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: January 26, 2022 Decided: March 8, 2022

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. Nicole A. Saharsky, MAYER BROWN, LLP, Washington, D.C., for 

Appellees. ON BRIEF: Kelly M. Jolley, Ariail B. Kirk, JOLLEY LAW GROUP, LLC, 

Columbia, South Carolina, for Appellant. Avi M. Kupfer, MAYER BROWN LLP, 

Chicago, Illinois; Alice Clapman, 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 The 

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 NurseMidwives, 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 arises out of South Carolina’s termination of Planned Parenthood South 

Atlantic’s Medicaid provider agreement, an action that South Carolina took because 

Planned Parenthood offers abortion services. But this case is not about abortion. It is about 

Congress’s desire that Medicaid recipients have their choice of qualified Medicaid 

providers. Here South Carolina terminated Planned Parenthood’s agreement 

notwithstanding the fact that all parties agree that Planned Parenthood is perfectly 

competent to provide the non-abortive healthcare the individual plaintiff sought and 

requested. To allow the State to disqualify Planned Parenthood would nullify Congress’s 

manifest intent to provide our less fortunate citizens the opportunity to select a medical 

provider of their choice, an opportunity that the most fortunate routinely enjoy.

At the outset of this litigation, the district court issued a preliminary injunction 

preventing South Carolina from terminating Planned Parenthood’s provider agreement. We 

affirmed its decision then. South Carolina now returns to our court to appeal the district 

court’s subsequent permanent injunction. For the following reasons, we again affirm the 

district court’s judgment.

I.

A.

Congress created Medicaid in 1965 to provide “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). The program furnishes “medical assistance on behalf of 

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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. In this way, Medicaid effectively serves as a nationwide system of public health 

insurance for those who cannot afford medical care on their own.

Although it is federal in scope, Medicaid is administered by the states and, “[l]ike 

other Spending Clause legislation, Medicaid 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). The scheme of the Medicaid program reflects the cooperative nature of 

this enterprise. Under the Medicaid Act, the federal government is tasked with crafting 

general eligibility requirements and standards. See 42 U.S.C. § 1396 et seq. States then 

submit Medicaid plans for approval by the Secretary of Health and Human Services, who

reviews these plans to ensure that they comply with the statutory and regulatory 

requirements governing Medicaid. See Douglas v. Indep. Living Ctr. of S. Cal., Inc., 565 

U.S. 606, 610 (2012). Upon approval, states receive federal matching funds that they may 

use to reimburse providers. See id. at 611. On the other hand, the Secretary may withhold 

funds if he finds “that in the administration of the plan there is a failure to comply 

substantially” with the requirements of the Medicaid Act. 42 U.S.C. § 1396c.

Over the first two years of the Medicaid program, Congress grew concerned that 

states might deny recipients the opportunity to choose the provider of their choice. In 

Puerto Rico, for instance, indigent patients could receive medical services “only in 

Commonwealth facilities.” President’s Proposals for Revision in the Social Security 

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System: Hearing on H.R. 5710 before the H. Comm. on Ways & Means, Part 4, 90th Cong. 

2273 (1967). And in Massachusetts, private physicians at teaching hospitals were not 

reimbursed under Medicaid. Id. at 2301.

Accordingly, Congress amended the Medicaid Act to include the free-choice-ofprovider provision, which is at issue here. That provision 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.

Planned Parenthood South Atlantic offers patients a number of family planning and 

reproductive health services at two South Carolina health centers in Charleston and 

Columbia. These services include, for instance, contraception and contraceptive 

counseling, cancer screenings, screenings and treatment for sexually transmitted infections, 

pregnancy testing, and physical exams. Planned Parenthood also performs abortions, 

although South Carolina Medicaid only covers abortions in certain rare circumstances 

required by federal law, such as rape, incest, or the need to protect the mother’s life. See 

Consolidated Appropriations Act, 2021, Pub. L. No. 116–260, div. H, tit. V, §§ 506–07, 

134 Stat. 1182, 1622 (Hyde Amendment). 

Julie Edwards, the individual plaintiff in this case, is insured through Medicaid and 

suffers from Type 1 diabetes, for which she has obtained frequent medical attention. She 

has been advised by doctors that, due to high blood pressure and high blood sugar, it would 

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be dangerous for her to try to carry a pregnancy to term. After finding that local Medicaid 

providers were unable or unwilling to provide her with the contraceptive care that she 

sought, Edwards made an appointment at Planned Parenthood’s office in Columbia. 

