In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2464
P LANNED P ARENTHOOD OF INDIANA, INC., et al.,
Plaintiffs-Appellees,
v.
C OMMISSIONER OF THE INDIANA S TATE
D EPARTMENT OF H EALTH, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:11-cv-00630-TWP-TAB—Tanya Walton Pratt, Judge.
A RGUED O CTOBER 20, 2011—D ECIDED O CTOBER 23, 2012
Before C UDAHY, K ANNE, and SYKES, Circuit Judges.
S YKES, Circuit Judge. In 2011 Indiana adopted a law
prohibiting state agencies from providing state or
federal funds to “any entity that performs abortions or
maintains or operates a facility where abortions are
performed.” IND. C ODE § 5-22-17-5.5(b). The Hyde Amend-
ment already forbids states from using federal funds to
pay for most nontherapeutic abortions; Indiana has a
2 No. 11-2464
similar ban on the use of state funds. The new law goes a
step further by prohibiting abortion providers from
receiving any state-administered funds, even if the
money is earmarked for other services. The point is to
eliminate the indirect subsidization of abortion.
Immediately after the defunding law was enacted,
Planned Parenthood of Indiana and several individual
plaintiffs filed this lawsuit seeking to block its imple-
mentation. 1 As an enrolled Medicaid provider,
Planned Parenthood provides reimbursable medical
services to low-income patients, two of whom are
named as plaintiffs. Planned Parenthood claims that the
defunding law violates the Medicaid Act’s “free choice
of provider” provision, which requires state Medicaid
plans to allow patients to choose their own medical
provider. See 42 U.S.C. § 1396a(a)(23). The United States,
as amicus curiae, supports this claim. Planned Parent-
hood also contends that the defunding law is preempted
by a federal block-grant statute that authorizes the Secre-
tary of Health and Human Services (“HHS”) to make
1
The plaintiffs are Planned Parenthood of Indiana, one of its
doctors, and two Indiana residents who receive Medicaid
services from Planned Parenthood clinics. We refer to the
plaintiffs collectively as “Planned Parenthood” unless the
context requires otherwise. The defendants are the Commis-
sioner of the Indiana State Department of Health and several
other state department heads, the Indiana General Assembly,
and the state prosecutors of Marion, Monroe, and Tippecanoe
Counties. We refer to the defendants collectively as “Indi-
ana” unless the context requires otherwise.
No. 11-2464 3
grants to the states for programs related to sexually
transmitted diseases. See 42 U.S.C. § 247c(c). Finally,
Planned Parenthood claims that the defunding law
places an unconstitutional condition on its receipt of state-
administered funds because it must choose between
providing abortion services and receiving public money.
The district court held that the first two claims were
likely to succeed and enjoined Indiana from enforcing
the defunding law with respect to Planned Parenthood’s
Medicaid and § 247c(c) grant funding. The court did not
address the unconstitutional-conditions claim. Indiana
appealed.
We affirm in part and reverse in part. A threshold
question on the two statutory claims is whether the
plaintiffs have a right of action. To create private rights
actionable under 42 U.S.C. § 1983, the statutes in question
must meet the requirements of Gonzaga University v.
Doe, 536 U.S. 273 (2002). The free-choice-of-provider
statute does. Under § 1396a(a)(23) state Medicaid plans
“must” allow beneficiaries to obtain medical care from
“any institution, agency, . . . or person, qualified to
perform the service.” This is individual-rights language,
stated in mandatory terms, and interpreting the right
does not strain judicial competence. See Gonzaga Univ.,
536 U.S. at 284.
Planned Parenthood is likely to succeed on this
claim. Although Indiana has broad authority to exclude
unqualified providers from its Medicaid program, the
State does not have plenary authority to exclude a class
of providers for any reason—more particularly, for a
4 No. 11-2464
reason unrelated to provider qualifications. In this
context, “qualified” means fit to provide the necessary
medical services—that is, capable of performing the
needed medical services in a professionally competent,
safe, legal, and ethical manner. The defunding law ex-
cludes Planned Parenthood from Medicaid for a reason
unrelated to its fitness to provide medical services, vio-
lating its patients’ statutory right to obtain medical care
from the qualified provider of their choice.
The remaining claims are not likely to succeed, how-
ever, so the scope of the injunction must be modified.
First, the block-grant statute does not create private
rights actionable under § 1983, and the district court’s
conclusion that the Supremacy Clause supplies a pre-
emption claim of its own force is probably wrong. In
any event, the defunding law does not conflict with
§ 247c(c), which attaches no strings to the federal money
other than a general requirement that the recipient
state spend it on programs for the surveillance of sexually
transmitted diseases. Finally, the unconstitutional-condi-
tions claim does not supply an alternative basis for
relief. This doctrine, sometimes murky, requires close
attention to the potentially implicated right. Here,
Planned Parenthood’s claim is entirely derivative of a
woman’s right to obtain an abortion. It is settled law
that the government’s refusal to subsidize abortion does
not impermissibly burden a woman’s right to obtain an
abortion. If a ban on public funding for abortion does
not directly violate the abortion right, then Indiana’s ban
on other forms of public subsidy for abortion providers
cannot be an unconstitutional condition that indirectly
violates the right.
No. 11-2464 5
I. Background
Medicaid “is a cooperative federal-state program
through which the Federal Government provides financial
assistance to States so that they may furnish medical care
to needy individuals.” Wilder v. Va. Hosp. Ass’n, 496
U.S. 498, 502 (1990). Indiana participates in Medicaid, and
as a condition of receiving federal funds, its Medicaid
program must comply with federal requirements. See
42 U.S.C. § 1396a(a); see also Collins v. Hamilton, 349 F.3d
371, 374 (7th Cir. 2003) (“[O]nce a state elects to
participate [in Medicaid], it must abide by all federal
requirements and standards as set forth in the Act.”).
Assuming the federal requirements are met, states
have “substantial discretion to choose the proper mix
of amount, scope, and duration limitations on coverage,
as long as care and services are provided in ‘the best
interests of the recipients.’ ” Alexander v. Choate, 469
U.S. 287, 303 (1985) (quoting 42 U.S.C. § 1396a(a)(19)).
To ensure compliance with federal rules, participating
states must submit proposed Medicaid plans and any
subsequent amendments to the Centers for Medicare
and Medicaid Services (“CMS”) for approval. 2 Douglas v.
Indep. Living Ctr. of S. Cal., Inc., 132 S. Ct. 1204, 1208 (2012).
The HHS Secretary may withhold Medicaid fund-
ing—either in whole or in part—from any state whose
plan does not comply with federal requirements. See 42
U.S.C. § 1396c; 42 C.F.R. § 430.12(c); cf. Nat’l Fed’n of
Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2607-08 (2012).
2
CMS is a division of HHS.
6 No. 11-2464
At issue here is the Medicaid Act’s requirement that
state Medicaid plans “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.” 42 U.S.C. § 1396a(a)(23); see also
42 C.F.R. § 431.51(b)(1) (requiring that a state plan
provide that “a recipient may obtain Medicaid services
from any institution . . . that is [q]ualified to furnish
the services[] . . . and [w]illing to furnish them to that
particular recipient”). This is known as the free-choice-of-
provider requirement.
A. Indiana House Enrolled Act 1210, the Abortion-
Provider Defunding Law
In the spring of 2011, the Indiana General Assembly
adopted a law prohibiting abortion providers from re-
ceiving any state contracts and grants, including those
involving state-administered federal funds. More specifi-
cally, the defunding law provides that state agencies
“may not[] enter into a contract with[] or make a grant
to[] any entity that performs abortions or maintains or
operates a facility where abortions are performed.” IND.
C ODE § 5-22-17-5.5(b). The new law, known as House
Enrolled Act 1210, also cancelled existing contracts with
abortion providers. See id. § 5-22-17-5.5(c), (d). The
defunding law does not apply to hospitals and am-
bulatory surgical centers. See id. § 5-22-17-5.5(a).
Act 1210 fills a gap in Indiana law regarding public
funding of abortion. The Hyde Amendment prohibits the
No. 11-2464 7
use of federal funds to pay for nontherapeutic abortions
except in the case of pregnancies resulting from rape
or incest.3 Indiana law contains similar restrictions on
the use of state funds. See id. §§ 12-15-5-1(17), 16-34-1-2; 405
IND. A DMIN. C ODE 5-28-7; Humphreys v. Clinic for Women,
Inc., 796 N.E.2d 247, 250-51 (Ind. 2003). Act 1210 aims
to prevent the indirect subsidization of abortion by stop-
ping the flow of all state-administered funds to abor-
tion providers.
