New Supreme Court weighs whether to hear its first abortion-related case
WASHINGTON — The Supreme Court is weighing whether to hear its first abortion-related appeal with newly seated Justice Brett M. Kavanaugh.
The case involves whether states may exclude Planned Parenthood clinics from the Medicaid program that provides health care for low-income women. Access to abortion is not directly at issue, but some states object to providing funds to any organization that performs them.
The justices met Friday to consider for a third time appeals in two Planned Parenthood cases and several others that may divide the court along ideological lines. In addition to the Medicaid cases, the justices are considering two cases that involve religion: One tests the constitutionality of a 40-foot cross that stands at a busy public intersection, and the other asks whether a high school football coach who is a devout Christian has a free-speech right to kneel in prayer on the field at the end of a game.
How the court deals with the appeals may give an early clue about whether Chief Justice John G. Roberts Jr., with a new, more solidly conservative majority, is ready to move the law to the right, or instead will seek to steer away from cases that produce sharp ideological splits.
The justices announced no action Friday and could delay a decision for another week or more.
Cheering on the pending appeals are the top state attorneys from Republicanled states. On all three subjects — Planned Parenthood, the cross and the praying coach — the attorneys for 12 or more states joined briefs urging the justices to grant the appeals and reverse liberal rulings by lower courts.
At issue in the Medicaid cases involving Planned Parenthood is a long-standing legal conflict between a patient’s right to choose her medical provider and a state’s right to decide on the use of state subsidies.
Since 2012, lawmakers in Indiana, Arizona and other states have sought to “defund” Planned Parenthood because it is the largest provider of abortions, even though the group may not use federal funds, including Medicaid, to perform the procedures.
States have been blocked repeatedly by federal judges, however. In a series of rulings, judges cited a provision of the Medicaid Act that says eligible patients may go to any doctor’s office, hospital or clinic which is “qualified to perform” the required medical services. More than 2 million women across the nation go to Planned Parenthood clinics for birth control and general health care, including pregnancy tests and screening for breast and cervical cancer.
In the past, the Supreme Court has turned away appeals from Indiana and Arizona after they were blocked from denying Medicaid funds to Planned Parenthood. Pending before the justices now are similar appeals from Kansas and Louisiana. And this time, the states have a much better chance of winning a review.
“These cases have gone under the radar, but they are very significant,” said Steven Aden, legal director for Americans United for Life, an anti-abortion group. “We think they have a pretty good shot.”
He cited two reasons for his optimism. The 8th Circuit Court based in St. Louis broke with the other U.S. appeals courts and refused last year to block Arkansas’ ban on Medicaid funding for Planned Parenthood. Such a division among the lower courts often prompts the high court to take up an issue. And Justice Kavanaugh is seen as more likely than former Justice Anthony M. Kennedy to join a conservative majority siding with the states.
Indiana and 14 other states joined in support of the Kansas appeal. Their lawyers argued that because Medicaid is a spending program funded jointly by the states and the federal government, the states can decide who is a qualified provider.
But a district judge in Kansas and the 10th Circuit Court in Denver agreed with Planned Parenthood that its patients have a right to choose its clinics for their health care.