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Kavanaugh's Planned Parenthood Vote

Updated: Apr 26, 2019

Here are some quick bullet points on the Kavanaugh vote in today'sPlanned Parenthood case.

  1. First, the case was a Cert Denial which means the Supreme Court voted to not take the case and, therefore, did not take a position on the merits of the case. This left the lower court ruling in place which is not a good thing.

  2. For me, the vote line was the most concerning item because the three most conservative Justices all agreed (Thomas, Alito and Gorsuch), the four known liberal and pro-abortion Justices all agreed (Ginsburg, Breyer, Sotomayor & Kagan), while Chief Justice Roberts and Justice Kavanaugh joined the liberal wing in denying consideration of the case.

  3. The case was only tangentially about abortion, but the issue presented was not at all about abortion. In fact, Justice Thomas even said this twice in his dissent: (1) the “question presented has nothing to do with abortion” and (2) “[t]hese cases are not about abortion rights.” The cases were about the limited issue on appeal which, according to Justice Thomas, was “whether Medicaid recipients have a private right of action to challenge a State’s determination of ‘qualified’ Medicaid providers under [federal law].”

  4. The background of the cases is generally as follows: Planned Parenthood was caught on video illegally harvesting and selling fetal body tissues. Louisiana state lawmakers stripped Planned Parenthood of state Medicaid funds. Medicaid recipients and Planned Parenthood sued claiming that they could not be deprived of funding. The U.S. Circuit Court of Appeals over Louisiana (5th Circuit) ruled that Medicaid recipients did have a right to maintain a lawsuit to keep Planned Parenthood as a provider. Other federal courts have disagreed and that was the reason Justice Thomas said the Supreme Court should have taken the case to resolve the conflict. Kavanaugh and Roberts did not agree to take the cases.

  5. This does not necessarily mean that Kavanaugh and Roberts would have ruled for Planned Parenthood on the merits. In fact, it is possible that they believe Medicaid recipients have a right to maintain a lawsuit but Planned Parenthood should still be denied Medicaid funding. Also, perhaps Kavanaugh and Roberts believe it is wise to wait for another case to come up before the Court and to then rule against Planned Parenthood.

  6. It cannot be said that this case proves that Kavanaugh will vote to uphold Roe, or even that he thinks Planned Parenthood must receive state or federal funding. To say that would not only be patently untrue but would be an unwise premature surrender of Kavanaugh as a pro-abortion or pro-Planned Parenthood vote. That could backfire and push him away from the pro-life cause.

  7. However, what is most concerning about the case is the vote-line: it is early evidence that Kavanaugh has voted with Roberts and the liberals, while the known three most conservative Justices all voted the opposite way.

  8. Also, Justice Thomas’ boldness in stating his suspicion that the reason the other justices did not take the case has “something to do with” Planned Parenthood being a party is concerning because Thomas knew Kavanaugh and Roberts were not willing to take this case.

My recommendation is that we should continue to pray fervently for Justice Kavanaugh, especially in these early days that can define his philosophy and position with conservatives and liberals on the Court.

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