Governor Mitch Daniels signed Act 1210 into law on
May 10, 2011. On May 13 Indiana notified CMS of the
change in its law and sought approval for an amend-
ment to its Medicaid plan to exclude any provider (not
including hospitals and ambulatory surgical centers) that
offers abortion services. After consulting with the HHS
Secretary, see 42 C.F.R. § 430.15(c), the CMS Admini-
strator rejected the proposed plan amendment citing
§ 1396a(a)(23), the free-choice-of-provider rule. In a
letter to Indiana’s Director of Medicaid Policy &
Planning, the Administrator noted that “federal
Medicaid funding of abortion services is not permitted
under federal law except in extraordinary circum-
stances (such as in cases of rape or incest).” “At the
same time,” the Administrator continued, “Medicaid
programs may not exclude qualified health care
3
The Hyde Amendment is actually a rider Congress attaches
to appropriations legislation each year. See Consolidated
Appropriations Act, 2012, Pub. L. No. 112-74, §§ 506-507,
125 Stat. 786, 1111-12 (2011).
8 No. 11-2464
providers from providing services that are funded under
the program because of a provider’s scope of practice.”
Because Indiana’s proposed amendment excluded
abortion providers from participation in Medicaid for a
reason unrelated to provider qualifications, the Admin-
istrator refused to approve it.
Indiana petitioned for reconsideration of the Admin-
istrator’s decision. See 42 U.S.C. § 1316(a)(2); 42 C.F.R.
§ 430.18. This initiated an administrative appeal process
that included a hearing, see 42 C.F.R. §§ 430.76(a), 430.83,
and the right to seek judicial review of the final decision,
see 42 U.S.C. § 1316(a)(3); 42 C.F.R. § 430.38. The
hearing was held on December 15, 2011, and on June 20,
2012, the hearing officer sent the Administrator his rec-
ommended findings and a proposed decision upholding
the initial determination. See 42 C.F.R. § 430.102. Under
42 C.F.R. § 430.102(b)(2), the parties have an opportunity
to file objections before final action on the recommenda-
tion is taken. To our knowledge, a final agency decision
has not yet been issued.
B. Planned Parenthood’s Legal Challenge to Act 1210
Planned Parenthood is a nonprofit healthcare provider
offering reproductive healthcare and family-planning
services in Indiana, including preventive primary-care
services such as medical examinations, cancer screenings,
testing for sexually transmitted diseases, and various birth-
control services. The organization operates 28 health
clinics in Indiana and has more than 75,000 patients.
Planned Parenthood is an enrolled provider in Indiana’s
No. 11-2464 9
Medicaid program. In 2010 the organization offered
Medicaid services to more than 9,300 patients and
received $1,360,437 in Medicaid reimbursement. Planned
Parenthood also receives grants from Indiana state agen-
cies, including some funded with federal money. Among
those in effect when Act 1210 was adopted were two
grants totaling $150,000 from Indiana’s federal Disease
Intervention Services block-grant money received under
§ 247c(c), which authorizes grants for programs that
diagnose and monitor sexually transmitted diseases.
Planned Parenthood also performs abortions. The
organization uses private funding to support its
abortion services and takes steps to ensure that public and
private funds are not commingled. As an abortion pro-
vider, Planned Parenthood is barred by Act 1210 from
receiving any state-administered funds, including
Medicaid reimbursement and funding from state and
federal grants for services unrelated to abortion. The
organization estimates that full implementation of the
defunding law would require it to close a quarter of its
health clinics, lay off approximately 37 employees, and
cease serving an unknown number of patients.
Because of the effect of the defunding law on its state-
wide operations, Planned Parenthood did not wait for
the outcome of the CMS administrative process. On
May 10, 2011—the same day that Governor Daniels
signed Act 1210 into law—Planned Parenthood went to
court in the Southern District of Indiana seeking to block
the new law. Its lawsuit challenges Act 1210 on several
grounds. First, Planned Parenthood alleges that the law
10 No. 11-2464
violates § 1396a(a)(23), the Medicaid free-choice-of-pro-
vider requirement. The complaint also asserts a preemp-
tion claim based on several federal block-grant programs.
Finally, Planned Parenthood alleges that the defunding
law imposes an unconstitutional condition on its
receipt of public funds by forcing it to choose between
performing abortions and receiving nonabortion-related
public funding. The complaint seeks declaratory and
injunctive relief under § 1983. Planned Parenthood im-
mediately moved for a temporary restraining order
(“TRO”) and a preliminary injunction.4
The district court denied the motion for a TRO, but
after full briefing granted Planned Parenthood’s motion
for a preliminary injunction. Planned Parenthood of Ind., Inc.
v. Comm’r of the Ind. State Dep’t of Health, 794 F. Supp. 2d
892 (S.D. Ind. 2011). As relevant here, the court held that
§ 1396a(a)(23) creates individual rights enforceable
under § 1983 and that Planned Parenthood was likely
to succeed on its claim that the defunding law violates
§ 1396a(a)(23). On the preemption claim, the court
focused solely on the Disease Intervention Services block-
grant program under § 247c(c). The court held that al-
though § 247c(c) does not confer an individual right,
4
Planned Parenthood also challenges two provisions in Act
1210 that amended Indiana’s informed-consent statute to
require abortion practitioners to inform patients that “human
physical life begins when a human ovum is fertilized by a
human sperm” and that “objective scientific information
shows that a fetus can feel pain at or before twenty (20) weeks
of postfertilization age.” I ND . C ODE § 16-34-2-1.1(a)(1)(E), (G).
These aspects of the case are not at issue in this appeal.
No. 11-2464 11
Planned Parenthood could bring its preemption claim
directly under the Supremacy Clause. Having found a
right of action, the court concluded that Planned Parent-
hood was likely to succeed on its claim that § 247c(c)
preempts Act 1210. The court then assessed the balance
of harms and the public interest, ultimately concluding
that preliminary injunctive relief was warranted. The
court enjoined “[a]ll attempts to stop current or future
funding contracted for or due” Planned Parenthood
and ordered Indiana to “take all steps to insure that
all monies are paid.” Id. at 921. Having awarded all the
preliminary relief Planned Parenthood had requested,
the court did not address the unconstitutional-condi-
tions claim.
II. Discussion
This case comes to us on Indiana’s appeal from the
district court’s order granting a preliminary injunction.
See 28 U.S.C. § 1292(a)(1). To obtain a preliminary injunc-
tion, the moving party must demonstrate a reasonable
likelihood of success on the merits, no adequate remedy
at law, and irreparable harm absent the injunction. See
Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 589-
90 (7th Cir. 2012); Christian Legal Soc’y v. Walker, 453
F.3d 853, 859 (7th Cir. 2006); Joelner v. Village of Washing-
ton Park, Ill., 378 F.3d 613, 619 (7th Cir. 2004). If it makes
this threshold showing, the district court weighs the
balance of harm to the parties if the injunction is granted
or denied and also evaluates the effect of an injunction
on the public interest. See Alvarez, 679 F.3d at 589-90;
Christian Legal Soc’y, 453 F.3d at 859. The strength of
12 No. 11-2464
the moving party’s likelihood of success on the merits
affects the balance of harms. “The more likely it is that [the
moving party] will win its case on the merits, the less
the balance of harms need weigh in its favor.” Girl Scouts
of Manitou Council, Inc. v. Girl Scouts of U.S., Inc., 549
F.3d 1079, 1100 (7th Cir. 2008). We review the district
court’s factual findings for clear error, its legal conclu-
sions de novo, and its balancing of the injunction
factors for an abuse of discretion. Christian Legal Soc’y,
453 F.3d at 859; Joelner, 378 F.3d at 620.
Here, the relevant facts are not in dispute. Planned
Parenthood’s motion raised legal questions about the
existence of private statutory rights enforceable under
§ 1983 and whether Act 1210 conflicts with federal law
or violates the unconstitutional-conditions doctrine.
The motion also called for a discretionary judgment
about the balance of harms and the effect of an injunc-
tion on the public interest.
A. The Medicaid Act Claim
1. Is There a Private Right of Action Enforceable Under
§ 1983?
Section 1983 creates a federal remedy against anyone
who, under color of state law, deprives “any citizen of
the United States . . . of any rights, privileges, or immuni-
ties secured by the Constitution and laws.” 42 U.S.C.
§ 1983. In Maine v. Thiboutot, 448 U.S. 1 (1980), the
Supreme Court held that § 1983 “means what it says,” id.
at 4, and “authorizes suits to enforce individual rights
under federal statutes as well as the Constitution,” City
No. 11-2464 13
of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113,
119 (2005). But “it is rights, not the broader or vaguer
‘benefits’ or ‘interests,’ that may be enforced under
the authority of that section.” Gonzaga Univ., 536 U.S.
at 283.
Three factors help determine whether a federal
statute creates private rights enforceable under § 1983:
(1) “Congress must have intended that the provision
in question benefit the plaintiff”; (2) the asserted right
must not be “so vague and amorphous that its
enforcement would strain judicial competence”; and
(3) “the provision giving rise to the asserted right must
be couched in mandatory, rather than precatory, terms.”