Doctors there inserted an intrauterine device to prevent pregnancy and told her that her 

blood pressure was very high, for which she sought follow-up care. Edwards was impressed 

with her visit and planned to shift “all [her] gynecological and reproductive health care 

there,” including her “annual well woman exam.” J.A. 61. However, she stated that she 

“[would] not be able to continue going there if the services are not covered” by Medicaid 

and she is required “to pay out of pocket.” J.A. 61.

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 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. The Governor 

stated that the purpose of this decision was to prevent South Carolina from indirectly 

subsidizing the practice of abortion. On that same day, DHHS sent Planned Parenthood a 

letter stating 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.

Two weeks later, Planned Parenthood and Edwards filed suit under 42 U.S.C. 

§ 1983 against the Director of DHHS in federal district court, alleging that South Carolina

had violated the Medicaid Act and the Fourteenth Amendment. The plaintiffs soon moved 

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for a preliminary injunction and a temporary restraining order, contending that they were 

likely to succeed on their claim that South Carolina’s termination of Planned Parenthood’s 

Medicaid provider agreement violated the Medicaid Act’s free-choice-of-provider

provision. South Carolina opposed this motion, arguing that the plaintiffs lacked a cause 

of action under § 1983 to sue to enforce that provision.

The district court granted the preliminary injunction, concluding that Edwards had 

demonstrated that she was likely to succeed on her Medicaid Act claim since the freechoice-of-provider provision conferred a private right enforceable under § 1983 and since 

South Carolina had violated that provision by terminating Planned Parenthood’s Medicaid 

provider agreement. See Planned Parenthood S. Atl. v. Baker, 326 F. Supp. 3d 39, 44–48

(D.S.C. 2018). The district court concluded that the other equitable factors also favored 

Edwards and it enjoined South Carolina from terminating Planned Parenthood’s provider 

agreement during the pendency of the litigation. See id. at 48–50. Because it held that 

preliminary relief was warranted on the basis of Edwards’s Medicaid Act claim, it declined 

to consider whether such relief would also be appropriate on the basis of Planned 

Parenthood’s claim. See id. at 50.

South Carolina appealed and this panel affirmed. Planned Parenthood S. Atl. v. 

Baker, 941 F.3d 687, 691 (4th Cir. 2019). After applying the three factors articulated by 

the Supreme Court in Blessing v. Firestone, 520 U.S. 329 (1997), we first concluded that 

the free-choice-of-provider provision conferred on Edwards a private right enforceable 

under § 1983. See Baker, 941 F.3d at 696–98. We noted that the statute was couched in 

terms of individual beneficiaries and that it used the phrase “any individual,” indicating 

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Congress’s specific intention to confer a right on the class of Medicaid recipients. Id. at 

697. In addition, the statute was not so “vague and amorphous” as to strain judicial 

competence and the text clearly imposed a “binding obligation on the States.” Id. (quoting 

Blessing, 520 U.S. at 340–41). Since the enforcement scheme did not indicate that 

Congress had foreclosed a remedy under § 1983, we concluded that Edwards could sue 

under that statute to enforce the free-choice-of-provider provision. See id. at 698–700.

Next, we determined that a provider was “qualified to perform the service or 

services required” under the terms of the statute, 42 U.S.C. § 1396a(a)(23), if it was 

professionally competent to do so, although states retained discretionary authority to 

disqualify providers as professionally incompetent. See id. at 701–06. Since South 

Carolina’s exclusion of Planned Parenthood had “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 with the district court that 

Edwards had demonstrated a substantial likelihood of success on her Medicaid Act claim. 

Id. at 705. Likewise, we concluded that the district court had not abused its discretion in 

determining that the remaining equitable factors favored Edwards and we affirmed its 

judgment. See id. at 706–07.

Following our decision, South Carolina petitioned for a writ of certiorari, which the 

Supreme Court denied. Baker v. Planned Parenthood S. Atl., 141 S. Ct. 550 (2020). The

district court subsequently granted summary judgment to the plaintiffs on Edwards’s

Medicaid Act claim, noting that, under this panel’s previous decision, “Edwards, as a 

matter of law, may seek to enforce the free-choice-of-provider provision in this § 1983 

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action” and that it was “required to follow Fourth Circuit precedent” on this question.

