Hmmm: Roberts, Kavanaugh throw in with SCOTUS' liberal wing on Planned Parenthood defunding?

“This is a victory for Planned Parenthood,” NBC’s Pete Williams reported earlier this morning. It might not be a final victory, but it certainly wasn’t a defeat. The Supreme Court refused to hear an appeal of an appellate court ruling that negated state laws that prevented Medicaid recipients from using Planned Parenthood for health services other than abortion. The most curious aspect of the case is who signed onto the decision to refuse cert … and who didn’t:


The U.S. Supreme Court on Monday rejected appeals by Louisiana and Kansas seeking to end public funding by those states to Planned Parenthood, a national women’s healthcare and abortion provider, through the Medicaid program.

The justices left intact lower court rulings that prevented the two states from stripping government healthcare funding from local Planned Parenthood affiliates.

Three conservative justices, Clarence Thomas, Samuel Alito and Neil Gorsuch, dissented from the decision by the nine-member court, saying it should have heard the appeals by the states.

It takes four justices to grant cert on appeals. Normally the votes are not made public on these decisions, but Thomas’ dissent was noted in today’s court orders:

Thomas wrote a short but pointed dissent for public consumption, a rare event in cert denials. In it, Thomas notes that the question is whether Medicaid recipients have a right to challenge a finding by the state as to who qualifies as a provider. That issue is ripe for Supreme Court review, Thomas argues. “Five Circuits have held that Medicaid recipients have such as right and one Circuit has held that they do not,” he states, a situation in which the Supreme Court usually acts to set a precedent across the nation. Leaving this question open sets up potentially disastrous results for states in their Medicaid administration:


If the majority of the courts of appeals are correct, then Medicaid patients could sue when, for example, a State removes their doctor as a Medicaid provider or inadequately reimburses their provider. E.g., Bader v. Wernert, 178 F. Supp. 3d 703 (ND Ind. 2016); Women’s Hospital Foundation v. Townsend, 2008 WL 2743284 (MD La., July 10, 2008). Because of this Court’s inaction, patients in different States—even patients with the same providers—have different rights to challenge their State’s provider decisions.

The question presented also affects the rights of the States, many of which are amici requesting our guidance. Under the current majority rule, a State faces the threat of a federal lawsuit—and its attendant costs and fees— whenever it changes providers of medical products or services for its Medicaid recipients. E.g., Harris v. Olszewski, 442 F. 3d 456 (CA6 2006). Not only are the lawsuits themselves a financial burden on the States, but the looming potential for complex litigation inevitably will dissuade state officials from making decisions that they believe to be in the public interest. State officials are not even safe doing nothing, as the cause of action recognized by the majority rule may enable Medicaid recipients to challenge the failure to list particular providers, not just the removal of former providers.

Thomas, and by joining Gorsuch and Alito, accuse the court of dodging these questions because of the political nature of this particular provider. It answers Pete Williams’ framing of this issue by pointing out that the services in question have nothing to do with the fetal-tissue-sale issue:


So what explains the Court’s refusal to do its job here? I suspect it has something to do with the fact that some respondents in these cases are named “Planned Parenthood.” That makes the Court’s decision particularly troubling, as the question presented has nothing to do with abortion. It is true that these particular cases arose after several States alleged that Planned Parenthood affiliates had, among other things, engaged in “the illegal sale of fetal organs” and “fraudulent billing practices,” and thus removed Planned Parenthood as a state Medicaid provider. Andersen, 882 F. 3d, at 1239, n. 2 (Bacharach, J., concurring in part and dissenting in part). But these cases are not about abortion rights. They are about private rights of action under the Medicaid Act. Resolving the question presented here would not even affect Planned Parenthood’s ability to challenge the States’ decisions; it concerns only the rights of individual Medicaid patients to bring their own suits.

Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty. If anything, neutrally applying the law is all the more important when political issues are in the background. …

We are responsible for the confusion among the lower courts, and it is our job to fix it.

That’s normally the case, but Chief Justice John Roberts has bent over backwards to avoid the appearance of politics during his term, or at least since Barack Obama ripped the court for its Citizens United ruling in a state of the union speech. That’s how we ended up with the ruling on ObamaCare, and it seems as though Roberts has a convert in the newest member of the court as well.


That shouldn’t be a surprise, however. Despite all of the hysteria over his appointment, Brett Kavanaugh is an establishmentarian, albeit a solidly conservative jurist nonetheless. Three months ago, I wrote that Kavanaugh was not the kind of jurist who would overturn Roe without setting forth a new line of precedent that would allow for it to happen. Even Amy Coney Barrett has less of an activist mien than some perceive, but she might be more the model of a jurist that would push the envelope. Kavanaugh has instead spent more than a decade fashioning a textual approach to law rather than picking fights.

Unfortunately, in this case he and Roberts seemed more intent on avoiding one. That’s a temporary loss, but this question will keep coming up, and at some point the court will have to address it. Maybe that day will come after another appointment to the court changes the balance on it.

Update: Alexandra DeSanctis says the media got this wrong:

Both of these assertions are inaccurate. The Supreme Court didn’t side with Planned Parenthood, nor did it preserve the abortion provider’s funding. It declined to hear the case at all, and the decision not to grant cert took no position on the merits of the case. Claiming that the decision in some way affirmed abortion funding is patently false.

What’s more, the case itself had to do with whether Medicaid recipients have standing to challenge states’ determination of which groups qualify as Medicaid providers. There is currently a circuit-court split on the question. The merits of any given state law on public funding of abortion isn’t at stake in the case at all.

Nonetheless, the CNN article claimed that “the case concerned whether [states] can block Medicaid funds from offices that provide such women with annual health screens, contraceptive coverage and cancer screening.” It didn’t. It concerned whether individuals have the standing to bring their own suit against a state’s determination.

It’s almost as if journalists are willing to abandon the facts in order to convince readers that Planned Parenthood is under unjust attack — and that the Supreme Court has sided with the abortion corporation.


She’s accurate in the most technical sense, but this is a distinction without a difference. It’s true that the appeal didn’t directly involve Planned Parenthood, and that it didn’t touch on the core issue of whether states can defund it from Title X funding. However, by refusing to hear the appeal in Andersen v Planned Parenthood, the court allowed the ruling to stand that allows Medicaid users to challenge those defunding efforts. Justice Thomas certainly understood that to be the case in his dissent. That’s a victory for Planned Parenthood, even if it’s not a final victory as I first noted.

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