Planned Parenthood of AR, etc. v. Cindy Gillespie

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 15-3271
___________________________

Jane Does, 1-3; Planned Parenthood of Arkansas & Eastern Oklahoma, doing
business as Planned Parenthood Great Plains,

lllllllllllllllllllll Plaintiffs - Appellees,

v.

Cindy Gillespie,1 Director of the Arkansas Department of Human Services,

lllllllllllllllllllll Defendant - Appellant.

------------------------------

American Public Health Association; National Center for Lesbian Rights; National
Family Planning & Reproductive Health Association; National Health Law
Program; National Latina Institute for Reproductive Health; National Women’s
Law Center; Sexuality Information and Education Council of the U.S.,

lllllllllllllllllllllAmici on Behalf of Appellees.
___________________________

No. 16-4068
___________________________

Planned Parenthood of Arkansas & Eastern Oklahoma, doing business as Planned
Parenthood Great Plains; Jane Does, 1-3

lllllllllllllllllllll Plaintiffs - Appellees,

1
Cindy Gillespie is automatically substituted for her predecessor in these cases
pursuant to Federal Rule of Appellate Procedure 43(c)(2).
 v.

Cindy Gillespie, Director of the Arkansas Department of Human Services,

lllllllllllllllllllll Defendant - Appellant.
____________

Appeals from United States District Court
for the Eastern District of Arkansas - Little Rock
____________

Submitted: September 21, 2016
Filed: August 16, 2017
____________

Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
____________

COLLOTON, Circuit Judge.

The Arkansas Department of Human Services terminated its Medicaid provider
agreements with Planned Parenthood of Arkansas and Eastern Oklahoma after the
release of controversial video recordings involving other Planned Parenthood
affiliates. Planned Parenthood of Arkansas and Eastern Oklahoma could have
challenged the termination through an administrative appeal and judicial review in
the Arkansas courts, but it declined to do so. Instead, three Arkansas patients
identified by the Planned Parenthood affiliate sued the Director of the Department
under 42 U.S.C. § 1983, claiming that the Department violated a federal right of the
patients under the Medicaid Act to choose any “qualified” provider that offers
services that the patients seek.

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 The district court enjoined the Department from suspending Medicaid
payments to Planned Parenthood of Arkansas and Eastern Oklahoma for services
rendered to the three patients. The court later entered a broader injunction that
forbids suspending payments for services rendered to a class of Medicaid
beneficiaries. The Director appeals, and we conclude that the plaintiffs do not have
a likelihood of success on the merits of their claims. The provision of the Medicaid
Act does not unambiguously create a federal right for individual patients that can be
enforced under § 1983. We therefore vacate the injunctions.

I.

Planned Parenthood of Arkansas and Eastern Oklahoma, an affiliate of the
Planned Parenthood Federation of America, operates health centers in Arkansas. We
will call the local affiliate “Planned Parenthood” for short. The district court found
that the Arkansas health centers “provide family planning services to men and
women, including contraception and contraceptive counseling, screening for breast
and cervical cancer, pregnancy testing and counseling, and early medication
abortion.”

As of 2015, Planned Parenthood and the Arkansas Department of Human
Services were parties to contracts under which Planned Parenthood participated in the
Arkansas Medicaid program. The contracts provided that either party could terminate
them without cause by giving thirty days’ notice. The Department also could
terminate the contracts immediately for several reasons, including for conduct that is
sanctionable under the applicable Medicaid Provider Manual.

On August 14, 2015, Governor Hutchinson of Arkansas directed the
Department to terminate its Medicaid provider agreements with Planned Parenthood.
The Governor said in a public statement that it was “apparent . . . after the recent
revelations on the actions of Planned Parenthood, that this organization does not

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represent the values of the people of our state and Arkansas is better served by
terminating any and all existing contracts with them.” Context makes clear that the
“recent revelations” to which the Governor referred were video recordings released
by the Center for Medical Progress that purported to show employees of other
Planned Parenthood affiliates discussing the sale of fetal tissue for profit. The parties
dispute whether the Planned Parenthood affiliates involved in the recordings engaged
in any unlawful or unethical conduct.

The Department, on August 14, 2015, notified Planned Parenthood that it was
terminating the Medicaid provider agreements, effective thirty days later, and notified
Planned Parenthood of its right to file an administrative appeal. Before the thirty
days expired, on September 1, the Department sent a second notice. This one stated
that the Department was terminating its agreements with Planned Parenthood for
cause, because “there is evidence that [Planned Parenthood] and/or its affiliates are
acting in an unethical manner and engaging in what appears to be wrongful conduct.”
Rather than discontinue the contracts immediately, however, the Department set the
termination date for September 14, 2015, the same date specified in the first letter.

Federal regulations authorized by Congress and promulgated by the Secretary
of Health and Human Services require each State to establish appeal procedures for
Medicaid providers. 42 U.S.C. §§ 1396a(a)(4), (39); 42 C.F.R. § 1002.213. Under
Arkansas law, a provider who is terminated has a right to file an administrative appeal
within thirty days of the termination, and then to seek judicial review. Ark. Code R.
§ 016.06.35-161.400; Ark. Code Ann. § 20-77-1718. Planned Parenthood, however,
declined to exercise its appeal rights under Arkansas law and instead identified three
patients who were willing to join the organization in a federal lawsuit.

On September 11, 2015, Planned Parenthood and three patients identified as
“Jane Does” sued the Department’s Director in the district court, seeking a temporary
restraining order and a preliminary injunction to prevent the Department from

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terminating Planned Parenthood’s contract. The plaintiffs alleged that they were
likely to prevail on a claim that the Department, by excluding Planned Parenthood
from the Medicaid program for a reason unrelated to its fitness to provide medical
services, had violated § 23(A) of the Medicaid Act. This section is described as the
Medicaid “free-choice-of-provider” provision. 42 U.S.C. § 1396a(a)(23)(A). The
plaintiffs further asserted that without an injunction, they would suffer irreparable
harm. The plaintiffs claimed that § 23(A) creates a judicially enforceable right, a
violation of which can be remedied through an action under 42 U.S.C. § 1983. The
district court granted a temporary restraining order.

After further briefing by the parties, Planned Parenthood withdrew its claim for
relief as a provider, but the Jane Does proceeded with their claims as patients, and the
district court granted a preliminary injunction in favor of the Jane Does. The court
concluded that § 23(A) creates a private right enforceable by the Jane Does under
§ 1983, and that they were likely to prevail on the merits of their claim that the
Department unlawfully terminated its contract with Planned Parenthood. The court
also determined that, without an injunction, the Jane Does would suffer irreparable
harm. The Department appealed the grant of the preliminary injunction, and we heard
oral argument.

After the appeal was submitted, the district court granted the plaintiffs’ motion
to certify a class of “patients who seek to obtain, or desire to obtain, health care
services in Arkansas at [Planned Parenthood] through the Medicaid program.” The
district court then issued a second, broader injunction that forbids the Department to
suspend Medicaid payments to Planned Parenthood for services rendered to Medicaid
beneficiaries who are members of the class. The district court’s order granting the
second injunction incorporated the court’s reasoning from the first order.

