Brett Kavanaugh sides with liberal justices in declining to hear Planned Parenthood defunding case – Washington Examiner

Posted: Monday, December 10, 2018

In an early decision involving abortion, newly confirmed Supreme Court Justice Brett Kavanaugh sided with liberals in declining to hear a case that could have allowed states to defund Planned Parenthood in state Medicaid programs.

My colleague Kimberly Leonard has more background and details of the cases, but the basic gist is that lower court rulings prevented Louisiana and Kansas from blocking abortion provider Planned Parenthood from participating in Medicaid. The Supreme Court has now decided to pass on the cases.

Only four justices are needed to agree to grant a hearing on any case. So to stop it from reaching the high court, it took Kavanaugh siding with Chief Justice John Roberts and liberal justices.

Three conservative justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — all voted to hear the case.

Supreme Court watchers are hanging on every sign from Kavanaugh and Roberts as to how they may rule on abortion given the new makeup of the bench. While it’s difficult to assess what implications this particular decision says about their thinking on the issue, the decision not to hear these cases is at least noteworthy, as it suggests a certain level of caution on taking on contentious cases involving abortion in any way.

In a dissent, Thomas complained that the court wanted to shy away from the case because it involves Planned Parenthood, even though it doesn’t have any direct implications on abortion rights.

“So what explains the Court’s refusal to do its job here?” Thomas wrote. “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 … 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.”

This certainly does not sound like a majority that is chomping at the bit to overturn Roe v. Wade.

Update: One Supreme Court watcher writes: “As I recall the history of this case, the first vote for cert [i.e. certiorari — granting a hearing] would have taken place before Kavanaugh’s appointment — and Roberts would have had to refuse to vote for cert then as it only takes four votes to accept the case. I assume Kavanaugh did not want to be the late-arriving fourth vote for cert, and that’s a reasonable call for a brand-new justice to make. Less defensible is Roberts apparent concern about the atmospherics of taking a case with ‘Planned Parenthood’ in the title.”

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