Conservatives Perplexed by Supreme Court’s Refusal to Hear Planned Parenthood Case

December 11, 2018 Updated: December 11, 2018
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News Analysis

Conservatives were taken aback Dec. 10 when the Supreme Court unexpectedly handed Planned Parenthood a victory by refusing to consider a potentially politically consequential state appeal of a lower court ruling.

That decision sided with Planned Parenthood after Republican state leaders in Kansas and Louisiana took state Medicaid funds away from the abortion provider.

Four of the nine Supreme Court justices needed to vote to hear the case for it to make its way onto the court’s docket but only three did so. Justice Brett Kavanaugh and Chief Justice John Roberts sided with their four liberal colleagues in turning aside the appeal.

Justice Clarence Thomas filed a passionate dissent to the majority’s decision to deny review. The court missed an opportunity to clarify conflicting circuit court decisions that affect the legal rights of the approximately 70 million Americans on Medicaid, Thomas said. Some of those individuals’ rights are being abridged under the status quo.

Two other conservative justices, Samuel Alito and Neil Gorsuch, joined in the dissent.

One of the key reasons that left-leaning lawmakers claimed for opposing Kavanaugh’s nomination was they feared he may vote to overturn or somehow weaken the court’s landmark ruling from 1973, Roe v. Wade, that struck down as unconstitutional laws that criminalized or restricted access to abortions.

Kavanaugh’s vote in this case has fueled speculation that he may be more friendly to abortion rights than Democrats expected. It’s possible that after the most contentious Supreme Court confirmation process in the modern era, Kavanaugh didn’t feel like rocking the judicial boat or confirming Democrats’ worst fears.

Commentator Daniel J. Flynn of the American Spectator takes a more critical view:

“Why did Brett Kavanaugh side with the court’s liberals in refusing to take a case that threatened to allow states to defund Planned Parenthood? Maybe because he told Senator Susan Collins the truth [during the confirmation process] when he promised to defer to precedent rather than the Constitution.

“Perhaps Kavanaugh turns out to fulfill the dreams of his conservative backers. But precedent—Sandra Day O’Connor, John Paul Stephens, David Souter, etc.—exists for Republican appointees issuing liberal rulings. Democrat justices, strangely, almost never offer surprises to their party’s base.”

Conservatives and others appeared mystified by the Dec. 10 decision after the conservative movement came through for President Donald Trump and made sure that newly appointed conservative Justice Kavanaugh was confirmed in the face of multiple–albeit unproven—accusations of sexual improprieties against the then-nominee and an unprecedented push by the mainstream media to prevent the confirmation.

If Kavanaugh wanted to have a major impact on health care policy “during his first session on the court, this would have been the case to do it,” Tim Jost, an emeritus professor at Washington and Lee University School of Law, told Politico.

Conservatives were less surprised by the decision of Roberts to take a pass on the case. Roberts infuriated conservatives when he provided the deciding vote in 2012 in the 5-to-4 split decision known as National Federation of Independent Business v. Sebelius, a ruling that upheld the Obamacare statute.

For the first time in the nation’s history, the court found that Americans could be compelled to buy a product even if they didn’t want it. Conservatives mocked what they considered to be the tortured legal reasoning in the opinion written by Roberts in which a bare majority of the justices decided that the since-rescinded individual mandate to buy health insurance was a constitutional exercise of Congress’s taxing power.

In his dissent, Thomas, who himself almost had his confirmation derailed by unproven sexual allegations years ago, blasted his six colleagues for letting politics take priority over impartial adjudication.

“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.”

The case was brought by Jeff Andersen, acting secretary of the Kansas Department of Health and Environment, on appeal after losing in a lower court.

State Republicans were incensed after the Center for Medical Progress produced evidence that Planned Parenthood was extracting body parts from aborted fetuses and selling them. They sought to prevent any more funds from flowing to a nonprofit organization they deemed immoral and corrupt.

Planned Parenthood sued and convinced the U.S. Court of Appeals for the Fifth Circuit to allow Medicaid recipients to challenge its disqualification as a provider under the law governing Medicaid, a jointly funded state-federal health care program.

Various federal circuit courts have issued contradictory rulings on the issue, prompting Thomas to lay blame on the Supreme Court itself.

“The division in the lower courts stems, at least in part, from this court’s own lack of clarity on the issue,” Thomas wrote. “We created this confusion. We should clear it up.”