The Department filed a notice of appeal of the class-wide preliminary
injunction. The parties then filed a joint motion requesting that we consolidate the

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two appeals, and they waived further briefing and argument. We consolidated the
appeals and now consider them together.

II.

A party seeking a preliminary injunction must demonstrate, among other
things, a likelihood of success on the merits. Munaf v. Geren, 553 U.S. 674, 690
(2008). In this case, a threshold question bearing on likelihood of success is whether
the Jane Doe plaintiffs and the certified class of Medicaid patients have a judicially
enforceable right under the cited provision of the Medicaid Act, 42 U.S.C.
§ 1396a(a)(23)(A). If the statute does not create an enforceable federal right, then the
Jane Does and the class members cannot sue under § 1983, and there is no likelihood
of success on the merits.

Section 1983 provides a cause of action against any person who, under color
of law, subjects a citizen to the deprivation of any rights secured by the laws of the
United States. Generally speaking, § 1983 supplies the remedy for vindication of
rights arising from federal statutes. Maine v. Thiboutot, 448 U.S. 1, 4-8 (1980). For
legislation enacted pursuant to Congress’s spending power, however, “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.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.
1, 28 (1981).

To support an action under § 1983, a plaintiff relying on a federal law must
establish that Congress clearly intended to create an enforceable federal right.
Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002). There was a time, illustrated by
Wilder v. Virginia Hospital Ass’n, 496 U.S. 498 (1990), when the Medicaid Act was
deemed to create an enforceable right if the provision in question was “intend[ed] to
benefit the putative plaintiff.” Id. at 509 (alteration in original) (quoting Golden State

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Transit Corp. v. City of L.A., 493 U.S. 103, 106 (1989)). Starting from that premise,
Wilder held that the Boren Amendment to § 13(A) of the Medicaid Act created a
federal right for providers that was enforceable under § 1983.

Later decisions, however, show that the governing standard for identifying
enforceable federal rights in spending statutes is more rigorous. It is not enough, as
Wilder and Blessing v. Freestone, 520 U.S. 329 (1997), might have suggested, to
show simply that a plaintiff “falls within the general zone of interest that the statute
is intended to protect.” Gonzaga, 536 U.S. at 283. It is now settled that nothing
“short of an unambiguously conferred right” will support a cause of action under
§ 1983. Id.

Most recently, therefore, the Court observed that Medicaid providers seeking
to enforce § 30(A) of the Medicaid Act did not rely on Wilder to proceed under
§ 1983, because the Court’s later decisions “plainly repudiate the ready implication
of a § 1983 action that Wilder exemplified.” Armstrong v. Exceptional Child Ctr.,
Inc., 135 S. Ct. 1378, 1386 n.* (2015). The Court explained that Gonzaga expressly
rejected the notion, “implicit in Wilder,” that something “short of an unambiguously
conferred right” can support a cause of action under § 1983. Id. Armstrong thus
made explicit what was implicit in Gonzaga, where the dissenting opinion concluded
that the Court “sub silentio overrule[d] cases such as . . . Wilder,” because the Boren
Amendment did not “clear[ly] and unambiguous[ly] intend enforceability under
§ 1983.” 536 U.S. at 300 n.8 (Stevens, J., dissenting) (second and third alteration and
emphasis in original) (citation omitted). Congress repealed former § 13(A) and the
Boren Amendment in 1997, see Balanced Budget Act of 1997, Pub. L. No. 105-33,
§ 4711, 111 Stat. 251, 507-08, so the Court will have no occasion formally to
overrule Wilder. But for purposes of our obligation to apply Supreme Court
precedent, see Agostini v. Felton, 521 U.S. 203, 237 (1997), the Court’s “repudiation”
of Wilder is the functional equivalent of “overruling,” as the Court uses the terms
interchangeably. Obergefell v. Hodges, 135 S. Ct. 2584, 2606 (2015); Keene Corp.

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v. United States, 508 U.S. 200, 215 (1993); Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833, 864 (1992).2

The provision at issue in this case appears in a section of the Medicaid Act
concerning state plans for medical assistance. The Act provides, with exceptions not
relevant here, that the Secretary of Health and Human Services “shall approve any
plan which fulfills the conditions specified in subsection (a).” 42 U.S.C. § 1396a(b).
Subsection (a), in turn, declares that “[a] State plan for medical assistance must”
satisfy some eighty-three conditions. The condition involved here is § 23(A), namely,
that the state plan must “provide that . . . any individual eligible for medical
assistance (including drugs) 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.” Id. § 1396a(a)(23)(A).

The Jane Does contend that § 23(A) creates an enforceable federal right for
individual patients to receive services from any provider who is “qualified to perform
the service” that they seek. If Planned Parenthood is qualified to perform the service,
they argue, then § 1983 provides a remedy through which a court can require the
State to maintain its contract with Planned Parenthood, so that the Jane Does can
obtain assistance from that provider.

We see significant difficulties with the contention that § 23(A) unambiguously
creates an enforceable federal right. First, the focus of the Act is two steps removed

2
Pediatric Specialty Care, Inc. v. Arkansas Department of Human Services,
293 F.3d 472 (8th Cir. 2002), cited by the dissent, post, at 24, 26-27, preceded
Gonzaga and did not consider whether the statutory provisions at issue there
unambiguously conferred an enforceable right on the plaintiffs. Center for Special
Needs Trust Administration, Inc. v. Olson, 676 F.3d 688 (8th Cir. 2012), also cited
by the dissent, did not apply Gonzaga, was decided before Armstrong, and concerned
a different provision of the Medicaid Act that is not at issue here.

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from the interests of the patients who seek services from a Medicaid provider. Like
the provision at issue in Armstrong, “[i]t is phrased as a directive to the federal
agency charged with approving state Medicaid plans, not as a conferral of the right
to sue upon the beneficiaries of the State’s decision to participate in Medicaid.” 135
S. Ct. at 1387 (plurality opinion). In other words, “[i]t focuses neither on the
individuals protected nor even on the funding recipients being regulated, but on the
agenc[y] that will do the regulating.” Alexander v. Sandoval, 532 U.S. 275, 289
(2001). A statute that speaks to the government official who will regulate the
recipient of federal funding “does not confer the sort of ‘individual entitlement’ that
is enforceable under § 1983.” Gonzaga, 536 U.S. at 287 (quoting Blessing, 520 U.S.
at 343). Even where a subsidiary provision includes mandatory language that
ultimately benefits individuals, a statute phrased as a directive to a federal agency
typically does not confer enforceable federal rights on the individuals. Univs.
Research Ass’n, Inc. v. Coutu, 450 U.S. 754, 756 n.1, 772-73 (1981).

Second, Congress expressly conferred another means of enforcing a State’s
compliance with § 23(A)—the withholding of federal funds by the Secretary. 42
U.S.C. § 1396c. Congress also authorized the Secretary to promulgate regulations
that are necessary for the proper and efficient operation of a state plan. Id.
§ 1396a(a)(4). Under that authority, the Secretary has required States to give
providers the right to appeal an exclusion from the Medicaid program. 42 C.F.R.
§ 1002.213.3 Because other sections of the Act provide mechanisms to enforce the

3
It was foreseeable that federal regulations would provide for state
administrative and judicial review of provider exclusions, because Congress specified
that the Secretary may exclude from any federal health care program a provider who
is excluded by a State. 42 U.S.C. § 1320a-7(b)(5). The collateral federal
consequences of a State exclusion led the Secretary to mandate that States afford due
process protections to excluded providers. See Health Care Programs: Fraud and
Abuse; Amendments to OIG Exclusion and CMP Authorities Resulting From Public
Law 100-93, 57 Fed. Reg. 3298, 3322-23 (Jan. 29, 1992).

