Nahmod Law

The Talevski Background

In Health & Hospital Corp. of Marian County v. Talevski, 599 U.S. 166 (2023), the Supreme Court held that the Federal Nursing Home Amendments Act of 1978’s transfer and medication rules created private rights enforceable under § 1983. The Court, in an opinion by Justice Jackson, rejected the broad argument that Spending Clause legislation should never give rise to such enforceable rights. “‘Laws’ means ‘laws’, and nothing in [defendants’] appeal to Reconstruction-era contract law shows otherwise.” However, Justice Gorsuch concurred observing that the defendants failed to “develop fully” any arguments revolving around whether federal statutory rights in spending power legislation were “secured consistent with the Constitution’s anti-commandeering principle.” Justice Barrett, joined by Chief Justice Roberts, also concurred, emphasizing that an “actual clash–between one private judicial remedy against another, more expansive remedy–is not required to find that a statute forecloses recourse to § 1983.”

Justice Thomas dissented at great length. He argued that there was a difference in kind between federal legislation enacted under Congress’s enumerated powers and those enacted under the so-called “spending power.” The latter were not “laws” within the meaning of §1983’s language. They were contractual in nature and could not “secure rights by law.” Furthermore, to the extent that such federal statutes might by enforced through §1983, they ran “headlong into the anticommandeering doctrine and long-recognized limitations on the federal spending power.”

Justice Alito, joined by Justice Thomas, also dissented. He argued that while the FNHRA created individual rights, Congress had not indicated its intent to allow §1983 to be used to enforce the relevant provisions of the Act. To the contrary: “Allowing §1983 suits will upend [the Act’s] careful balance” of federal and state enforcement that “channels disputes through that regime.”

As I concluded in an earlier post on Talevski, “§1983 claims based on violations of federal statutes enacted under the spending power dodged a bullet: these kinds of claims might have been eliminated entirely. Still, even though they are still viable, it is fair to say that going forward such claims will continue to be viewed from a posture of skepticism by a fair number of the justices because of concerns with the scope of Congressional power, anti-commandeering and federalism.” See https://nahmodlaw.com/2023/06/27/health-hospital-corp-v-talevski-an-important-section-1983-laws-decision-on-the-spending-power-with-10th-amendment-overtones/

The Medina v. Planned Parenthood South Atlantic Decision

This assessment has now been borne out by a 2025 decision involving the Medicaid Act, enacted under the Spending Clause, and § 1983 “laws” actions. The Supreme Court, in Medina v. Planned Parenthood South Atlantic, 146 S. Ct. — (2025), rev’g, 95 F.4^th 152 (4^th Cir. 2024), answered in the negative the following Question Presented: “Whether the Medicaid Act’s any-qualified-provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider.” In Medina, the plaintiff who wanted to shift all of her gynecological health care to Planned Parenthood attempted to use § 1983 to challenge South Carolina’s exclusion of Planned Parenthood from its Medicaid program because Planned Parenthood provided abortion services  Justice Gorsuch wrote the Court’s opinion, in which he discussed at length why “spending-power statutes like Medicaid are especially unlikely to [confer an enforceable right.]”

Along these lines, he pointed out that the Court’s precedents made clear that a federal statute claimed to support a § 1983 cause of action must clearly and unambiguously do so. However, Medicaid’s any-qualified-provider provision, contained in 42 U.S.C. § 1396a(a)(23)(A), did not clearly and unambiguously create such a right, unlike the Federal Nursing Home Reform Act provisions in Talevski. So-called legislative history was not determinative. And the policy argument that § 1983 actions were an effective way to enforce the any-qualified provider provision was not persuasive in light of the supervisory role of the federal government and available state administrative processes. Consequently, the plaintiff could not use § 1983 to challenge the exclusion of Planned Parenthood from the state’s Medicaid program.

Justice Thomas concurred, arguing broadly that the Court should reexamine its § 1983 jurisprudence “which bears little resemblance to the statute as originally understood.” In his view, the Court should revisit the question of what constitutes a “right” under § 1983, especially given the expansion of constitutional rights since 1871 when § 1983 was enacted. More specifically, he maintained, as he had in his dissent in Talevski, that federal statutes enacted under the spending power cannot “secure” rights under § 1983.

Justice Jackson (the author of Talevski), joined by Justices Sotomayor and Kagan, dissented. She asserted generally, and partly in response to Justice Thomas’s concurrence, that the purposes of § 1983, “one of the country’s great civil-rights laws,” were, and had to be, very ambitious in light of the Civil War and Reconstruction because terrorist violence was an existential threat to the United States. As to the precise issue before the Court, she argued that, contrary to the majority, Talevski governed, and that, under the Court’s “laws” precedents generally, the Medicaid Act did indeed create a right that the plaintiff could enforce through § 1983. “Medicaid’s free-choice-of-provider provision easily satisfies the unambiguous-conferral test.” There was ample rights-conferral language in the Act as well as legislative history to support this interpretation.

Comment:

The Court’s decision in Medina was not surprising for two reasons. One is the already noted posture of skepticism of at least three of the Justices toward using § 1983 to enforce purported rights under federal statutes enacted pursuant to the spending power. The second is that the case involved South Carolina’s decision to withdraw funding for Planned Parenthood, a provider of abortion services, even for its general gynecological services. It should not be surprising that, because Roe v. Wade has been overruled, a majority of the Justices view Planned Parenthood with jaundiced eyes and are not disposed to prevent states from refusing to fund it in its entirety, even though funding for abortion itself is not directly implicated.

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