Blessing v. Freestone, 520 U.S. 329, 340-41(1997) (internal
quotation marks omitted). These factors are meant to
set the bar high; nothing “short of an unambiguously
conferred right [will] support a cause of action
brought under § 1983.” Gonzaga Univ., 536 U.S. at 283.
“[W]here the text and structure of a statute provide
no indication that Congress intends to create new individ-
ual rights, there is no basis for a private suit, whether
under § 1983 or under an implied right of action.” Id.
at 286.
In the context of legislation adopted under the
spending power,5 this rigorous approach reflects
concerns about federalism and reinforces the principle
that Congress must clearly express its “intent to
5
See U.S. C ONST . art. I, § 8, cl. 1 (“The Congress shall have
Power To lay and collect Taxes . . . to pay the Debts and provide
for the . . . general Welfare of the United States . . . .”).
14 No. 11-2464
impose conditions on the grant of federal funds so that
the States can knowingly decide whether or not to accept
those funds.” Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1, 24 (1981); see also Arlington Cent. Sch. Dist. Bd.
of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (requiring
that spending statutes provide “clear notice” of state
obligations). Pennhurst analogized cooperative Spending
Clause legislation to a contract between the federal gov-
ernment and willing states: “[L]egislation enacted
pursuant to the spending power is much in the nature of
a contract: in return for federal funds, the States agree
to comply with federally imposed conditions.” 451 U.S.
at 17. As such, the legitimacy of spending-power legisla-
tion “rests on whether the State voluntarily and
knowingly accepts the terms of the ‘contract.’ ” Id. There
cannot be knowing acceptance “if a State is unaware of
the conditions or is unable to ascertain what is expected
of it.” Id.; see also Arlington Cent. Sch. Dist., 548 U.S. at
296. The Supreme Court has repeatedly reaffirmed this
understanding, most recently in National Federation
of Independent Business v. Sebelius, 132 S. Ct. at 2601-02.
Accordingly, “where a statute by its terms grants no
private rights to any identifiable class,” Gonzaga Univ.,
536 U.S. at 284 (internal quotation marks omitted), it
cannot be construed to confer an individual right en-
forceable under § 1983, id. at 284-85. Instead, to
create judicially enforceable private rights, the statute
“ ‘must be phrased in terms of the persons benefited,’ ”
with “ ‘an unmistakable focus on the benefited class.’ ” Id.
(quoting Cannon v. Univ. of Chi., 441 U.S. 677, 691, 692 n.13
(1979)). It must “confer[] entitlements ‘sufficiently specific
No. 11-2464 15
and definite to qualify as enforceable rights.’ ” Id. at 280
(quoting Wright v. Roanoke Redev. & Hous. Auth., 479 U.S.
418, 432 (1987)). In other words, the statute must contain
“rights-creating language” that unambiguously creates
an “ ‘individual entitlement.’ ” Id. at 287 (quoting Blessing,
520 U.S. at 343).
“Once a plaintiff demonstrates that a statute confers
an individual right, the right is presumptively enforceable
by § 1983.” Id. at 284. The defendant may defeat this
presumption by demonstrating “that Congress shut
the door to private enforcement either expressly, through
specific evidence from the statute itself, or impliedly,
by creating a comprehensive enforcement scheme that
is incompatible with individual enforcement under
§ 1983.” Id. at 284 n.4 (internal quotation marks and
citations omitted); see also Wilder, 496 U.S. at 520-21;
Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers
Ass’n, 453 U.S. 1, 20 (1981) (holding that there is no en-
forceable private right where the statute itself creates
a remedial scheme that is “sufficiently comprehensive . . .
to demonstrate congressional intent to preclude the
remedy of suits under § 1983”).
Applying these principles here, we agree with the
district court that the free-choice-of-provider statute
unambiguously gives Medicaid-eligible patients an indi-
vidual right. Section 1396a(a)(23) mandates that all
state Medicaid plans provide that “any individual
eligible for medical assistance . . . may obtain such assis-
tance from any institution, agency, community
pharmacy, or person, qualified to perform the service
or services required.” Medicaid patients are the obvious
16 No. 11-2464
intended beneficiaries of the statute; it states that any
Medicaid-eligible person may obtain medical assistance
from any institution, agency, or person qualified to
perform that service. In other words, Medicaid patients
have the right to receive care from the qualified
provider of their choice. This language does not simply
set an aggregate plan requirement, but instead
establishes a personal right to which all Medicaid
patients are entitled. Gonzaga Univ., 536 U.S. at 288 (con-
trasting a statute with an “aggregate” focus with one
that is focused on the needs of an identified class of
persons). Section 1396a(a)(23) uses “individually focused
terminology,” id. at 287, unmistakably “ ‘phrased in terms
of the persons benefitted,’ ” id. at 284 (quoting Cannon,
441 U.S. at 692 n.13).
Second, the right is administrable and falls comfortably
within the judiciary’s core interpretive competence.
Planned Parenthood argues that a state infringes the free-
choice-of-provider right when it excludes a provider
from its Medicaid program for a reason other than the
provider’s fitness to render the medical services re-
quired. Whether this is the proper interpretation of
§ 1396a(a)(23) is a legal question fully capable of judicial
resolution.
Finally, § 1396a(a)(23) is plainly couched in mandatory
terms. It says that all states “must provide” in their
Medicaid plans that beneficiaries may obtain medical
care from any provider qualified to perform the service.
In sum, the free-choice-of-provider statute explicitly
refers to a specific class of people—Medicaid-eligible
No. 11-2464 17
patients—and confers on them an individual entitle-
ment—the right to receive reimbursable medical services
from any qualified provider. We agree with the district
court that § 1396a(a)(23) unambiguously creates private
rights “presumptively enforceable by § 1983.” Gonzaga
Univ., 536 U.S. at 284.
Nothing in the Medicaid Act suggests, explicitly or
implicitly, that “Congress specifically foreclosed a
remedy under § 1983.” Id. at 284 n.4 (internal quotation
marks omitted). Indiana points to the Medicaid Act’s
general administrative scheme—more specifically, to the
HHS Secretary’s authority to review state plans for com-
pliance and withhold or curtail Medicaid funds as a
means of bringing noncompliant states into line. See 42
U.S.C. §§ 1316(a), 1396c; 42 C.F.R. § 430.12(c). The State
suggests that this feature of the administrative scheme
implies that Congress foreclosed private enforcement of
§ 1396a(a)(23). But the Secretary’s power to shut off all
or part of a state’s funding is not a “comprehensive
enforcement scheme,” see Gonzaga Univ., 536 U.S. at 284
n.4, nor does the administrative-approval process for
plan amendments provide an avenue for beneficiaries
to vindicate their free-choice-of-provider rights, cf.
Middlesex Cnty. Sewerage Auth., 453 U.S. at 20 (ex-
plaining that where a federal statute provides “its own
comprehensive enforcement scheme, the requirements
of that enforcement procedure may not be bypassed
by bringing suit directly under § 1983”).
It would be a different matter if Congress had provided
an administrative remedy for individual patients. “The
18 No. 11-2464
provision of an express, private means of redress in
the statute itself is ordinarily an indication that Congress
did not intend to leave open a more expansive remedy
under § 1983.” Rancho Palos Verdes, 544 U.S. at 121. But
Congress did not provide a means of private redress
here. And private enforcement of § 1396a(a)(23) in suits
under § 1983 in no way interferes with the Secretary’s
prerogative to enforce compliance using her administra-
tive authority. Indeed, addressing a different subsection
of § 1396a(a), the Supreme Court has held that the
Medicaid Act’s “administrative scheme cannot be con-
sidered sufficiently comprehensive to demonstrate a
congressional intent to withdraw the private remedy
of § 1983.” Wilder, 496 U.S. at 522. Wilder held that the
Boren Amendment, which established a standard for
Medicaid reimbursement of hospitals, nursing homes,
and intermediate-care facilities, is enforceable under
§ 1983. Id. (holding that 42 U.S.C. § 1396a(a)(13)(A) is
enforceable in a suit under § 1983).
Our conclusion finds support in decisions from other
circuits. In Harris v. Olszewski, 442 F.3d 456, 459 (6th Cir.
2006), the Sixth Circuit squarely addressed this
issue and held that § 1396a(a)(23) uses the kind of rights-
creating, mandatory language required to create
individual rights enforceable under § 1983. The court
went on to note that although
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. Whether a state
No. 11-2464 19
plan provides an individual with the choice specified
in the provision is likely to be readily apparent . . . .
Id. at 462. Finally, the court observed that the Medicaid
Act does not “explicitly or implicitly foreclose the private
enforcement of this statute through § 1983 actions.”
