Should we be worried about Justice Kavanaugh siding with liberals on Planned Parenthood?


(Fort Wayne) News-Sentinel

Yes, we supported Brett Kavanaugh for confirmation to the Supreme Court, because we believed he was an excellent jurist with conservative views, who might help sway the sometimes-liberal-leaning court toward a more pro-life interpretation of law and the Constitution.

No, we aren’t ready to say we made a mistake because he recently sided with the liberals on the court in refusing appeals from two states looking to end funding to Planned Parenthood.

Still, as the pro-life Family Research Council’s Tony Perkins wrote this week, “Shouldn’t SCOTUS have at least heard the case? And if Kavanaugh, who joined the court in October after a fierce confirmation battle, sided with the more liberal members of the court this time, should we be worried about how he’ll vote in the future?”

The Supreme Court’s decision leaves in place lower court rulings that blocked Louisiana and Kansas from banning Planned Parenthood and other abortion providers from the states’ Medicaid programs.

Both states levied the bans following the emergence of videos by pro-life activist David Daleiden of Live Action in 2015 that showed officials from the group allegedly discussing fees to sell human fetal tissue and organs for research.

Planned Parenthood responded to the states’ bans with a lawsuit that argues Medicaid recipients have the right to receive medical care from any qualified and willing provider. When the lower courts sided with Planned Parenthood and their patients, officials from the two states appealed to the Supreme Court.

The votes of four of the nine justices are required to add a case to the Supreme Court docket, but only three — Clarence Thomas, Samuel Alito Jr. and Neil Gorsuch — were in favor of taking the case. The court’s other conservatives — Chief Justice John Roberts Jr. and Kavanaugh — stood with the liberal justices against doing so.

That leaves unanswered the question of how much leeway states have in ending Medicaid contracts. The Supreme Court has to be the source of that answer. The main question before the court wasn’t whether states ought to have that freedom, but whether there was a private right to bring a lawsuit in the first place.

Planned Parenthood’s argument is that private individuals don’t have the right to sue over changes to the Medicaid program.

“What explains the court’s refusal to do its job here?” Justice Thomas wrote for the three dissenters. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’”

Thomas said the cases are not about abortion rights, but about whether individuals may sue to challenge decisions by states to withdraw funding from Planned Parenthood clinics.

“Resolving the question presented here would not even affect Planned Parenthood’s ability to challenge the states’ decisions,” Thomas wrote, “it concerns only the rights of individual Medicaid patients to bring their own suits.”

He maintained that issue warranted the court’s attention because it “is important and recurring.”

Fox News senior judicial analyst Judge Andrew Napolitano, in a article, said he hopes Kavanaugh wasn’t caving to political pressure with his decision Monday.

“Did Brett Kavanaugh vote this way to demonstrate to Dianne Feinstein that he’s open-minded?” Napolitano asked. “I hope not. … That’s why we give judges and justices … life tenure, so they can be perfectly intellectually honest and not worry about what the politicians or editorial writers or TV commentators or public think.”

And our conclusion reflects FRC’s Perkins, in that “this is one decision in a very young Supreme Court career. [Kavanaugh has] reserved judgment here, and until we see more of his work, we should, too.”

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