What did the Supreme Court say about Planned Parenthood and Medicaid?

In early December, the U.S. Supreme Court announced they would not hear two cases pending before them (Planned Parenthood of Gulf Coast v. Gee and Planned Parenthood of Kansas and Mid-Missouri v. Andersen).  A series of politically-charged celebrations, laments, and finger pointing immediately followed the announcement.  Predictably very few of these outbursts had regard to the facts.  These cases asked nuanced questions about federal Medicaid law and the rights of individuals in various states.  Though reporting on the cases has been overblown, the announcement of the Supreme Court does not represent a victory for the abortion movement nor should the decision dissuade Pro-Life activists from continuing efforts to stop all taxpayer dollars from the abortion industry.

In the two cases in question, Louisiana and Kansas had taken separate actions to disqualify abortion providers from Medicaid in their respective states.  In both states, Planned Parenthood and three anonymous patients sued the state, claiming the state was violating the “free choice of provider” clause in the federal Medicaid Act.  Each U.S. Court of Appeals hearing these cases (in the Tenth and Fifth Circuits) granted the abortion industry preliminary injunctions against Kansas and Louisiana keeping them from enforcing these policies.  These preliminary injunctions preserve the status quo while the merits of the cases were considered in their respective courts.  These preliminary injunctions were actually the questions before the Supreme Court, not the full cases themselves.  Essentially, the Supreme Court declined to become involved in the cases before the lower courts had held a full trial and reviewed all the evidence presented by both sides.  When cases are appealed to the Supreme Court they have very narrow legal questions attached.  The questions related to these cases included whether the anonymous citizens had standing and the right to challenge the state’s decision to disqualify certain Medicaid providers.  Most commentators failed to note that the Supreme Court made no judgment on whether they would take up the full cases at a later date, once those cases had been heard by the lower courts.

Justice Clarence Thomas published a strong dissent on the Supreme Court’s decision not to take up the two aforementioned preliminary injunctions.  Four justices must vote to take up a case, and Thomas’s dissent was joined by Justices Samuel Alito and Neil Gorsuch, revealing that both Justice Brett Kavanaugh and Chief Justice John Roberts declined to join the other three conservative justices to secure the necessary votes to hear the cases.  Thomas’s dissent alleged that the Supreme Court was reluctant to take up these cases due to the name “Planned Parenthood” being involved.  He also stated that the cases had nothing to do with abortion but rather questioned the right of individuals to sue in federal court over their preferred Medicaid providers.

Thomas also argued that the inaction of the Supreme Court puts states at risk of a constant attack of lawsuits for simply managing their Medicaid contracts because individuals could file suit when their favorite provider had been terminated from, or not even included in, the state’s Medicaid program.  However, Thomas reserved his strongest ire for the fact that the Supreme Court had declined to intervene to clarify contradictory rulings from lower Circuit Courts on substantially the same matter (called a “Circuit split”).  In a prior decision not before the Supreme Court this term, the Eighth Circuit Court decided to allow Arkansas to terminate the contract of Planned Parenthood (in Planned Parenthood Great Plains v. Gillespie), which was a significant win for the Pro-Life community.

Justice Thomas has been open about his view that Roe v. Wade was wrongly decided, a view unequivocally shared by the Pro-Life movement, and in many of his writings he has shown an eagerness to correct this grave injustice.  Thomas is also, of course, privy to the private conferences and conversations within the Supreme Court, so his dissent may be based on views of Kavanaugh and Roberts he was not at liberty to share with the public.  What remains unclear is whether Thomas was confronting the Supreme Court for refusing (possibly ever) to become embroiled in a controversial issue, or whether he was frustrated with the delay by the Supreme Court declining to become involved in the issue at this stage.  We simply do not know whether the Supreme Court is refusing to become involved now or ever in this type of action, or whether only one or both of those scenarios would anger Thomas enough to write such a blistering dissent.

Many Pro-Lifers have viewed this decision as a betrayal by Kavanaugh, taking back the lavish praise they had bestowed during his confirmation hearings.  Texas Right to Life has always been and continues to be cautiously optimistic regarding Kavanaugh’s appointment and confirmation.  There was not enough evidence to be certain that Kavanaugh would provide the final vote to undermine Roe, and now there is still no clear indication to condemn him.  Both Kavanaugh and Roberts have avoided clearly signaling their views, which, while disheartening, is not definitive.

Pro-Lifers must continue to push prudent, incremental laws to the Supreme Court in order to continue our progress toward our ultimate goal of overturning Roe v. Wade.  The most important case from Texas, challenging the Dismemberment Abortion Ban, is currently awaiting a decision from the Fifth Circuit Court before an outcome may be appealed to the Supreme Court.  Although some, like Justice Thomas, may be discouraged by the Supreme Court’s Medicaid decisions, now is not the time to abandon the fight.  You may be sure that Texas Right to Life will persevere, remaining steadfast in our commitment to this necessary, life-saving legal strategy to end the injustice of elective abortion.