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The Supreme Court’s surprising decision on Planned Parenthood, explained

The way Justices Kavanaugh and Roberts voted could say a lot about the Court in the wake of the Kavanaugh confirmation fight.

Supreme Court Justice Brett Kavanaugh participates in a ceremonial swearing in on October 8, 2018 in Washington, DC
Supreme Court Justice Brett Kavanaugh participates in a ceremonial swearing in on October 8, 2018, in Washington, DC.
Alex Wong/Getty Images

The Supreme Court on Monday declined to take up two cases that could have given states broader leeway to strip funding from Planned Parenthood.

By denying certiorari in Gee v. Planned Parenthood of Gulf Coast and Andersen v. Planned Parenthood of Kansas and Mid-Missouri, the Court let stand lower court rulings that states cannot ban Planned Parenthood from receiving Medicaid reimbursements when the group treats low-income patients. A number of states had sought to institute such bans in recent years.

Planned Parenthood praised the Court’s decision, as the group has long argued that restricting Medicaid payments would jeopardize low-income patients’ access to potentially lifesaving services like cancer screenings and testing for sexually transmitted infections.

“We are pleased that lower court rulings protecting patients remain in place,” said Leana Wen, president of the Planned Parenthood Federation of America, in a statement to the media on Monday. “As a doctor, I have seen what’s at stake when people cannot access the care they need, and when politics gets in the way of people making their own health care choices.”

The Court’s decision also offers a glimpse into the inner workings of the Supreme Court in the aftermath of the confirmation of Justice Brett Kavanaugh. Kavanaugh joined the majority to allow the lower court’s decision to stand, leading some to speculate that he and others on the Court want to avoid cases related to abortion rights or Planned Parenthood for now after his bruising confirmation fight.

Justice Clarence Thomas said as much in his dissenting opinion, in which he also cited the claim that Planned Parenthood was engaged in the “illegal sale of fetal organs” — an unsubstantiated claim made by an anti-abortion group whose members were later charged with a felony.

The Court’s decision about Gee and Andersen doesn’t tell us how it would rule in a challenge to Roe, which could come at any time. But it does give us some clues about how the justices are approaching the issue of abortion today.

Monday’s decision shows some justices might be dragging their feet on abortion

Andersen v. Planned Parenthood came about because, in 2016, the state of Kansas announced its intent to bar Planned Parenthood from receiving Medicaid payments. It was one of several states to make such a move in the wake of hidden-camera videos released by an anti-abortion group called the Center for Medical Progress in 2015, which purported to show that Planned Parenthood was engaged in the illegal sale of fetal tissue for profit.

The videos, which, it was later revealed, had been edited prior to publication, did not prove that Planned Parenthood sold fetal tissue — the group said it only accepted enough money to cover costs, which is legal. A federal investigation and a number of state investigations also failed to find evidence of wrongdoing on Planned Parenthood’s part. Meanwhile, two Center for Medical Progress activists who filmed the videos face felony charges in California, accused of illegally recording people without their consent.

But Kansas remains committed to stripping funding from Planned Parenthood, and so when a federal appeals court ruled against the state’s Medicaid plan, Kansas appealed to the Supreme Court. On Monday, the Supreme Court declined to take up the case, which means the appeals court’s decision will stand. That court found that states could not simply cut off Medicaid reimbursements for Planned Parenthood or other providers “for any reason they see fit, especially when that reason is unrelated to the provider’s competence and the quality of the healthcare it provides.”

The story behind Gee v. Planned Parenthood of Gulf Coast is similar. Louisiana tried to cut off Medicaid reimbursements to Planned Parenthood in 2015, and in 2016, a federal appeals court ruled that the state could not do so. The Supreme Court’s decision on Monday lets that ruling stand.

In declining to take the cases, the Supreme Court’s four more liberal members — Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg — were joined by Kavanaugh and Chief Justice John Roberts, as Politico reports.

The fact that Kavanaugh voted to deny certiorari may come as a surprise to some. In the run-up to his confirmation, he was viewed by many as a reliable anti-abortion vote. Andersen and Gee don’t directly deal with abortion — Medicaid is already prohibited from paying for abortions in most cases, and the payments involved in the Kansas and Louisiana bans cover services like STI testing and contraceptive counseling. But the states were inspired by the Center for Medical Progress videos, and the entire controversy over funding for Planned Parenthood is, essentially, a controversy about abortion.

It’s possible that, after Kavanaugh’s confirmation battle, during which Christine Blasey Ford and other women said that the nominee had committed sexual misconduct against them, Roberts and Kavanaugh are wary of touching the abortion issue too soon. That’s what Thomas speculates in a dissenting opinion joined by Justices Samuel Alito and Neil Gorsuch.

“What explains the Court’s refusal to do its job here?” Thomas writes, referring to the majority’s decision not to take the cases. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’”

Thomas’s suggestion “sends an interesting signal in the legal fight over abortion rights,” writes Matt Ford at the New Republic. Advocates on both sides of the issue assumed Kavanaugh would provide conservatives on the Court with the votes necessary to overturn, or at least substantially weaken, Roe v. Wade, Ford notes.

But “Monday’s decision suggests that the damage inflicted on the court’s public image by Kavanaugh’s confirmation battle may have changed that calculus, and that a substantive move against abortion rights may be further away than many previously thought.”

It’s possible that, following a confirmation process that was far more difficult and controversial than they expected, Roberts and Kavanaugh may want to wait before taking up an abortion case. But that doesn’t mean the day will never come. And others on the Court may not want to wait forever.

Justice Thomas seems eager to forge ahead

In his opinion, Thomas, who has voted consistently against abortion rights, writes that Gee and Andersen “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.”

The opinion makes no mention of the fact that these allegations stemmed from edited videos whose producers are under indictment, and that no evidence to support them has ever been found.

By uncritically repeating the allegation that Planned Parenthood sells fetal tissue, as well as by chastising the majority for their decision not to take up the case, Thomas may be showing that he, at least, is ready to hear a challenge to Roe v. Wade. Alito and Gorsuch, Trump’s first Supreme Court appointee, may be ready as well.

During the 2016 presidential campaign, Trump boasted that he would appoint anti-abortion justices to the Supreme Court and Roe v. Wade would be overturned “automatically.” Monday’s decision shows that the process may be more complicated than that. But that doesn’t mean it won’t happen.