In a surprising move, newly minted Justice Brett Kavanaugh and Chief Justice John Roberts joined with the Court’s liberal justices to prevent the high court from deciding whether states could defund Planned Parenthood. The move will let stand lower court rulings that struck down two state laws in Louisiana and Kansas that would have barred the abortion provider from receiving Medicare funds.
Louisiana and Kansas had sought certiorari to allow the Supreme Court to hear their appeals in Gee v. Planned Parenthood of Gulf Coast and Andersen v. Planned Parenthood of Kansas and Mid-Missouri. Four judges must agree to accept a case and the votes of Kavanaugh and Roberts to deny certiorari killed any chance that the Court would hear the Planned Parenthood cases, let alone allow states to defund the group.
Several other states have attempted to ban funding for Planned Parenthood at the state level after Republicans in Washington were unable to move a funding ban through Congress. For now, it appears that any further attempts to cut off the group’s federal money will be defeated.
Chief Justice John Roberts typically votes in the conservative bloc but has been key to some high-profile disappointments for constitutionalists. Roberts was the key vote in saving Obamacare with his opinion that the individual mandate was really a tax and therefore constitutional.
Kavanaugh’s vote may surprise some, but several observers predicted that if President Trump wanted to overturn Roe v. Wade, Kavanaugh was the wrong judge to pick. Similar to Roberts, Kavanaugh ruled on an Obamacare case in which he did not dispute the constitutionality of the health insurance law. Prior to Kavanaugh’s confirmation, Sen. Susan Collins (R-Maine) argued that Kavanaugh was a judge who would uphold precedent. That statement was interpreted as an indication that Kavanaugh would not strike down Roe and possibly Obamacare as well.
Justice Clarence Thomas, who was appointed to the Court by the recently departed George H.W. Bush, dissented, writing that the other judges were afraid to tackle the hot-button issue. “Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty,” Thomas said. “If anything, neutrally applying the law is all the more important when political issues are in the background.”
The decision not to grant certiorari is a hard hit for pro-life groups. “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,” Tim Jost, an emeritus professor at Washington and Lee University School of Law, said in Politico.
During the 2016 election, Donald Trump’s pro-life platform and promise to appoint judges who would overturn Roe was a major reason that many Republicans held their noses and voted for him over Hillary. Given Mr. Trump’s long pro-choice history and the ready availability of more firmly pro-life, constitutionalist judges such as Amy Coney Barrett, many of those voters must wonder today if Justice Kavanaugh has gone rogue or if he is doing exactly what President Trump and other pro-choice Republicans wanted him to.
Originally published on The Resurgent