Posted on 12/12/2018 8:19:29 AM PST by SeekAndFind
On Monday, the Supreme Court refused to consider cases involving states' ability to decide whether certain health providers are eligible for Medicaid reimbursements. Conservative justices Clarence Thomas, Samuel Alito, and Neil Gorsuch rebuked their colleagues for refusing to take up the issue due to a tenuous connection with Planned Parenthood.
"Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty," Thomas wrote in a scathing dissent joined by Alito and Gorsuch. "If anything, neutrally applying the law is all the more important when political issues are in the background."
The Supreme Court refused to consider the cases Gee v. Planned Parenthood of Gulf Coast and Andersen v. Planned Parenthood of Kansas and Mid-Missouri. This means more than a majority of the Court — six justices — decided against hearing the cases. The fact that neither Chief Justice John Roberts nor Associate Justice Brett Kavanaugh joined the dissent suggests that the conservative majority was divided on the issue.
Both cases involved affiliates of Planned Parenthood, but they dealt with a much broader issue. As Thomas put it, "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."
Despite the politically charged involvement of Planned Parenthood, the cases fundamentally revolve around whether or not Medicaid recipients can sue their states over whether or not the state allows their medical providers to receive Medicaid reimbursements. As Thomas noted, "the question is important and recurring."
"Around 70 million Americans are on Medicaid, and the question presented directly affects their rights. If the majority of the courts of appeals are correct, then Medicaid patients could sue when, for example, a State removes their doctor as a Medicaid provider or inadequately reimburses their provider," Thomas noted.
"Under the current majority rule, a State faces the threat of a federal lawsuit—and its attendant costs and fees— whenever it changes providers of medical products or services for its Medicaid recipients," the justice explained. "Not only are the lawsuits themselves a financial burden on the States, but the looming potential for complex litigation inevitably will dissuade state officials from making decisions that they believe to be in the public interest."
To make matters worse, "State officials are not even safe doing nothing, as the cause of action recognized by the majority rule may enable Medicaid recipients to challenge the failure to list particular providers, not just the removal of former providers."
District courts have reached differing conclusions on the issue, and they desperately need guidance from the Supreme Court, Thomas claimed. "Courts are not even able to identify which of our decisions are 'binding.' ... One can hardly blame the Tenth Circuit for misunderstanding. We created this confusion. We should clear it up."
So why did the Supreme Court refuse to consider these key cases?
Thomas suggested the Court's decision "has something to do with the fact that some respondents in these cases are named 'Planned Parenthood.'" Ye the cases do not involve abortion.
"It is true that these particular cases arose after several States alleged that Planned Parenthood affiliates had, among other things, engaged in 'the illegal sale of fetal organs' and 'fraudulent billing practices,' and thus removed Planned Parenthood as a state Medicaid provider," Thomas admitted.
"But these cases are not about abortion rights. They are about private rights of action under the Medicaid Act," he explained. "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."
While many conservatives rightly fault Supreme Court justices for engaging in activism, the situation here revolves around the Court refusing to carry out its duty to act on an issue. This unconstitutional "act of omission" is just as bad as an "act of commission," Thomas argued.
"The Framers gave us lifetime tenure to promote 'that independent spirit in the judges which must be essential to the faithful performance' of the courts' role as 'bulwarks of a limited Constitution,' unaffected by fleeting 'mischeifs.' We are not 'to consult popularity,' but instead to rely on 'nothing...but the Constitution and the laws,'" the justice declared.
The Court did not just have the ability to address this important states' powers issue on Medicaid, it had the duty to do so. "We are responsible for the confusion among the lower courts, and it is our job to fix it," Thomas wrote.
This case might bode ill for conservatives, suggesting that John Roberts and Brett Kavanaugh might fear to address potentially controversial but important issues. The refusal to take up this case represents a dereliction of the Supreme Court's constitutional duty, and it should be a black mark on Roberts' and Kavanaugh's records.
We have a 4-2-3 court.
4 leftists, 2 fence sitters and 3 conservatives.
Too many top-shelf Republicans secretly love abortion because they’re afraid of their wives.
Rush was right.
There are 327 million people in the United States. 70 million is a hell of a lot of people on Medicaid.
the situation here revolves around the Court refusing to carry out its duty to act on an issue. This unconstitutional “act of omission” is just as bad as an “act of commission,” Thomas argued.