Id. More particularly, the Act “does not provide other
methods for private enforcement.” Id. In short, applying
the Gonzaga University test, the Sixth Circuit concluded
that § 1396a(a)(23) “creates enforceable rights that a
Medicaid beneficiary may vindicate through § 1983.“ 6
Id. at 461.
Other circuits have reached the same conclusion in
cases involving individual suits for violation of
§ 1396a(a)(8), which requires that state Medicaid plans
“provide that all individuals wishing to make applica-
tion for medical assistance under the plan shall have
opportunity to do so, and that such assistance shall
be furnished with reasonable promptness to all eligible
individuals.” 42 U.S.C. § 1396a(a)(8); see Doe v. Kidd, 501
F.3d 348, 355-57 (4th Cir. 2007); Sabree ex rel. Sabree v.
Richman, 367 F.3d 180, 189-93 (3d Cir. 2004); Bryson v.
Shumway, 308 F.3d 79, 88-89 (1st Cir. 2002); Doe ex rel.
6
The Eleventh Circuit agrees, albeit in a case decided prior to
Gonzaga University. See Silver v. Baggiano, 804 F.2d 1211, 1218
(11th Cir. 1986), abrogated on other grounds by Lapides v. Bd. of
Regents of Univ. Sys. of Ga., 523 U.S. 613 (2002) (holding that
“Medicaid recipients do have enforceable rights under
§ 1396a(a)(23)”).
20 No. 11-2464
Doe v. Chiles, 136 F.3d 709, 715-19 (11th Cir. 1998).7 And we
have recently followed the lead of our sister circuits in
finding an enforceable individual right in yet another
provision of § 1396a(a)—subsection (10), which requires
that state Medicaid plans “must . . . provide . . . for making
medical assistance available . . . to all [eligible] individu-
als.” See Bontrager v. Ind. Family & Soc. Servs. Admin.,
No. 11-3710, 2012 WL 4372524, *6 (7th Cir. Sept. 26, 2012)
(citing Watson v. Weeks, 436 F.3d 1152, 1159-61 (9th Cir.
2006); Sabree, 367 F.3d at 189-92; South Dakota ex rel.
Dickson v. Hood, 391 F.3d 581 604-06 (5th Cir. 2004)). The
free-choice-of-provider provision uses language far
more concrete and individually focused than either
subsection (8) or (10) of § 1396a(a). Indiana’s position
is hard to reconcile with Wilder and a fair amount of
precedent from this and other circuits.8
Against this authority, Indiana insists that legislation
adopted under Congress’s spending power cannot create
individual rights enforceable under § 1983 because its
legal force stems from a state’s acceptance of federal
7
We have assumed without deciding that § 1396a(a)(8) creates
an enforceable individual right. See Bertrand ex rel. Bertrand
v. Maram, 495 F.3d 452, 457 (7th Cir. 2007) (“This circuit has
itself assumed after Gonzaga University that § 1396a(a)(8) may
be enforced via § 1983.”).
8
One district-court decision supports Indiana’s argument.
See M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1307 (D. Utah 2003). As
the Sixth Circuit has observed, however, that opinion offers
virtually no analysis of the issue. See Harris v. Olszewski, 442
F.3d 456, 463 (6th Cir. 2006).
No. 11-2464 21
funding rather than from the law itself. This categorical
argument cannot be correct; if it were, then the elaborate
doctrine worked out in Gonzaga University and its prede-
cessors was completely unnecessary. Not too long ago
we made this very point, observing that the Supreme
Court’s recent statutory-right-of-action cases “do not
stand for a broad rule that spending power statutes
can never be enforced by private actions” under § 1983.
Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs.
Admin., 603 F.3d 365, 378 (7th Cir. 2010) (en banc).
Taking a slightly different tack, Indiana argues that
the free-choice-of-provider statute does not create
privately enforceable rights because the conditions
listed in § 1396a(a) are simply criteria for federal reim-
bursement, not requirements that must be met by partic-
ipating states. In other words, noncompliance with the
conditions listed in § 1396a(a) puts the State at risk of
losing its federal Medicaid funding but does not
constitute a violation of federal law.9 To be sure, non-
9
In a related argument, Indiana maintains that federal statutes
specifying the requirements of state Medicaid plans cannot
impose legal obligations on state officials. Congress specifically
foreclosed this argument when it enacted 42 U.S.C. § 1320a-2,
which states that a provision of the Medicaid Act “is not to
be deemed unenforceable because of its inclusion in a section
of this chapter requiring a State plan or specifying the
required contents of a State plan.” See Harris v. James, 127
F.3d 993, 1003 (11th Cir. 1997) (explaining that § 1320a-2
establishes that “the mere fact that an obligation is couched in
(continued...)
22 No. 11-2464
compliance with the requirements of § 1396a(a) may
serve as a basis for the Secretary’s disapproval of a
state’s Medicaid plan and withholding of Medicaid
funds, but that does not mean that § 1396a(a) functions
only as a condition precedent to the federal government’s
obligation to keep its end of the Medicaid bargain.
Federal statutes enacted pursuant to the spending power
do not create federal rights or obligations of their
own force, but “once a state elects to participate [in
Medicaid], it must abide by all federal requirements and
standards as set forth in the Act.” Collins, 349 F.3d at
374 (citing Wilder, 496 U.S. at 502); see also Alexander,
469 U.S. at 289 n.1. As we have explained, the contract
model for interpreting Spending Clause legislation
has important implications for the relationship between
the federal government and the states, see Nat’l Fed’n
of Indep. Bus., 132 S. Ct. at 2601-03; Pennhurst, 451 U.S. at
17, but it does not follow that Spending Clause legisla-
tion can never create judicially enforceable individual
rights.
Finally, Indiana argues that allowing private enforce-
ment of the free-choice-of-provider requirement would
conflict with O’Bannon v. Town Court Nursing Center, 447
U.S. 773 (1980), and Kelly Kare, Ltd. v. O’Rourke, 930
9
(...continued)
a requirement that the State file a plan is not itself
sufficient grounds for finding the obligation unenforceable
under § 1983 ”).
No. 11-2464 23
F.2d 170 (2d Cir. 1991). We disagree. In O’Bannon the
Supreme Court held that a state need not provide a pre-
termination hearing to Medicaid beneficiaries when
state officials terminate a medical provider (in that case,
a nursing home) as unfit to participate in Medicaid.
447 U.S. at 785. The Court explained its holding as follows:
[T]he Medicaid provisions relied upon by the Court
of Appeals do not confer a right to continued
residence in a home of one’s choice. Title 42 U.S.C.
§ 1396a(a)(23) . . . gives [Medicaid] 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 gov-
ernment interference with the choice to remain in
a home that continues to be qualified. But it clearly
does not confer a right on a recipient to enter an
unqualified home and demand a hearing to certify
it, nor does it confer a right on a recipient to
continue to receive benefits for care in a home that
has been decertified.
Id.
Similarly, in Kelly Kare the free-choice-of-provider
statute was raised in the context of a due-process claim.
A home-healthcare provider and its patients alleged
that they were deprived of due process when the State
cancelled the provider’s contract based on allegations
of unfitness without providing a pre-termination hear-
ing. Relying on O’Bannon, the Second Circuit rejected the
claim:
24 No. 11-2464
We read O’Bannon as holding that a Medicaid recipi-
ent’s freedom of choice rights are necessarily depend-
ent on a provider’s ability to render services. No
cognizable property interest can arise in the
Medicaid recipient unless the provider is both quali-
fied and participating in the Medicaid program.
Kelly Kare, 930 F.2d at 178.
Neither O’Bannon nor Kelly Kare supports Indiana’s
argument. This is not a due-process case. Planned Parent-
hood and its patients are not suing for violation of their
procedural rights; they are making a substantive claim
that Indiana’s defunding law violates § 1396a(a)(23). As
the Supreme Court explained in O’Bannon, § 1396a(a)(23)
“gives [Medicaid] recipients the right to choose among
a range of qualified providers.” 447 U.S. at 785. This lan-
guage reinforces rather than undermines our conclu-
sion that § 1396a(a)(23) confers individual rights enforce-
able under § 1983.
2. Does the Defunding Law Violate § 1396a(a)(1)?
Indiana argues that even if § 1396a(a)(23) confers
an individual right, the states may establish provider
qualifications that effectively limit that right. It is true
that Medicaid regulations permit the states to establish
“reasonable standards relating to the qualifications
of providers.” 42 C.F.R. § 431.51(c)(2). But Indiana
claims plenary authority to exclude Medicaid providers
for any reason, as long as it furthers a legitimate state
interest—here, the State’s interest in avoiding indirect
No. 11-2464 25
subsidization of abortion. This sweeping claim conflicts
with the unambiguous language of § 1396a(a)(23) and
finds no support in related Medicaid statutes and regula-
tions.
To repeat, § 1396a(a)(23) requires that state Medicaid
plans 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.” 42 U.S.C.
