Thomas Gallatin / December 11, 2018

SCOTUS Stumbles in Refusal to Review Abortion Funding

Two conservative justices join the Court’s leftists regarding Medicaid funding of Planned Parenthood.

The Supreme Court declined Monday to review a lower court’s ruling that prevented two states from ending public Medicaid funding for abortion providers, with the obvious target of those states being the nation’s leading baby killer: Planned Parenthood. The refusal to hear the case came as a surprise to many, as only three of the five conservative justices voted in favor of reviewing the case; Chief Justice John Roberts and newly confirmed Justice Brett Kavanaugh sided with the Court’s left wing.

The Court’s decision prompted an unusual chastisement from Justice Clarence Thomas, who wrote, “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.’”

Thomas further argued, “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. 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.”

The root question: Do Medicaid recipients have the right to challenge a state’s determination for who qualifies as a medical provider? Kansas and Louisiana determined that Medicaid recipients were not free to challenge the qualification for acceptable medical providers, specifically that Planned Parenthood failed to meet their qualifications. Thomas’s argument for accepting the case was sound, as he noted the appeals court split: “Five Circuits have held that Medicaid recipients have such a right and one Circuit has held that they do not.”

The Washington Post speculated that the reason SCOTUS refused review was that “a majority of the court may be steering clear of controversial issues — at least for now.” But does this dodge by Kavanaugh give a foreboding glimpse into the future with respect to any case impacting abortion? Time will tell, but it’s hard to see this as anything other than a big miss by SCOTUS.

A point of observation. Imagine the tone of the media coverage if the issue before the Court was half a billion in annual government funding of the National Rifle Association, an organization that, unlike Planned Parenthood, exists solely to defend an actual constitutional right.

On a final note, Republicans controlled both houses of Congress and the presidency for the past two years and could have tackled this issue by passing legislation to prevent government funding of Planned Parenthood. They failed to do so.

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