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Supreme Court Justice Anthony Kennedy (Photo: Chip Somodevilla/Getty Images)

The next Supreme Court justice could usher in significant changes to Medicaid, giving states far more power to cut the program.

The issue: Many conservative lawyers and judges say private entities — like health care providers — shouldn't be able to sue over Medicaid's coverage decision. If that view ultimately prevails, states could make much bigger cuts without the threat of a lawsuit.

"A right without a remedy is not a right.”
— Rodney Whitlock, health care lobbyist

Where it stands: The Supreme Court ruled in 1990, in Wilder v. Virginia Hospital Association, that providers can sue over inadequate payment rates. Kennedy dissented from that ruling, and later helped to narrow its scope — but the court never fully closed the door on provider lawsuits.

  • Kennedy “was willing to leave the courthouse doors open in Medicaid cases, whereas the conservative majority is willing to shut it – I mean, really slam it," said Sara Rosenbaum, a George Washington University law professor.

The impact: Kennedy's replacement could be the fifth vote to shut providers out entirely.

  • Conservatives including Justice Clarence Thomas and the late Antonin Scalia, have argued that Medicaid is a contract between states and the federal government, and that the law doesn't give individuals the right to sue for the entitlements the statute requires. Only HHS should decide whether a state is out of line, they've said.
  • If the right to sue goes away, “it's certainly possible that a state would start hacking away at its program. There would be no deterrence at all," Rosenbaum said.

What we're watching: This issue could find its way back to the court relatively soon. Kansas and Lousiana have asked the Supreme Court to hear cases regarding about whether they can exclude Planned Parenthood from their Medicaid programs, and whether Planned Parenthood can sue over that exclusion.

  • Two federal appeals courts said the states couldn't exclude Planned Parenthood. But a third appeals court ruled that Planned Parenthood doesn't have the right to sue Arkansas over the same issue.

Go deeper

Updated 4 mins ago - Politics & Policy

Senate action on stimulus bill continues as Dems reach deal on jobless aid

Photo: Alex Wong/Getty Images

Democratic leaders struck an agreement with Sen. Joe Manchin (D-W.V.) on emergency unemployment insurance late Friday, clearing the way for Senate action on President Biden's $1.9 trillion stimulus package to resume after an hour-long delay.

The state of play: The Senate will now work through votes on a series of amendments that are expected to last overnight into early Saturday morning.

Capitol review panel recommends more police, mobile fencing

Photo: Olivier Douliery/AFP via Getty Images

A panel appointed by Congress to review security measures at the Capitol is recommending several changes, including mobile fencing and a bigger Capitol police force, to safeguard the area after a riotous mob breached the building on Jan. 6.

Why it matters: Law enforcement officials have warned there could be new plots to attack the area and target lawmakers, including during a speech President Biden is expected to give to a joint session of Congress.

Financial fallout from the Texas deep freeze

Illustration: Annelise Capossela/Axios

Texas has thawed out after an Arctic freeze last month threw the state into a power crisis. But the financial turmoil from power grid shock is just starting to take shape.

Why it matters: In total, electricity companies are billions of dollars short on the post-storm payments they now owe to the state's grid operator. There's no clear path for how they will pay — something being watched closely across the country as extreme weather events become more common.