The Supreme Court declined to hear two Planned Parenthood–related cases on Monday, leaving in place two lower court opinions that favor the health care organization. Those opinions held that states violate federal law when they cut Planned Parenthood affiliates out of state Medicaid programs, as many states have tried to do since 2015.
The court’s decision to leave those opinions be is a small but significant win for Planned Parenthood, which has been battling right-wing attempts to block low-income patients from accessing cancer screenings, contraception, and STI treatment at Planned Parenthood affiliates. (The Hyde Amendment already prevents federal Medicaid dollars from being used for abortions not sought for reasons of life endangerment, rape, or incest, and most states have also banned state Medicaid dollars from funding abortions outside those parameters.)
In the two cases the Supreme Court decided not to address—one from Kansas, one from Louisiana—Medicaid patients sued when state governments moved to prevent them from getting non-abortion care from the organization’s health care providers. They claimed it violated Medicaid’s “free choice of provider” provision, which holds that patients on Medicaid—which is jointly funded by states and the federal government—must be allowed to access care at any qualified health care facility that is willing to take them on as patients. In other words, the government can’t blacklist health care providers from Medicaid for political reasons unrelated to their ability to provide quality care.
The Supreme Court’s non-action on Monday doesn’t bear on this provision. The states that appealed the lower court rulings in favor of Planned Parenthood were arguing that individual Medicaid patients don’t have the right to sue over which providers they’re allowed to see, not that states have the right to ban specific providers from their Medicaid programs. The federal government can withhold Medicaid dollars if any state contravenes federal law, the states said, but granting every person on Medicaid the standing to sue could overwhelm the courts and a state’s ability to decide which providers belong in their Medicaid programs. In response, Planned Parenthood asked the Supreme Court to refuse to hear the case, assuring the justices that the appeals court rulings were merely preliminary injunctions, not broad statements on the merits of the suits, and thus didn’t necessitate a reply from the high court.
Four justices would have had to agree to hear the cases to get them in front of the Supreme Court, and only three—Clarence Thomas, Neil Gorsuch, and Samuel Alito—were willing to do so. Thomas wrote a dissent that the other two joined, arguing that because five appeals courts have ruled that states can’t cut Planned Parenthood off the Medicaid rolls and one has ruled that they can, “patients in different States—even patients with the same providers—have different rights to challenge their State’s provider decisions.” Thomas also expressed concern that justices were avoiding the cases because of their association with debates over abortion rights. “Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty,” Thomas wrote. “If anything, neutrally applying the law is all the more important when political issues are in the background.”
Thomas has a point. Brett Kavanaugh and Chief Justice John Roberts, the other two conservatives on the court, would have likely ruled against Planned Parenthood, but they seem to be avoiding hot-button cases at the moment. After the partisan mayhem of Kavanaugh’s confirmation hearings—marked by Kavanaugh’s own vilification of “left-wing opposition groups” seeking “revenge on behalf of the Clintons”—it makes sense that he and the chief justice would want to lay low for a bit when it comes to the issues activists care about most. In three of the court’s first rulings of Kavanaugh’s tenure, he has declined to protect the Trump administration’s interests. He may be merely waiting for some of the anger around his confirmation to dissipate, or he may be carving out a space for himself as a more moderate justice à la Roberts, who has occasionally sided against his fellow conservatives on the court.
After Monday’s decision, members of the religious right, who have overwhelmingly supported Donald Trump in part because of his promises to overturn Roe v. Wade, are worrying over whether their newest guy on the court will be the nail in Roe’s coffin they expected him to be. Reproductive-rights advocates have been far more reluctant to read any broader meaning into Kavanaugh and Roberts’ refusal to hear the two Medicaid cases. For one thing, it’s not an actual ruling. For another, the 8th U.S. Circuit Court of Appeals decision to allow Arkansas to block Medicaid patients from accessing care at Planned Parenthood still stands. Abortion-rights cases with bigger, broader impact are trickling up the pipeline, and Supreme Court appointments last a lifetime.
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