Brett Kavanaugh and John Roberts Reject Two Cases Involving Planned Parenthood

WASHINGTON, DC – The Supreme Court on Monday refused to take two cases involving Medicaid lawsuits, with Justices Thomas, Alito, and Gorsuch expressing concern that some of their colleagues – likely meaning John Roberts and Brett Kavanaugh – are “abdicating our judicial duty” because the cases involve Planned Parenthood, which many Americans equate with abortion rights.

Petitioners for Supreme Court review must secure four out of nine votes for the Court to issue a writ of certiorari (“cert”), the technical legal vehicle for taking most cases. In these two important Medicaid cases, the petitioners received only three. Justice Clarence Thomas took the unusual step of writinga dissent from the denials of cert, joined by Justices Samuel Alito and Neil Gorsuch.

“One of this Court’s primary functions is to resolve important matters on which the courts of appeals are in conflict,” Thomas began, quoting Supreme Court rules. He noted that these cases “present a conflict on a federal question with significant implications: whether Medicaid recipients have a private right of action to challenge a State’s determination of ‘qualified; Medicaid providers under [federal civil rights laws.]”

“Five Circuits have held that Medicaid recipients have such a right, and one Circuit has held that they do not,” he observed, highlighting the “circuit split.”

Thomas continued:

This question is important and recurring. 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. Because of this Court’s inaction, patients in different States—even patients with the same providers—have different rights to challenge their State’s provider decisions.

“The question presented also affects the rights of the States,” he reasoned. “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.”

The three dissenting justices further noted that this disagreement over whether people can bring federal lawsuits on this issue implicates “fundamental questions about the appropriate framework for determining when a cause of action is available under §1983,” which is the primary federal civil rights law, making this “an important legal issue independently worthy of this Court’s attention.”

“The division in the lower courts stems, at least in part, from this Court’s own lack of clarity on the issue,” Thomas opined. He noted that lower courts refer to the Supreme Court’s shifting decisions as an “evolution in the law,” which is “a tactful way of saying that this Court made a mess of the issue.”

The longest-serving member of Supreme Court then changed gears, saying, “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 these cases are named ‘Planned Parenthood.’”

“That makes the Court’s decision particularly troubling, as the question presented has nothing to do with abortion,” he added, likely referring to the fact that Planned Parenthood is the largest abortion provider in the nation and typically brings lawsuits against all manner of abortion regulations.

“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.

“We are not ‘to consult popularity,” he quoted from the Federalist Papers, “but instead to rely on ‘nothing . . . but the Constitution and the laws.’”

The petitions are Gee v. Planned Parenthood of Gulf Coast, No. 17-1492, and Andersen v. Planned Parenthood of Kansas and Mid-Missouri, No. 17-1340, in the Supreme Court of the United States.

Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.