by Travis Weber , Alexandra McPhee
December 10, 2018
Over the past several years, a number of states have tried to terminate Medicaid contracts with Planned Parenthood for various reasons, not the least of which because of videos released depicting Planned Parenthood officials engaging in the sale of fetal tissue and body parts.
But how much discretion does a state have to terminate those contracts? Can an individual sue any time they disagree? This question goes beyond the topic of Planned Parenthood funding specifically. But today, the United States Supreme Court declined to review a set of cases that could have provided an answer, leaving in place several lower court decisions that have blocked state executive decisions to terminate Medicaid contracts with and defund Planned Parenthood.
In Gee v. Planned Parenthood of Gulf Coast (5th Cir.) and Andersen v. Planned Parenthood of Kansas & Mid-Missouri (10th Cir.), two circuit courts separately agreed that individuals have the right to sue states for withdrawing Medicaid funding from and thus limiting access to providers. Three other circuits agree—but this is not an opinion unanimously held. In Does v. Gillespie, the 8th Circuit held that individuals do not have this right.
In other words, in five circuits, according to Justice Clarence Thomas (writing in dissent from the court’s decision today (see pp. 9-12), “individuals could sue whenever a state changes medical product providers or services.” Sound like bad policy? At the very least, it’s one inconsistently applied across the circuits.
For one, states need clarity on this issue, and they still don’t have it.
Justice Thomas called it “the Supreme Court’s job” “to clarify the confusion in the law in this area.” True. The Court’s own rules—and caselaw—provide as much.
“So what explains the Court’s refusal to do its job here?” Justice Thomas posited. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’”
As Justice Thomas notes, “the question presented here would not even affect Planned Parenthood’s ability to challenge the States’ decisions” to defund. But Justice Thomas suggests that the political cloud that hovers over the topics of abortion and Planned Parenthood prevent even the most sterile and noncontroversial legal issues from getting the attention they deserve. We’re inclined to agree.
This case “has nothing to do with abortion,” Justice Thomas points out. It’s just about a private right of action under Medicaid—involving whether individuals can sue, for instance, whenever a state changes medical product providers or services.
Are these cases considered hot potatoes because of their broader abortion defunding implications? Possibly.
Right now, 11 states have taken action to defund abortion in Medicaid programs: Alabama, Arizona, Florida, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Tennessee, and Texas. Florida’s measure wound up in the courts, and was blocked. Other cases, like a challenge to an Ohio funding law, involve payment to abortion providers in other contexts.
These cases are not directly affected by the Supreme Court’s actions today. But the optics certainly wouldn’t look good for Planned Parenthood if a Supreme Court decision, even on different legal grounds, meant that states could go forward with their decision to defund Planned Parenthood.
One of these days, the Supreme Court will have to confront the issue.