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State’s obligation under § 23(A) to reimburse qualified providers who are chosen by
Medicaid patients, it is reasonable to conclude that Congress did not intend to create
an enforceable right for individual patients under § 1983. See Suter v. Artist M., 503
U.S. 347, 360-61, 363 (1992), superseded by statute on other grounds, 42 U.S.C.
§§ 1320a-2, 1320a-10; see also Gonzaga, 536 U.S. at 281 (applying Suter).

Accepting the Jane Does’ position would result in a curious system for review
of a State’s determination that a Medicaid provider is not “qualified.” Federal law,
as noted, requires that when a State terminates a Medicaid provider, the State must
afford the provider an opportunity for administrative appeal and judicial review in the
state courts. Under the Jane Does’ vision, while the provider is litigating its
qualifications in the state courts, or after the provider unsuccessfully appeals a
determination that it is not qualified, individual patients separately could litigate or
relitigate the qualifications of the provider in federal court under § 1983. Each
adjudicator must apply a rather imprecise standard, asking whether the provider is
“qualified to perform the service or services required.” The potential for parallel
litigation and inconsistent results gives us further reason to doubt that Congress in
§ 23(A) unambiguously created an enforceable federal right for patients. Cf.
Gonzaga, 536 U.S. at 292 (Breyer, J., concurring in the judgment).

Third, statutes with an “aggregate” focus do not give rise to individual rights.
Gonzaga, 536 U.S. at 288 (quoting Blessing, 520 U.S. at 343). This court in Midwest
Foster Care & Adoption Ass’n v. Kincade, 712 F.3d 1190 (8th Cir. 2013), reasoned
that where “a statute links funding to substantial compliance with its
conditions—including forming and adhering to a state plan with specified
features—this counsels against the creation of individually enforceable rights.” Id.
at 1200. “Focusing on substantial compliance is tantamount to focusing on the
aggregate practices of a state funding recipient.” Id. at 1201; see Gonzaga, 536 U.S.
at 288 (explaining that Blessing “found that Title IV-D failed to support a § 1983 suit
in part because it only required ‘substantial compliance’ with federal regulations”);

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Blessing, 520 U.S. at 335, 343. The statute at issue in Midwest Foster Care
concerned “payments on behalf of each child,” 42 U.S.C. § 672(a)(1) (emphasis
added), thus arguably suggesting a focus on individuals, but this court concluded that
the “substantial compliance funding condition” indicated that the statute had an
aggregate focus. 712 F.3d at 1201.

Section 23(A) is likewise part of a substantial compliance regime. The
Secretary is directed to discontinue payments to a State if he finds that “in the
administration of the plan there is a failure to comply substantially” with a provision
of § 1396a. 42 U.S.C. § 1396c(2). Although Wilder identified an enforceable right
in former § 13(A) of the Medicaid Act despite the statute’s substantial compliance
requirement, see Midwest Foster Care, 712 F.3d at 1201, we put little stock in that
paradigm after Armstrong’s express disavowal of Wilder’s mode of analysis. There
is stronger reason after Armstrong to infer an aggregate focus for § 1396a(a)(23)(A)
based on the substantial compliance funding requirement of § 1396c.

The Jane Does, citing decisions of other circuits, rely on the fact that § 23(A)
refers to “any individual eligible for medical assistance,” and that the Medicaid Act
speaks in mandatory language when it says that a state plan “must” provide for an
individual to obtain assistance from a qualified provider. 42 U.S.C. § 1396a(a). They
say that this text includes the sort of “rights-creating language” that supports an
action under § 1983. See Planned Parenthood of Gulf Coast, Inc. v. Gee, No. 15-
30987, 2017 WL 2805637, at *7-8 (5th Cir.), petition for reh’g filed, No. 15-30987
(July 13, 2017); Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 966-67 (9th
Cir. 2013); Planned Parenthood of Ind., Inc. v. Comm’r of the Ind. State Dep’t of
Health, 699 F.3d 962, 974-76 (7th Cir. 2012); Harris v. Olszewski, 442 F.3d 456,
461-62 (6th Cir. 2006).

In our view, this analysis gives insufficient weight to Gonzaga’s requirement
of unambiguous intent and to the factors that we have discussed above: the reference

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to an “individual” is nested within one of eighty-three subsections and is two steps
removed from the Act’s focus on which state plans the Secretary “shall approve,” 42
U.S.C. § 1396a(b); Congress directly and indirectly established other means of
enforcing compliance, 42 U.S.C. § 1396c, 42 C.F.R. § 1002.213; and the substantial
compliance funding condition of § 1396c suggests an aggregate focus. Where
structural elements of the statute and language in a discrete subsection give mixed
signals about legislative intent, Congress has not spoken—as required by Gonzaga,
536 U.S. at 280—with a “clear voice” that manifests an “‘unambiguous’ intent” to
confer individual rights. See John B. v. Goetz, 626 F.3d 356, 361-62 (6th Cir. 2010)
(per curiam) (observing that a comparable argument based on the Act as a whole “has
considerable support in the language of the statute,” but concluding that it was
foreclosed by circuit precedent).4

The dissent, post, at 26, asserts that it is “inappropriate” to consider the fact
that § 1396a(a) is part of a directive to the Secretary, and proposes to decide the
existence of an enforceable federal right based on a sentence fragment in
§ 1396a(a)(23). The dissent’s approach runs counter to basic rules of statutory
interpretation. “Perhaps no interpretive fault is more common than the failure to
follow the whole-text canon, which calls on the judicial interpreter to consider the
entire text, in view of its structure and of the physical and logical relation of its many
parts.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 167 (2012). The proper inquiry is whether Congress intended to create an
enforceable federal right when it enacted the specific provision in question.
Congressional intent or meaning is not discerned by considering merely a portion of
a statutory provision in isolation, but rather by reading the complete provision in the

4
Because we conclude that Congress did not unambiguously confer a federal
right that is presumptively enforceable under § 1983, we do not adopt the view
attributed to us by the dissent, post, at 26, that Congress adopted a comprehensive
administrative scheme that precludes private enforcement under § 1983. See
Gonzaga, 536 U.S. at 284 n.4.

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context of the statute as a whole. Robinson v. Shell Oil Co., 519 U.S. 337, 341
(1997); Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989); K-Mart Corp.
v. Cartier, Inc., 486 U.S. 281, 291 (1988).

