Saint Louis University Journal of Health Law & Policy

Document Type

Student Note


Medicaid serves as an important source of health insurance for millions of Americans. One of the Act’s core tenants is the patient’s freedom to choose from any qualified and willing provider. This “freedom of choice” provision was eventually codified, and subsequent protections were put in place to protect a patient’s choice regarding family planning services. However, as states attempt to limit access to family planning services by severing their Medicaid contracts with Planned Parenthood, patients must rely on § 1983 to pursue relief in federal courts. Section 1983 provides a right of action for the violation of any federal right or law. Courts have routinely allowed Medicaid patients to use § 1983 to access federal court. In fact, five circuit courts of appeals have all held the freedom of choice provision creates a right that can be enforced in federal court. Unfortunately, however, the Eighth Circuit in Does v. Gillespie held otherwise by incorrectly applying Supreme Court precedent. This created a circuit split to position Does to be the case that gives the Supreme Court the opportunity to potentially close the door on all § 1983 private rights of action in Medicaid cases.