Bench Memos

Justice Thomas to Justices Roberts and Kavanaugh: We’re Here to Do a Job

The Supreme Court has denied certiorari in Gee v. Planned Parenthood of Gulf Coast, and three justices have dissented from the denial in an opinion issued today by Justice Clarence Thomas. Justices Samuel Alito and Neil Gorsuch joined his dissent, and because four votes are required to grant certiorari, that means both Chief Justice John Roberts and Justice Brett Kavanaugh voted along with the Court’s liberal bloc not to take the case.

Although Planned Parenthood is a party, this case does not directly involve abortion. The question presented is one that has arisen, and will continue to arise, in numerous federal cases: whether Medicaid patients can bring an action to challenge a state’s determination as to who constitutes a “qualified” Medicaid provider under federal law.

Then again, this issue does indirectly involve abortion. It is being litigated because several states cut off the nation’s largest abortion provider as a state Medicaid provider after finding that Planned Parenthood affiliates had engaged in “the illegal sale of fetal organs” and “fraudulent billing practices.”

What is mystifying about the Court’s refusal to take the case are the two factors that most consistently persuade the justices to take an appeal: there is a stark split among the circuits on the question, and as Thomas put it, “This question is important and recurring.” It is difficult to imagine any of the other justices disagreeing on those points. The approximately 70 million Medicaid patients in the United States are affected by a state’s decision to remove their health care providers, and patients in different states have different rights to challenge such decisions.

Thomas also noted why the states need the Court to resolve the issue:

Under the current majority rule, a State faces the threat of a federal lawsuit—and its attendant costs and fees—whenever it changes providers of medical products or services for its Medicaid recipients. . . . Not only are the lawsuits themselves a financial burden on the States, but the looming potential for complex litigation inevitably will dissuade state officials from making decisions that they believe to be in the public interest. State officials are not even safe doing nothing, as the cause of action recognized by the majority rule may enable Medicaid recipients to challenge the failure to list particular providers, not just the removal of former providers. . . . Moreover, allowing patients to bring these claims directly in federal court reduces the ability of States to manage Medicaid, as the suits give Medicaid providers “an end run around the administrative exhaustion requirements in [the] state’s statutory scheme.” [citations omitted]

To top things off, the failure to decide this issue has implications for clarifying the standard to determine when someone could sue under § 1983, which provides for the enforcement of rights established under federal law. On that subject, Thomas asserted bluntly, “this Court made a mess of the issue. We have acknowledged as much . . . .”

Neither did Thomas flinch from identifying why the Court was punting on this appeal: “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’” It did not matter that the case was “not about abortion rights,” or that Planned Parenthood’s ability to sue was not involved—only that of individual patients. “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.”

But that appears to have been precisely what kept the Court from doing its job in this case, and it is unfortunate that neither Roberts nor Kavanaugh could bring themselves to make what in any other context would have been a slam dunk to grant certiorari.


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