Planned Parenthood S. Atl. v. Baker, 487 F. Supp. 3d 443, 446, 448 (D.S.C. 2020). Since 

it concluded that South Carolina had violated this provision, the district court entered 

summary judgment for the plaintiffs. See id. The parties stipulated to a dismissal of their 

remaining Fourteenth Amendment claims, following which the district court entered a 

declaratory judgment in favor of the plaintiffs and “permanently enjoined” South Carolina

“from terminating or excluding [Planned Parenthood] from participation in the South 

Carolina Medicaid Program on the grounds it is an abortion clinic or provides abortion 

services.” J.A. 302–03. South Carolina now appeals.

II.

Before we turn to the merits of South Carolina’s appeal, however, we must satisfy 

ourselves that we have jurisdiction. South Carolina contends for the first time on this appeal

that it believes this case is moot. We do not share that view.

Under Article III of the Constitution, our jurisdiction is limited to “the adjudication 

of actual cases and controversies.” Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003). 

This requirement “extends throughout the pendency of the action,” id., and “a case is moot

when the issues presented are no longer ‘live’ or the parties lack a legally cognizable 

interest in the outcome,” Powell v. McCormack, 395 U.S. 486, 496 (1969). As such, 

mootness is closely related to standing and we have made clear that “a case is moot if, at 

any point prior to the case’s disposition, one of the elements essential to standing, like 

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injury-in-fact, no longer obtains.” Am. Fed’n of Gov’t Emps. v. Office of Special Counsel, 

1 F.4th 180, 187 (4th Cir. 2021).

To establish standing, the plaintiff must allege an injury that is “concrete, 

particularized, and actual or imminent; fairly traceable to the challenged action; and 

redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 

149 (2010). In its reply brief, South Carolina alleges for the first time that Edwards no 

longer satisfies these requirements, on the grounds that she has not used Planned 

Parenthood’s services since filing her complaint and therefore faces no concrete injury if 

South Carolina terminates Planned Parenthood’s Medicaid provider agreement. Although 

this contention is offered late in the day, we are bound to consider it fully.

Upon doing so, however, we are satisfied that Edwards’s claims are not moot. It is 

uncontested that Edwards is insured through Medicaid and that she has previously relied 

on Planned Parenthood for gynecological and reproductive healthcare. In addition, 

Edwards asserts in a supplemental declaration that she has seen no other providers for such 

care since her appointment with Planned Parenthood in 2018. In this declaration, executed

in July of last year, Edwards states that she in fact had made an appointment for future care 

with Planned Parenthood before learning of South Carolina’s mootness argument. If 

Planned Parenthood is not able to provide this care under Medicaid, Edwards will be forced 

to look elsewhere and she will experience a concrete, particularized injury.

South Carolina has not undermined Edwards’s declaration or the contents thereof; 

instead, it suggests that her stated intentions to seek care from Planned Parenthood are 

insufficient to establish a concrete or imminent injury for Article III purposes. But a future 

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injury satisfies Article III as long as “the threatened injury is certainly impending, or there 

is a substantial risk that the harm will occur.” Dep’t of Commerce v. New York, 139 S. Ct. 

2551, 2565 (2019) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)).

Here there is a substantial risk that Edwards will be harmed, given that she has previously 

used Planned Parenthood for gynecological and reproductive care, has seen no other 

providers for this care since, and has made a future appointment to receive this care from 

Planned Parenthood. And while Edwards may not have visited Planned Parenthood as 

regularly as she predicted in her complaint, the frequency of medical appointments may 

not be so perfectly predicted in advance. It is commonplace for patients to see multiple 

providers and equally routine to defer care until the need arises or until symptoms in some 

way manifest themselves. We are given no reason to doubt Edwards’s contention that she 

intends Planned Parenthood to be her medical provider for certain forms of healthcare. The 

fact that she did not require such care in the time between the outset of this litigation and 

the present may simply reflect the happenstance of medical need, coupled with the unique 

hindrances of the covid pandemic.

We note that our conclusion here is a narrow one, drawn from the particular facts of 

Edwards’s situation. And we are fully mindful of the Supreme Court’s admonition that 

“‘some day’ intentions—without any description of concrete plans, or indeed even any 

specification of when the some day will be—do not support a finding of the ‘actual or 

imminent’ injury that our cases require.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 

(1992). Here, however, Edwards has made just the “concrete plans” that Lujan requires. 

