The Supreme Court just gave us its first view of how it will handle abortion in the Kavanaugh era

They're biding their time... for now.

CREDIT: Chip Somodevilla/Getty Images
CREDIT: Chip Somodevilla/Getty Images

The Supreme Court handed down a surprising order on Monday, announcing it will not hear a pair of cases asking, among other things, how much power conservative states have to defund Planned Parenthood. The order is surprising because, as Justice Clarence Thomas notes in a dissent joined by Justices Samuel Alito and Neil Gorsuch, the two cases meet the ordinary criteria the Supreme Court uses to determine which cases it should hear.

“One of this Court’s primary functions is to resolve ‘important matter[s]’ on which the courts of appeals are ‘in conflict,'” Thomas wrote, citing his Court’s own rules. And these two cases involve a conflict where five federal appeals courts disagree with a single outlier court.

The cases are Gee v. Planned Parenthood of Gulf Coast and Andersen v. Planned Parenthood of Kansas and Mid-Missouri.

As the presence of Planned Parenthood in both cases suggests, both suits are skirmishes in America’s ongoing war over reproductive rights. Both involve efforts by conservative states, Louisiana and Kansas, to cut off Medicaid funding to Planned Parenthood. That conflicts with Medicaid’s “free-choice-of-provider provision,” which provides that Medicaid recipients may obtain medical “assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required.”

The plaintiffs in both Gee and Andersen include individual patients who receive non-abortive health care from Planned Parenthood. The specific legal issue before the Court in both cases is whether these individual plaintiffs “have a private right of action to challenge” the states’ decisions to defund Planned Parenthood. And, as Justice Thomas notes in his dissent, this issue is much broader than this relatively narrow dispute involving funding for an organization that anti-abortion lawmakers love to hate.


The question is whether any Medicaid patient is allowed to sue when a state “removes their doctor as a Medicaid provider or inadequately reimburses their provider.” A victory for Kansas and Louisiana in these cases could deal a sharp blow to the rule that Medicaid patients, and not their state governments, get to select doctors.

So what should we make of the Court’s decision not to take this case? Justice Thomas has a theory, and it is an entirely plausible one given the Court’s recently diminished political prestige. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood,’” Thomas writes, before complaining that “some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty.”

The most interesting thing about Thomas’ dissent is the fact that neither Chief Justice John Roberts nor Brett Kavanaugh joined their fellow conservatives urging them to take up these cases — in the Supreme Court, only four votes are needed for the Court to take up a case, so either man could have placed Andersen or Gee on the Court’s argument calendar.

It’s now been two months since the Senate confirmed a man credibly accused of attempted rape to the Supreme Court of the United States, and the striking thing about the list of cases the Court’s agreed to hear this term is that they are mostly very boring. There are relatively few contentious cases, and even fewer blockbusters of the kind that filled the Court’s docket in the previous term.

It’s common for the Court to shy away from politically fraught cases while its membership is in flux, but its membership has been settled since early October. Nevertheless, the Court, in this instance, has shied away from cases involving Planned Parenthood.


It’s very doubtful that this equilibrium will last — Kavanaugh’s been very clear that he intends to kill Roe v. WadeBut the Court’s decision to not hear Andersen and Gee gives credence to the theory that Roberts and Kavanaugh want to give the nation some time to forget about how Kavanaugh got his current job before they declare outright war on reproductive choice.

Monday’s order, moreover, is unlikely to protect Medicaid recipients from the Supreme Court for very long. In the long run, some state is bound to violate the free-choice-of-provider provision in a way that doesn’t implicate a group associated with abortion. When that happens, this very conservative Supreme Court will be free to limit this provision without doing so under the close scrutiny it will face if the case name includes the words “Planned Parenthood.”