By Robert Barnes / The Washington Post
WASHINGTON — The Supreme Court declined Monday to review lower-court decisions that blocked state efforts to cut off public funding for Planned Parenthood, a move that suggests a majority of the court may be steering clear of controversial issues — at least for now.
New Justice Brett Kavanaugh did not join the court’s three most conservative members in calling to accept the cases. Justice Clarence Thomas rebuked his colleagues for what he said was a dodge, attributing it to their aversion to taking up the issue of abortion that lurked in the case.
“Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty,” Thomas wrote. “If anything, neutrally applying the law is all the more important when political issues are in the background.”
Thomas’s dissent from the court’s decision to pass on the case revealed a split among the court’s five conservatives: Justices Samuel Alito Jr. and Neil Gorsuch signed on to the statement. Kavanaugh and Chief Justice John Roberts Jr. did not.
It takes the votes of four justices to accept a case.
The action is another example in which Kavanaugh has laid low after his divisive confirmation hearings, after which he was narrowly approved in October on a largely partisan vote.
The contentious fight put the court in an uncomfortable political spotlight. Since then, the majority of justices have not exhibited a rush to tackle emergency requests from the Trump administration or take up controversial issues that have arisen from the lower courts.
The caveat is that justices know that there will be plenty of future opportunities – including in the very issue on which the court demurred Monday.
The cases, which the court has been pondering since September, have to do with whether individual Medicaid recipients who receive services from providers such as Planned Parenthood have a right to challenge a state’s decision to cut off funding to the providers.
Five regional courts of appeal have said they do, while one has said they do not. That is the kind of split that normally prompts the Supreme Court to act.
“What explains the court’s refusal to do its job here? I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood,’ ” Thomas wrote.
Louisiana and Kansas, the two states at issue in the cases before the court, announced plans to terminate funding for Planned Parenthood through Medicaid after an antiabortion group released videos in 2015 it said showed Planned Parenthood executives discussing the sale of fetal tissue.
Planned Parenthood denied the allegations, saying the videos were heavily edited, misleading and discredited.
The organization sued in federal court, joined by individuals who said the efforts to cut funding violated a federal law that gives Medicaid patients the right to seek service from the accredited providers they choose.
The U.S. Court of Appeals for the 10th Circuit, ruling in the Kansas case, said states have power in deciding which providers to fund. But “states may not terminate providers from their Medicaid program for any reason they see fit, especially when that reason is unrelated to the provider’s competence and the quality of the health care it provides,” a panel ruled.
The state asked the Supreme Court to review that ruling. “We regret today’s decision from the U.S. Supreme Court announcing that it fell one vote short of taking our case against Planned Parenthood,” Kansas Gov. Jeff Colyer, a Republican, said in a statement.
Thomas mentioned the videos in his dissent.
“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,” Thomas wrote.
“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.”
Planned Parenthood had told the high court that it was not necessary to review the lower-court decisions at this time.
“Every person has a fundamental right to health care, no matter who they are, where they live, or how much they earn,” Leana Wen, president of the Planned Parenthood Federation of America, said in a statement.
“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. We won’t stop fighting for every patient who relies on Planned Parenthood for lifesaving, life-changing care.”
Abortion opponents said they hope the court will take up the issue in future cases.
“AUL is disappointed that the Court declined to hear argument in these cases, and we join the dissent in calling on the Court to ‘do its duty,’ ” said Catherine Glenn Foster, president of Americans United for Life. “But the good news is that there are other similar cases pending in lower courts, which may give the Supreme Court another opportunity to decide this important issue.”
The cases are Gee v. Planned Parenthood of Gulf Coast and Andersen v. Planned Parenthood of Kansas and Mid-Missouri.
The court did decide to add a case to its docket that will please conservatives who think federal agencies have too much power.
The new case Kisor v. Wilkie involves the Department of Veterans Affairs, and asks the court to reexamine its 1997 decision in Auer v. Robbins, which said courts should defer to an agency’s interpretations of its own regulations.
Such agency deference has been criticized by conservative justices, including Thomas, Kavanaugh and Gorsuch.
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