And while the plaintiffs in Lujan asserted injury on the basis of abstract and indefinite 

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intentions to visit certain countries, see id., it is far more likely that Edwards will fulfill her 

stated intention to seek gynecological or reproductive care from Planned Parenthood in the 

future, given the fact that Planned Parenthood’s proximity and match with her medical 

needs led her to seek its services in the past. Under the particular circumstances present 

here, we conclude this case presents a live case or controversy. To hold otherwise would 

be to deprive Edwards both of the access to court which is her due and of the access to her 

chosen qualified medical provider.

III.

On the merits, South Carolina argues that we should reconsider our previous panel 

decision and hold that Edwards cannot sue under § 1983 to enforce the free-choice-ofprovider provision.1 In essence, South Carolina suggests that we reverse the district court 

for applying a legal conclusion that we previously set forth in a binding opinion. This is a 

striking request, and one that cannot be reconciled with the nature of precedent in our 

judicial system. In any event, we remain persuaded that our previous holding is correct and 

we take this opportunity to reaffirm our prior decision.

A.

In asking us to reconsider our previous decision, South Carolina would deny it any 

precedential weight. The State’s position here is quite misguided. While law is indeed not 

1 Notably, South Carolina does not challenge the district court’s determination (and 

our own previous conclusion) that South Carolina violated this provision by terminating 

Planned Parenthood’s Medicaid provider agreement.

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static, it is also not open to reversal in the manner that appellant suggests. After all, the 

question at issue here is identical to the legal question we resolved in the prior case: whether 

§ 1983 provides a cause of action to enforce the Medicaid Act’s free-choice-of-provider

provision. We answered that question as a legal matter after full briefing and oral argument, 

and we presented our conclusion in a published opinion. Such a decision “is binding on 

other panels unless it is overruled by a subsequent en banc opinion of the court or a 

superseding contrary decision of the Supreme Court.” United States v. Dodge, 963 F.3d 

379, 383 (4th Cir. 2020) (quoting United States v. Collins, 415 F.3d 304, 311 (4th Cir. 

2005)).

South Carolina points to no such en banc opinion or Supreme Court decision. 

Instead, the only intervening change highlighted by South Carolina is that the Fifth Circuit 

recently came to a different conclusion than our own. See Planned Parenthood of Greater 

Tex. Family Planning & Preventative Health Servs., Inc. v. Kauffman, 981 F.3d 347, 353

(5th Cir. 2020) (en banc). Even setting aside the fact that we remain on the majority of a 

rather lopsided circuit split,2 it is hard to see how that could justify our reconsideration of 

the case. If we were free to overturn our own prior position whenever another circuit took 

a different view, it would utterly destabilize the law of our circuit, placing it at the 

sufferance of any circuit court anywhere that took a contrary step—something that often 

2 Compare Planned Parenthood of Kan. v. Andersen, 882 F.3d 1205, 1224 (10th 

Cir. 2018); Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 965–66 (9th Cir. 

2013); Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 

962, 968 (7th Cir. 2012); Harris v. Olszewski, 442 F.3d 456, 461 (6th Cir. 2006) (all finding 

a right of action under § 1983) with Kauffman, 981 F.3d at 353; Does v. Gillespie, 867 F.3d 

1034, 1037 (8th Cir. 2017) (finding no right of action under § 1983).

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happens between the courts of appeals. As useful as we may find decisions from the other 

circuits, they of course carry only persuasive weight in our own.

Against these pressing considerations, South Carolina suggests that the law-of-thecircuit framework is inapposite here. It contends instead that only law-of-the-case governs

where a panel rehears a legal issue stemming from the same case as a prior opinion. But 

we need not dance on the head of a pin as to whether our previous decision implicates lawof-the-case or whether it’s binding law-of-the-circuit. As between the two, South Carolina

loses either way. Without exception, this court has understood that the resolution of a 

purely legal issue, absent a change in controlling law, governs subsequent panels, including 

in later appeals following a prior interlocutory appeal. L.J. v. Wilbon, 633 F.3d 297, 308

(4th Cir. 2011); U.S. Dep’t of Hous. & Urban Dev. v. Cost Control Mktg. & Sales Mgmt. 

of Va., Inc., 64 F.3d 920, 925 (4th Cir. 1995); see also Tatum v. RJR Pension Inv. Comm., 

855 F.3d 553, 560 n.5 (4th Cir. 2017) (noting that a previous opinion by an identical panel 

in the same case constituted both “law of the case” and “Fourth Circuit precedent”). We 

are hardly alone in this understanding. See Howe v. City of Akron, 801 F.3d 718, 740 (6th 

Cir. 2015) (collecting cases from the other courts of appeals).

