Three justices wanted to hear cases on Planned Parenthood

WASHINGTON — The Supreme Court on Monday refused to hear two cases arising from efforts by states to bar Planned Parenthood clinics from the Medicaid program, drawing a rebuke from three of the court’s conservative justices.

It takes four votes to add a case to the court’s docket, but the cases attracted only three — Justices Clarence Thomas, Samuel Alito and Neil Gorsuch. Neither of the court’s other conservatives — Chief Justice John Roberts and Justice Brett Kavanaugh — proved willing to supply a fourth vote.

In his dissent, Thomas questioned his colleagues’ motives. They had voted to duck the cases, he wrote, for the wrong reason.

“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.’”

But, he said, the cases are not about abortion rights, but only about whether individuals may sue to challenge decisions by states to withdraw funding from Planned Parenthood clinics.

“Resolving the question presented here would not even affect Planned Parenthood’s ability to challenge the states’ decisions; it concerns only the rights of individual Medicaid patients to bring their own suits,” Thomas wrote.

That issue warranted the court’s attention, Thomas wrote. Alito and Gorsuch joined in his dissent.

“This question is important and recurring,” he wrote. “Around 70 million Americans are on Medicaid, and the question presented directly affects their rights. If the majority of the courts of appeals are correct, then Medicaid patients could sue when, for example, a state removes their doctor as a Medicaid provider or inadequately reimburses their provider.”

“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.”

Though the general legal question of who may challenge funding decisions has no particular political implications, recent cases have involved efforts by state officials opposed to abortion to

cut off payments to Planned Parenthood clinics.

The two states were appealing lower-court rulings that had blocked them from withholding money that is used for health services for low-income women. The money is not used for abortions.

Abortion opponents have said Planned Parenthood should not receive any government money, and they seized on heavily edited videos that claimed to show the nation’s largest abortion provider profiting from sales of fetal tissue for medical research.

Planned Parenthood denied the allegations, saying the videos were heavily edited, misleading and discredited. Investigations sparked by the videos in several states didn’t result in criminal charges.

In letting stand two decisions that allowed patients to challenge state funding determinations, the Supreme Court effectively sided with Planned Parenthood.

In the cases the justices turned away Monday, from Kansas and Louisiana, appeals courts acknowledged

that states have broad power to decide which health care providers may supply services for the program. But that power has limits, the U.S. Court of Appeals for the 10th Circuit, based in Denver, ruled in the case from Kansas, Andersen v. Planned Parenthood of Kansas.

“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,” Judge Gregory Phillips wrote for a divided three-judge panel.

Five of the six appeals courts that have considered the issue sided with the clinics. The exception is the 8th Circuit, in St. Louis, which last year allowed Arkansas to withdraw Medicaid financing for Planned Parenthood. Disagreement among federal appeals courts often prompts Supreme Court review.

The court’s refusal to hear the Kansas and Louisiana cases doesn’t have any immediate effect on a similar case pending in Arkansas, except to dissolve Planned Parenthood’s reasons for asking that

its case be put on hold pending any U.S. Supreme Court decisions, attorney Bettina Brownstein of Little Rock said Monday.

Beyond that, she said, “I don’t know what we’ll do. I’d have to confer with my client.”

In October, Arkansas’ Planned Parenthood clinics asked U.S. District Judge Kristine Baker to halt movement in the Arkansas case until the U.S. Supreme Court decided whether to take up the other cases, saying any decision could significantly alter the issues in the Arkansas case.

In 2016, Baker ordered the state to restore Medicaid funding to the clinics while the lawsuit was pending, but the 8th Circuit vacated the injunction in 2017 with its ruling that individual Medicaid beneficiaries don’t have a private right to sue. A trial before Baker on whether the state’s discontinuation of Medicaid funding for Planned Parenthood services violates the Medicaid Act or the Constitution is set for February 2020.

SIDES’ ARGUMENTS

Lawyers for Kansas had urged the justices to resolve the dispute.

“More than 70 million people — one out of every five Americans — are enrolled in Medicaid,” they told the Supreme Court. “The 10th Circuit’s decision permits any one of them to challenge a termination decision of an individual provider in federal court.”

Planned Parenthood had told the high court that it was not necessary to review the lower-court decisions at this time.

The states say that the Medicaid program, a joint venture of federal and state governments to provide health care to poorer Americans, makes clear that only the secretary of the Health and Human Services Department can intervene, by withholding money from a state.