§ 1396a(a)(23) (emphases added). The Act does not
define what it means for a provider to be “qualified,” and
the term is not self-defining. See B LACK’S L AW D ICTIONARY
1360 (9th ed. 2009) (defining “qualified” as “[p]ossessing
the necessary qualifications; capable or competent”).
Medicaid regulations provide that the states may
establish “reasonable standards relating to the qualifica-
tions of providers.” 42 C.F.R. § 431.51(c)(2). This authority,
however, does not suggest that states are free to ascribe
any meaning to the statutory term “qualified”—including
a meaning “ ‘entirely strange to those familiar with its
ordinary usage.’ ” United States v. Little Lake Misere Land Co.,
412 U.S. 580, 596 (1973) (quoting De Sylva v. Ballentine,
351 U.S. 570, 581 (1956)). As the limiting term “reasonable”
in the regulation suggests, a state’s authority to
determine provider qualifications must be keyed to
the “permissible variations in the ordinary concept”
of what it means to be “qualified” in this particular
context. De Sylva, 351 U.S. at 581.
Read in context, the term “qualified” as used in
§ 1396a(a)(23) unambiguously relates to a provider’s
26 No. 11-2464
fitness to perform the medical services the patient re-
quires. The statute provides that Medicaid beneficiaries
“may obtain [medical] assistance from any institution,
agency . . . or person[] qualified to perform the service or
services required.” To be “qualified” in the relevant sense
is to be capable of performing the needed medical services
in a professionally competent, safe, legal, and ethical
manner. Planned Parenthood’s clinics are “qualified” in
the sense meant by § 1396a(a)(23).
Indiana argues that the term is more elastic and
includes the authority to establish provider-eligibility
criteria based on any legitimate state interest. That inter-
pretation of § 1396a(a)(23) would lead to strange results.
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-pro-
vider requirement could be easily undermined by
simply labeling any exclusionary rule as a “qualification.”
This would open a significant loophole for restricting
patient choice, contradicting the broad access to medical
care that § 1396a(a)(23) is meant to preserve.
Indiana attempts to articulate a limiting principle, but
its effort is unpersuasive. It suggests that “a [s]tate may
not use a qualification to target patient choice as
such—for example by eliminating all choice in the
market—but it may reduce patient choice incident to a
qualification targeting some legitimate government
objective, such as the desire not to subsidize abortion
even indirectly.” This argument inverts what the statute
says. Section 1396a(a)(23) does not simply bar the states
No. 11-2464 27
from ending all choice of providers, it guarantees to
every Medicaid beneficiary the right to choose any quali-
fied provider.
Looking for support elsewhere in the Medicaid
Act, Indiana focuses on § 1396a(p)(1), which elaborates
on the states’ authority to exclude Medicaid providers:
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 partic-
ipation in a program under subchapter XVIII of
this chapter under section 1320a-7, 1320a-7a, or
1395cc(b)(2) of this title.
42 U.S.C. § 1396a(p)(1). The cross-referenced sections of
the Medicaid Act—§§ 1320a-7, 1320a-7a, and 1395cc(b)(2)—
pertain to mandatory or permissive exclusions of pro-
viders for various forms of malfeasance such as fraud,
drug crimes, and failure to disclose necessary informa-
tion to regulators. Indiana emphasizes the phrase “[i]n
addition to any other authority” and suggests that this
language implies a plenary power reserved to the states
to exclude Medicaid providers as they see fit. This
reads the phrase for more than it’s worth. “[I]n addition
to any other authority” signals only that what follows
is a nonexclusive list of specific grounds upon
which states may bar providers from participating
in Medicaid. It does not imply that the states have an
unlimited authority to exclude providers for any
reason whatsoever.
28 No. 11-2464
To bolster its implied-authority argument, Indiana
relies on a Senate Finance Committee Report explaining
that § 1396a(p)(1) “is not intended to preclude a State
from establishing, under State law, any other bases for
excluding individuals or entities from its Medicaid program.”
S. R EP. N O . 100-109, at 20 (1987) (emphasis added), reprinted
in 1987 U.S.C.C.A.N. 682, 700. The Senate Report is not
useful here; it suggests only that § 1396a(p)(1) does not
have preemptive effect. The Senate Report does
not—indeed, it cannot—alter the plain meaning of “quali-
fied” as that term is used in § 1396a(a)(23).
Indiana also points to 42 U.S.C. § 1320a-7(b)(14), which
allows states to exclude providers who are in default
on their student-loan payments, and from this provision
makes another argument by implication: If the states
may refuse to subsidize student-loan delinquents with
Medicaid dollars, then they must have the authority to
“avoid indirect financing” of any “non-Medicaid” conduct.
But like § 1396a(p)(1), this statute merely stipulates a
particular ground for excluding a Medicaid provider; it
does not imply that the states may establish any rule of
exclusion and declare it a provider “qualification” for
purposes of § 1396a(a)(23). That would make the free-
choice-of-provider requirement a nullity.
Finally, the cases Indiana cites do not support its posi-
tion. In First Medical Health Plan, Inc. v. Vega-Ramos, 479
F.3d 46 (1st Cir. 2007), for instance, the First Circuit
simply recognized the point we have just made—that
states may exclude providers from participating in
Medicaid for reasons not listed in § 1396a(p)(1). Vega-
No. 11-2464 29
Ramos, moreover, involved a conflict-of-interest rule
applicable only in Puerto Rico; the First Circuit had no
reason to consider the effect of the free-choice-of-
provider requirement, which does not apply to Puerto
Rico’s Medicaid program. See 42 U.S.C. § 1396a(a)(23)(B).
The court’s opinion thus cannot be understood to
suggest that states may override the free-choice-of-pro-
vider requirement by creating “qualifications” wholly
unrelated to the competent delivery of medical services.
Nor does Guzman v. Shewry, 552 F.3d 941 (9th Cir.
2009), help Indiana’s case. There, a provider was sus-
pended from California’s Medicaid program based on a
pending criminal investigation. He claimed that federal
law occupies the entire field of regulation pertaining
to Medicaid and therefore preempted the state’s disciplin-
ary measure. The Ninth Circuit rejected this argu-
ment, relying in part on 42 U.S.C. § 1320a-7(b)(5), which
provides that the states may suspend or exclude
providers from participating in Medicaid “for reasons
bearing on the individual’s or entity’s professional compe-
tence, professional performance, or financial integrity.”
The court remarked that this provision presupposes
state regulatory authority over provider qualifications.
Guzman, 552 F.3d at 949.
No one disputes that the states retain considerable
authority to establish licensing standards and other
related practice qualifications for providers—this residual
power is inherent in the cooperative-federalism model
of the Medicaid program and expressly recognized in
the Medicaid regulations. See 42 C.F.R. § 431.51(c)(2)
30 No. 11-2464
(providing that states may establish “reasonable
standards relating to the qualifications of providers”).
This case raises a question about the limits of that author-
ity. Guzman, which involved state action falling within
the core of the state’s residual authority, does not
support Indiana’s argument.
Before concluding our discussion of the Medicaid Act
claim, a few words about agency deference, which the
district court applied and the parties briefed on appeal.
As an additional reason to affirm the district court’s
decision, Planned Parenthood argues, and the United
States agrees, that we should defer to the CMS Admin-
istrator’s interpretation of § 1396a(a)(23) under Chevron.
See Chevron, U. S. A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984). But Chevron deference is triggered
only when a statute is ambiguous. Id. at 842-43 (“If the
intent of Congress is clear, that is the end of the matter;
for the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress.”). As
we have explained, the term “qualified” as used in
§ 1396a(a)(23) unambiguously refers to the provider’s
fitness to render the medical services required. See
generally Carcieri v. Salazar, 555 U.S. 379, 391 (2009) (noting
that statutory text susceptible to alternative meanings
is not ambiguous when its meaning is clear in light of the
statutory context). In the absence of ambiguity, Chevron
deference does not come into play.
Because Indiana’s defunding law excludes a class of
providers from Medicaid for reasons unrelated to
provider qualifications, we agree with the district court
that Planned Parenthood is likely to succeed on its
No. 11-2464 31
claim that Indiana’s defunding law violates § 1396a(a)(23).
This brings us to the district court’s evaluation of the
balance of harms and the effect of preliminary injunctive
relief on the public interest.
3. Balance of Harms and the Public Interest
The court below held that the loss of Medicaid funding
would cause Planned Parenthood immediate irreparable
harm. Indiana does not seriously challenge this con-
clusion. Planned Parenthood would have to lay off
dozens of workers, close multiple clinics, and stop
serving a significant number of its patients. Planned
Parenthood of Ind., 794 F. Supp. 2d at 912. Absent a pre-
liminary injunction, its Medicaid patients would lose
their provider of choice for the duration of the litigation.