The decisions of other courts also can be explained in part by an evolution in
the law. The authorities cited by the Jane Does rely significantly (and in the pre-2015
decisions, understandably) on the Supreme Court’s analysis in the now-repudiated
Wilder decision. See Planned Parenthood of Ind., 699 F.3d at 976 (“Indiana’s
position is hard to reconcile with Wilder . . . .”); Harris, 442 F.3d at 463 (“Our
conclusion . . . comports with decisions of the Supreme Court [and other courts] that
have recognized privately enforceable rights under § 1983 stemming from similar
statutory language in the Medicaid Act.”) (citing Wilder, 496 U.S. at 510, 524); see
also Gee, 2017 WL 2805637, at *9 (following the Sixth and Seventh Circuits);
Betlach, 727 F.3d at 966-67 (same). The Third Circuit in 2004 similarly relied on
Wilder in reversing a district court’s decision that §§ 1396a(a)(8), 1396a(a)(10), and
1396d(a)(15) did not unambiguously create enforceable rights in light of Gonzaga.
Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 184, 192-93 (3d Cir. 2004). A
concurring opinion, however, suggested that the result might not endure: “While the
analysis and decision of the District Court may reflect the direction that future
Supreme Court cases in this area will take, currently binding precedent supports the
decision of the Court.” Id. at 194 (Alito, J., concurring).5

5
The district court in Sabree concluded:

Because Title XIX speaks more in terms of what a State must do to
make itself eligible for funding versus the individual treatment of
recipients, and because the State need only “comply substantially” with
statutory provisions to receive funding, the Secretary’s function is to
assess the “aggregate function of the State,” rather than “whether the
needs of any particular person have been satisfied.”

Sabree ex rel. Sabree v. Houston, 245 F. Supp. 2d 653, 660 (E.D. Pa. 2003) (citation

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 In support of the view that Congress intends private enforcement of § 23(A)
under § 1983, amici National Health Law Program, et al., direct our attention to 42
U.S.C. § 1320a-2. That section, enacted in 1994, provides:

In an action brought to enforce a provision of [the Social Security Act],
such provision is not to be deemed unenforceable because of its
inclusion in a section of [the Act] requiring a State plan or specifying
the required contents of a State plan. This section is not intended to
limit or expand the grounds for determining the availability of private
actions to enforce State plan requirements other than by overturning any
such grounds applied in Suter v. Artist M., 112 S. Ct. 1360 (1992), but
not applied in prior Supreme Court decisions respecting such
enforceability; provided, however, that this section is not intended to
alter the holding in Suter v. Artist M. that section 671(a)(15) of [the Act]
is not enforceable in a private right of action.

The Ninth Circuit found that this text was “hardly a model of clarity.” Sanchez
v. Johnson, 416 F.3d 1051, 1057 n.5 (9th Cir. 2005). The operative first sentence
addresses and apparently disapproves one portion of Suter: the Court had suggested
that when a provision of the Adoption Assistance and Child Welfare Act required a
state plan and specified the mandatory elements of a plan, it required only that a State
have a plan approved by the Secretary which contained those features, not that the
plan actually be in effect. Suter, 503 U.S. at 358; see Brief of National Health Law
Program, et al. as Amici Curiae at 15.6 We do not rely on this aspect of Suter; we

omitted); see also Grammer v. John J. Kane Reg’l Ctrs.-Glen Hazel, 570 F.3d 520,
533 (3d Cir. 2009) (Stafford, J., dissenting).
6
The Conference Report on § 1320a-2 quotes a portion of Suter stating that 42
U.S.C. § 671(a) “only goes so far as to ensure that the States have a plan approved by
the Secretary which contains the listed 16 features” before explaining the “intent” of
the statute:

The intent of this provision is to assure that individuals who have been

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assume that the State must have a plan that is in effect. The second sentence of
§ 1320a-2 declares what is “intended” by the statute, but does not include an
operative provision that adds to the specific direction of the first sentence. See Scalia
& Garner, supra, at 219-20 (explaining that “an expansive purpose . . . cannot add to
the specific dispositions of the operative text,” whether the expression of purpose is
contained in a preface or in the body of the text); cf. FERC v. Elec. Power Supply
Ass’n, 136 S. Ct. 760, 775 n.6 (2016) (“The operative provision is what counts.”). In
any event, other points discussed in Suter, including the requirement of unambiguous
notice to States about conditions on the receipt of federal funds and the significance
of an alternative enforcement mechanism, were relevant considerations before Suter
and are beyond the scope of § 1320a-2. See LaShawn A. v. Barry, 69 F.3d 556, 569
(D.C. Cir. 1995), vacated, 74 F.3d 303, and rev’d en banc on other grounds, 87 F.3d
1389 (D.C. Cir. 1996). The statute provides that Congress did not intend to alter the
holding of Suter, and the provision leaves undisturbed enough of Suter’s rationale to
justify the holding.

Because § 1320a-2 was adopted seven years before Gonzaga clarified the law
in this area, moreover, the statute does not address the same question that a court must

injured by a State’s failure to comply with the Federal mandates of the
State plan titles of the Social Security Act are able to seek redress in the
federal courts to the extent they were able to prior to the decision in
Suter v. Artist M., while also making clear that there is no intent to
overturn or reject the determination in Suter that the reasonable efforts
clause to Title IV-E does not provide a basis for a private right of action.

H.R. Rep. No. 103-761, at 924, 926 (1994) (Conf. Rep.); see also H.R. Rep. No. 102-
631, at 366 (1992) (stating that a predecessor bill with virtually identical language
“only alters that portion of Suter v. Artist M. suggesting that failure of a state to
comply with a state plan provision is not litigable as a violation of federal statutory
rights”).

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decide today. Section 1320a-2 speaks to when a “provision” is “deemed
unenforceable”; we must decide whether a statute unambiguously “confers an
individual right” that can be enforced under § 1983. Gonzaga, 536 U.S. at 284. We
know that § 1320a-2 did not freeze the law as it was before Suter in 1992: Armstrong
confirmed that the 1990 Wilder decision has been repudiated by post-1994 precedent.
See also Sanchez, 416 F.3d at 1057 n.5 (concluding that a court must apply Blessing
and Gonzaga, which followed the enactment of § 1320a-2, in determining whether
a provision of the Medicaid Act confers an individual right); Harris v. James, 127
F.3d 993, 1002 (11th Cir. 1997) (rejecting the proposition that courts must “determine
the ‘federal rights’ question only according to the pre-Suter precedents”).

Section 1320a-2 does not show that § 23(A) of the Medicaid Act creates an
enforceable right. This court in Midwest Foster Care interpreted § 1320a-2 to mean
that a provision of the Act “cannot be deemed individually unenforceable solely
because of its situs in a larger regime ‘requiring a State plan or specifying the
required contents of a state plan.’” 712 F.3d at 1200 (quoting 42 U.S.C. § 1320a-2).
This does not mean that we should ignore the elements of the text discussed
above—the structure of the statute and its focus on a federal regulator who is two
steps removed from individual patients, the availability of alternative means to
enforce compliance with the requirements of § 23(A), and the aggregate focus of the
statute in light of its connection between funding and substantial compliance with the
condition. Where a provision is included in a section of the Act requiring a state plan
or specifying the required contents of a state plan, Congress still must create new
rights in clear terms that show unambiguous intent before they are enforceable under
§ 1983. Conflicting textual cues are insufficient.

