Much has been made in the past week — on conservative talk radio and among the rest of the punditry — of the Supreme Court’s refusal to grant cert on an “abortion case” in which two lower federal courts had ruled that states violated federal law when they terminated Medicaid contracts with Planned Parenthood affiliates. Some have gone so far as to decry Justices Kavanaugh and Roberts as traitors to the cause for their “no” votes. This is probably an exaggeration, stemming from a misread of the underlying issues in the case. And who can really blame them for this misread? After the grant of cert was denied, CNN published an article titled “Supreme Court sides with Planned Parenthood in funding fight.” The CNN article went on to describe the actual legal question at issue in the case, but headlines can prime readers to believe an article is saying something other than what is buried in its later paragraphs.
So, did Roberts and Kavanaugh join with the three liberal Justices on the Court in “siding with Planned Parenthood” on an abortion funding fight? No, not so much. They did, however, avoid ruling on a case that is connected to the abortion zeitgeist by virtue of the Planned Parenthood being the named respondent in the case.
The real issue in the case was whether Medicaid recipients themselves have standing in federal court to challenge a state’s determination of what groups do and do not qualify for Medicaid funds. The issue dealt with abortion only insofar as the group denied Medicaid funds was Planned Parenthood. The legal issue that would have been decided in the case, however, had nothing to do with abortion law. At least, it had nothing more to do with abortion law than any other procedural measure that is necessary to the successful prosecution of a lawsuit in federal court.
Justice Thomas wrote for the dissent from the denial of cert, stating that the job of the Court was to resolve “a conflict on a federal question with significant implications: whether Medicaid recipients have a private right of action to challenge a State’s determination of ‘qualified’ Medicaid providers under 42 U. S. C. §1396a(a)(23) and Rev. Stat. §1979, 42 U. S. C. §1983.” Justice Thomas called the question “important and recurring,” given that 70 million Americans are on Medicaid and “the question presented directly affects their rights,” and argued that the question was of paramount importance because a ruling in favor of the majority of circuit courts would lead to the result that “Medicaid patients could sue when, for example, a State removes their doctor as a Medicaid provider or inadequately reimburses their provider.”
Justice Thomas concluded by chastising the Court for the majority’s “refusal to do its job,” which he argued could be blamed on the fact that “some respondents in this case are named Planned Parenthood.”
In other words, Justices Kavanaugh and Roberts punted on an important question of civil procedure, but they did not side with Justices Breyer, Ginsburg, Kagan, and Sotomayor in fortifying the rights of abortion providers or siding against pro-life causes with precedent-setting constitutional jurisprudence. This is not to say that they will not do so in the future, but as of yet they have done no such thing.
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