Id. at 912-13. These harms are entitled to significant
weight given Planned Parenthood’s strong likelihood
of success on the merits of its Medicaid Act claim. In
addition, the district court noted that “[t]he federal gov-
ernment has threatened partial or total withholding
of federal Medicaid dollars to the State of Indiana,
which could total well over $5 billion dollars annually
and affect nearly 1 million Hoosiers.” Id. at 913. The
judge saw “a high-stakes political impasse” looming,
with the well-being of Indiana’s Medicaid patients
hanging in the balance: “[I]f dogma trumps pragmatism
and neither side budges, Indiana’s most vulnerable
citizens could end up paying the price as the collateral
damage of a partisan battle.” Id. This helped tip the
scales in favor of a preliminary injunction.
32 No. 11-2464
Without endorsing the political commentary, we see
no reason to disturb the district court’s assessment of
the balance of harms and the public interest. Indiana
maintains that any harm to Planned Parenthood’s
Medicaid patients is superficial because they have
many other qualified Medicaid providers to choose
from in every part of the state. This argument misses
the mark. That a range of qualified providers remains
available is beside the point. Section 1396a(a)(23) gives
Medicaid patients the right to receive medical
assistance from the provider of their choice without
state interference, save on matters of provider qualifica-
tions.
Indiana also argues that the district court’s
preliminary injunction “completely undermines” the pub-
lic’s interest in the established administrative pro-
cess. We cannot see how. Indiana’s appeal of the CMS
Administrator’s decision has proceeded in the ordinary
course. It is true that the federal government’s position
as an amicus curiae in this litigation makes it unlikely
that the HHS Secretary will overrule the CMS Admin-
istrator’s decision and approve Indiana’s request to
amend its Medicaid plan. But that has no real effect on
the balance of harms. And if the Secretary approves
the plan amendment, Indiana may ask for relief from
the preliminary injunction.
In the end, our review of this aspect of the district
court’s decision is deferential. The judge appropriately
weighed the relative harm to the parties and the public
interest and reasonably concluded that it warranted
No. 11-2464 33
preliminary injunctive relief on the Medicaid Act claim.
That decision was not an abuse of discretion.
B. Block-Grant Preemption Claim
The district court also enjoined Indiana from enforcing
Act 1210 to halt the payment of money Planned Parent-
hood receives from the State under a federal block-grant
program for the diagnosis and monitoring of sexually
transmitted diseases. The statutory authority for the
program is as follows:
§ 247c. Sexually transmitted diseases; prevention and
control projects and programs
....
(c) Project grants to States
The Secretary is also authorized to make project grants
to States and, in consultation with the State health
authority, to political subdivisions of States, for—
(1) sexually transmitted diseases surveillance ac-
tivities, including the reporting, screening, and
followup of diagnostic tests for, and diagnosed cases
of, sexually transmitted diseases . . . .
42 U.S.C. § 247c.
The Disease Intervention Services agency (“DIS”) ad-
ministers the grants at the federal level. In 2011
Indiana awarded Planned Parenthood two grants
totaling $150,000 from federal funds the State received
from DIS under § 247c(c). Planned Parenthood has re-
34 No. 11-2464
ceived grants from this program continuously since 1996
and alleges that but for Act 1210, it would receive
renewals on an ongoing basis. The defunding law can-
celed Planned Parenthood’s 2011 contracts and makes the
organization ineligible for future grants or renewals.1 0
The district court accepted Planned Parenthood’s
argument that § 247c(c) preempts the defunding law
and on this basis enjoined Indiana from cutting off the
organization’s funding under this program. There are
several problems with the court’s analysis. First, § 247c(c)
does not create private rights actionable under § 1983.
No one argued to the contrary, but the judge held that
Planned Parenthood’s preemption claim may proceed
anyway, as a direct claim under the Supremacy Clause.
That was very likely an error. Even if it was not, Planned
Parenthood cannot succeed on the merits of this claim.
Section 247c(c) places no conditions on recipient states
other than the basic requirement that the block-granted
money be used for the stated purposes. Finally, the
unconstitutional-conditions doctrine does not supply
an alternative basis to affirm the injunction on the block-
grant claim.
10
The complaint also mentions other federal block-grant
programs under which Planned Parenthood receives state-
administered federal funds, but the injunction proceeding
was limited to § 247c(c).
No. 11-2464 35
1. Does the Supremacy Clause Supply a Preemption
Right of Action?
By its terms, § 247c(c) merely authorizes the HHS
Secretary to make grants to the states for surveillance
activities relating to sexually transmitted diseases. The
statute confers no individual rights and therefore the
remedy of § 1983 is unavailable. Planned Parenthood
acknowledges as much, but persuaded the district court
that the Supremacy Clause supplies a preemption right
of action of its own force. We have our doubts.
It is well-established that the Supremacy Clause is “not
a source of any federal rights.” Chapman v. Hous. Welfare
Rights Org., 441 U.S. 600, 613 (1979); see also Ill. Ass’n of
Mortg. Brokers v. Office of Banks & Real Estate, 308 F.3d 762,
765 (7th Cir. 2002) (recognizing that the Supremacy
Clause “does not of its own force create rights”). The
Supremacy Clause “ ‘secure[s] federal rights by according
them priority whenever they come in conflict with state
law.’ ” Golden State Transit Corp. v. City of Los Angeles, 493
U.S. 103, 107 (1989) (alteration in original) (quoting Chap-
man, 441 U.S. at 613) (internal quotation marks omitted).
Just this past Term, the Supreme Court was set to
decide a case raising the question whether Medicaid
providers and recipients could bring a claim that the
Medicaid Act preempts state statutes reducing Medicaid
payments to providers. See Douglas, 132 S. Ct. at 1207. In
Douglas, as here, the providers and recipients had no
statutory right of action under the Medicaid Act, but
the Ninth Circuit said they could bring the suit directly
under the Supremacy Clause. Id. at 1209. The Supreme
36 No. 11-2464
Court granted certiorari to decide whether the court of
appeals was correct. Id. While the case was pending,
however, CMS approved California’s statutory scheme.
Id. The Court held that this development did not moot
the case, id. at 1209-10, but remanded to the Ninth Circuit
to permit that court to address the impact of this
new development “in the first instance,” id. at 1211.
Chief Justice Roberts dissented, joined by Justices Scalia,
Thomas, and Alito. In their view, the Court should have
kept the case and decided the legal question presented:
whether the Supremacy Clause provides a cause of
action to enforce the requirements of a Spending Clause
statute when Congress has not provided a right of action
in the statute itself. Id. at 1212 (Roberts, C.J., dissenting).
That is the precise question here, and although the
Court ultimately left it for another day, we can take
some cues from the Chief Justice’s analysis.
The Chief Justice began by reiterating the principle
that the Supremacy Clause does not create federal rights,
but instead “simply ensures that the rule established
by Congress controls.” Id. at 1213. In other words, the role
of the Supremacy Clause is simply to “ensure that, in a
conflict with state law, whatever Congress says goes.” Id.
at 1212. So “if Congress does not intend for a statute to
supply a cause of action for its enforcement, it makes no
sense to claim that the Supremacy Clause itself must
provide one.” Id. In this situation, implying a direct right
of action under the Supremacy Clause “would effect a
complete end-run around [the Court’s] implied right of
action and 42 U.S.C. § 1983 jurisprudence.” Id. at 1213. In
No. 11-2464 37
the view of the dissenting justices in Douglas, a proper
understanding of the Supremacy Clause compelled
the conclusion that “[w]hen Congress did not intend to
provide a private right of action to enforce a statute
enacted under the Spending Clause, the Supremacy
Clause does not supply one of its own force.” Id. at 1215.
Other than the Ninth Circuit’s decision in Douglas, few
appellate opinions have recognized a freestanding right
to bring a preemption action under the Supremacy
Clause, though we acknowledge that there are some. See,
e.g., Wilderness Soc’y v. Kane County, Utah, 581 F.3d 1198,
1216 (10th Cir. 2009), vacated on other grounds, 632 F.3d 1162
(10th Cir. 2011) (en banc); Planned Parenthood of Hous. & Se.
Tex. v. Sanchez, 403 F.3d 324, 331-35 (5th Cir. 2005). This
approach is controversial (as the grant of certiorari
in Douglas implies), and we think highly doubtful, for
the reasons articulated by the Douglas dissenters.
This is not, moreover, a circumstance covered by the
doctrine of Ex parte Young, 209 U.S. 123 (1908). The pre-
emption claim here, as in Douglas, does not involve
the “pre-emptive assertion in equity of a defense that
would otherwise have been available in the State’s en-
forcement proceedings at law.” Va. Office for Prot. &
Advocacy v. Stewart, 131 S. Ct. 1632, 1642 (2011) (Kennedy,
J., concurring); see also Douglas, 132 S. Ct. at 1213 (Roberts,
C. J., dissenting). In other words, Indiana is not
threatening Planned Parenthood with an enforcement
action or otherwise trying to regulate its behavior
through an action at law; the State has simply turned off
the funding spigot.
