Pro-life advocates said last week’s Supreme Court decision not to take a case about Planned Parenthood funding disappointed them, but they still have hope that this group of justices will eventually move to protect unborn babies.
Last Monday, the Supreme Court rejected Gee v. Planned Parenthood of Gulf Coast, originating from Louisiana, and Andersen v. Planned Parenthood of Kansas and Mid-Missouri, coming from Kansas. In both cases, state officials sought to reallocate Medicaid funds to organizations such as federally qualified health centers rather than Planned Parenthood, and the nation’s largest abortion provider (along with several of its clients) sued to keep its funding. Lower courts ordered the states not to defund Planned Parenthood despite the states’ argument that the abortion giant and its clients did not have standing to sue under Medicaid rules. In refusing to take the cases, the Supreme Court left in place the lower court orders that protected Planned Parenthood’s funding.
Planned Parenthood rejoiced at the decision, but pro-life advocates and three Supreme Court justices criticized the court as a whole for not doing its job.
“This is something that the states are asking for guidance on. It’s something that they need to know,” Catherine Glenn Foster, CEO of Americans United for Life, told me. “We believe they will sort it out sooner rather than later. But until they do, the states are really flying blind.”
Five different U.S. circuit courts have ruled individuals can sue states over a state decision about who can receive Medicaid patients, and one has ruled they cannot. The split in the circuit courts creates what Foster calls a “sweet spot” that the high court normally would address.
In an opinion dissenting from the decision not to take the case, Justice Clarence Thomas said the Supreme Court had “made a mess of the issue.” Justices Samuel Alito and Neil Gorsuch joined Thomas in his dissent, but fellow conservatives Chief Justice John Roberts and newly confirmed Justice Brett Kavanaugh did not
“We created this confusion. We should clear it up,” Thomas wrote. “So 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 this case are named ‘Planned Parenthood.’”
Thomas also noted that the case would not take away any legal rights from Planned Parenthood. “It concerns only the rights of individual Medicaid patients to bring their own suits,” he wrote.
Foster said the court’s decision to abstain from taking the case was a surprise, but she pointed out that Roberts, an incrementalist, might be looking to future cases that could define the issue more clearly.
“He’s a very measured man,” Foster said. “A very patient man; strong, strong legal mind. So he may be doing the same analysis we are, looking down the pipeline, what other cases are coming? We don’t know what he may be thinking or why this may be a denial.”
For now, individuals’ rights to challenge the states’ decisions about who gets Medicaid funding—including Planned Parenthood—depends on their respective circuit court. And with similar cases brewing in Texas and elsewhere, pro-life advocates agree the Supreme Court will eventually need to settle the question.
Kristan Hawkins, president of Students for Life of America told me this is a “wait-and-see game,” especially with regard to how Kavanaugh will vote on pro-life issues in the future.
“Let’s just continue to pray, and in the meantime hopefully let’s get another Supreme Court justice on,” she said. “A solid more-than-five majority for our goal, which is overturning Roe [v. Wade] and sending abortion back to the states.”