As happens with all things abortion related, political Twitter erupted when the news broke that the Supreme Court declined to take up two cases in which Planned Parenthood was a party. Six of the nine justices voted to deny certiorari in Gee vs. Planned Parenthood of Gulf Coast, Inc. and Andersen v. Planned Parenthood of Kansas and Mid-Missouri. But while these cases do contain the trigger words “Planned Parenthood”, the denial of cert does not reflect the temperature of the Court on the issue of abortion.
The headlines, of course, cannot be expected to purvey nuance and boldly declared “SCOTUS Sides with Planned Parenthood”, leaving one side rejoicing in victory and the other angry and feeling betrayed. And yes, three conservative justices disagreed with the rejection (Alito, Thomas, and Gorsuch), but most notable was that newly minted associate justice (and hoped/feared grim reaper to Roe v. Wade,) Brett Kavanaugh, voted to deny cert.
That two conservative justices agreed with the liberal justices to not hear the case should have given pause to both political factions: these cases are not what they seem. More pointedly, they are not specifically about abortion rights. In a nutshell, the controversy is whether or not an individual who receives Medicaid may sue their state’s Medicaid program if the program refuses to include a particular provider in their network. It just so happens that, in these cases, the provider in question is Planned Parenthood, but a ruling here would be applicable to all types of providers. If a Medicaid recipient’s regular family physician, cardiologist, pediatrician, what have you, is removed as a covered provider, the decision here would dictate whether you, the Medicaid beneficiary, have recourse against the program.
As it stands, five circuits, including those who decided Gee and Andersen, have ruled that yes, the beneficiary may sue; one circuit has said they may not. These two cases involve a federal question and a circuit split, which are precisely the kinds of cases the Supreme Court usually takes up. Because certiorari is summarily denied without explanation, we are left to speculate why the majority voted to decline. But we do have an explanation from the dissenters for their position. As pointed out in the dissent, penned by Thomas, the failure of the Court to take up these cases leaves disparity from one state to the next, with Medicaid recipients in one state having less rights than those of another. Furthermore, explains Thomas, the Court’s failure to act leave states open to federal lawsuits and the attendant burdens and costs thereof. Thomas goes on to speculate that his colleagues simply wished to avoid handling the political hot potato.
There are legitimate concerns among pro-choice groups about the consequences, had SCOTUS taken these cases and sided with the states, as it would theoretically open the door to the unfettered removal of all abortion providers from enrollment with the program. Under current law, however, nearly all state Medicaid programs cover medically indicated abortions (rape, incest, and/or life of the mother).1 Furthermore, Medicaid law requires that the program pay for covered services provided by “any institution, agency, community pharmacy, or person, qualified to perform the service or services required.” So the ramifications of this decision-or rather, the lack thereof-are of much broader concern than simply abortion access.
But because most of the lay public is not going to take the time to inquire into the real substance of these cases, the takeaway has mostly been either disappointment/pleasant surprise at what is perceived as Kavanaugh’s failure to be the anti-abortion hero/villain many believed he would be, or a celebration/lamenting of a “win” for Planned Parenthood. It is neither of those things. It is, from a legal standpoint, nothing more than a declination of a chance to settle a conflict of law among the various circuits.
If, as Thomas and some others have accused, the Court is simply punting on a controversial issue it wants to avoid right now, this is a dereliction of duty. Granted, the Court cannot grant certiorari on every petition brought before it, even when there is a disagreement among circuits. But there are over 70 million Americans on Medicaid, and at stake in this case is a significant due process right.
The dissenters have it right on this one.
- Because Medicaid dollars are only permitted to be used for medically necessary services, it does not cover elective abortions in any state. [↩]