The plurality opinion in Part IV of Armstrong fortifies this conclusion. Four
Justices considered whether Medicaid providers had a cause of action under the
Medicaid Act itself to enforce § 30(A) of the Act. The first step in that analysis was

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to determine whether Congress intended to confer individual rights upon a class of
beneficiaries—the same inquiry that informs whether a statute confers rights
enforceable under § 1983. Gonzaga, 536 U.S. at 285. The Armstrong plurality
concluded that § 30(A) lacked “rights-creating language,” because it was “phrased
as a directive to the federal agency charged with approving state Medicaid plans, not
as a conferral of the right to sue upon the beneficiaries of the State’s decision to
participate in Medicaid.” 135 S. Ct. at 1387 (citing 42 U.S.C. § 1396a(b)). To accept
amici’s suggestion here that § 1320a-2 precludes this analysis would require us to
conclude that the Armstrong plurality overlooked § 1320a-2 or misunderstood it.
Neither is likely.7

The lack of a judicially enforceable federal right for Medicaid patients does not
mean that state officials have unfettered authority to terminate providers. Patients can
receive services only from a willing provider. Medicaid providers whose contracts
are terminated but who wish to continue providing services have an obvious incentive
to pursue administrative appeals and judicial review in state court if the alternative
avenue of recruiting patients to sue in federal court is not available. Providers and
patients also may urge the Secretary to withhold federal funds from a State that fails
to comply substantially with the condition of § 23(A). The absence of a remedy for
patients under § 1983 therefore does not make the free-choice-of-provider provision
an empty promise. We conclude only that Congress did not unambiguously confer
the particular right asserted by the patients in this case.

7
The respondents, the Solicitor General, and several other amici brought
§ 1320a-2 to the Court’s attention in Armstrong. Brief for Respondents at 43,
Armstrong, 135 S. Ct. 1378 (No. 14-15); Brief for the United States as Amicus Curiae
at 29-30; Brief for American Ass’n of People with Disabilities, et al. as Amici Curiae
at 15-16; Brief for American Medical Ass’n, et al. as Amici Curiae at 27-32; Brief for
American Network of Community Options & Resources, et al. as Amici Curiae at 7,
19-24.

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 Given our conclusion that § 23(A) of the Medicaid Act does not give the Jane
Does or the class of Medicaid beneficiaries an enforceable federal right that supports
a cause of action under § 1983, the plaintiffs do not have a likelihood of success on
the merits of their claims. We need not address the Director’s alternative contention
that the Jane Does failed to show that irreparable harm would result from the denial
of an injunction because other qualified providers could provide the services that they
seek. Without a likelihood of success on the merits, an injunction is not justified.
The orders of the district court enjoining the Arkansas Department of Human
Services from suspending Medicaid payments are therefore vacated.

SHEPHERD, Circuit Judge, concurring.

I concur in the court’s opinion today, but I write separately to present an
alternative ground for reversal. In my view, even if § 23(A) provides a substantive
right that the plaintiffs can enforce through a § 1983 suit, the right provided is to a
range of qualified providers—not the right to a particular provider the State has
decertified. For this alternative reason, the plaintiffs’ § 1983 claim fails.

Assuming that § 23(A) grants the plaintiffs a private right of action, we must
examine the precise contours of that right. Cf. Gonzaga Univ. v. Doe, 536 U.S. 273,
280 (2002) (requiring that conferred benefits be sufficiently specific and definite to
qualify as enforceable rights). The plaintiffs frame the right as an absolute right to
use the qualified provider of their own choosing without governmental interference.
Because Arkansas decertified Planned Parenthood—plaintiffs’ preferred healthcare
provider—as a qualified provider, the plaintiffs allege they have a right under § 23(A)
to challenge that decertification.

But the Supreme Court’s decision in O’Bannon v. Town Court Nursing Center,
447 U.S. 773 (1980), tells us the right created by § 23(A) is far more narrow: the

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right to choose among a range of qualified providers. O’Bannon involved Medicaid
recipients residing in a nursing home that initially qualified as a Medicaid provider.
Id. at 775. After the nursing home was decertified and removed from the list of
qualified providers, residents brought suit, alleging a constitutional right to an
evidentiary hearing on the merits of the decertification decision. The Supreme Court
rejected this argument. Analyzing the “substantive right” provided by § 23(A), the
Court held that “the Medicaid provisions . . . do not confer a right to continued
residence in the home of one’s choice.” Id. at 785-86. Section 23(A), the Court
explained, “gives recipients the right to choose among a range of qualified providers,
without government interference.” Id. at 785. So long as the provider remains
qualified, therefore, Medicaid recipients remain free to stay there. But § 23(A)
“clearly does not . . . confer a right on a recipient to continue to receive benefits for
care in a home that has been decertified.” Id. In sum, the Court carefully delineated
the limits of the right conferred by § 23(A); there is no enforceable right of continued
care from a provider determined by the state to be unqualified.

I see two important takeaways from O’Bannon. First, the contours of the right
granted by § 23(A) are circumscribed. Medicaid recipients have the enforceable right
to a range of qualified providers. So state agencies cannot steer patients to certain
qualified providers at the expense of other qualified providers. Nor can an agency
artificially create a monopoly in Medicaid care.8 But there exists no right to a
particular provider the State has decertified. Second, § 23(A) does not give Medicaid

8
For these reasons, the dissent’s complaint about my construction of the right
granted by § 23(A)— that it would be “self-eviscerating”—is unfounded. Section
23(A) protects Medicaid recipients from government interference in their choice of
a qualified provider, examples of which I have described in the text above. Were the
State to so interfere, the plaintiffs would have the right to challenge the State’s
actions. So the right granted by § 23(A) is real and meaningful. It simply doesn’t
have the meaning the dissent wishes it to have.

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recipients the right “to challenge the merits of a State’s assertion that a provider of
Medicaid services is no longer qualified to provide Medicaid services or to challenge
the State’s termination of a provider’s Medicaid agreements on the basis of the
provider’s noncompliance with state and federal regulatory requirements.” Planned
Parenthood of Gulf Coast, Inc. v. Gee, No. 15-30987, 2017 WL 2805637, at *20 (5th
Cir. June 29, 2017) (Owen, J., dissenting). The O’Bannon Court explained that
“decertification does not reduce or terminate a patient’s financial assistance, but
merely requires him to use it for care at a different facility.” 447 U.S. at 785-86.
“Because the patients had no substantive right to demand care from a provider that
had been decertified, they had no due process rights to participate in a hearing
regarding certification or decertification of the provider.” Gee, 2017 WL 2805637,
at *21 (Owen, J., dissenting).

O’Bannon controls the outcome of this case. The plaintiffs are asserting a
right—the absolute right to a particular provider of their choosing—that § 23(A) does
not grant them. The rights granted to these plaintiffs under the statute, as explained
by O’Bannon, remain intact because the record confirms that they still have access
to a range of qualified providers. Further, the plaintiffs have no right under federal
law to collaterally attack the merits of Arkansas’s decision to decertify Planned
Parenthood. Planned Parenthood had the right to challenge that decision, but instead
elected not to do so.

The plaintiffs argue on appeal that O’Bannon concerned “only a procedural due
process claim,” and therefore we should not consider it controlling because the
plaintiffs in this case assert a violation of a substantive right. To be sure, some of our
fellow circuit courts have agreed with this view. See Gee, 2017 WL 2805637, at *9
(distinguishing O’Bannon because it involved procedural due process rights and not
substantive rights); Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t
of Health, 699 F.3d 962, 977 (7th Cir. 2012) (same).

