Supreme Court Can Further Rule of Law With Latest Abortion Case

By: John Bursch, originally published April 7, 2025, Bloomberg Law.com

Alliance Defending Freedom’s John Bursch says the Supreme Court can solidify its reputation as an institution that enforces the law rather than creating it.

Chief Justice John Roberts famously told Congress during his 2005 confirmation hearing, “Judges are like umpires. Umpires don’t make the rules, they apply them.” He promised that if he was confirmed, he would “remember that it’s my job to call balls and strikes, and not to pitch or bat.”

At the time, he was expressing a minority view of the courts’ proper role—including among justices. However, in the 20 years since, that view has become dominant.

During his first term, President Donald Trump nominated three justices who are part of a movement, spearheaded by the Federalist Society, that has tried to move into the mainstream Roberts’ aspiration of judges applying rules rather than making them. Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett’s appointments brought the total number of justices on the Supreme Court with such ties to six.

Critics have argued these judges have had a heavier hand in making laws than they profess.

The 6–3 majority has produced rulings in several “culture war” cases that have captured attention and drawn criticism. Cases such as National Federation of Independent Business v. Occupational Safety and Health Administration, which held that a federal agency lacked the power to impose a COVID-19 vaccine mandate, and Dobbs v. Jackson Women’s Health Organization, which held that the Constitution is silent regarding abortion.

Those cases show Roberts is trying to live up to his promise about applying rules and laws, not making them.

In the vaccine-mandate case, the court concluded Congress hadn’t given OSHA the power to require the vaccination of 84 million Americans. That choice was for Congress alone.

In Dobbs, the court overruled Roe v. Wade and Planned Parenthood v. Casey, holding that the court had “usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”

Now, the court is, once again, preparing to answer a question about abortion which could show whether the court is committed to applying rules rather than crafting new ones.

In Medina v. Planned Parenthood South Atlantic, a case argued before the Supreme Court on April 2, my colleagues and I at Alliance Defending Freedom represent the director of South Carolina’s Department of Health and Human Services. We’re defending the state’s decision to disqualify abortion facilities such as Planned Parenthood from receiving state taxpayer dollars through Medicaid.

On the surface, the case involves one state’s decision to redirect limited taxpayer dollars away from organizations such as Planned Parenthood, which, according to a recent report in The New York Times, has “repeatedly prioritized the fight for abortion rights over clinics,” harming women. A ruling for South Carolina will allow the state to direct Medicaid monies in a way that it determines best benefits low-income women and families.

South Carolina prioritizes life-affirming, comprehensive health care for women and their families. Because, in the state’s determination, Planned Parenthood provides neither of those things, the state deemed it unqualified to receive limited Medicaid funding, instead sending those resources to other clinics providing comprehensive women’s health services.

That was the right decision for South Carolinians. According to the news report, Planned Parenthood “has distributed more than $899 million to affiliates to help them deliver care, but none of it went directly to medical services.” Instead, much of it went to pro-abortion politicking and legal support.

But this case is about more than abortion, health care, or questions about state funding. It presents another opportunity for the Roberts Court to further the rule of law.

Decades ago, the Supreme Court issued several decisions expanding federal judicial power to infer federal rights—and thus the ability to file federal lawsuits—in statutes involving Congress’s spending power. Predictably, federal courts have repeatedly inserted themselves into the relationship between the federal government and the states—even when Congress hasn’t clearly given the courts that role—by “discovering” rights in silent statutory text.

More recently, the Roberts Court has chipped away at those decisions—slowly restoring the courts to their proper place. But not all lower courts have gotten the message.

At oral argument, I asked the court to reaffirm that, unless Congress speaks with a “clear voice” and “unambiguously confers” a federal right in a spending clause statute, the federal courts have no role to play in policing how states administer spending clause programs. The justices were responsive to that message.

Kavanaugh noted “confusion in the lower courts” and suggested that unless a spending clause statute has the words “right,” “entitlement,” “privilege,” or “immunities,” it doesn’t confer a federal right for an individual Medicaid recipient to drag a state into federal court.

Gorsuch explained that Congress can “say an individual should be entitled to these benefits but not want to create a right of enforcement.”

Justice Samuel Alito observed that the spending clause language necessary to create a right enforceable in federal court must be “quite extraordinary,” something that makes the statute “really atypical.”

Barrett questioned whether, given the relatively benign language of the statute, Congress would have actually wanted beneficiaries to “litigate the qualifications” of disqualified providers.

Comments like these suggest a willingness to disallow federal lawsuits when a state disqualifies a provider that, according to one former employee mentioned in the news report, has operated its facilities like a “conveyor belt,” resulting in some women receiving the wrong medications and even being prepped for the wrong procedures.

The Roberts Court has the opportunity to reaffirm its intent to be a court that applies the rules—not one that makes them. And it can remind the lower courts, once again, of their responsibility to do the same.

The case is Medina v. Planned Parenthood S. Atl., U.S., No. 23-1275, argued 4/2/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

John Bursch is senior counsel and vice president of appellate advocacy with Alliance Defending Freedom and counsel of record for South Carolina officials in Medina v. Planned Parenthood South Atlantic.