The Supreme Court on Monday rejected a suit against a Louisiana Planned Parenthood affiliate due, Justice Clarence Thomas argued in a dissent, to an unwillingness to go near the political third rail of abortion.
The case, Gee v. Planned Parenthood of Gulf Coast Inc., is not explicitly about abortion—in fact, it concerns the specifics of Medicaid law. Under the current system, Medicaid is administered by the states, using substantial funds from and plans approved by the federal government. The federal law that sets the standards for those plans stipulates in part that Medicaid recipients can obtain "assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required… who undertakes to provide him such services."
In 2015, amid the controversy surrounding the Center for Medical Progress's investigation into the sale of fetal body parts by Planned Parenthood, the state of Louisiana investigated Planned Parenthood of Gulf Coast, the state-level PP affiliate, and then terminated its Medicaid provider status. In response, PPGC sued in federal court, alleging that Louisiana had deprived three anonymous co-plaintiffs of their federal statutory right to "to choose to receive their medical care from any qualified and willing provider."
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The case made its way through federal court, as did several similar ones in parallel federal circuits. But on Monday, SCOTUS declined to hear either Gee or sister case Andersen v. Planned Parenthood of Kan. and Mid-Missouri. The denial of certiorari got the backing of six out of nine justices, including conservatives Roberts and Kavanaugh.
But Thomas, joined by Alito and Gorsuch, dissented, insisting that it was the Supreme Court's duty to consider such prominent cases in which the federal circuits courts of appeal were divided. Failure to do so, he contended, would substantially harm Medicaid recipients, the states seeking guidance from the Supreme Court, and the practice of statutory interpretation going forward.
"This question is important and recurring. Around 70 million Americans are on Medicaid, and the question presented directly affects their rights," Thomas wrote. "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."
This failure to act, Thomas claimed, can only be for one reason.
"What explains the Court's refusal to do its job here?" he wrote. "I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.'"
This, he argued, is nonsensical, as the case does not touch on abortion directly, only the right of Medicaid patients to access clinics which are otherwise in the business of providing it.
"Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty. If anything, neutrally applying the law is all the more important when political issues are in the background," Thomas concluded. "We are responsible for the confusion among the lower courts, and it is our job to fix it. I respectfully dissent from the Court's decision to deny certiorari."
Kevin Theriot, senior counsel with the public interest legal group Alliance Defending Freedom, told the Free Beacon that he agreed with Thomas's conclusion. Theriot, who co-authored an amici curiae brief supporting Louisiana and on behalf of 27 "family policy" organizations, said that Thomas "hit the nail on the head."
"I think this is just another example that the rules change when abortion is involved. Normal rules for every other situation get bent, and that's always a problem," Theriot said.