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Exactly as they failed to stop the Kenyan from Indonesia from usurping the Presidency.
I observe that the Medicaid reimbursement issue may indeed re-emerge in another context, and the Court should take up the issue. That does not make Kavanaugh’s decision against hearing this case any more reassuring to pro-life Americans, however.
The justice’s decision not to hear Gee v. Planned Parenthood does not reveal him as a supporter of the nation’s largest abortion provider, but it does signal that Brett Kavanaugh is unwilling to address important issues before the Court, merely because of their tangential connection to a controversial political issue.
This bodes ill for the prospect of the Supreme Court taking up an abortion case that might challenge Roe v. Wade, and it may even suggest that Kavanaugh would be unwilling to join a majority striking down the Roe v. Wade ban on state abortion laws.
Furthermore, the fact that Gee v. Planned Parenthood involved states’ rights on the Medicaid funding issue suggests that Kavanaugh would take the politically “safe” side on another states’ rights issue — namely whether states could outlaw abortion.
The justice’s decision not to stand for states’ rights here may suggest a reticence to fight for states’ rights and repeal Roe v. Wade.
When millions of pro-life Americans cheered at Kavanaugh’s confirmation, they likely hoped that he would join the fight to restore states’ rights on the abortion issue. The justice dealt a tragic blow to that hope on Monday.
When I heard Susan Collin’s reasons for voting FOR Kavanaugh, I was already disturbed because she cited his reluctance to overturn past the Supreme Court decision on Roe v. Wade as one of her reasons for voting for him.
The Christine Blasey Ford issue was really a side show. What should have been front and center was Kavanaugh’s judicial philosophy. I think Trump might have nominated a Justice Kennedy clone....
Kavanaugh had already asserted that RoevWade was “settled law” before he was confirmed. He’s not doing anything other than what he stated he would. My guess is he will fill the role that the swing voter Kennedy opened. No more and no less.
Is PP private or government?
It’s brutal that Kavanaugh did that after all that was risked for him. NO different than a Romney or a McLame spitting in the faces fo the rank and file.
It’s brutal that Kavanaugh did that after all that was risked for him. NO different than a Romney or a McLame spitting in the faces fo the rank and file.
In other words, not only would slimy John Roberts but now you might add a “me too” cowardly Brett Kavanaugh to those too fearful of broaching an untouchable like Planned Parenthood (what a joke is that term) but they don’t dare go anywhere near the “illegal alien’s rights” to steal us blind paying for whatever they want!
There are no fewer than three of these cases circulating in the circuit courts.
Despite the hoopla and the hysteria, they are NOT strictly about abortion, but rather about how Medicaid laws “involving” abortion can be restricted by states. In other words, how much authority do states have over federal programs.
In the Sixth District, an Arkansas law has prohibited the use of Medicaid funds for abortion.
The USSC in this case rejected hearing the case on grounds of “standing,” namely the people/group bringing the case are not the appropriate people/group to bring it. The underlying assumption by those who want to get past the hysteria is that the USSC wants several of these cases at once, which DO have standing, so it can make a broad ruling rather than piecemeal this.
Such a decision would have broad and sweeping ramifications for EVERYTHING related to state limits on Medicaid, including something as simple as crutches or medical marijuana.
In short, neither the critics nor the celebrants of this “decision” have anything to stand on yet.
But the case isn’t about abortion.
Or their daughter might need one some day.
I still believe a better case would be one with documented evidence of PP using medicaid money for abortions. Ruling on the IDEA of Medicaid being used for “low-income women’s healthcare” as a mandate from a state government is not one that I see as legally winnable and would likely expand Roe’s reach. Both under Roe and the 14th amendment.
Mark Levin was right..........certainly the fight for him was more than worthy but you simply need to look at his opinion that Obamacare is a tax and you’ll see that he’s going to side with Roberts a vast majority of the time.
RE: My guess is he will fill the role that the swing voter Kennedy opened. No more and no less.
If so, that is NOT what conservatives want. We do not want another Kennedy, we want another Scalia.
Too many top-shelf Republicans secretly love abortion because they’re afraid of their wives.
Or their side dish female interns at risk of pregnancy.
I am alarmed at the number 70 million on Medicaid. Thanks Obama.
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