F.3d 297, 309 (4th Cir. 2011) (“Congress . . . made clear that the inclusion of a
requirement as part of a state plan was not sufficient to render that requirement
unenforceable by private action.”) The import of this is clear: statutory provisions that

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direct the federal government to approve state plans with certain features can create
individual rights, so long as they speak in clear and unambiguous terms. That is precisely
what the Medicaid Act did here.
3.
Finally, the State argues that a funding condition in a substantial compliance statute,
like the free-choice-of-provider provision in the Medicaid Act, cannot form the basis for
an individual entitlement. A “substantial compliance” regime promises federal funds to a
state so long as the state substantially complies with a list of agreed-upon conditions; that
is, perfect conformity with the conditions is not necessary, so long as the state gets it mostly
right. The Medicaid Act is an example of a substantial compliance statute: A state needs
only to substantially comply with the requirements in § 1396a to maintain its eligibility for
federal Medicaid funds. 42 U.S.C. § 1396c(2). The free-choice-of-provider provision is
one such § 1396a requirement. 42 U.S.C. § 1396a(a)(23).
Still relying on its theory that Wilder has been rendered obsolete, the State argues
that the overlay of a substantial compliance regime indicates that the free-choice-of-
provider provision, taken in context, has an aggregate rather than an individual focus.
According to the State, because the Medicaid Act is does not require perfect compliance
with each funding condition, the free-choice-of-provider provision is necessarily
unconcerned with fulfilling a promise to any specific beneficiary.
But this cannot be right after Talevski, which considered two provisions of the
FNHRA. The FNHRA itself operates via a substantial compliance regime, specifying that
“[a] finding to deny payment . . . shall terminate when the State or Secretary . . . finds that

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the facility is in substantial compliance with all of the requirements” of the relevant
subsection. Id. § 1396r(h)(4). For us to hold that substantial compliance regimes cannot
give rise to individually enforceable rights would thus directly contravene the result
reached by the Talevski Court.
The State, however, points to Gonzaga, where the Court noted that FERPA was a
substantial compliance regime in holding that the nondisclosure provision at issue had an
aggregate focus. 536 U.S. at 288. To the Gonzaga Court, this made the case “not unlike
Blessing, which found that Title IV-D failed to support a § 1983 suit in part because it only
required ‘substantial compliance’ with federal regulations.” Id. (quoting Blessing, 520 U.S.
at 335, 343). But the FERPA nondisclosure provision, and its operation under a substantial
compliance regime, is readily distinguishable from the free-choice-of-provider provision
here. The nondisclosure provision itself “sp[oke] only in terms of institutional policy and
practice, not individual instances of disclosure” and was therefore unconcerned “with
‘whether the needs of any particular person ha[d] been satisfied.’” Id. (quoting Blessing,
520 U.S. at 343). In Gonzaga, then, the layering of a substantial compliance regime on top
of a provision concerned only with institutional procedures rendered a nondisclosure right
for individuals suspect. Here, of course, we lack such a layering, as the free-choice-of-
provider provision does not speak to broad practices of the state in the aggregate, but rather
sets as its benchmark whether “any individual” has access to the health care provider of
her choice. 42 U.S.C. § 1396a(a)(23). The light of the individual focus of the free-choice-
of-provider provision has not been dimmed, in spite of its existence within a substantial
compliance regime.

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* * *
In sum, we conclude that the free-choice-of-provider provision speaks “in terms that
could not be clearer” in “unambiguously conferr[ing] rights.” Gonzaga, 536 U.S. at 280
(internal quotation marks omitted); Talevski, 599 U.S. at 184. The language specifies an
entitlement given to each Medicaid beneficiary: to choose one’s preferred qualified
provider without state interference.
B.
The final stage in our analysis is to determine whether the Medicaid Act
demonstrates a congressional intent to “preclude a private right of action under § 1983.”
Talevski, 599 U.S. at 187. The Supreme Court has “ma[de] clear that the sine qua non of
finding that Congress implicitly intended to preclude a private right of action under § 1983
is incompatibility between enforcement under § 1983 and the enforcement scheme that
Congress has enacted.” Id. There are three possible avenues for enforcement in the Act:
the Secretary of Health and Human Service may curtail Medicaid funds to the state, 42
U.S.C. §§ 1316(a), 1396c; 42 C.F.R. § 430.12; providers may challenge their termination
via state administrative processes, 42 U.S.C. § 1396a(a)(4); 42 C.F.R. § 1002.213; and
Medicaid beneficiaries may challenge claim denials via the same processes, 42 U.S.C.
§ 1396a(a)(3). Note, however, that there is no way for Medicaid beneficiaries to challenge
disqualifications of their preferred providers through the administrative scheme.
We have held previously that “the Medicaid Act provides no comprehensive
enforcement scheme sufficient to overcome the presumption that the free-choice-of-
provider provision is enforceable under § 1983.” Baker, 941 F.3d at 699; see also Kidd,

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501 F.3d at 356–57. Most significant to this conclusion was the fact that beneficiaries lack
the ability to challenge provider disqualifications, such as through a judicial or
administrative right of action. Baker, 941 F.3d at 698. We also emphasized that the
Supreme Court has held that the Medicaid Act does not displace § 1983 actions. Id. at 698–
99 (citing Wilder, 496 U.S. at 521–22); see also Rancho Palos Verdes, 544 U.S. at 122.
South Carolina does not ask us to revisit this question on this appeal. We therefore continue
to affirm that the Medicaid Act and § 1983 can work together in harmony for beneficiaries
to enforce the free-choice-of-provider provision.
V.
The Medicaid Act limits the right of a beneficiary’s choice to qualified medical
providers. There has never been any question during the long path of this litigation that
Planned Parenthood is professionally qualified to provide the care that the plaintiff seeks.
The State has not contested this.
We are satisfied that we have remained faithful to the text of the statute and the
guidance offered by the Talevski Court. In doing so, we have respected Congress’s desire
to safeguard a right that could not be more personal, nor more precious. The ability to
decide who treats us at our most vulnerable is a right that should not be lightly disregarded
in the face of Congress’s obvious and express desire to confer it. Perhaps it is no accident
that both this case and Talevski deal with the provision of medical services, a field in which
Congress’s adoption of explicit rights-conferring language seems both natural and an

