By Dave Andrusko
On Monday morning a divided Supreme Court turned down challenges from Kansas and Louisiana to lower court decisions which rejected their attempts to reroute taxpayer funds away from Planned Parenthood and other abortion businesses to full-service health providers which do not perform abortions.
At least four justices must agree to take up a case. There were only three dissenters to today’s decision not to accept the appeal—Justice Clarence Thomas (who wrote the dissent) who was joined by Justices Samuel A. Alito Jr. and Neil M. Gorsuch.
While the decision not to take up the issues raised in the appeals at this juncture is disappointing, this does not necessarily mean the justices could not or will not address them later.
“One of this Court’s primary functions is to resolve ‘important matter[s]’ on which the courts of appeals are in conflict,’” Justice Thomas wrote, in this instance it was about “private rights of action under the Medicaid Act.”
Five Circuits have held that Medicaid recipients have such a right, and one Circuit [the 8th] has held that they do not. The last three Circuits to consider the question have themselves been divided. This question is important and recurring.
In light of the disagreement among circuit courts of appeal, Justice Thomas blasted the High Court for its “refusal to do its job.”
In striking down Kansas’s law, a 10th circuit three-judge panel conceded states have broad authority to ensure that Medicaid providers are qualified to provide medical services. “But this power has limits,” the ruling said. “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 healthcare it provides.”
Near the end of his dissent, Justice Thomas asks the rhetorical question, “So what explains the Court’s refusal to do its job here?” [Internal citations omitted for clarity]:
I suspect it has something to do with the fact that some respondents in these cases are named “Planned Parenthood.” That makes the Court’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 Parenthood … 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. … 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; it concerns only the rights of individual Medicaid patients to bring their own suits.