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 This view, however, is patently flawed because it ignores the very language of
O’Bannon. The Supreme Court clearly stated that it was defining the contours of the
“substantive right . . . conferred by the statutes and regulations.” O’Bannon, 447 U.S.
at 786. We, as courts of appeals, have no authority to dismiss binding precedent from
the highest court in the land, especially when that precedent is on point. See
Hennepin Cnty. v. Fed. Nat’l Mortg. Ass’n, 742 F.3d 818, 823 (8th Cir. 2014)
(“Lower courts must follow Supreme Court precedent which directly applies to a case
before them . . . .”).

The plaintiffs’ argument also exhibits a fundamental misunderstanding of due
process rights. Any right to due process, whether asserted as a procedural or
substantive claim, exists only when there is an underlying substantive right at issue.
See Gee, 2017 WL 2805637, at *21 (Owen, J., dissenting) (“[T]here is no right to due
process unless there is a substantive right that may be vindicated if adequate process
is accorded.”). The O’Bannon plaintiffs’ procedural due process claim required a
showing that the State had deprived them of “life, liberty, or property.” See U.S.
Const. amend. XIV. They identified § 23(A) as the source of their due process rights.
See O’Bannon, 447 U.S. at 784-85 (discussing § 23(A) as one of two sources
identified by the plaintiffs as providing a substantive right). The Supreme Court thus
examined whether § 23(A) provides Medicaid recipients the right to receive
healthcare services from a particular provider the State has decertified. The Court
concluded that no such right exists. Id. at 785-86. On this basis—the lack of a
substantive right to a particular, decertified provider—the Court denied the plaintiffs’
procedural due process claim. Id. The O’Bannon Court’s reasoning and decision
apply with equal force to the plaintiffs’ present claim, and for this alternative reason
I would reverse the district court.

The dissent contends that I misunderstand the plaintiffs’ argument. It then
explains that the plaintiffs are not claiming that § 23(A) entitles them to choose a

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provider rightfully disqualified from the pool of Medicaid providers, but rather they
argue that Arkansas’s decertification of Planned Parenthood as a qualified provider
constitutes government interference with their freedom of choice. O’Bannon,
therefore, is supposedly inapposite. See Gee, 2017 WL 2805637, at *10 (“[T]he
[O’Bannon] plaintiffs had no right to reside in an unqualified facility when the
disqualification decision was connected to the state’s enforcement of its health and
safety regulations.”).

The dissent’s attempt to distinguish O’Bannon fails because it assumes that
Planned Parenthood was somehow wrongfully disqualified as a Medicaid provider.
The dissent claims to find proof of this wrongful termination in the fact that Planned
Parenthood remains licensed to serve other patients. So according to the dissent, a
Medicaid recipient has the right to challenge the merits of a provider’s decertification
when the State permits that provider to continue providing care to other patients. But
this interpretation is plainly wrong. “Under federal statutory and regulatory
provisions, a State may terminate a provider’s Medicaid agreement on many grounds,
and it is not a prerequisite for such terminations that the State preclude a provider
from providing services to any and all patients.” Gee, 2017 WL 2805637, at *22
(Owen, J., dissenting); see also 42 U.S.C. § 1396a(p)(1) (“In addition to any other
authority, a State may exclude any individual or entity for purposes of participating
under the State plan under this subchapter for any reason for which the Secretary
could exclude the individual or entity from participation in a program under
subchapter XVII of this chapter under section 1320a-7, 1320a-7a, or 1395cc(b)(2) of
this title.”). And O’Bannon’s holding did not rest on whether the State allowed the
nursing home to continue servicing other patients. The Court based its decision on
the State’s termination of the nursing home’s Medicare provider agreement.
O’Bannon, 447 U.S. at 776. So O’Bannon remains controlling over this case.

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MELLOY, Circuit Judge, dissenting.

Because I would join the four other circuit courts and numerous district courts
that all have found a private right of enforcement under 42 U.S.C. § 1396a(a)(23)(A),
I respectfully dissent. See Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d
445 (5th Cir. 2017); Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960 (9th Cir.
2013); Planned 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).

In Blessing v. Freestone, 520 U.S. 329 (1997), the Supreme Court set forth a
three-factor test to determine whether a statutory provision creates a private right of
action enforceable under 42 U.S.C. § 1983. Under that test, we consider (1) whether
“Congress . . . intended that the provision in question benefit the plaintiff”; (2)
whether the right “is not so vague and amorphous that its enforcement would strain
judicial competence”; and (3) whether the provision “impose[s] a binding obligation
on the States.” Blessing, 520 U.S. at 340–41 (citation and internal quotation marks
omitted). Later, in Gonzaga University v. Doe, 536 U.S. 273, 283 (2002), the Court
amended the first prong of the analysis, holding that nothing “short of an
unambiguously conferred right [will] support a cause of action brought under
§ 1983.”

This court has applied the Blessing test a number of times to other statutory
provisions. See Spectra Commc’ns Grp., LLC v. City of Cameron, 806 F.3d 1113
(8th Cir. 2015) (finding no private right of action under 47 U.S.C. § 253); Midwest
Foster Care & Adoption Ass’n v. Kincade, 712 F.3d 1190 (8th Cir. 2013) (finding no
private right of action under 42 U.S.C. § 672(a)(1)); Ctr. for Special Needs Trust
Admin., Inc. v. Olson, 676 F.3d 688 (8th Cir. 2012) (finding a private right of action
under 42 U.S.C. § 1396p(d)(4)(C)); Lankford v. Sherman, 451 F.3d 496 (8th Cir.
2006) (finding no private right of action under 42 U.S.C. § 1396a(a)(17)); Walters v.

-23-
Weiss, 392 F.3d 306 (8th Cir. 2004) (finding no private right of action under 42
U.S.C. § 657(a)); Mo. Child Care Ass’n v. Cross, 294 F.3d 1034 (8th Cir. 2002)
(finding a private right of action under 42 U.S.C. § 672); Pediatric Specialty Care,
Inc. v. Ark. Dep’t of Human Servs., 293 F.3d 472 (8th Cir. 2002) (finding a private
right of action under 42 U.S.C. §§ 1396a(a)(10)(A), (a)(43), and 1396d(a, r)).
Although the majority focuses on the Gonzaga analysis, I do not read the majority
opinion to suggest that Blessing has been overruled.

Applying the Blessing/Gonzaga framework in the present case, I would hold
that 42 U.S.C. § 1396a(a)(23)(A), the “freedom-of-choice provision,” does create a
private right of action. This provision unambiguously confers an individual right to
Medicaid-eligible patients. Section 23(A) states that “any individual eligible for
medical assistance” can obtain that assistance from a provider of their choice. 42
U.S.C. § 1396a(a)(23)(A) (emphasis added). Thus, this provision is “phrased in terms
of the persons benefitted,” Gonzaga, 536 U.S. at 284 (quoting Cannon v. Univ. of
Chi., 441 U.S. 677, 692 & n.13 (1979)), and uses “individually focused terminology,”
id. at 287. See O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 785 (1980) (The
freedom-of-choice provision “gives recipients the right to choose among a range of
qualified providers, without government interference. By implication, it also confers
an absolute right to be free from government interference with [that] choice[.]”
(emphasis added and omitted)); see also Gee, 862 F.3d at 459; Betlach, 727 F.3d at
966–67; Planned Parenthood of Ind., 699 F.3d at 974; Harris, 442 F.3d at 461–62.

