It is very early in what is likely to be his very long, long tenure on the Supreme Court, but Justice Brett Kavanaugh has already disappointed the conservative community generally – and the pro-life folks specifically. This is particularly noteworthy given how viciously the political left and the feminists (but I repeat myself) excoriated Kavanaugh for his pro-life views.
The issue at hand was whether citizens could take state governments to court for refusing to cover Medicaid medical services of specific providers. Several federal court cases developed out of the decision of Kanas to deny Medicare coverage for services provided by Planned Parenthood. Four federal courts ruled that states could not impose such restrictions and federal courts said they could. That is precisely the kind of situation that virtually compels the Supreme Court to settle the issue.
For the case to be accepted by the High Court, four justices must sign off on the decision to hear the case. The pro-life community had assumed that the Court would take up the case AND decide in favor of the lone lower court judge who decided in favor of states’ right to restrict funding.
The Court failed to get the four necessary signatures, with Chief Justice John Roberts and Kavanaugh joining the four liberals in rejecting the case. The three conservatives – Justice Samuel Alito, Justice Neil Gorsuch and Justice Clarence Thomas – signed on to hear the case.
Thomas, who is not one of the Court’s major draftsman, wrote a particularly strong dissent. Though the case rose after several states cut-off Planned Parenthood when it was discovered that the organization was “selling” fetal body parts in violation of the law. Thomas argued that the issue was broader than abortion and dealt with the “private rights of action under the Medicaid Act.”
Thomas strongly criticized his colleagues. He wrote that “Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty. If anything, neutrally applying the law is all the more important when political issues are in the background.”
The pro-life advocacy group, Americans United for Life (AUL) was disappointed by the decision but expressed optimism that in the future the Court will again take up the issue. AUL President Catherine Glenn Foster said the organization “is disappointed that the Court declined to hear argument in these cases, and we join the dissent in calling on the Court to do its duty.”
Foster noted that “there are other similar cases pending in lower courts, which may give the Supreme Court another opportunity to decide this important issue.”
In looking at Roberts and Kavanaugh, it appears that the progressives may have less to fear from the new “conservative” justices than they feared.
So. There ‘tis.