“What has once been settled by a precedent will not be unsettled overnight, for 

certainty and uniformity are gains not lightly to be sacrificed.” Benjamin N. Cardozo, The 

Paradoxes of Legal Science 29–30 (1928). Justice Cardozo’s predecessor on the Supreme 

Court was of the same mind and once commented, in response to an article criticizing the 

common law: “We must add that we sincerely hope that the editors will fail in their 

expressed desire to diminish the weight of precedents with our courts. We believe the 

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weight attached to them is about the best thing in our whole system of law.” Oliver Wendell 

Holmes Jr., Summary of Events, 7 Am. L. Rev. 579, 579 (1873). We agree with our 

forebears. Our fidelity to our previous decisions is a necessary service to the parties before 

us, as well as to the public generally. It ensures stability in the law and provides clear 

signals to litigants so that they may rely on our decisions. The alternative is a legal system 

where each thing is up for grabs every time. The very guidance that law purports to provide 

for human conduct would by degrees recede. So even assuming, purely arguendo, that we 

were free to reexamine our precedents, we would not do so here. Our previous decision 

was handed down as a matter of law and resolved the precise legal issue upon which South 

Carolina now seeks review. For the above multiplicity of reasons we stand by it. In Latin:

stare decisis.

B.

Furthermore, we take this occasion to reaffirm our prior holding. To reiterate, the 

legal question is whether individuals such as Edwards may sue under 42 U.S.C. § 1983 to 

enforce the Medicaid Act’s free-choice-of-provider provision. Section 1983 provides that:

Every person who, under color of any statute, ordinance, regulation, custom, 

or usage, of any State or Territory or the District of Columbia, subjects, or 

causes to be subjected, any citizen of the United States or other person within 

the jurisdiction thereof to the deprivation of any rights, privileges, or 

immunities secured by the Constitution and laws, shall be liable to the party 

injured . . . .

42 U.S.C. § 1983. The Supreme Court has interpreted the phrase “and laws” to provide a 

cause of action for individuals who are deprived of a right, privilege, or immunity secured 

by federal statute. Maine v. Thiboutot, 448 U.S. 1, 4 (1980). As the Supreme Court has 

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cautioned, however, a litigant seeking to assert a cause of action under § 1983 “must assert 

the violation of a federal right, not merely a violation of federal law.” Blessing, 520 U.S. 

at 340.

As we explained in our previous opinion, rights of action brought under § 1983 are 

different from private rights of action inferred directly from a statute. See Baker, 941 F.3d 

at 694–95. The Supreme Court has warned against readily finding statutory rights of action 

under § 1983. It is not enough for a plaintiff to fall “within the general zone of interest” of 

a federal statute. Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002). Rather, 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. This is 

particularly important in the Spending Clause context since such legislation is akin to a 

contract and “[t]he legitimacy of Congress’ power to legislate under the spending 

power thus rests on whether the State voluntarily and knowingly accepts the terms of the 

‘contract.’” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). But where

it is clear and unambiguous that Congress intended to create a private right, we are obliged 

to follow its intention. As we noted, “[c]ourts cannot deprive the sovereign signatories to 

a ‘contract’ such as the Medicaid Act of the benefit of their bargain.” Baker, 941 F.3d at 

701.

1.

In Blessing, the Supreme Court articulated three factors to determine whether a 

statute creates a private right enforceable under § 1983:

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First, Congress must have intended that the provision in question benefit the 

plaintiff. Second, the plaintiff must demonstrate that the right assertedly 

protected by the statute is not so “vague and amorphous” that its enforcement 

would strain judicial competence. Third, the statute must unambiguously 

impose a binding obligation on the States. In other words, the provision 

giving rise to the asserted right must be couched in mandatory, rather than 

precatory terms.

