WASHINGTON (BP) - The U.S. Supreme Court's refusal to rule on cases involving government funding of Planned Parenthood has raised the question of whether pro-life advocates can count on a majority of justices in abortion-related cases.
The high court announced Monday (Dec. 10) it would not review lower court opinions regarding decisions by Kansas and Louisiana to remove Planned Parenthood as a Medicaid provider. The order came in cases that did not address abortion directly but involved whether Medicaid recipients can challenge a state's decision on who qualifies as a provider in the government program that helps with health-care expenses.
Three of the associate justices -- Clarence Thomas Samuel Alito and Neil Gorsuch -- took the unusual step of filing a written dissent to the high court's order. The agreement of four justices is required to grant review in appeals to the court. The denial of the appeals means two justices who have been considered pro-life and conservative -- Chief Justice John Roberts and new Associate Justice Brett Kavanaugh -- refused the request to consider lower-court rulings in the cases.
The Supreme Court's order came the same day Planned Parenthood announced its Nashville center -- the only remaining abortion clinic in Tennessee's capital -- had halted abortion services. Planned Parenthood of Tennessee and North Mississippi said on its website the action was based on "a number of factors" and the Nashville clinic would resume performing abortions in early 2019. The Tennessean newspaper however reported a Planned Parenthood spokeswoman said the organization is short on abortion doctors and an operator on the clinic's scheduling line said abortions services were stopped "indefinitely."
R. Albert Mohler Jr. president of Southern Baptist Theological Seminary said Tuesday (Dec. 11) on his "The Briefing" podcast the Supreme Court's action raises a "very troubling issue" for pro-life conservatives.
"[H]ow is it that election after election and confirmation after confirmation we appear repeatedly to hit our heads on the wall again and again?" Mohler asked. "We can only hope that we really do have a solid five-justice conservative majority that's a pro-life majority on the nation's highest court.
"The inferences from this situation are not hopeful" he said. "This is by no means a victory. But given the way the court works this doesn't mean that necessarily there is no hope for the future. We've got to hold on to that."
Marjorie Dannenfelser president of the Susan B. Anthony List expressed her disappointment at the court's order.
"The pro-life citizens of states like Kansas and Louisiana through their elected representatives have clearly expressed their will: they do not want Medicaid tax dollars used to prop up abortion businesses like Planned Parenthood" she said in a written statement. "We support their right to redirect taxpayer funds away from entities that destroy innocent lives and instead fund comprehensive community health care alternatives that outnumber Planned Parenthood facilities at least 20 to one nationwide."
Mohler acknowledged Roberts and Kavanaugh may have decided the cases did not provide the best facts for a ruling at this time. Another suggestion offered in the news media was they may have determined it was not the right time to accept a case involving Planned Parenthood after a divisive confirmation battle that included charges of sexual misconduct against Kavanaugh.
In his four-page dissent joined by Alito and Gorsuch Thomas made clear the cases were not about abortion rights but suggested the court's "refusal to do its job" might have been based on the organization involved.
"I suspect it has something to do with the fact that respondents in these cases are named 'Planned Parenthood'" Thomas wrote. "That makes the Court's decision particularly troubling as the question presented has nothing to do with abortion.
"Resolving the question presented here would not even affect Planned Parenthood's ability to challenge the States' decisions; it concerns only the rights of individual Medicaid patients to bring their own suits."
Thomas said "Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty."
Five federal appeals courts -- including the two in these cases -- have ruled Medicaid recipients have the right to legally challenge state decisions on Medicaid providers while one such court has decided they do not.
Because the Supreme Court has not reviewed appeals in such cases "patients in different States -- even patients with the same providers -- have different rights to challenge their State's provider decisions" Thomas wrote. "We are responsible for the confusion among the lower courts and it is our job to fix it."
It is uncommon for justices to file written dissents when denying review of lower-court opinions. The high court rejected more than 100 appeals Dec. 10 but dissents were filed only in two of those orders.
Nashville's Planned Parenthood center has performed more abortions than any other clinic in the state according to The Tennessean.
Southern Baptist ethicist Russell Moore said he was pleased the Nashville clinic has suspended abortion services.
"Planned Parenthood is the kingpin of a murderous predatory industry" said Moore president of the Ethics & Religious Liberty Commission in written comments for Baptist Press. "There is no doubt the winners here are unborn children across the state whose lives would otherwise be snuffed out."
On Twitter Tennessee Right to Life said Dec. 10 "Our Nashville office is receiving an increase of calls from women seeking abortion. We provide life-affirming support and referrals to #Prolife pregnancy centers offering free services."
Planned Parenthood said it is providing abortions at clinics in Memphis and Knoxville.
Legislators in Kansas and Louisiana passed laws restricting funds for Planned Parenthood after undercover videos were released beginning in 2015 that appeared to provide evidence the organization was trading in body parts from aborted babies.
Twenty states have enacted restrictions limiting funds in some form for Planned Parenthood according to the National Right to Life Committee (NRLC). Courts have blocked such laws in at least nine of those states NRLC reported.
Messengers to the 2017 Southern Baptist Convention meeting adopted a resolution calling for the defunding of Planned Parenthood at all levels of government and denouncing the organization's "immoral agenda and practices."
Planned Parenthood the country's largest abortion provider reported its clinics performed 321384 abortions in the 2015-16 year according to its latest report. It collected $543.7 million in government grants and reimbursements in the financial year that closed June 30 2017.
Leana Wen -- named in September as the new president of Planned Parenthood Federation of America -- expressed her pleasure at the Supreme Court's refusal to review rulings against Kansas and Louisiana. "We won't stop fighting for every patient who relies on Planned Parenthood for life-saving life-changing care" she said in a written release.
Kavanaugh -- considered an originalist who interprets the Constitution based on its initial meaning -- faced strong opposition from abortion rights supporters even before the sexual misconduct charges. They contend he could be a fifth vote to reverse the 1973 Roe v. Wade decision that legalized abortion. President Trump nominated him to replace Anthony Kennedy who supported the Roe ruling.