Newly confirmed conservative Justice Brett Kavanaugh dealt a blow to anti-abortion advocates Monday in declining to hear a case that could have resulted in government funds being stripped from Planned Parenthood.
But advocates refrained from singling Kavanaugh out over the decision, instead saying that despite their disappointment over the decision they aim to use other means to cut off government funds from Planned Parenthood.
Marjorie Dannenfelser, the president of Susan B. Anthony List, said in a statement that the group was “disappointed” in the outcome. Kristan Hawkins, the president of Students for Life of America, called the decision a “missed opportunity” to answer a question over “whether abortion vendors have a right to taxpayer monies.” And Jeanne Mancini, president of March for Life, said that “complicated legal arguments don’t take away from the simple fact that a majority of Americans oppose taxpayer funding of abortion.”
Stripping government funding from Planned Parenthood has been a long-sought goal of anti-abortion groups. The Supreme Court’s decision not to take up the case leaves intact lower court decisions that allowed Planned Parenthood to continue to receive Medicaid funding in Kansas and Louisiana, where lawmakers had sought to undo it.
[Opinion: Brett Kavanaugh sides with liberal justices in declining to hear Planned Parenthood defunding case]
The decision over whether to take up the case fell short by one vote; four justices must agree to hear a case in order for it to receive a day before the high court. Kavanaugh, in his first major decision related to the issue of abortion, sided with three liberal justices and Chief Justice John Roberts.
“Some of us told you he’d be another Roberts,” Phil Kerpen, president of the conservative group American Commitment, tweeted about Kavanaugh.
But most anti-abortion organizations agreed with the point made by Justice Clarence Thomas in his dissent, that the case would have raised important constitutional issues and shouldn’t be dismissed just because it concerned the controversial topic of abortion.
The issue in question was whether patients on Medicaid who received medical care from places such as Planned Parenthood have the right to challenge a state’s decision to cut off funding from the organization. Lower courts have been split on such a question, and Louisiana and Kansas asked for a resolution. Justices Samuel Alito and Neil Gorsuch sided with Thomas in saying they believed the case should be heard.
Thomas in his dissent accused the other justices of avoiding the case because the issue of abortion was at play, saying the question at the heart of the case was more broad.
“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,’” he wrote.
Thomas went on to discuss other possible scenarios in which the issue could come up, saying that patients might be able to sue a state if it were to remove a doctor from receiving Medicaid payments for another reason.
“He really did pretty much lay it out there saying that the court is refusing to answer this question that is tangentially related to abortion because it has become such a toxic issue,” said Melanie Israel, research associate in the DeVos Center for Religion and Civil Society at the Heritage Foundation.
“Unfortunately because the question has huge ramifications we are now operating where states have disagreed and are operating under a different set of rules,” she added.
During his confirmation hearings, abortion rights groups warned that Kavanaugh would cast a deciding vote to overturn or weaken Roe v. Wade, the Supreme Court decision legalizing abortion in every state. Kavanaugh declined to say during his confirmation whether he believed Roe was wrongly decided, saying only that Supreme Court decisions to uphold abortion rights represented “precedent on precedent.”
Anti-abortion groups continue to support his nomination even after he was accused of committing sexual assault in high school and college.
Other than staking their hopes in the Supreme Court, abortion foes are leaning on the Trump administration to end federal grants from going to organizations that also provide abortions. The funds in question pay for services such as testing for sexually transmitted diseases and birth control, and anti-abortion groups say they free up funding for clinics to provide abortions. A handful of states are also asking the Trump administration to allow them to cut off Planned Parenthood from getting funds.
“There is that understanding that this is not the only way to go about it,” Israel said. “There is this end people are trying to achieve, but in the means there is more than one route. The Supreme Court is not the only potential place where there could be action on this.”