38 No. 11-2464
If Planned Parenthood’s preemption claim is to
proceed, we would have to agree with its position that
the Supremacy Clause supplies a right of action of its
own force. We are not inclined to agree, but we do not
need to commit ourselves here. Planned Parenthood’s
preemption claim cannot succeed on the merits. Because
our jurisdiction is not at issue, we can assume without
deciding the right-of-action question and proceed
directly to the merits. See Nw. Airlines, Inc. v. County of
Kent, Mich., 510 U.S. 355, 365 (1994) (“The question
whether a federal statute creates a claim for relief is not
jurisdictional.”); see also Bertrand ex rel. Bertrand v. Maram,
495 F.3d 452, 457-58 (7th Cir. 2007) (assuming a right of
action exists and deciding the case on the merits because
“[a] private right of action is not a component of subject-
matter jurisdiction”); Bruggeman ex rel. Bruggeman v.
Blagojevich, 324 F.3d 906, 911 (7th Cir. 2003) (same).
2. Likelihood of Success on the § 247c(c) Preemption
Claim
By its terms, § 247c(c) does no more than authorize
the HHS Secretary to make federal block grants to the
states to help pay for programs that diagnose and monitor
sexually transmitted diseases. The only restriction on
the states is that the federal money be used for the stated
purposes. Beyond that, § 247c(c) attaches no strings to
the block-granted money at all. Nor has Planned Parent-
hood identified any related federal statute or regulation
that expressly limits how a recipient state may disburse
No. 11-2464 39
these funds. 11 Indiana’s defunding law cannot possibly
conflict with a block-grant statute as unrestricted as
this one.
Nonetheless, the district court concluded that Indiana
is not free to decide how to distribute its § 247c(c) funds.
Without discussing the statutory text at all, the court
held that § 247c(c) “does not suggest that states are per-
mitted to determine eligibility criteria for the DIS
grants.” Planned Parenthood of Ind., 794 F. Supp. 2d at 912.
This inverts established preemption analysis, which
begins with a presumption against preemption and focuses
first on the text of the statute. Wyeth v. Levine, 555 U.S. 555,
565 & n.3 (2009). Unless Congress has “indicate[d]
pre-emptive intent through a statute’s express language
or through its structure and purpose,” the state law is
11
Planned Parenthood makes passing reference to 42 C.F.R.
§ 51b.106(e), but that regulation simply provides that the
Secretary of HHS may impose conditions on the state’s use of
§ 247c(c) block-granted funds at the time the grant is made,
“including conditions governing the use of information or
consent forms, when, in the [federal government’s] judgment,
they are necessary to advance the approved program, the
interest of the public health, or the conservation of grant funds.”
Without explanation, the district court also relied on
§ 51b.106(e). See Planned Parenthood of Ind., Inc. v. Comm’r of
the Ind. State Dep’t of Health, 794 F. Supp. 2d 892, 912 (S.D. Ind.
2011). The regulation has no relevance here. It simply makes
explicit what is already implicit in the Secretary’s authority
to make block grants: that she may attach specific conditions
to a state’s § 247c(c) block-grant funding at the time the grant
is made.
40 No. 11-2464
presumed to be valid. Altria Grp., Inc. v. Good, 555 U.S. 70,
76 (2008).
Because § 247c(c) contains no express preemption
language, only implied preemption is even conceivably
at issue. Implied preemption comes in two types: (1) field
preemption, which arises when the federal regulatory
scheme is so pervasive or the federal interest so
dominant that it may be inferred that Congress intended
to occupy the entire legislative field; and (2) conflict
preemption, which arises when state law conflicts with
federal law to the extent that “compliance with both
federal and state regulations is a physical impossibility,” or
the state law “stands as an obstacle to the accomplish-
ment and execution of the full purposes and objectives
of Congress.” Arizona v. United States, 132 S. Ct. 2492,
2501 (2012) (internal quotation marks and citations omit-
ted). Field preemption and the “impossibility” form of
conflict preemption are not implicated here. That leaves
only obstacle preemption.
We note for starters that the district court’s view that
Indiana may not impose eligibility conditions on DIS
subgrants conflicts with the basic structure and purpose
of block-grant funding. As a general matter, federal
block grants devolve control to the states over the dis-
bursement of federal funds. Of course, Congress may
restrict a recipient state’s disbursement of block-granted
money in a variety of ways, see King v. Smith, 392 U.S.
309, 333 n.34 (1968), as when the federal statute or im-
plementing regulations expressly provide eligibility
criteria for subgrants from states, see N.Y. State Dep’t of
No. 11-2464 41
Soc. Servs. v. Dublino, 413 U.S. 405, 421-22 (1973). But if the
federal law allows room for state-imposed eligibility
conditions, then the recipient state is free to establish its
own eligibility criteria unless the party asserting preemp-
tion meets its burden of showing that the state rules
frustrate the federal objective. Id. (distinguishing
between grants where federal law “expressly provided
[who] would be eligible” and those where federal law
allowed for “complementary” state conditions).
The district court stood this principle on its head. The
question is not whether § 247c(c) expressly allows a recipi-
ent state to impose its own subgrant conditions, as the
district court seemed to think. Instead, the pertinent
question is whether § 247c(c) prohibits state-imposed
eligibility conditions, either expressly or by necessary
implication. As we have noted, congressional and regula-
tory silence usually defeats a claim of preemption, not the
other way around. See Wyeth, 555 U.S. at 602-03 (Thomas,
J., concurring in the judgment).
Nothing in § 247c(c) or its implementing regulations
restricts Indiana’s authority over subgrants. Absent a
conflict between state and federal law in the first place,
state law cannot possibly stand as an obstacle to the
accomplishment of congressional objectives. “[S]tate law
is displaced only ‘to the extent that it actually conflicts
with federal law.’ ” Dalton v. Little Rock Family Planning
Servs., 516 U.S. 474, 476 (1996) (per curiam) (quoting Pac.
Gas & Elec. Co. v. State Energy Res. Conservation & Dev.
Comm’n, 461 U.S. 190, 204 (1983)). Because Indiana’s
§ 247c(c) funding is unrestricted, there is no conflict
between state and federal law.
42 No. 11-2464
The district court relied on a series of cases regarding
block-grant family-planning funding under Title X. See,
e.g., Sanchez, 403 F.3d at 336-37; Planned Parenthood
Fed’n of Am., Inc. v. Heckler, 712 F.2d 650, 663-64 (D.C. Cir.
1983); Valley Family Planning v. North Dakota, 661 F.2d 99,
100-02 (8th Cir. 1981). Indiana pointed out that Title X’s
implementing regulations contain an explicit open-eligibil-
ity requirement—“[a]ny public or nonprofit private
entity in a State may apply for a grant,” 42 C.F.R.
§ 59.3—while § 247c(c) and its regulatory scheme do not,
see 42 C.F.R. § 51b.106. The district court ignored this
critical distinction. The Title X cases have no bearing here.
Simply put, Indiana’s defunding law does not conflict
with § 247c(c) or its implementing regulations. Having
“identified no significant conflict with an identifiable
federal policy or interest,” O’Melveny & Myers v. FDIC,
512 U.S. 79, 88 (1994), Planned Parenthood cannot
succeed on the merits of its preemption claim. The
district court should not have enjoined the enforcement
of Act 1210 with respect to Indiana’s DIS block-grant
funding.
3. Unconstitutional-Conditions Doctrine
Having decided to order preliminary injunctive relief
on the statutory claims, the district court had no need
to address Planned Parenthood’s unconstitutional-condi-
tions claim. Our decision on the merits of the preemp-
tion claim brings this alternative theory into play. If viable
and likely to succeed, Planned Parenthood’s unconstitu-
No. 11-2464 43
tional-conditions claim may serve as an independent
basis to affirm the judge’s order prohibiting the termina-
tion of its DIS funding. The issue was preserved in the
district court, the parties have briefed it on appeal, and
because it raises a purely legal question, it makes sense
for us to address it here. See Bennett v. Spear, 520 U.S.
154, 166-67 (1997) (“The asserted grounds were raised
below, and have been fully briefed and argued here;
we deem it an appropriate exercise of our discretion
to consider them now rather than leave them for disposi-
tion on remand.”); see also Alvarez, 679 F.3d at 590.
“The ‘unconstitutional conditions’ doctrine is premised
on the notion that what a government cannot compel, it
should not be able to coerce.” Libertarian Party of Ind. v.
Packard, 741 F.2d 981, 988 (7th Cir. 1984). Understood at
its most basic level, the doctrine aims to prevent the
government from achieving indirectly what the Con-
stitution prevents it from achieving directly. Thus, “[t]he
denial of a public benefit may not be used by the gov-
ernment for the purpose of creating an incentive
enabling it to achieve what it may not command directly.”