520 U.S. at 340–41 (citations omitted). If these three factors are satisfied, there is “a 

rebuttable presumption that the right is enforceable under § 1983,” provided that Congress 

has not expressly or implicitly foreclosed a § 1983 remedy. Id. at 341.

To repeat, the free-choice-of-provider provision states that “[a] State plan for 

medical assistance must . . . provide that any individual eligible for medical assistance . . . 

may obtain such assistance from any institution . . . qualified to perform the service or 

services required.” 42 U.S.C. § 1396a(a)(23) (emphases added). “It is difficult to imagine 

a clearer or more affirmative directive.” Baker, 941 F.3d at 694. The statute plainly reflects 

Congress’s desire that individual Medicaid recipients be free to obtain care from any 

qualified provider and it implements this policy in direct and unambiguous language. For 

this reason, all three of the Blessing factors are met.

As to the first factor, the free-choice-of-provider provision “unambiguously gives 

Medicaid-eligible patients an individual right” to their choice of qualified provider. 

Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962, 

974 (7th Cir. 2012). The provision clearly and expressly identifies the intended 

beneficiaries: “any individual eligible for medical assistance” under Medicaid. 42 U.S.C. 

§ 1396a(a)(23)(A). And as we noted, “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 

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on a discrete class of persons—here, Medicaid beneficiaries.” Baker, 941 F.3d at 697.

Indeed, this phrase closely mirrors the common example that the Supreme Court has given 

of such language. See Gonzaga, 536 U.S. at 287 (“No person . . . shall . . . be subjected to 

discrimination.”). The statutory text therefore unmistakably evinces Congress’s intention 

to confer on Medicaid beneficiaries a right to the free choice of their provider.

As to the second factor, the provision is hardly so “vague and amorphous” as to 

preclude judicial enforcement, Blessing, 520 U.S. at 340, since it merely requires courts to 

make two discrete assessments: (i) that the provider is “qualified to perform the service or 

services required” and (ii) that the provider “undertakes” to provide those services, 42 

U.S.C. § 1396a(a)(23)(A). By way of comparison, the Supreme Court has concluded that 

a statute does not confer an enforceable right where it simply required a state to make

“‘reasonable efforts’ to maintain an abused or neglected child in his home” without any 

“further statutory guidance.” Suter v. Artist M., 503 U.S. 347, 359–60 (1992). Here, by 

contrast, the statute does not require courts to “engage in any balancing of competing 

concerns or subjective policy judgments, but only to answer factual, yes-or-no questions: 

Was an individual denied the choice of a (1) qualified and (2) willing provider?” Planned 

Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 967 (9th Cir. 2013). Courts are routinely 

tasked with resolving questions just like these.

Indeed, the facts of this case make it particularly easy to apply the free-choice-ofprovider provision. Planned Parenthood has provided the medical services that Edwards 

seeks for almost four decades, without any apparent challenge to its professional 

competence until now. We of course would give due respect and weight to South Carolina’s 

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judgment that a particular provider is unqualified. But the language of the statute makes 

clear that the relevant qualifications are medical qualifications, and, as we noted in our 

prior decision, South Carolina “does not the contest the fact” that Planned Parenthood “is 

professionally qualified to deliver the services that the individual plaintiff seeks.” Baker, 

941 F.3d at 702. Given these facts, it is straightforward to apply the free-choice-of-provider 

provision here. 

Finally, as to the third factor, the statute is couched in just the “mandatory, rather 

than precatory terms” that the Supreme Court has required, Blessing, 520 U.S. at 341, since 

states “must provide” a Medicaid recipient with her choice of qualified provider. Again, a 

comparison makes the point clear: the Supreme Court found that provisions “were intended 

to be hortatory, not mandatory” where they were expressed only as “findings respecting 

the rights of persons with developmental disabilities,” such as that these persons have a 

right to “appropriate treatment.” Pennhurst, 451 U.S. at 13, 24. Here, by contrast, the text

clearly imposes a definite obligation on state governments; indeed, it is hard to imagine 

how Congress could have more plainly used mandatory language.

In short, if this statute does not survive the Blessing factors, we cannot imagine one 

that would. Congress used emphatic, mandatory language to affirm the right of Medicaid 

recipients to receive the healthcare of their choice from a willing provider, and there is 

nothing about this inquiry that would strain the judicial role. In every respect, the statute 

resembles those laws which the Supreme Court has determined confer enforceable rights 

and we do not see how we could hold otherwise without repudiating Congress’s clear 

intention.

