The Supreme Court Building in Washington, DC. Photo taken by Tim Sackton (CC-By-SA 2.0).
The Supreme Court of the United States Building
Photo credit: Tim SacktonĀ (CC-By-SA 2.0)

The Supreme Court denied a petition of a writ of certiorari on Monday in Gee v. Planned Parenthood of Gulf Coast, Inc. The decision allows lower court decisions in Gee, as well as, Andersen v. Planned Parenthood of Kansas and Mid-Missouri that struck down laws in Louisiana and Missouri defunding Planned Parenthood of Medicare funds to stand.

It only takes four justices to agree to hear a case, but, unfortunately, Chief Justice John Roberts and Associate Justice Brett Kavanaugh joined the liberal wing of the Court to deny a hearing for that case.

To say this is disappointing would be an understatement.

Associate Justice Clarence Thomas wrote a dissenting opinion about the Court’s order joined by Justices Samuel Alito and Neil Gorsuch.

Thomas noted that there is division among the circuit courts about the federal question of “whether Medicaid recipients have a private right of action to challenge a Stateā€™s determination of ‘qualified’ Medicaid providers.” He noted that five circuit courts said yes, one has said no, and the rest have been divided on the matter.

When there is such conflict the Supreme Court must weigh in on such matters. He also noted that states’ rights are in question and many states are awaiting guidance from the Court.

Not addressing this question puts states in a difficult position he argued.

“Under the current majority rule, a State faces the threat of a federal lawsuitā€”and its attendant costs and feesā€” whenever it changes providers of medical products or services for its Medicaid recipients,” Thomas wrote. 

“State officials are not even safe doing nothing, as the cause of action recognized by the majority rule may enable Medicaid recipients to challenge the failure to list particular providers, not just the removal of former providers,” he added.

“Moreover, allowing patients to bring these claims directly in federal court reduces the ability of States to manage Medicaid, as the suits give Medicaid providers ‘an end run around the administrative exhaustion requirements in [the] stateā€™s statutory scheme,'” Thomas argued.

He said that the Supreme Court has made a mess of this issue and lower courts are not sure which of their related decisions are binding.

Thomas then asks a question which gets to the heart of the matter:

So what explains the Courtā€™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 ā€œPlanned Parenthood.ā€ That makes the Courtā€™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 ParenthoodĀ affiliates had, among other things, engaged in ā€œthe illegal sale of fetal organsā€ and ā€œfraudulent billing practices,ā€ and thus removed Planned Parenthood as a state Medicaid provider…Ā 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 Parenthoodā€™s ability to challenge the Statesā€™ decisions; it concerns only the rights of individual Medicaid patients to bring their own suits.

Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty. If anything, neutrally applying the law is all the more important when political issues are in the background.Ā 

Thomas’ dissent is spot on. The Supreme Court refused to do its job and apparently will not hear cases dealing with Planned Parenthood even if they are not related to abortion.

As far as Roberts and Kavanaugh are concerned how does denying certiorari reflect originalist thought? They have made Planned Parenthood untouchable which is ludicrous. The Court will eventually have to face this issue, and I hope Roberts and Kavanaugh will recognize this and act accordingly in the future. Or will we have to wait for a third Supreme Court appointment by President Donald Trump who will be, hopefully, someone who has the courage of conviction? I suspect had Amy Coney Barrett been the nominee instead of Kavanaugh the Court would hear this case. 

Photo credit: Tim Sackton (CC-By-SA 2.0)

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