Op-Ed

If SCOTUS Is an 'Independent Judiciary' as Roberts Claimed, Why Did It Refuse To Hear Planned Parenthood Case?

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U.S. Supreme Court Chief Justice John Roberts recently publicly, candidly stated that he was thankful for an independent judiciary. But the Supreme Court’s denial on Monday to hear two cases involving whether states can determine who is a qualified provider under their state Medicaid programs inspire less than confidence in the Court’s independence.

The legal question in the cases is narrow and asks whether the Medicaid Act gives Medicaid patients a private right of action to sue in federal court over a state’s disqualification of their “preferred provider of choice.” It seems like a boring, in-the-weeds statutory interpretation question that might only inspire interest from D.C. policy wonks.

And it is, except for one thing: The named respondents in the cases were Planned Parenthood affiliates. These cases arose after Kansas and Louisiana decided to cut funds from the abortion giant in the wake of allegations of “the illegal sale of fetal organs” and “fraudulent billing practices.”

In an unusual move, Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, dissented from the Court’s denial of these cases.

Justice Thomas’s dissent provides a number of reasons why the Court, in ordinary circumstances, should and would have agreed to hear the cases. These include:

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– There is a conflict within the Circuits over the proper interpretation of the law.

– The Court “made a mess” of the area of law relating to private rights of action, and only the Court can clarify the confusion.

– The cases involve an “important and recurring” question.

– These lawsuits give Medicaid providers “an end run around” Medicaid’s administrative review process. Now, states face a constant threat of a federal lawsuit whenever they decide who is and is not a qualified Medicaid provider.

So why, then, did the Court refuse “to do its job”?

Justice Thomas’s answer: “It has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’” He calls the Court’s decision “particularly troubling,” especially since the cases are not about abortion or abortion rights — “(t)hey are about private rights of action under the Medicaid Act.”

Ironically, whether or not Medicaid patients have a private right of action does not change the fact that Medicaid providers, including Planned Parenthood, have a statutory right to a state administrative appeal of any disqualification decision made by a state.

An independent judiciary does not “consult popularity”; instead, it relies on “nothing … but the Constitution and the laws.” And as Justice Thomas notes, “neutrally applying the law is all the more important when political issues are in the background.”

Despite the denials Monday, the underlying issue is not going away. It seems likely that the Supreme Court will get another chance to resolve this issue. There is a pending case involving the same issue out of Texas currently in the Fifth Circuit Court of Appeals, and Kansas’s and Louisiana’s cases may eventually work their way back up to the Supreme Court as well.

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Let’s hope that next time the Court is faced with this issue, it will “do its job” and not let “(s)ome tenuous connection to a politically fraught issue” keep it from abdicating its “judicial duty.”

Catherine Glenn Foster is the president of Americans United for Life. 

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