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In fact, South Carolina does not dispute our analysis of the Blessing factors. Rather, 

it argues that we erred altogether in applying these factors and suggests that the Supreme 

Court’s decision in Gonzaga effectively abrogated Blessing. But Gonzaga never indicated 

that Blessing is no longer good law; instead, it simply criticized courts that interpreted 

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.” 536 U.S. at 

282–83. Indeed, our court has held that the Blessing factors continue to govern following 

Gonzaga. Doe v. Kidd, 501 F.3d 348, 355 (4th Cir. 2007). 

While South Carolina contends we disregarded Gonzaga in our prior decision, we 

in fact took pains to heed Gonzaga’s instruction that there must be an “unambiguously 

conferred right to support a cause of action brought under § 1983.” Gonzaga, 536 U.S. at 

283; see Baker, 941 F.3d at 695, 697, 700. As we stated, “courts are most definitely not at 

liberty to imply private rights of action willy-nilly.” Baker, 941 F.3d at 700. But where 

Congress’s intent to make a right enforceable under § 1983 is indeed “clear and 

unambiguous,” Gonzaga, 536 U.S. at 290, we are bound to respect it. Because Congress’s 

intent is clear and unambiguous here, we conclude that the free-choice-of-provider 

provision confers on Medicaid recipients an individual right.

2.

Since the Blessing factors are satisfied, the free-choice-of-provider provision may 

be enforced under § 1983 unless the Medicaid Act evinces Congress’s intent to 

“specifically foreclose[] a remedy under § 1983.” Blessing, 520 U.S. at 341 (quoting Smith 

v. Robinson, 468 U.S. 992, 1005 n.9 (1984)). “We do not lightly conclude that Congress 

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intended to preclude reliance on § 1983 as a remedy.” Smith, 468 U.S. at 1012. And as we 

explained at length in our previous opinion, the statute here does no such thing. See Baker, 

941 F.3d at 698–700.

The Medicaid Act provides three potential remedies in this context: the Secretary of 

Health & Human Services may take the drastic step of cutting off Medicaid funds, 

providers may follow state administrative processes to challenge termination decisions, or

Medicaid recipients may use similar procedures to challenge claim denials. See id. at 698. 

None of these remedies provides individual Medicaid recipients any mechanism to contest 

the disqualification of their preferred provider, even though the statutory language benefits

these individual recipients specifically and even though the Supreme Court has instructed 

us to focus on whether “an aggrieved individual lack[s] any federal review mechanism.” 

Gonzaga, 536 U.S. at 290. And as we noted previously, see Baker, 941 F.3d at 698–99, the 

Supreme Court has already held in Wilder v. Virginia Hospital Ass’n, 496 U.S. 498 (1990), 

that the Medicaid Act does not foreclose remedies under § 1983 for just these reasons, see 

id. at 521–23.

In response, South Carolina argues that we erroneously relied on Wilder and that 

this decision has been repudiated by the Supreme Court. This suggestion misreads both our 

previous decision and the Supreme Court’s discussion of Wilder. To be sure, § 1983 does 

not operate as some sort of ubiquitous backstop conferring a private right of action where 

the underlying statute fails to do so. The Court has made clear that we should not rely on 

Wilder’s mode of analysis in determining whether a statute confers a private right

enforceable under § 1983. See Gonzaga, 536 U.S. at 283 (rejecting the view “that our cases 

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permit anything short of an unambiguously conferred right to support a cause of action 

brought under § 1983”); Armstrong, 575 U.S. at 330 n* (noting that “our later opinions 

plainly repudiate the ready implication of a § 1983 action that Wilder exemplified”). But 

the Supreme Court has never extended this criticism to Wilder’s subsequent analysis as to 

whether a statute’s remedial scheme forecloses the enforcement of a plainly conferred 

cause of action under § 1983. In fact, the Court approvingly cited Wilder on this point

following Gonzaga. See City of Ranchos Palos Verdes v. Abrams, 544 U.S. 113, 122 

(2005).

Suffice it to say that it is difficult to imagine that Congress would have passed such 

an emphatic provision and yet would not have approved some private enforcement 

mechanism on the part of those very people whom the statute was designed to benefit. It 

would be an odd state of affairs if Congress had categorically precluded enforcement on 

the part of these very beneficiaries, and there is nothing in the statute to suggest that it did.