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unlikely springboard for implied private rights of action under § 1983 across a broader
range of contexts.
The State concludes its brief by noting that “[i]t has now been more than five years
since South Carolina’s governor issued his executive order diverting taxpayer funds away
from abortion providers to make them more available to providers offering life-affirming
women’s health and family-planning services.” Appellant’s Suppl. Br. 17. But this decision
is not about funding or providing abortions. On the contrary, our analysis would be the
same regardless of whether South Carolina wanted to divert the funds because Planned
Parenthood provided cancer screening, pregnancy testing, or any other medical care it is
qualified to provide. This case is, and always has been, about whether Congress conferred
an individually enforceable right for Medicaid beneficiaries to freely choose their
healthcare provider. Preserving access to Planned Parenthood and other providers means
preserving an affordable choice and quality care for an untold number of mothers and
infants in South Carolina. Indeed, we are told that, if Planned Parenthood clinics in South
Carolina were to be shuttered, other Medicaid-funded clinics in the state would be more
hard-pressed to meet the demand in family planning care. Br. of the American Academy
of Family Physicians as Amicus Curiae Supporting Plaintiff-Appellees 19–20. This is
precisely the prospect Congress wished to avoid. It did not wish to leave the right it so
explicitly granted solely to the cumbersome machinery of agency appeals that permit
patients only to challenge the denial of individual claims.
The language of the qualified medical provider provision cannot be stressed too
often. It dictates that “any individual” eligible for Medicaid “may obtain” services from

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“any” provider “who undertakes to provide him such services.” 42 U.S.C. § 1396a(a)(23)
(emphasis added). The State and members of the Court have expressed the real and genuine
concern that private rights under § 1983 will migrate from vindications of rights to the
redress of innumerable violations of federal law. See Talevski, 599 U.S. at 193–94 (Barrett,
J., concurring) (“[Section] 1983 actions are the exception—not the rule—for violations of
Spending Clause statutes.”). There is the undoubted danger of opening private rights of
action floodgates, but there is the concomitant danger of drying up the rights that Congress
wished to safeguard. If the language of this medical provider provision does not suffice to
provide a right of action, then it is hard to conceive of any text, short of magic words
beyond the usual practice of courts to dictate, that would permit one. It all comes down to
a straightforward matter of congressional intent, and in this particular case, we think that
intention clear.
For the foregoing reasons, the judgment of the district court enjoining the
disqualification of the plaintiff provider in this action is hereby
AFFIRMED.

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Petition for writ of certiorari granted, December 18, 2024
Reversed and remanded by Supreme Court, June 26, 2025
RICHARDSON, Circuit Judge, concurring in the judgment:
Twice, I have written separately in this case to ask for clarity on the precedential
status of Wilder v. Virginia Hospital Ass’n, 496 U.S. 498 (1990)—and, to a lesser extent,
Blessing v. Freestone, 520 U.S. 329 (1997).1 Now I do so for a third time, because even
after Health and Hospital Corp. of Marion County v. Talevski, 599 U.S. 166 (2023), we
continue to lack the guidance inferior judges need. Though Talevski suggests a different
path, it did not repudiate the holding of Wilder. 2 The latter remains in limbo. So I agree
with the majority that we are bound to stand by our previous holding that 42 U.S.C.
§ 1396(a)(23)(A) creates an individual right enforceable under 42 U.S.C. § 1983. Baker,
941 F.3d 687.
1 Planned Parenthood S. Atl. v. Baker, 941 F.3d 687 (4th Cir. 2019) (Richardson,
J., concurring); Planned Parenthood S. Atl. v. Kerr, 27 F.4th 945 (4th Cir. 2022)
(Richardson, J., concurring), cert. granted, judgment vacated, 143 S. Ct. 2633 (2023).
2 The Supreme Court recently suggested that a case need not be expressly overruled
when the Court has given every indication that the case has been abandoned. Kennedy v.
Bremerton School Dist., 597 U.S. 507, 534–36 (2022) (“[T]his Court long ago abandoned
Lemon and its endorsement test offshoot.”); see Firewalker-Fields v. Lee, 58 F.4th 104,
121 n.5 (4th Cir. 2023) (“Kennedy did not explicitly say that it was overruling Lemon. And
the cases that it claimed had previously ‘abandoned’ Lemon—Town of Greece and
American Legion—did not explicitly say this either. But it is now clear that Lemon and its
ilk are not good law.”). But it remains unclear whether recognizing abandonment remains
solely within the prerogative of the Supreme Court. See Mallory v. Norfolk S. Ry. Co., 600
U.S. 122, 136 (2023). So even though the Court has admonished Wilder’s reasoning (and
Blessing’s), see Baker, 941 F.3d at 709–10 (Richardson, J., concurring), and even though
the Court didn’t rely on Wilder (or Blessing’s factors) in Talevski, we lack sufficiently clear
signals to be sure the Court has discarded Wilder’s holding (or Blessing’s test).

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