The Freedom-of-Choice provision included in the Medicaid Act guarantees Medicaid beneficiaries the right to obtain medical care from a qualified and willing medical provider of their choice. While there is little question of whether Planned Parenthood is a qualified provider of primary, family, and reproductive care, there is a question of whether the Medicaid Freedom-of-Choice provision provides a justiciable right for beneficiaries to access care from Planned Parenthood. In Blessing v. Freestone, the Supreme Court established a three factor test to determine whether a statutory provision gives beneficiaries a justiciable right. These three factors are: (1) Congress must intend the provision to benefit the plaintiff; (2) the plaintiff must demonstrate that the right asserted is not so vague or amorphous that its enforcement would strain judicial competence; and (3) the statute must impose a binding obligation on the state. Applying this test to the question of whether the Medicaid Freedom-of-Choice provision grants Medicaid beneficiaries a justiciable right to choose a provider of their choice, the Fifth, Sixth, Seventh, and Ninth Circuit have held that the
provision does in fact create a justiciable right for Medicaid beneficiaries.
However, in 2017, the Eighth Circuit found contrary to the position of other circuits. In Doe v. Gillespie, the Eighth Circuit rejected a request for a
preliminary injunction preventing the Arkansas Department of Human Services from suspending Medicaid payments for services provided by Planned Parenthood. The injunction was denied based on the Eighth Circuit's finding that the plaintiffs were not likely to succeed on the merits of their case, because the Medicaid Act does not grant an unenumerated right. Unlike the other circuits, the Eighth Circuit, did not use the Blessing Test to reach its' holding. As reproductive healthcare continues to be debated in the political sphere, it is essential for the Supreme Court to resolve this circuit split and determine whether the Medicaid Act provides beneficiaries a justiciable right to seek services from a provider of their choice.