Further, the freedom-of-choice provision “is not so vague and amorphous that
its enforcement would strain judicial competence.” Blessing, 520 U.S. at 340–41
(citation and internal quotation marks omitted). The provision states that a Medicaid-
eligible individual “may obtain . . . 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)(A).

-24-
Thus, there are two criteria providers must meet: (1) the provider must be “qualified
to perform the service or services required”; and (2) the provider must “undertake[ ]
to provide . . . such services.” Id. As the Ninth Circuit stated, “the two criteria do 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? The answer to these questions
is ‘likely to be readily apparent.’” Betlach, 727 F.3d at 967 (quoting Harris, 442 F.3d
at 462). The Ninth Circuit further explained:

A court can readily determine whether a particular health care provider
is qualified to perform a particular medical service, drawing on evidence
such as descriptions of the service required; state licensing
requirements; the provider’s credentials, licenses, and experience; and
expert testimony regarding the appropriate credentials for providing the
service. This standard is not subjective or amorphous, and requires no
balancing. It is no different from the sorts of qualification or expertise
assessments that courts routinely make in various contexts.

Id. at 968 (footnote omitted). And as the Sixth Circuit noted, “while there may be
legitimate debates about the medical care covered by or exempted from the
freedom-of-choice provision, the mandate itself does not contain the kind of
vagueness that would push the limits of judicial enforcement.” Harris, 442 F.3d at
462.

Moreover, the freedom-of-choice provision is a mandatory provision. Under
the provision, states “must provide” the free choice of providers to Medicaid-eligible
individuals. As a result, the freedom-of-choice provision unambiguously refers to
Medicaid-eligible individuals and confers an individual entitlement: the right to
receive medical services from any qualified provider of their choice. See Planned

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Parenthood of Ind., 699 F.3d at 974. Thus, I would hold that § 1396a(a)(23)(A)
unambiguously creates a presumption of a private right enforceable under § 1983.
See Gonzaga, 536 U.S. at 284 (“Once a plaintiff demonstrates that a statute confers
an individual right, the right is presumptively enforceable by § 1983.”).

“The State may rebut this presumption by showing that Congress ‘specifically
foreclosed a remedy under § 1983.’” Id. at 284 n.4 (quoting Smith v. Robinson, 468
U.S. 992, 1004–05 & n.9 (1984)). “Congress may do so expressly, by forbidding
recourse to § 1983 in the statute itself, or impliedly, by creating a comprehensive
enforcement scheme that is incompatible with individual enforcement under § 1983.”
Blessing, 520 U.S. at 341. The major thrust of the majority’s opinion appears to rest
on a finding that the Medicaid Act’s regulatory scheme rebuts any presumption of
private enforceability. For several reasons, I disagree that the regulatory scheme is
so comprehensive as to be a clear expression of Congress’s intent to preclude private
enforcement.

First, the majority, ante, at 8–10, finds that the freedom-of-choice provision
does not unambiguously confer an individual right. In so finding, the majority
considers the Medicaid Act as a whole to find that the freedom-of-choice provision
is part of a directive to the Secretary of Health and Human Services. Such a broad
focus is inappropriate. See Blessing, 520 U.S. at 342 (“We [do] not ask whether the
federal . . . legislation generally [gives] rise to rights; rather, we focus[ ] our analysis
on a specific statutory provision . . . .”); Golden State Transit Corp. v. City of L.A.,
493 U.S. 103, 106 (1989) (asking whether the “provision in question” was designed
to benefit the plaintiff). And such a broad analysis cannot stand because it is
inconsistent with circuit precedent, which has found a private right of action under
other provisions of the Medicaid Act. See Olson, 676 F.3d at 699–700 (finding a
private right of action to enforce the Medicaid Act’s pooled trusts provision under 42
U.S.C. § 1396p(d)(4)(C)); Pediatric Specialty Care, 293 F.3d at 478–79 (finding a

-26-
private right of action to challenge proposed state budget cutbacks that would violate
the right to early and periodic screening, diagnosis, and treatment services under 42
U.S.C. §§ 1396a(a)(10)(A), (a)(43), and 1396d(a, r)).

Second, the majority, ante, at 9, states that “[b]ecause other sections of the Act
provide mechanisms to enforce the State’s obligation under § 23(A) to reimburse
qualified providers who are chosen by Medicaid patients, it is reasonable to conclude
that Congress did not intend to create an enforceable right for individual patients
under § 1983.” However, “[t]he availability of administrative mechanisms to protect
the plaintiff’s interests” alone cannot defeat the plaintiff’s ability to invoke § 1983
so long as the other requirements of the three-part test are met. Blessing, 520 U.S.
at 347 (alteration in original) (quoting Golden State Transit Corp., 493 U.S. at 106).

Third, the majority, ante, at 10–11, finds private enforcement foreclosed
because § 23(A) is “part of a substantial compliance regime.” Thus, according to the
majority, we can “infer an aggregate focus for” § 23(A). I disagree that the
substantial compliance regime supports a finding that Congress intended to foreclose
private enforcement. In Blessing, the Court concluded that the enforcement scheme
under Title IV–D of the Social Security Act was not sufficiently comprehensive to
foreclose § 1983 liability. 520 U.S. at 348. In so concluding, the Court noted the
lack of any “private remedy—either judicial or administrative—through which
aggrieved persons can seek redress.” Id. Further, the Court found that the Secretary
of Health and Human Services’ “limited powers to audit [for substantial compliance]
and cut federal funding” were not enough to foreclose private enforcement. Id.
Similarly, in this case, the Secretary’s power to cut funding if a State is not in
substantial compliance with § 1396a is not enough to foreclose private enforcement.
And while a provider in Arkansas may file an administrative appeal and then seek
judicial review of Arkansas’s decision to terminate the provider’s contract under

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Arkansas law, there is no remedy available for Medicaid-eligible individuals harmed
by the termination decision.

Fourth, the majority relies on Armstrong v. Exceptional Child Center Inc., 135
S. Ct. 1378 (2015), in reaching its decision. I do not read Armstrong to overrule or
even undermine the reasoning of the other circuits that have addressed whether
§ 23(A) creates a private right of action under § 1983. Armstrong involved the
Supremacy Clause and a claim for equitable relief under 42 U.S.C.
§ 1396a(a)(30)(A). There, it was undisputed that § 1983 was not an available
remedy, as § 30(A) does not have any rights-creating language nor does it refer to
individual Medicaid beneficiaries. Specifically, § 30(A) requires state Medicaid
plans to:

provide such methods and procedures relating to the utilization of, and
the payment for, care and services available under the plan . . . as may
be necessary to safeguard against unnecessary utilization of such care
and services and to assure that payments are consistent with efficiency,
economy, and quality of care and are sufficient to enlist enough
providers so that care and services are available under the plan at least
to the extent that such care and services are available to the general
population in the geographic area . . . .