3.

Finally, we conclude that the Supreme Court’s decision in O’Bannon v. Town Court 

Nursing Center, 447 U.S. 773 (1980), does not undermine this analysis. South Carolina 

interprets O’Bannon to hold that the free-choice-of-provider provision does not confer any 

individual rights on Medicaid recipients. But that case actually resolved an entirely 

different question and, to the extent that it has any application here, it only supports the 

existence of a private right.

In O’Bannon, the plaintiffs were residents of a nursing home who argued that they 

were entitled under the Due Process Clause to a hearing before the government decertified

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their home. See id. at 775–77. The state sought to do so upon the recommendation of the 

federal government and had cited a number of reasons for decertification, all of which had 

to do with professional competence. See id. at 775–76 & n.3. The plaintiffs did not argue 

that they could sue to enforce the terms of the Medicaid Act but only that the Act granted 

them a “property right to remain in the home of their choice absent good cause for transfer” 

or that such a transfer would deprive them of life or liberty. Id. at 784. So, as we noted 

previously, see Baker, 741 F.3d at 704, the Supreme Court had no reason to consider the 

existence or scope of a statutory cause of action to enforce the Medicaid Act, and none of 

its reasoning bears on that question. The Court simply rejected the procedural due process 

claim brought by the plaintiffs, concluding that the decertification of an unqualified facility 

“does not amount to a deprivation of any interest in life, liberty, or property.” O’Bannon, 

447 U.S. at 787.

O’Bannon therefore has little to do with this case. But to the extent that it is at all

applicable, language from that decision only supports the plaintiff’s position here. While 

the Court rejected the notion that plaintiffs might possess some constitutional interest to 

receive benefits from an unqualified provider, it repeatedly indicated that the free-choiceof-provider provision “gives recipients the right to choose among a range of qualified 

providers without government interference.” Id. at 785; see also id. n.18 (noting that “the 

statute referred to above would prohibit any . . . interference with the patient’s free choice 

among qualified providers”). As the Court made clear, a patient has “no enforceable 

expectation of continued benefits to pay for care in an institution that has been determined 

to be unqualified” but does have “a right to continued benefits to pay for care in the 

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qualified institution of his choice.” Id. at 786. Here, of course, the issue is precisely that 

Planned Parenthood remains a qualified institution under the terms of the statute, and South 

Carolina’s termination of its Medicaid provider agreement impinges on Edwards’s “right 

to choose among a range of qualified providers without government interference.” Id. at 

785.

IV.

In sum we refuse to nullify Congress’s undeniable desire to extend a choice of 

medical providers to the less fortunate among us, individuals who experience the same 

medical problems as the more fortunate in society but who lack under their own means the 

same freedom to choose their healthcare provider. In the Medicaid Act, Congress attempted 

a modest corrective to this imbalance. If we were to restrict the opportunity that these 

individuals have to access prenatal care that would both assist the mother and help bring 

healthy babies into this world, we would be reaching what we think is a legally 

impermissible result.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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RICHARDSON, Circuit Judge, concurring in the judgment:

Despite some reservations, I agree that the case is not moot given the facts before 

this Court. The State’s attempt to introduce information outside the record, which allegedly 

comes from an internal database, cannot establish mootness.

I also continue 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.’” 

Planned Parenthood S. Atl. v. Baker, 941 F.3d 687, 707 (4th Cir. 2019) (Richardson, J., 

concurring). As a result, it matters not whether our previous decision is binding circuit 

precedent or the “law of the case.” I would reach the same result either way. 

At the same time, the caselaw on implied private rights of action remains plagued 

by confusion and uncertainty. Id. at 708–10. This confusion stems from recent Supreme 

Court cases which cast doubt on—but fail to explicitly overrule—earlier precedent. 

Gonzaga arguably laid down a different test than Wilder and Blessing. See Gonzaga Univ. 

v. Doe, 536 U.S. 273, 283 (2002). And Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 

320, 330 n.* (2015), questioned Wilder’s reasoning and claimed later opinions “plainly 

repudiate” its “ready implication of a § 1983 action.” Yet this Court remains bound by 

Blessing and Wilder. Baker, 941 F.3d at 709–10 (Richardson, J., concurring). So I am left 

hoping that clarity will soon be provided. 

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