The Supreme Court passed on cases asking whether patients can sue states for excluding Planned Parenthood from state Medicaid funding. | Zach Gibson/Getty Images legal Kavanaugh, Roberts side with liberal judges on Planned Parenthood case

The Supreme Court on Monday declined to review whether states can block Planned Parenthood and other abortion providers from their Medicaid programs, passing on a pair of cases that would have served as the first major abortion test for the court’s new conservative majority.

Chief Justice John Roberts and the newest justice, Brett Kavanaugh, joined the court's four liberal jurists in turning away a pair of petitions from Kansas and Louisiana seeking the ban on abortion providers.


Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, dissented. It takes four justices to agree to accept a case.

Thomas, suggesting most of his colleagues were fearful of taking up a challenge involving Planned Parenthood, asserted the cases weren't about abortion rights but whether individuals have a right to challenge a state’s decision to cut a particular provider from its Medicaid program.

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“Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty," Thomas wrote. "If anything, neutrally applying the law is all the more important when political issues are in the background."

One federal appeals court previously ruled that Medicaid enrollees can't sue their states for blocking funding to Planned Parenthood. Monday's action by the Supreme Court doesn't affect that decision for states in that federal circuit.

States have tried to defund Planned Parenthood since a series of undercover videos in 2015 purported to show the women's health organization profiting off the sale of tissue from abortions. A series of investigations found no evidence of wrongdoing by Planned Parenthood, which has forcefully denied the claims made by anti-abortion activists behind the videos.

Justices had twice earlier this year declined to act on petitions in Andersen v. Planned Parenthood of Kansas and Mid-Missouri and Gee v. Planned Parenthood of Gulf Coast. The decision to refuse the cases came after Kavanaugh was confirmed as the ninth justice with strong support from anti-abortion activists.

Tim Jost, an emeritus professor at Washington and Lee University School of Law, said it's "noteworthy" that Kavanaugh passed on the cases.

"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," Jost said.

The anti-abortion group Susan B. Anthony List said it was "disappointed" the Supreme Court declined the case, as it called on the Trump administration to quickly finalize rules blocking federal funds to Planned Parenthood and other abortion providers through the Title X family planning program.

“The pro-life citizens of states like Kansas and Louisiana, through their elected representatives, have clearly expressed their will: they do not want Medicaid tax dollars used to prop up abortion businesses like Planned Parenthood," said SBA List president Marjorie Dannenfelser in a statement.

For decades, no federal dollars have gone to fund abortions, but there have been many legal battles over whether providers like Planned Parenthood that offer a wide range of health services in addition to abortion are entitled to some amount of public health care funding.

Defunding Planned Parenthood has been a priority of the GOP base, and anti-abortion groups have been frustrated that a Republican-controlled Congress and administration have so far been unable to do so. Kavanaugh's elevation to the Supreme Court in October following the retirement of Justice Anthony Kennedy, a crucial swing vote on abortion cases, was thought to have delivered the five votes needed to back the states.

“We are pleased that lower court rulings protecting patients remain in place," Planned Parenthood Federation of America President Leana Wen said in a statement. "Every person has a fundamental right to health care, no matter who they are, where they live, or how much they earn."

The cases in Kansas and Louisiana, filed earlier this year, ask whether patients can sue states for excluding Planned Parenthood from state Medicaid funding.

In February, the 10th U.S. Circuit Court of Appeals upheld a lower court ruling that Kansas was wrong to to end Planned Parenthood’s Medicaid funding, writing that states can’t cut off funding for reasons “unrelated to the provider’s competence and the quality of the healthcare it provides.” Four other appeals courts have ruled that Medicaid patients have the right to access the provider of their choice.

But the 8th U.S. Circuit Court of Appeals has held that states do have the right to terminate a provider’s Medicaid contract and that residents cannot challenge that decision.

The Supreme Court's action Monday allows the split decisions to stand in different federal circuits. Thomas, in his dissent, wrote that the Supreme Court should have taken the cases to resolve conflicting findings from lower courts.

"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," Thomas wrote.

Jost, the retired law professor, said the split rulings mean Medicaid enrollees in the 8th Circuit can't challenge a decision by their state to terminate Planned Parenthood from Medicaid. States in the circuit include Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.

"But presumably in the rest of the country, Medicaid beneficiaries still have access to Planned Parenthood," Jost said.

