This post first appeared at Fellowship of the Minds
Et tu, Kavanaugh?
Medicaid is a government welfare program that provides health care services for “the poor”. Jointly funded by the states and the federal government, Medicaid is largely administered by the states. About 70 million people — one out of every five Americans — are enrolled in the program, including two million women who use Planned Parenthood clinics.
Planned Parenthood is America’s largest abortion provider.
Two states, Kansas and Louisiana, seek to exclude Planned Parenthood (PP) from their Medicaid “health care” providers, after a series of undercover videos show PP abortion clinics engaged in illegal sales of fetal tissue for allegedly medical research. In the words of Jeanne Mancini, the president of March for Life: “Abortion is not healthcare, it is a human rights abuse. Until Planned Parenthood ceases to perform abortions they should not receive any money from taxpayers.”
Kansas and Louisiana brought suit to in an effort to exclude Planned Parenthood from Medicaid, but preserve their Medicaid funding. The cases are Andersen v. Planned Parenthood of Kansas and Mid-Missouri (17-1340) and Gee v. Planned Parenthood of Gulf Coast Inc. (17-1492). But their cases were tossed by lower courts.
Similar defunding laws in Arizona, Ohio, Texas, and Indiana have also been tossed by the lower courts. Only Arkansas’ law has been allowed to go into effect, but that is being challenged in the courts.
To quote Andersen v. Planned Parenthood of Kansas and Mid-Missouri: (pp. 1-2)
Medicaid offers the States a bargain: Congress provides federal funds in exchange for the States’ agreement to spend them in accordance with congressionally imposed conditions…. When a state fails to comply with the terms of Medicaid, the statute provides one remedy: the U.S. Secretary of Health and Human Services may withhold funds from the state…. [T]he Tenth Circuit below held that §23(A) of the Medicaid Act…requires states to provide in their administrative plans the ability of eligible patients to obtain services from “any institution, agency, community pharmacy, or person, qualified to perform the service or services required…who undertakes to provide him such services.” 42 U.S.C. §1396a(a)(23)(A). Although the Medicaid Act elsewhere grants a state substantial leeway in deciding when to exclude individual providers from the Medicaid program, see id. §1396a(p)(1), the Tenth Circuit’s decision permits patients to challenge those decisions in federal court….
Fox News reports that on Monday, December 10, 2018, in a 6-3 decision, the Supreme Court declined to review the appeals from Kansas and Louisiana, effectively giving a victory to Planned Parenthood.
The Court’s newest justice, Brett Kavanaugh, cast the deciding vote.
Dr. Leana Wen, president of Planned Parenthood Federation of America, crowed: “We are pleased that lower court rulings protecting patients remain in place. Every person has a fundamental right to health care, no matter who they are, where they live, or how much they earn.”
The three conservative justices who dissented are Clarence Thomas, Samuel Alito and Neil Gorsuch. They maintain the Supreme Court should get involved in the legal fight on states’ rights grounds. Justice Clarence Thomas said: “These cases are not about abortion rights. They are about private rights of action under the Medicaid Act. Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty.”
The six members voting to deny the petitions did not comment. They are the four “liberals” (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) and two other ostensibly conservative members—Kavanaugh and Chief Justice John Roberts.
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