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Commentary Law and Policy

Brett Kavanaugh Didn’t Save Planned Parenthood Funding, No Matter What Susan Collins Seems to Think

Jessica Mason Pieklo

On Monday, Justice Brett Kavanaugh voted to turn away two cases trying to kick Planned Parenthood out of Medicaid—but that doesn't mean he's suddenly friendly on abortion rights.

The U.S. Supreme Court on Monday turned away efforts by lawmakers in Kansas and Louisiana to defund Planned Parenthood, refusing to take two cases stemming from the Center for Medical Progress’ trumped-up “baby parts” video scandal.

The decision was a bit of a surprise. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch all would have taken the cases, presumably to endorse the defunding efforts. But newly installed Justice Brett Kavanaugh joined Chief Justice John Roberts and the liberal justices to cast what was likely the deciding vote to keep Planned Parenthood’s funding in place. The result was good news for Medicaid beneficiaries in Kansas and Louisiana who rely on the reproductive health organization.

The result was also apparently good news for Sen. Susan Collins (R-ME), who said she felt “vindication” of her vote to confirm Kavanaugh—because Monday’s decision somehow shows he won’t ultimately be the deciding vote to upend abortion access in the United States.

This, of course, is total nonsense.

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First let’s talk about what Monday’s decision was about—and what it was not about. The decision was about who can sue to enforce Medicaid benefits. The decision was not about the merits of conservative efforts to defund Planned Parenthood. This difference matters.

There were two cases before the Court, one from Kansas and one from Louisiana. Both involved efforts by conservative lawmakers to kick Planned Parenthood out of state Medicaid programs after anti-choice activist David Daleiden and his front group the Center for Medical Progress released in 2015 a series of deceptively edited videos that purported to show Planned Parenthood doctors and staff detailing how they sold fetal tissue in violation of federal law.

Both efforts failed, as trial courts and the Tenth and Fifth Circuit Courts of Appeals ruled that Planned Parenthood and individual Medicaid recipients could sue to block efforts to remove the organization from the Medicaid programs.

That is the essence of what these cases are about: whether providers and beneficiaries can challenge changes to state Medicaid programs. The plaintiffs in these cases just happen to be Planned Parenthood and individual Medicaid beneficiaries, which means the cases implicate both Medicaid coverage and reproductive health care.

The courts also determined that Planned Parenthood had shown it would likely be successful in its claims that the states had unlawfully terminated its Medicaid contracts. This portion of the ruling is also important, because it shows that if put to the test at trial, the states’ political justification for cutting Planned Parenthood out of the program wouldn’t meet the criteria laid out in the Medicaid statute for determining which providers can participate in it. In other words, the Medicaid statute makes it clear that providers can’t be excluded for purely political reasons, which is what the entire “baby parts” defunding wave was about.

The lower courts hadn’t actually ruled on the merits of Planned Parenthood’s challenge, though; they just ruled that those challenges were probably going to succeed. That’s still encouraging! But it’s as close as any courts got to passing judgment on the legality of those efforts, and not the same as a ruling on the merits of those efforts.

Monday’s decision by the Roberts Court to reject the Kansas and Louisiana cases leaves in place the appellate decisions maintaining Planned Parenthood funding. And that’s good news—not just because it means the thousands of Medicaid beneficiaries in Kansas and Louisiana can continue to rely on Planned Parenthood for care. The decision also helps to shore up the growing list of federal courts that have thwarted conservative efforts to kick the reproductive health-care provider out of state Medicaid programs. All of this is important, especially as the legal landscape around Planned Parenthood funding remains uncertain.

But the decision was not on the merits of conservative efforts to defund Planned Parenthood. Kavanaugh’s vote against taking the cases cannot be spun as a vote in favor of reproductive rights. In fact, cases challenging similar actions are currently pending in the federal courts, and Monday’s order has no impact on those cases. One such case out of Ohio, currently pending before the entire Sixth Circuit Court of Appeals, is well positioned to deepen the conflict thanks in part to a flurry of judicial appointments during President Donald Trump’s first term. If the circuit split intensifies, the Supreme Court could very well be asked to step back into the fight over Planned Parenthood funding.

If Collins thinks Kavanaugh’s vote Monday is a vote in favor of reproductive autonomy, she is as delusional as Gwyneth Paltrow claiming she mainstreamed yoga.  All Monday’s vote means is that the Court is not taking these specific cases and it is not diving into the issue of private rights of action under Medicaid at this time. That’s it. Kavanaugh’s vote certainly shouldn’t be read as an endorsement of abortion access, as Collins’ vindication remarks suggest.

Collins almost certainly knows this. She’s just hoping her constituents don’t.

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