42 U.S.C. § 1396a(a)(30)(A). The Supreme Court held that

[t]he provision for the Secretary’s enforcement by withholding funds
might not, by itself, preclude the availability of equitable relief. But it
does so when combined with the judicially unadministrable nature of
§ 30(A)’s text. It is difficult to imagine a requirement broader and less
specific than § 30(A)’s mandate that state plans provide for payments
that are “consistent with efficiency, economy, and quality of care,” all
the while “safeguard[ing] against unnecessary utilization of . . . care and
services.”

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Armstrong, 135 S. Ct. at 1385 (second alteration and omission in original) (citation
omitted) (quoting 42 U.S.C. § 1396a(a)(30)(A)). In contrast, § 23(A) has only two
criteria, neither of which are too broad or too general for courts to consider. Thus,
“[t]he provision for the Secretary’s enforcement by withholding funds” does not
preclude private enforcement under § 1983.

Finally, to the extent the majority discounts the four other circuits that have
found a private right of action under the freedom-of-choice provision based upon an
alleged evolution of law, ante, at 12, I disagree. The majority asserts that the
Supreme Court’s opinions in Gonzaga and Armstrong overruled Wilder v. Virginia
Hospital Association, 496 U.S. 498 (1990). In Wilder, the Court held that the Boren
Amendment to the Medicaid Act created a private right of action because it “was
intend[ed] to benefit the putative plaintiff.” Id. at 509 (alteration in original) (citation
omitted). I do not dispute the fact that Gonzaga amended that prong of the Blessing
test. See Gonzaga, 536 U.S. at 283 (“We now reject the notion that our cases permit
anything short of an unambiguously conferred right to support a cause of action
brought under § 1983.”). But I do not read the other circuits’ opinions to rely on
Wilder in such a manner as to make those cases bad law.

The Fifth, Sixth, Seventh, and Ninth Circuits all applied the Blessing/Gonzaga
framework to hold that the freedom-of-choice provision creates a private right
enforceable under § 1983. Gee, 862 F.3d at 457–61; Betlach, 727 F.3d at 966–67;
Planned Parenthood of Ind., 699 F.3d at 972–74; Harris, 442 F.3d at 461–63.
Notably, all of these opinions were issued after Wilder was, as the majority claims,
overruled by Gonzaga. Further, only two of these opinions rely on Wilder. Planned
Parenthood of Ind., 699 F.3d at 969, 974–76; Harris, 442 F.3d at 461, 463. And
where those opinions do rely on Wilder, they do so for propositions that are
unchallenged by subsequent caselaw. See Planned Parenthood of Ind., 699 F.3d at
969 (“Medicaid ‘is a cooperative federal-state program through which the Federal

-29-
Government provides financial assistance to States so that they may furnish medical
care to needy individuals.’” (quoting Wilder, 496 U.S. at 502)); id. at 974–75 (relying
on Wilder to find that the Medicaid Act’s regulatory scheme was not sufficiently
comprehensive to show Congressional intent to preclude § 1983 enforcement, the
underlying reasoning of which is also supported by Blessing); Harris, 442 F.3d at 463
(same). Most importantly, as noted above, all four circuits concluded, as required by
Gonzaga, that the freedom-of-choice provision unambiguously confers a private right
of action under § 1983. Gee, 862 F.3d at 458–59; Betlach, 727 F.3d at 966; Planned
Parenthood of Ind., 699 F.3d at 974; Harris, 442 F.3d at 461. I therefore read those
circuits’ opinions as persuasive authority that cannot be discounted by an alleged
evolution of Supreme Court precedent.

I also disagree with the concurrence’s alternative argument for reversing the
district court. O’Bannon held:

When enforcement of [minimum standards of care] requires
decertification of a facility, there may be an immediate, adverse impact
on some residents. But surely that impact, which is an indirect and
incidental result of the Government’s enforcement action, does not
amount to a deprivation of any interest in life, liberty, or property.

447 U.S. at 787. As the Fifth Circuit recently explained, “the [O’Bannon] plaintiffs
had no right to reside in an unqualified facility when the disqualification decision was
connected to the state’s enforcement of its health and safety regulations.” Gee, 862
F.3d at 461. The language of the freedom-of-choice provision supports this
understanding because the word “qualified” is modified by the phrase “to perform the
service or services required.” 42 U.S.C. § 1396(a)(23)(A). “The provision thus
indexes the relevant ‘qualifications’ not to any Medicaid-specific criteria (whether
imposed by the federal government or the states), but to factors external to the

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Medicaid program; the provider’s competency and professional standing as a medical
provider generally.” Betlach, 727 F.3d at 969.

Here, like in Gee, Arkansas did not decertify Planned Parenthood as a medical
provider. Rather, the state terminated only Planned Parenthood’s Medicaid Provider
Agreement; Planned Parenthood is still licensed to serve other patients. See Gee, 862
F.3d at 461 (discussing the State’s actions and explaining that “[t]he Individual
Plaintiffs in this case are trying to sustain their ‘right to choose among a range of
qualified providers, without government interference’—a right explicitly recognized
in O’Bannon.” (quoting O’Bannon, 447 U.S. at 785 (emphasis in original))). The
plaintiffs in this case do not claim that the freedom-of-choice provision entitles them
to choose a provider rightfully disqualified from the pool of Medicaid providers. See
Planned Parenthood of Ind., 699 F.3d at 978–80 (discussing the State’s limited
authority to disqualify providers). Instead, they argue that Arkansas’s termination of
the Medicaid Provider Agreement constitutes government interference with their
freedom of choice. If the right is given the construction the concurrence suggests,
“the free-choice-of-provider requirement would be self-eviscerating.” Betlach, 727
F.3d at 970; see Planned Parenthood of Ind., 699 F.3d at 978 (“If the states are free
to set any qualifications they want—no matter how unrelated to the provider’s fitness
to treat Medicaid patients—then the free-choice-of-provider requirement could be
easily undermined by simply labeling any exclusionary rule as a ‘qualification.’”).
And while it is true that a state may terminate a Medicaid provider on many grounds,
the provision the concurrence cites, 42 U.S.C. § 1396a(p)(1), cross-references other
provisions of the Medicaid Act limiting the state’s authority to make qualification
decisions to “various forms of malfeasance such as fraud, drug crimes, and failure to
disclose necessary information to regulators.” Planned Parenthood of Ind., 699 F.3d
at 979. The provisions do not grant plenary power to the states to make these
determinations. Betlach, 727 F.3d at 971–72; Planned Parenthood of Ind., 699 F.3d
at 979.

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 Based on the foregoing discussion, I would hold that the freedom-of-choice
provision does create an individual right enforceable under § 1983. That right allows
individuals to challenge a state’s actions when a provider’s Medicaid Agreement is
terminated for reasons unrelated to the provider’s qualifications. Additionally, I
agree with the district court’s analysis of the Dataphase factors governing the
issuance of an injunction.9 As a result, I would affirm the orders of the district court
enjoining the Arkansas Department of Human Services from suspending Medicaid
payments.
______________________________

9
Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en
banc) (“[W]hether a preliminary injunction should issue involves consideration of (1)
the threat of irreparable harm to the movant; (2) the state of balance between this
harm and the injury that granting the injunction will inflict on other parties litigant;
(3) the probability that movant will succeed on the merits; and (4) the public
interest.”).

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