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Are There Five Votes to Overrule Thiboutot? The Threat to Enforcement of Federal Medicaid, Housing, Child Welfare, and Other Safety-Net Programs

By Lauren K. Saunders

With the recent changes on the U.S. Supreme Court, advocates face the serious prospect that there now may be five votes to eliminate the Section 1983 cause of action to enforce the Medicaid Act and other public benefit statutes—either directly or in effect. Even if the Court does not directly prohibit statutes from being enforced through Section 1983, the Court could make the requirements for enforcing public benefit statutes impossible to meet—just as it has done with implied rights of action. Thus advocates must use extreme caution before seeking certiorari in a Section 1983 case.

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