Elrod v. Burns, 427 U.S. 347, 361 (1976) (plurality opinion).
This does not mean that the myriad public benefits dis-
pensed at all levels of government have the status of
constitutional rights; rather, the doctrine prevents the
government from awarding or withholding a public
benefit for the purpose of coercing the beneficiary to
give up a constitutional right or to penalize his exercise
of a constitutional right. As the Supreme Court explained
the doctrine in Perry v. Sindermann,
44 No. 11-2464
even though a person has no “right” to a valuable
governmental benefit and even though the govern-
ment may deny him the benefit for any number of
reasons, there are some reasons upon which the
government may not rely. It may not deny a benefit
to a person on a basis that infringes his con-
stitutionally protected interests . . . .
408 U.S. 593, 597 (1972).
The first step in any unconstitutional-conditions claim
is to identify the nature and scope of the constitutional
right arguably imperiled by the denial of a public benefit.
See Michael W. McConnell, The Selective Funding Problem:
Abortions and Religious Schools, 104 H ARV . L. R EV. 989, 992
(1991) (observing that a claim that a selective-funding
decision is an unconstitutional condition requires
“careful consideration of the nature of the constitutional
right implicated by the funding decision, including the
nature of the countervailing interests of the govern-
ment”); Cass R. Sunstein, Is There an Unconstitutional
Conditions Doctrine?, 26 SAN D IEGO L. R EV. 337, 338 (1989)
(“Whether a condition is permissible is a function of the
particular constitutional provision at issue . . . .”). Here,
Planned Parenthood’s unconstitutional-conditions claim
necessarily derives from a woman’s constitutional right
to obtain an abortion. See Planned Parenthood of Se. Pa. v.
Casey, 505 U.S. 833, 846 (1992) (“Constitutional protection
of the woman’s decision to terminate her pregnancy
derives from the Due Process Clause of the Fourteenth
Amendment.” (emphasis added)). Under existing prece-
dent any protection for Planned Parenthood as an
No. 11-2464 45
abortion provider is “derivative of the woman’s posi-
tion.” Id. at 884 (plurality opinion).
Two aspects of the Supreme Court’s abortion juris-
prudence are important here. First, the Court has
explained that the constitutional right to obtain an
abortion is a right against coercive governmental burdens;
the government may not “prohibit any woman from
making the ultimate decision to terminate her pregnancy”
before fetal viability or impose an “undue burden on a
woman’s ability to make this decision.” Id. at 874, 879;
see also Gonzales v. Carhart, 550 U.S. 124, 146 (2007). An
“undue burden” exists if the challenged law has the
“purpose or effect” of placing “a substantial obstacle in
the path of a woman seeking an abortion before the
fetus attains viability.” Casey, 505 U.S. at 878 (plurality
opinion); see also Gonzales, 550 U.S. at 146.
Accordingly, the Court has conceptualized the right as “a
constitutionally protected interest ‘in making certain
kinds of important decisions’ free from govern-
mental compulsion.” Maher v. Roe, 432 U.S. 464, 473 (1977)
(quoting Whalen v. Roe, 429 U.S. 589, 599-600 & nn.24 &
26 (1977)).
This brings up the second important point. The Court
has explicitly rejected a neutrality-based view of abor-
tion rights. Thus, the Court has held that although
the abortion right recognized in Roe v. Wade1 2 “protects
the woman from unduly burdensome interference with
her freedom to decide whether to terminate her preg-
12
410 U.S. 113 (1973).
46 No. 11-2464
nancy[,] [i]t implies no limitation on the authority of a
State to make a value judgment favoring childbirth
over abortion, and to implement that judgment by the
allocation of public funds.” Id. at 473-74. In Maher the
Court upheld Connecticut’s ban on public funding for
nontherapeutic abortions because it “places no obsta-
cles—absolute or otherwise—in the pregnant woman’s
path to an abortion.” Id. at 474. The Court reaffirmed
Maher in Harris v. McRae, 448 U.S. 297, 314-17 (1980),
upholding the Hyde Amendment. And in Webster v.
Reproductive Health Services, 492 U.S. 490, 508-11 (1989),
the Court upheld Missouri’s statutory ban on the use of
public employees and facilities to perform or assist in
the performance of an abortion.
Finally, in Rust v. Sullivan, 500 U.S. 173 (1991), the
Court rejected a challenge to federal regulations prohi-
biting recipients of Title X family-planning grants from
advocating abortion as a method of family planning
or referring patients for abortion. Under the regulations,
grant recipients with abortion-related practices could
continue to receive Title X money only if they segregated
their abortion-related activities in a separate affiliate. Id.
at 179-81. Rust held that the regulations did not place
an unconstitutional condition on Title X grant recipients.
Id. at 203. This was so whether the claim was premised
on the speech rights of the providers, id. at 196-99, or
the abortion rights of their patients, id. at 201-03. As
relevant here, the Court reaffirmed the holdings of
Webster, Harris, and Maher that “[t]he Government has no
constitutional duty to subsidize an activity merely
because the activity is constitutionally protected and
No. 11-2464 47
may validly choose to fund childbirth over abortion.” Id.
at 201. Because the Title X regulations did not place
an undue burden on a woman’s right to obtain an
abortion or otherwise impose an unconstitutional condi-
tion on grant recipients, the Court upheld the regulatory
scheme. Id. at 203.
As these cases make clear, the government need not be
neutral between abortion providers and other medical
providers, and this principle is particularly well-estab-
lished in the context of governmental decisions regarding
the use of public funds. As long as the difference
in treatment does not unduly burden a woman’s right
to obtain an abortion, the government is free to treat
abortion providers differently.
Applying these principles here, the unconstitutional-
conditions claim is not likely to succeed. Planned Parent-
hood does not argue that the loss of its block-grant
funding imposes an undue burden—directly or indi-
rectly—on a woman’s right to obtain an abortion. If, as
the foregoing cases hold, the government’s refusal to
subsidize abortion does not unduly burden a woman’s
right to obtain an abortion, then Indiana’s ban on public
funding of abortion providers—even for unrelated
services—cannot indirectly burden a woman’s right to
obtain an abortion.1 3 See Rumsfeld v. Forum for Academic &
13
The unconstitutional-conditions doctrine would be
implicated if a state adopted a policy of withholding unrelated
public benefits from a woman who had an abortion. See
Harris v. McRae, 448 U.S. 297, 317 n.19 (1980) (“A substantial
(continued...)
48 No. 11-2464
Institutional Rights, Inc., 547 U.S. 47, 59-60 (2006) (“It is
clear that a funding condition cannot be unconstitutional
if it could be constitutionally imposed directly.”).
Planned Parenthood offers nothing else in support of
its unconstitutional-conditions claim.1 4 Accordingly, this
theory does not provide an alternative basis to affirm
the district court’s order prohibiting Indiana from ter-
minating Planned Parenthood’s DIS funding.
III. Conclusion
For the foregoing reasons, we A FFIRM the district court’s
order granting preliminary injunctive relief on Planned
Parenthood’s Medicaid Act claim. We R EVERSE the order
as it relates to the State’s § 247c(c) block-grant funding
and R EMAND the case with instructions to modify the
injunction accordingly.
13
(...continued)
constitutional question would arise if Congress had
attempted to withhold all Medicaid benefits from an other-
wise eligible candidate simply because that candidate had
exercised her constitutionally protected freedom to terminate
her pregnancy by abortion.”).
14
The parties debate the feasibility of segregating Planned
Parenthood’s abortion-related services in a separate affiliate
organization, as in the Title X regulatory scheme at issue in
Rust. See Rust v. Sullivan, 500 U.S. 173, 179-81 (1991). That issue
is not directly relevant here. The defunding law does not, on
its face, provide for this option, and Planned Parenthood
does not now organize its affairs in this way.
No. 11-2464 49
C UDAHY, concurring in part and dissenting in part.
I join Part IIA of the majority opinion in full. I also join
Part IIB1 and IIB2 but do not join Part IIB3 or the reversal
of the judgment requiring modification of the prelim-
inary injunction insofar as it prohibits state restrictions
on § 247c(c) block-grant funding. I believe the issue of
unconstitutional conditions should be remanded to the
district court for development of the record with respect
to any possible imposition of a burden on access to abor-
tions. In arguing the matter below, Planned Parenthood
was required to defend both its Medicaid and block-
grant funding. Unsurprisingly, Planned Parenthood
focused on Medicaid and aimed its brief primarily at the
appropriate interpretation of § 1396a(a)(23). The § 247c(c)
block-grant funding received comparatively little atten-
tion from both parties as well as numerous amici in
this case. I believe it is premature for this court to
address this issue on the present record. Plaintiffs
may not have fully addressed this issue below, but the
fundamental constitutional nature of this issue should
preclude its disposition on less than an adequate record.
10-23-12