Conference of October 26, 2018

• Andersen v. Planned Parenthood of Kansas and Mid-Missouri Whether the provisions of the Medicaid Act that require participating states to include in their plans the ability of eligible individuals to obtain services from any “qualified” provider, 42 U.S.C. § 1396a(a)(23), but grant states broad authority to exclude providers for violating state or federal requirements, 42 U.S.C. § 1396a(p), indicate that Congress clearly and unambiguously intended to create an implied private right of action to challenge a state’s determination that a provider is not “qualified” under the applicable state regulations.
• Blue Water Navy Vietnam Veterans Association Inc. v. O’Rourke (1) Whether judicial review of an interpretative Department of Veteran Affairs’ regulation under the Administrative Procedures Act should be foreclosed under 38 U.S.C. § 502 when the Veterans Judicial Reform Act provides the sole avenue for review of the Secretary’s decisions; and (2) whether the U.S. Court of Appeals for the Federal Circuit’s decision creates a conflict with the U.S. Court of Appeals for the District of Columbia’s decision in Blue Water Navy Vietnam Veterans Association Inc. and Military-Veterans Advocacy Inc. v. McDonald.
• Fleck v. Wetch (1) Whether it violates the First Amendment for state law to presume that the petitioner consents to subsidizing non-chargeable speech by the group he is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby the petitioner must affirmatively consent to subsidizing such speech; and (2) whether Keller v. State Bar of California and Lathrop v. Donohue should be overruled insofar as they permit the state to force the petitioner to join a trade association he opposes as a condition of earning a living in his chosen profession.

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