Brett Kavanaugh Joins With Liberal Justices; SCOTUS Won’t Hear Planned Parenthood Defunding Cases

Newly confirmed Supreme Court Justice Brett Kavanaugh sided with the Court’s liberal wing in declining to hear cases regarding two states’ efforts to defund Planned Parenthood.

Both Louisiana and Kansas have been trying to block Medicaid funding from going to the group. Their most recent efforts came after the 2015 release of a series of videos that anti-abortion activists say show Planned Parenthood officials discussing the sale of fetal tissue for profit. Several lower courts have ruled in favor of Planned Parenthood, but the states filed a writ of certiorari with the Supreme Court.

In order for the Court to grant this petition, four justices would have needed to agree to a hearing. Only three did: Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch. The rest denied the petition, with Kavanaugh and Chief Justice John Roberts joining liberal Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Stephen Breyer.

As USA Today notes, the Court’s decision is a “setback” for conservatives hoping to defund Planned Parenthood, which is the largest abortion provider in the nation. Still, as National Review‘s Alexandra DeSanctis notes, the Court’s decision had little to do with abortion funding itself:

The Supreme Court didn’t side with Planned Parenthood, nor did it preserve the abortion provider’s funding. It declined to hear the case at all, and the decision not to grant cert took no position on the merits of the case. Claiming that the decision in some way affirmed abortion funding is patently false.

Thomas claims that his colleagues were wary of inserting themselves into such a contentious issue. He wrote in his dissent:

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….But these cases are not about abortion rights. They are about private rights of action under the Medicaid Act. Resolving the question presented here would not even affect Planned Parenthood’s ability to challenge the States’ decisions; it concerns only the rights of individual Medicaid patients to bring their own suits.

Anti-abortion activists heavily favored Kavanaugh’s confirmation. “If Kavanaugh was going to deal a major blow to health care rights during his first session on the court, this would have been the case to do it,” Tim Jost, an emeritus professor at Washington and Lee University School of Law, tells Politico.

Of course, Supreme Court justices don’t always vote the way people expected them to. Former Justices Sandra Day O’Connor and Anthony Kennedy, for instance, were both chosen by the conservative President Ronald Reagan. But both voted with their liberal colleagues on some key issues. And David Souter was nominated by George H.W. Bush, but he ended up taking mainly liberal stances.