Justice Brett Kavanaugh and Chief Justice John Roberts voted with the court\u2019s liberals in declining to hear a case that could have cut off funding for Planned Parenthood.<\/b>
\nOnly formalities stand in the way of the Supreme Court, as currently constituted, slashing abortion rights as we know them, which is why the court\u2019s punting on two choice-related cases came as something of a relief for progressives on Monday morning. Planned Parenthood is celebrating today\u2019s win, which ensures that Medicaid patients can continue to choose its affiliates to get their birth control and their tests for sexually transmitted infections and cervical cancer.
Accusing the Court of a \u201crefusal to do its job,\u201d archconversative Justice Clarence Thomas wrote in his dissent from the order: \u201cI suspect it has something to do with the fact that some respondents in these cases are named \u2018Planned Parenthood.\u2019 That makes the Court\u2019s decision particularly troubling.\u201d An order that elicits a dyspeptic dissent from Thomas, co-signed by Samuel Alito and Neil Gorsuch, and accusing his colleagues of cowardice has got to be a good one for liberal policy priorities, right?
But pro-choice advocates are reluctant to read too much into Kavanaugh\u2019s vote. \u201cI don\u2019t think this is a harbinger of what\u2019s to come,\u201d says the ACLU\u2019s Brigitte Amiri. \u201cTo the extent that people are saying that this shows where the Supreme Court, newly configured, is going to be on access to abortion questions, this case does not present that.\u201d
That\u2019s because the two cases the court declined to hear involve interpretations of Medicaid law, not the right to access an abortion or how states can regulate it. They involve challenges to moves in Kansas and Louisiana, among many other states, to prevent Medicaid patients from choosing Planned Parenthood for non-abortion services. (Disclosure: I have given paid speeches to Planned Parenthood affiliates about my book, including the Gulf Coast affiliate that is one of the parties in this case.) The challenger\u2019s argument is that the restrictions violate Medicaid\u2019s provisions that allow people to freely choose their participating provider. The states in question respond that patients have no such right to sue them.
If you\u2019re unfamiliar with the intricacies of the abortion wars, that refers to the secret-camera videos made back in 2013 by James O\u2019Keefe acolyte David Daleiden. States were defunding Planned Parenthood before the videos, and after them. And even on their own terms, the videos failed to yield any evidence of criminality. In fact, over a dozen states investigated \u2014 including Kansas, Missouri, and Louisiana, the litigants in these cases \u2014 and have until this day brought no charges. And despite the fondest dreams of their anti-abortion allies and the urging of Republicans in Congress, even Jeff Sessions\u2019s Department of Justice has done nothing after looking into it.
In the end, the decision by Kavanaugh \u2014 particularly so soon after being the subject of sexual-assault allegations \u2014 and Roberts not to wade into this particular muck may mean nothing more than the fact that one or both of them would prefer a different battle. But when it comes to this Supreme Court, even a less-bad day is a good one.<\/p>\n